Conso Fastener Corp.

National Labor Relations Board - Board Decisions

Apr 22, 1958

120 N.L.R.B. 532 (N.L.R.B. 1958)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fowler testified that, during her conversation with Berton early in June , he said
that if the Union got in there would be no steady work , there would be strikes, and
the plant would be in an uproar ; also, that Montgomery was opposed to -the Union,
and if it got in he would cut out the bonus : there might be a 11/2-cent raise, but no
bonus . She asked whether she could be laid off for working for the Union, and Ber-
ton replied in the negative . Concerning the bonus threat , while I have not credited
Berton 's denial where Miller testified to the contrary , and while Berton's testimony
was not uniformly impressive , the quality of Fowler's is not such as to warrant re-
jection of Berton 's denial that he made that threat. As for the reference to lack of
steady work because of strikes and trouble, if a prediction of failure of a strike should
it occur is privileged, and it is,6 a prediction that work would not be steady because
of strikes is likewise privileged . Here again the events would be set in motion by
the Union , not the Company.e.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company , set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close , intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States , and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
N. THE REMEDY
Having found that the Company engaged in and is engaging in certain unfair labor
practices affecting commerce , I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company , by a threat against those who would try to
bring a union in, and by a direction that an employee report anything that she heard
about the Union , interfered with, restrained, and coerced its employees in violation
of Section 8 (a) (1) of the Act. I shall therefore recommend that it cease and desist
therefrom and from any like or related conduct.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. United Rubber; Cork, Linoleum & Plastic Workers of America, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By threat and direction that an employee report , concerning union affairs or
activities , thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
8 Gazette Pubtishtng Company, 101 NLRB 1694, 1703.
6 Footnote 3, supra. See also Nash -Finch Company, 117 NLRB 808.
Conso Fastener Corporation and Textile Workers Union of Amer-
ica, AFL-CIO
Conso Fastener Corporation and Minerva Den Haese . Cases Nos.
4-CA-1492 and 4-CA-I482. April 22, 1958
DECISION AND ORDER
On September 27, 1957, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
120 NLRB No. 74.
CONSO FASTENER CORPORATION 533
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also found that the Respondent had not engaged in certain other
unfair labor practices and recommended that the complaint be dis-
missed with respect to such allegations. Thereafter, the Respondent,
the General Counsel, and the Union filed exceptions to the
Intermediate Report and supporting briefs.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner , with the modifications and
additions noted below.
1. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act, by interrogating employees regarding
their union activities, threatening employees with economic reprisals
because of their union activities,3 promising benefits to employees if
they withdrew from such activities, and promulgating or invoking
discriminatory rules concerning union discussion and the distribution
of union literature on company property during nonworking time.
2. Like the Trial Examiner, we find that the Respondent, in viola-
tion of Section 8 (a) (3) and (1) of the Act, discriminatorily refused
to reemploy Minerva Den Haese on October 29, 1956. We also agree
with the Trial Examiner's recommendation that the Respondent make
Den Haese whole for any loss of pay she may have suffered, by reason
of the Respondent's discrimination against her, between that date
and February 11, 1957, at which time she was reemployed.
3. We agree with the Trial Examiner's conclusion that the Respond-
ent did not refuse to bargain with the Union, within the meaning of
Section 8 (a) (5) of the Act, because the record evidence is insufficient
to support the necessary subsidiary finding that the Union in fact
represented a majority of employees when the request to bargain was
made on September 4, 1956. Our finding, however, is also based
upon the additional evidence discussed below.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three- member panel [Chairman Leedom and Mem-
bers Bean and Jenkins].
3 The requests of the Respondent and the Union for of al aigument are her eby denied
as, in our opinion , the record, exceptions , and biiets adequately present the issues and
positions of the parties
3 The Tual Examiner found, sutei alia, that the Respondent's plant manager unlawfully
threatened the employee group which met with him on September 4 that he would close
the plant if the Union was successful in its organizational campaign . We also find
unlawful his similar threats made to groups of employees on the second and third floor
of the plant.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that on the day the Union requested
the Respondent to bargain, there was a maximum of 69 employees in
the appropriate unit.4 At the hearing, the General Counsel sub-
mitted 38 authorization cards, 34 of which the Trial Examiner
accepted as valid. One of the four cards rejected by the Trial
Examiner was signed by Stella Ferro, who he found was not an
employee on the date the Union requested recognition from the
Respondent. The Trial Examiner, however, inadvertently included
Ferro in his computation of the total number of employees in the
unit and therefore failed to reduce the maximum employee
complement to 68.
