Crown Can Co.

National Labor Relations Board - Board Decisions

Jul 31, 1942

42 N.L.R.B. 1160 (N.L.R.B. 1942)

In the Matter of CROWN CAN COMPANY and AMFRIOAN FEDERATION
OF LABOR
Case No. C-2166.-Decided July 31, 1912
Jurisdiction : can manufacturing industry
Unfair Labor Practices
Inter Terence, Restraint, and Coercion anti-union statements, threats to close
plant and resultant loss of employment, offer of wage increase to under-
mine union
Disctamzniitaon• discharge for union membeiship and activity, charges of,
dismissed as to three persons
Collective Bargaining majority established by signing petition designating
union as exclusive baigaining agent-refusal to bargain collectively by at-
tempting to undermine union's strength and by failing to reply to union's
letter requesting recognition and collective baigaming conference
Remedial Orders: reinstatement and back pay awarded, upon request to bargain
collectively with union
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding supervisory and clerical employees
Mr. Clarence D. Musser, for the Board.
Fordyce, White, Wayne, Williams c0 Hartman, by Mr. N. W.
Hartman, of St Louis, Mo , for the respondent
Mr. Roy M. Brewer, of Grand Island, Nebr , for the Union. -
Mr. Marvin C. Wahl, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by American Federation of
Labor, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Seven-
teenth Region (Kansas City, Missouri), issued its complaint dated
March 10, 1942, against Crown Can Company, Nebraska City, Ne-
braskan herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49
42 N L R B, No 214.
1160
CROWN CAN COMPANY 1161
Stat. 449, herein, called the Act. Copies of the complaint, to-
gether with notice of hearing thereon, were duly served upon the
respondent and the Union I
'With respect to the unfair labor practices, the complaint alleged
in substance that the respondent, at its Nebraska City, Nebraska,
plant (1) since on or about October 14, 1940, refused to bargain col-
lectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit; (2) since on or about October 14,
1940, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act by (a)
threatening to close its plant if its employees continued membership
in and activities in behalf of the Union, (b) interrogating the em-
ployees about their union membership and making prejudicial re-
marks to and about individual union members for the purpose of
forcing its employees to abandon their union membership and activi-
ties, and (c) seeking to induce employees through promises of wage
increases not to join, or to continue their membership in, the Union,
and thereafter increasing employees' wage rates in a manner prejudi-
cial to the Union; and (3) terminated the employment of Gordon
Armstrong, Ralph Nelsen, and Henry Jens on or about November 30,
1940, and of Cecil Hasty on or about December 7, 1940, and there-
after refused to reinstate them, because of their membership in and
activities in behalf of the Union
On March 20, 1942, the respondent filed its answer, denying that
it was engaged in commerce within the meaning- of the Act' and
that it had engaged in any unfair labor practices
Pursuant to notice, a hearing was held at Nebraska City, Nebraska,
-on March 23, 24, and 25, 1942, before Webster Powell, the Trial
Examiner duly designated by the Chief Trial Examiner The Board
and the respondent were represented by counsel and the Union by
a representative The Board and the respondent participated in the
hearing Full opportunity to be heard, to examine and, cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
all parties- At the commencement of the hearing, the respondent
moved to dismiss the complaint in its entirety, to strike certain allega-
tions of the complaint, and to make the complaint more definite and
certain The Trial Examiner denied the motion to dismiss the com-
plaint and denied the motion to strike except as to the allegation that
the respondent was a subsidiary of the Crown Cork and Seal Com-
pany, Inc, to which extent the motion was granted. The Trial Ex-
aminer also granted, in part, the motion to make the complaint more
1 However , at the commencement of the hearing, the respondent entered into a stipula-
tion, admitting that it was engaged in commerce within the meaning of the Act
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definite and certain. At the close of the hearing, the respondent
renewed its motion to dismiss the complaint in its entirety, and the
Trial Examiner denied said motion. Duiing the course of the hear-
ing, the Trial Examiner ruled on other motions and on objections to
the admission of evidence The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors weie-com-