In addition to the 4 cards which the Trial Examiner rejected, the
record reveals that the cards of at least the following 3 other
employees should also have been rejected because of the inconsistenciPe
and discrepancies in the testimony of these employees.
Annette Lorino: The union representative stated that he had in-
serted the date of August 26, 1956, on the authorization cards of Lorino
and Dolores Kulinski. Lorino aditted that she did not date her card,
but testified that she signed it before September 4, 1956, the date of
the Union's request to bargain, in the presence of Kulinski at a time
when the latter was working in the plant. Kulinski testified that
about 1 week after she was employed by the Respondent, Lorino signed
her card in Kulinski's presence. Kulinski's card was rejected by the
Trial Examiner because the General Counsel conceded that she was
not in the Respondent's employ prior to September 4, 1956, and that
her card should not be considered. Since Lorino and Kulinski both
stated that Lorino signed her card When Kulinski was working in the
plant and since Kulinski was not employed before September 4, Lorino
could not, as she testified, have signed her card prior to that date, but
must have done so at least a week thereafter. Therefore, Lorino's
card must be rejected as having been signed after the Union's request
to bargain.
John Malloy: This employee stated that he signed his authoriza-
tion card before September 4, 1956, and his card was dated "8/ /56."
However, Malloy also testified that he signed his card about 4 weeks
after he was employed and the record shows that lie was hired on
August 27, 1956. This would mean that he signed the card the third
week in September, a considerable period of time after the critical
date of the Union's request to bargain. We believe that because of the
patent conflict in Malloy's own testimony, the General Counsel has
* The Trial Examiner noted that on the basis of the evidence in the record, it was diffi-
cult to determine whether the duties of employee Rita Taylor were such that she should
be included in, or excluded trom , the unit. If she were excluded , the total complement
would have been 68 employees rather than 69. Because of his ultimate determination, the
Trial Examiner found it unnecessary to resolve this question and for purposes of initial
calculation he included Taylor in the unit. We shall also do so.
CONSO FASTENER CORPORATION 535
failed to sustain the burden of proving the validity of his card and
therefore it must be rejected.
Jacqueline Stokes : This employee testified that she did not date her
card, but thought she signed it in October. In response to a question
asked by the General Counsel as to whether she had signed the card
before or after Labor Day, 1956, she replied that she did not know.
The General Counsel did not offer her card in evidence at this time.
Later, Stokes was recalled by the Charging Party and stated at one
point that she signed the card prior to Labor Day and, at another,
that she was not certain. Stokes also testified that employee Helen
Puchalski saw her sign the card and that another employee, Nancy
Fletcher or Fetzer, also signed at the same time. Puchalski, who was
active in distributing cards and was 1 of the 4 employees who notified
the Respondent that they were members of the Union, did not re-
member receiving a card from Stokes and the General Counsel did not
introduce any card signed by Fletcher or Fetzer. At the conclusion
of Stokes' testimony, the General Counsel offered her card in evidence.
In receiving the card in evidence the Trial Examiner stated that the
"witness did testify she signed it, but could not recall when. . . . It
may not have sufficient weight to be counted toward the majority."
In our opinion, the testimony of Stokes is so vague and inconclusive
as to cast serious doubt upon whether she signed her card before
September 4, 1956. Accordingly, we believe that the General Counsel
has failed to sustain the burden of proving the validity of her card
and it must be rejected.
In view of the foregoing and the entire record, which reveals a
lack of substantial evidence to support a conclusion of timely designa-
tion of the Union by Lorino, Malloy, and Stokes, Nye find that their
cards can not be counted,5 thus reducing the Union's alleged ma-
jority showing of 31 valid cards out of a maximum employee com-
plement of 68. As the General Counsel has failed to prove that the
Union was designated as the majority representative of the em-
ployees in the appropriate unit when the request to bargain was
made,' we find, as did the Trial Examiner, that the Respondent did
not violate Section 8 (a) (5) of the Act. We shall, therefore, dis-
miss the complaint insofar as it alleges an unlawful refusal to bargain
with the Union.
ORDER
Upon the entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
5 See Cooper's, Inc, (of Georgia), 107 NLRB 979.
9 Even assuming, without deciding, the validity of the designations of employees Enoch
and Vograf, and the ineligible status of Rita Taylor (see footnote 4, supra), as alleged
by the General Counsel and the Union, a majority designation of the Union has not been
established, as the record would then show that the Union represented 33 out of 67
employees.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board hereby orders that the Respondent, Conso
Fastener Corporation, Philadelphia, Pennsylvania, its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in, and activities on behalf of,
Textile Workers Union of America, AFL-CIO, or any other labor
organization, by discharging, refusing to reemploy, or in any other
manner discriminating against its employees in regard to their hire
or tenure of employment or any term or condition of employment,
except to the extent permitted by Section 8 (a) (3) of the Act.
(b) Interrogating its employees concerning their membership, af-
filiation, or sympathy with the above-named or any other labor or-
ganization, in a manner constituting interference, restraint, or coer-
cion in violation of Section 8 (a) (1) of the Act.
(c) Threatening its employees with reprisals because of their
union activities, or promising benefits if they withdrew from such
activities.
(d) Promulgating or invoking discriminatory rules concerning
union activities, including the distribution of union literature, on
company property and during nonworking time.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join
or assist the above-named or any other labor organization, to bargain
collectively through representatives of their own choosing and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make Minerva Den Haese whole for any loss of pay she may
have suffered by reason of the discrimination against her, in the man-
ner set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Preserve and make available to the Board and its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
under the terms of this Order.
(c) Post at its plants in Philadelphia, Pennsylvania, copies of the
notice attached hereto marked "Appendix." I Copies of such notice,
7 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CONSO FASTENER CORPORATION 537
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof
and be maintained by the Respondent for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent violated Section
8 (a) (5) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in, and activities on
behalf of, Textile Workers Union of America, AFL-CIO, or
any other labor organization, by discharging, refusing to reem-
ploy, or in any other manner discriminate against our employees
in regard to their hire or tenure of employment or any term or
condition of employment, except to the extent permitted by
Section 8 (a) (3) of the Act.
AVE WILL NOT interrogate our employees concerning their mem-
bership in, affiliation or sympathy with, the above-named or any
other labor organization, in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act;
threaten our employees with reprisals because of their union
activities, or promise them benefits if they withdraw therefrom;
or promulgate or invoke discriminatory rules concerning union
activities, including the distribution of union literature on com-
pany property and during nonworking time.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right of self-organiza-
tion, to join or assist the above-named or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership in a labor organization as it condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL make Minerva Den Haese whole for any loss of pay
she may have suffered by reason of our discrimination against her.
All our employees are free to become or refrain from becoming
members of the above -named or any other labor organization , except
to the extent that this right may be affected by an agreement in con-
formity with Section 8 ( a) (3) of the Act.
CoNso FASTENER CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served in each of the above-entitled cases,
an order consolidating the cases, a complaint and notice of hearing thereon having
been issued and served by General Counsel of the National Labor Relations Board,
and an answer having been filed by the above-named Respondent Corporation, a
hearing involving allegations of unfair labor practices in violation of Section 8 (a)
(1) (3) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act, was held in Philadelphia, Pennsylvania, on June 24, 25, 26,
27, 28, and July 22 and 30, 1957, before the duly designated Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent:
(1) on various occasions between September 1956 and February 1957, threatened
employees with economic reprisal because of activities on behalf of the Union or
made promises of benefit if such activities were abandoned; (2) on September 4,
1956, refused to bargain collectively with the Charging Union although that labor
organization represented a majority of its employees in an appropriate unit; (3)
refused to recall employee Minerva Den Haese in the proper order of her seniority
after an economic layoff on September 4, 1956, in order to discourage member-
ship in the Union; and (4) by such conduct interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. General Counsel argued on the record, argument
was waived by counsel for the Respondent. A brief has been received from the
latter and has been carefully considered.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Conso Fastener Corporation is a New York corporation, with a principal place
of business and a manufacturing establishment in Philadelphia, Pennsylvania, where
it is engaged in the manufacture and sale of textile trimmings. It is a wholly owned
subsidiary of Consolidated Trimming Corporation, also a New York corporation.
During the year 1956 the Respondent sold and shipped goods from its Philadelphia
plant, valued at more than $50,000, to locations, persons, and other business con-
cerns outside the Commonwealth of Pennsylvania.
The Respondent is engaged in commerce within the meaning of the Act.
CONSO FASTENER CORPORATION 539
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO, is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
The major issue which General Counsel seeks to have remedied is the alleged
refusal of the Respondent to bargain with the Union at a time when that labor
organization represented a majority of its employees in an appropriate unit. There
is no dispute as to the fact that the Union sought to bargain and that the Respondent
refused-the question for resolution here is whether or not the refusal violated the
Act. The refusal occurred under the following circumstances , briefly summarized.
Self-organization among the Respondent 's employees , numbering about 70, began
in the latter part of August 1956 . Minerva Den Haese assumed the employee leader-
ship in the campaign . Upon her telephoned request, James Coyle, an international
representative of the Union , called at her home and gave her a number of applica-
tion cards for distribution among other employees . Den Haese , in turn , gave cards
to a few fellow employees for similar distribution and solicitation . J. J. Madden
thus distributed cards among the machine shop employees . During the last week
of August , Den Haese , Madden , and 2 other employees went to the union office
and turned over to Coyle some 19 or 20 signed cards.
During the afternoon of August 31, the last working day before Labor Day, ma-
chines were shut down and supervisors gathered employees on the second floor of the
plant , where Plant Manager Erhardt told them, according to the undisputed testi-
mony of Helen Puchalski , "Some people in here are very gullible in some things
that are going on around here. There are cards being distributed and all. These
people are promising you paid holidays and things like that." He also said , accord-
ing to the undisputed testimony of Den Haese , "This isn't Nazi Germany ; you don't
have to carry cards around with you." He further told them, in effect, that although
until then he had been unable to give them paid holidays, he would pay them for
Labor Day and would try to pay them for future holidays.
Apparently disturbed by Erhardt's remarks about cards, Den Haese sought advice
from Coyle during the following weekend. He suggested that she and others go
directly to Erhardt, in a group. On Tuesday morning, September 4, the next working
day, employees Den Haese, Helen Puchalski, Theresa Johnson, and Joseph Burton
went to Erhardt's office, where the manager was soon joined by Supervisors Lawrence
Hagen and Betty Paskill. In substance, the interview proceeded as follows: Den
Haese told him they had all signed cards in the Union and were afraid of being fired.
Erhardt asked her if she was the spokesman for the group and she replied that they
had asked her to speak for them. Erhardt said "nobody had come to him about
any Unions," and he "didn't want any Union in there." He asked her why she
wanted a union and reminded her that he had said he would try to give them paid
holidays. He turned to Johnson and asked her why she had signed a card. Hagen
told her he was "very much surprised at her," and Paskill told her that her uncle
"had had a lot of trouble" with a union. They discussed holidays, insurance, and
raises. As to raises, Erhardt told the girls they should have asked their floorlady,
Betty Paskill, pointing out that he was too busy to be concerned with such matters.
Just before the employees left, Erhardt told them that he did not want a union in
the plant and would rather close the plant down or quit his job. He added that he
knew there were more than four who had signed cards, but that if the Union got into
the plant he wouldn 't want them around there-it would be like "a slap in the face"
to him.'
Later the same day, September 4, Coyle and another union representative went to
Erhardt's office. Although details of the discussion are in dispute and will be con-
sidered in another section , in substance there is agreement that the union representa-
tives asked Erhardt to recognize the Union as bargaining agent and that Erhardt
declined.
Shortly before the end of the first shift the same day, Paskill assembled all
employees of the department in which Den Haese worked . Erhardt came to them
and announced that although the action he was about to take had nothing to do
1 The quotations are from the undisputed testimony of the employees present. Erhardt's
version of the interview differs in respects , but he denied none of the specific statements
attributed to him in their testimony.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with what "has been going on around here," according to Den Haese's testimony,
he was going to have to lay them all off for lack of work. All in that department,
except Supervisors Paskill and Mager , were laid off at the close of the shift.
Despite the circumstances of this sudden layoff of many employees-the same
day that Erhardt had told the group of four employees that he might take drastic
action if the Union came into the plant and soon after he had declined to recognize
the Union-the complaint does not allege that the layoff was discriminatory and
to discourage union activity . Since the issue was not litigated , no finding as to
the actual reason for the action will be made.
There is an issue, however, as to the belated recall of Minerva Den Haese. As
will be discussed in a later section , although other employees were recalled shortly
after September 4, Den Haese was not reinstated until February 1957.
Before turning to resolution of the separate issues of refusal to bargain and
refusal to recall Den Haese , the Trial Examiner now concludes and finds that by
his above-quoted interrogation and threats of reprisal to the four employees visit-
ing his office on September 4, Plant Manager Erhardt interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by the Act. Specifically
included among such remarks are : ( 1) his interrogation of Johnson as to why she
had signed a union card; ( 2) his threat to close down the plant or quit his job if
the Union got into the plant ; and (3 ) his declaration that if the Union got in he
would not want the four of them around there-it would be "like a slap in the
face." 2
B. The refusal to reinstate Den Haese
That Plant Manager Erhardt well knew at the time of her layoff on September 4,
that Minerva Den Haese was the leader among his employees in the union mem-
bership campaign is established by undisputed evidence . As noted above, when she
appeared with others at his office that morning he asked her if she was the spokes-
man and she admitted the fact.
After lunch the same day, and before the layoff, it is also undisputed that Erhardt
came to her while she was at her work of inspecting and told her that since the
meeting that morning he had looked into the records and found that she had been
making good money while she had been on piecework . She pointed out that she
had not been on piecework all the time but had been pushed from one job to another.
He then asked her why she didn't quit , why she didn't "get out," if she didn't like
it there. She insisted that she did like her work but thought she should have more
money. She then reminded him that he had suggested that morning that she bring
up the matter of raises, whereupon he accused her of having a "belligerent attitude."
Although as a witness , Erhardt said that he recalled employees after the layoff
in order of their seniority , his own testimony makes it clear that even if in general
he followed the seniority principle , he made an exception in the case of Den Haese.
Others were recalled many weeks before she was finally recalled on February 11,
1957, and after she had filed a charge with the Board.
While In Haese was experienced and capable in jobs other than that of inspect-
ing, according to the testimony of her supervisor , Paskill, the Trial Examiner does
not consider that the record clearly reveals a precise date when , in proper order of
seniority , she might have been recalled to such other jobs. The record does estab-
lish, however , that a new employee was hired on October 29. 1956, to perform the
inspector's job-a position which Den Haese had held at the time of her layoff.
The Trial Examiner concludes and finds that , by failing to recall Den Haese on
October 29, 1956, the Respondent discriminated in the reemployment of that
employee.
The Trial Examiner is convinced by the preponderance of credible evidence that
Erhardt was motivated in his failure to recall Den Haese by his resentment against
her union activities and by his intent to discourage further activities on behalf of
the Union. His excuse for the failure to recall her on October 29-to the effect
that he did not recall her then because she had said on September 4 that she did
not like being "pushed around"-was plainly an inapplicable afterthought. As
her uncontradicted testimony shows, her reference had been-not to the inspector's
job-but to transfers on piecework jobs. By its discriminatory failure to recall Den
2 The Trial Examiner notes that while Den Haese quoted Erhardt as saying, "You
know , if the Union doesn't get in here , I won't want you people in here ," both Puchalski
and Johnson quoted him as saying that he would not want them there if the Union did
or should get in there Whether the provision was stated in the affirmative or negative,
the threat would have meaning, and in either event Erhardt 's testimony contains no
specific denial.
CONSO FASTENER CORPORATION 541
Haese on October 29, for the purpose of discouraging union membership and
activity, the Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act.
C. The refusal to bargain
As noted above, there is no dispute that on September 4, 1956, Union Representa-
tive Coyle asked Erhardt to recognize and bargain with the Union and that Erhardt
declined. There is dispute, however, with respect to two relevant points: (1)
whether or not Coyle claimed to represent, on that occasion, the "production and
maintenance" employees; and (2) whether or not the Union actually represented
a majority of the employees in that unit on the day of the demand.
As to the first point, in essence, Coyle's testimony, supported by that of another
union representative, Miller, is that he specifically claimed to represent a majority
of the production and maintenance employees. Erhardt's unsupported testimony,
on the other hand, is to the effect that Coyle claimed to represent "a majority of
our employees," without limiting the claim to the production and maintenance
groups. The Trial Examiner cannot credit Erhardt's unsupported testimony on
this point. Coyle's testimony, supported in part by that of the other union repre-
sentative, is to the effect that at the same interview, Erhardt said that he would
fight to keep the Union out, would not recognize it under any circumstances, even
if the Board held an election, and that he would quit before he would recognize
a union in the plant. Erhardt's testimony does not deny that he made such state-
ments at this interview. It is concluded and found that on September 4 repre-
sentatives of the Union asked for recognition as the bargaining agent for the
Respondent's production and maintenance employees.
The complaint alleges and the answer denies (on the ground of lack of knowl-
edge or information) that an appropriate unit of the Respondent's employees, within
the meaning of Section 9 of the Act, consists of all production and maintenance
employees at the Philadelphia plant, exclusive of office clericals, guards, and super-
visors, as defined by the Act. At the hearing, the Respondent offered no evidence
on the point and made no claim that such a unit was inappropriate. Through
Coyle it was established that a unit, as thus described, is customarily represented
by the Union. Countless Board decisions have found a unit of this general descrip-
tion to be appropriate. It is therefore concluded and found that the above-described
unit is appropriate and was appropriate on September 4, 1956.
As to the question of the Union's majority representation in the above-described
appropriate unit. Before the hearing the Respondent submitted to a Board agent
a list of all its employees who, it claimed, were on its payrolls during the week
beginning September 3, 1956. The list contains 88 names.
General Counsel claims that one name should be added to that list-Dora Cooper,
a position which the Respondent contests. In summary, Cooper's testimony is
undisputed that she had worked regularly throughout the month of August, was
out sick on September 4, and just before 5 o'clock that afternoon, was called by
Erhardt's secretary and told that she need not come in to work the next day, but
that Paskill would call her and let her know when to come in. Cooper worked in
a department which, with the exception of supervisors, was entirely laid off that
day. It is likewise undisputed that for the next 30 weeks Cooper received unem-
ployment compensation as a laid-off employee of the Respondent, and that in No-
vember she called Erhardt concerning her recall. When she told the plant manager
that she understood that another girl had been transferred to her job, Erhardt
pointed out that the other girl had 5 years' seniority at the plant, and suggested
that she try to get herself another job. Her uncontradicted testimony establishes,
and it is found, that her layoff on September 4 was of a temporary nature, and that
she was given so to understand. There is no credible evidence in the record to
support Erhardt's claim that when he had his secretary call Cooper, on September 4,
he did not intend to recall her because her work had been unsatisfactory. And
in any event, it is clear that earlier that same afternoon, at the time the Union made
its claim of majority representation, no action had been taken by Erhardt to lay
off Cooper or any other employee. The Trial Examiner concludes and finds that
Cooper's name should be added to the list of employees on the payroll involved.
The total is thus increased to 89.
General Counsel and counsel for the Respondent agreed at the hearing that the
names Harriet Sharkey and Thelma Merin should not have been included on the
submitted list, since they had ceased employment either in August or before August.
This reduces the total to 87.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel also agreed that employee David Fletcher was not hired until September
5, and so was not on the payroll on the date of the demand and claim of majority.
The list is thus reduced to a total of 86.
General Counsel contends that the list, as submitted by the Respondent, contains
the names of nine supervisors who should be excluded from the total. In substance
the Respondent claims that the only supervisor in the plant was Erhardt himself,
and at the most none of the nine were more than "group leaders," possessing no
supervisory authority. Before turning to the specific individuals, the Trial Examiner
believes it appropriate to voice his opinion that it would be wholly unreasonable
to believe that Erhardt was the only supervisor in a plant occupying two floors and
with a payroll the size of that submitted. Particularly is this so in the light of
undisputed testimony that when the group of four employees raised the question
of raises on the morning of September 4, Erhardt told them to see Paskill about
such matters.
First, as to Betty Paskill, Carl Brosias, and Lawrence Hagen-undisputed testi-
mony of various employees establishes the fact that each of these 3 exercised super-
visory powers in their respective departments. Furthermore, Erhardt's own testi-
mony makes it plain that both Hagen and Brosias were, in September, representa-
tives of management , since he admitted that when he was away from the plant,
it was run by these two and his secretary. Also, as noted above, it was undisputed
that he referred four employees to Paskill for raises on September 4, and that both
Paskill and Hagen were with him, voicing management's opposition to the Union,
that morning. It is concluded and found that these three individuals are supervisors
within the meaning of the Act, and that their names should be excluded from the
list. The total is thus reduced to 83.
Next, as to Joseph Mager, Marie McDaniels, Anne Arthur, Ruth Seibold, John
Cox, and James Richards. That all of these six individuals serve as supervisors and
management representatives in their several departments and on their respective
shifts is made plain by the credible portions of Erhardt 's own testimony , despite the
fact that he denied their possession of supervisory powers. Erhardt admitted that
on frequent occasions he would call all of the above named, except Cox and Richards,
into the office for consultation concerning the quality of work and production of
employees. The testimony of employees is undisputed that a certain bell signal
in the plant calls these supervisors to the office, and that such a signal called them
all to the office on September 4, immediately after Den Haese and others had
visited Erhardt. Erhardt also admitted that he informs each of the above named
what he wants produced in the plant, and that they draw the necessary materials and
distribute the work to the employees. Contrary to his claim that none of these
individuals could transfer employees from machine to machine without his express
permission, the Trial Examiner finds, on the basis of more credible testimony of
employees actually involved in such transfers, that they not only possessed but
exercised the authority to make such transfers. They prepare and maintain records
of employees' production. The testimony of Mary Brash is undisputed that before
she was hired she was sent to Ruth Seibold for interview. Also uncontradicted
is the testimony of Marie Wiedemer that on one occasion Seibold criticized her
work and threatened to let her go. Seibold was introduced as "floor lady" to new
employees by Hagen. It is undisputed that Cox and Richards occupy the same
position and exercise the same authority on their shifts, respectively the second and
third, as does Hagen on the first shift. Although there are fewer employees on
each of the two later shifts, it is clear that Cox and Richards are in full charge
of them, since Erhardt admitted that he was not at the plant during these shifts. On
the basis of the credible evidence, the Trial Examiner concludes and finds that each
of the above-named six individuals is a supervisor within the meaning of the Act,
and should be excluded from the appropriate umt.3 Thus the total is reduced to 77.
General Counsel also seeks to have excluded from the total the names of two
individuals conceded to have been in the armed services on the critical date of
September 4, David Hayes and John Kaizar. The Trial Examiner believes that
General Counsel's position is well taken and that the Board's principle, set out in
Supersweet Feed Company, Inc., 62 'NLRB at 55, is still controlling . There the
Board said, in part:
... we conclude that only those employees who are presently at work and in a
pay status should be included in the computation for determining whether the
3 Aniong other cases, General Counsel cites • Massachusetts Mohair Plush Company, 115
NLRB 1516, 1522, and 1524; J. T. Flagg Knstt3ng Company, 115 NLRB 211, 216; United
States Gypsum Company, 116 NLRB 1771, 1774; and Syracuse Rendering Company, 112
NLRB 163, 164.
CONSO FASTENER CORPORATION 543
Union has been designated by a majority. . . . To hold otherwise would mean
that in no plant where a majority of the employees are in the armed forces
could the employees working in the plant compel their employer to bargain with
a representative designated by them.
Both of the above named will be excluded. The total is reduced to 75.
General Counsel would also have excluded from the list six individuals referred
to in the record as "home workers." They are: Mary Hopkins, Emma Guba, Ida
May Schroeder, Lillian Karlovac, Mary Harrison, and Helen Kopczynski. The
Trial Examiner believes that the Board's position as to such workers, set out in
Terri Lee, Inc., 103 NLRB at 996, is here controlling. Evidence in this record
establishes that all six of the above named function in the manner described in the
cited case:
These employees work in their homes without supervision, performing the neces-
sary sewing operations in the manufacture of doll garments. They pick up the
materials at the plant and deliver the doll garments in finished form. The only
control exercised over the manufacture of the doll garments is the inspection of
the finished product. As the interests and conditions of employment of the
home-workers are different from those of the production employees in the plant,
we shall exclude them from the unit.
The six will be excluded. The total is thus reduced to 69.
Finally, General Counsel would have excluded one other employee, Rita Taylor.
The evidence is clear that at the time of the hearing Taylor was an office clerical
worker, and would be excluded from any present unit. On September 4, 1956, how-
ever, the critical date, the testimony concerning her duties will support only a find-
ing that she was a part-time office clerical, and that about half the time she was
performing production clerical work. As General Counsel himself admitted, her
position "is so indeterminate" that it is difficult to find, on the basis of evidence in
the record, whether she should be included or excluded from the unit. However, in
view of the ultimate determination of the majority representation, appearing below,
it appears unnecessary to resolve the question. For purposes of initial calculation,
her name will be included in the unit. The total, then, remains at 69.
At the hearing General Counsel brought forward 38 union application cards. The
Trial Examiner concludes and finds that competent and credible testimony establishes
that 34 of these cards were signed by employees, in the appropriate unit and on the
payroll as of September 4, and that by these cards they properly designated the
Union as their bargaining agent. The cards of four individuals are questioned:
Stella Ferro, Frances Enoch, Dolores Kulinski, and Harry Vograf, Jr. During the
hearing, when summing up his claim of majority, General Counsel in effect con-
ceded that the cards of Enoch and Kulinski should not be considered. Neither will
be counted. Although General Counsel apparently would have the card of Vograf
counted, he did not offer it in evidence. Vograf identified the card exhibited to him
as one signed by him after he had been discharged, after Labor Day, in 1956.
Counsel for the Union thereafter placed the card in evidence. Vograf's testimony
about this card, however, is so confused that the Trial Examiner can place no re-
liance upon it. It will not be counted in determining the majority question. Although
General Counsel contends that Ferro's card should be counted, the preponderance
of credible evidence, including a company check, establishes that she was perma-
nently laid off and removed from the payroll on August 31, 1956, before the critical
date of September 4. Ferro herself, as a witness, admitted that she was "laid off,
paid in full," the night of August 31. While it is true that her name was included
in the list submitted some months later to a Board agent, purporting to contain the
names of all employees on the payroll beginning September 3, the Trial Examiner
does not believe that the mere presence of her name on that list is sufficient to contro-
vert the fact, revealed by her own testimony and company records, that she actually
was removed from the payroll on August 31.
In summary, the Trial Examiner concludes and finds that none of the four cards
in question can be counted in determining the majority issue. There are but 34
signed cards which may be properly used in the calculation. Thirty-four is not a
majority of 69. Nor is it a majority of 68-a total reached if Rita Taylor were to
be excluded from the appropriate unit.
It is therefore concluded and found that on September 4, 1956, when the Union
sought recognition by the Respondent, it did not in fact represent a majority of
employees in an appropriate unit. It follows that the Respondent did not refuse to
bargain with the Union within the meaning of Section 8 (a) (5) of the Act.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Restraint and coercion after September 4
Despite Erhardt's specific denials, and upon the more credible testimony of em-
ployee J. J. Madden, the Trial Examiner finds that in December 1956 Erhardt came
to Madden while the latter was at work and told him that he was getting a full
report on everything going on at union meetings and that he knew that he was in-
volved in such activities. Erhardt warned him that if he did not stop such activities,
he was thinking of laying him off, but if he would stop, he would consider "moving"
him "ahead." 4
In January 1957 Supervisor Hagen came to the doorway of the ladies' washroom
and called in to the female employees, according to the undisputed testimony of
employee Kaczmarczyk, "There will be no talking about a union in here, you are
on Company grounds. There will be no exception."
On the morning of February 12, the day after she had been reemployed, Den
Haese left 2 or 3 pieces of union literature on a table in the ladies' restroom before
time to go to work. She brought a few more in at lunch hour. Later that afternoon
employees were assembled and, according to the credible testimony of employees
present, Erhardt warned them that any employee who passed around union litera-
ture or was heard talking about the Union in the plant would be fired. When Den
Haese asked if they would not be permitted to talk about the Union on their own
time, such as lunch time, Erhardt told them they were not "allowed to talk it at all in
there," according to Den Haese's credible testimony. Her testimony is undisputed
that no such rule had ever before been announced or posted, and that solicitations
for nonunion purposes in the plant were common.
It is concluded and found that the rule voiced by Erhardt on February 12, was
discriminatory and designed to discourage union membership, and that by voicing
this rule, by Erhardt's threats of reprisal and promises of benefit to Madden, and by
Hagen's discriminatory warning to employees in January 1957, the Respondent inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent set forth in section III, above, occurring
in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent, in order to discourage membership and activity
in the Union, discriminatorily refused reemployment to Minerva Den Haese from
October 29, 1956, to February 11, 1957, the Trial Examiner will recommend that the
Respondent make her whole for any loss of pay she may have suffered because of
the discrimination against her by payment of a sum of money equal to the amount
she normally would have earned as wages during that period, such back pay to be
computed on a quarterly basis in the manner established by the Board in F. W. Wool-
worth, 90 NLRB 289. The Respondent shall, upon request, make available to the
Board or its agents payroll and other records to facilitate the checking of the amount
of back pay due.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated . It will,
therefore, be recommended that the Respondent cease and desist from in any manner
infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America, AFL-CIO , is a labor organization within
the meaning of Section 2 (5) of the Act.
4Not only did Madden impress the Trial Examiner as the mole credible witness as to
this above-described incident, but the Trial Examiner cannot ignore previously found facts
as to Erhardt's antiunion iemarks and conduct, as to which the evidence is undisputed.
BOOTH AND FLINN COMPANY 545
2. By discriminatorily refusing to reemploy Minerva Den Haese , in order to dis-
courage membership and activity in the above-named labor organization, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not refused to bargain within the meaning of Section
8 (a) (5) of the Act.
[Recommendations omitted from publication.]
Booth and Flinn Company and John J . Testa and Joseph F.
Scarpello
Local Union 825, International Union of Operating Engineers,
AFL-CIO and John J. Testa and Joseph F. Scarpello . Cases Nos.
4-CA-1466 and 4-CB-350. April 22,1958
DECISION AND ORDER
On April 26, 1957, Trial Examiner Louis Plost issued his Interme-
diate Report in the above-entitled proceedings, finding that the Re-
spondents, namely, Booth and Flinn Company, hereinafter called the
Company, and Local Union 825, International Union of Operating
Engineers, AFL-CIO, herein called Local 825, had engaged in and
were engaging in certain unfair labor practices, and recommending
that they cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondents had not
engaged in certain other unfair labor practices as alleged in the com-
plaint, and recommended that these particular allegations be dis-
missed . Thereafter, the Respondents and the General Counsel filed
exceptions to the Intermediate Report, together with supporting
briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Interme-
' Duiing the course of the hearing , the General Counsel offered into evidence the con-
stitution of International Union of Operating Engineers , AFL-CIO, hereinafter called the
International , and the bylaws of Local 825, to show, in part , that the Company ' s master
mechanic on the New Jersey side of the project was also acting as an agent for Local 825
The Tiial Examiner rejected these exhibits . The General Counsel appealed this ruling to
the Board, and , on March 27, 1957 , the day after the hearing closed , the Board reversed
the ruling of the Trial Examiner , without prejudice to the right of the Trial Examiner in
120 NLRB No. 75.
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