mitted. The rulings are hereby affirmed
The Trial Examiner theieafter filed his Inteimediate Report,
dated April 18, 1942, copies of which were duly served upon the
parties: He found that the respondent had engaged in and was en-
gaging in unfair labor practices, within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the Act, and recommended
that it cease and desist therefrom and take certain affirmative action
deemed necessary to effectuate the policies of the Act including the
reinstatement with back pay of Gordon Armstrong The Trial Ex=
aminer found that the respondent had not disciiminated against
three other named employees and recommended that the complaint
be dismissed as to them On May 4, 1942, the respondent filed ex-
ceptions to the Intermediate Report
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D C, on June 11, 1942, for the purpose of oial argument.
The respondent was represented by counsel, and presented argument
to the Board. `
The Board has considered the exceptions to the Intermediate Re-
port and, insofar as they are inconsistent with the findings, con-
clusions, and order set foith below, finds them to be without merit
Upon the entire record in the case, the Boai d makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The iespondent, Crown Can Company, is Pennsylvania corpora-
tion with its principal office and plant in Philadelphia, Pennsylvania.
The respondent also operates plants in Baltifhore, Maryland, St Louis,
Missouri; Madison, Wisconsin; Houston, Texas; Orlando, Florida;
Ft. Wayne, Indiana and Nebraska City, Nebraska. The Nebraska
City plant, whei e the respondent is engaged in the manufacture, sale,
and distiibution of cans, is the only plant involved in this proceeding.
During 1941, in connection with its operations at Nebraska City,
the respondent purchased raw materials consisting of tin, steel, and
other metals, in an-amount exceeding $150,000, all of which were re-
ceived from sources outside the State of Nebraska During the
I j
CROWN CAN COMPANY 1 1163
same period, the iespondent manufactured cans having a value ex-
ceeding $150,000, 20 percent of which were shipped to points outside
the State of Nebraska The remaining 80 percent were sold to Otoe
Food Products Company at Nebraska City, Nebraska, which, in the
course of its business, shipped a majority of the cans outside the
State The respondent adinits that it is engaged in commerce within
the meaning of the Act.
II THE ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization ad-
mitting to membership employees of the respondent
III THE UNFAIR LABOR PRACTICES
A. Background
On October 6, 1940, through the initiative of employees Gordon
Armstrong and Earl Br aye, a petition requesting the Union to grant
the respondent's employees a local charter and authorizing it to rep-
resent them as their exclusive collective bargaining agent 2 was ob-
tained by Armstrong fi orn the local representative of the Union.
By the evening of October 7, Ai mstrong and Braye had secured the
names of 11 of the respondent's 13 employees 3 -
During the evening of October 7, pursuant to a request of the em-
ployees, Roy Brewer, president of the State Federation of Labor of
Nebraska, addressed them at a meeting at the G. A. R Hall in
Nebraska City. Ten of the employees who signed the petition
attended. Brewer informed them of their lights under the Act and
answered questions which they propounded to him. At the conclusion
of the meeting, the signed petition was turned over to Brewer. The
following day, nine employees 4 paid the requisite initiation fee and ap-
plication.for a charter was made through Brewer. Although the latter
obtained a charter on October 16, for reasons appearing below, it was
never installed
2The petition iegdg as follows
we the undersigned , employees of the Crown Can Company , of Nebraska City,
Nebraska, do hereby petition the Ameican Federation of Laboi to grant us a local
union for - the emplo3 ees of their company, and do hereby authorize and direct
them to represent u5 as their corrective bargaining agency pursuant to and in con-
foimity pith the piosisions of the National Labor Relations Act, this authoriza-
tion to take effect as of 10-7, 1940 , and to remain in effect for a period of one year
While Cecil Ha,ty, an employee of the iespondent, corroborated Armetiong's testimony,
emplo3ees Mehin Thompson, Francis Cole, Ed Poling, and George Hunt testified that Arm-
strong solicited their signatuies at least one week prior to October 7 Their recollection
of the eients oecuriing dieing that peiiod was vague and unceitain , and we therefore
credit Ainistiongs and Hasty 's veision of the facts concerning the signing of the petition
In any went , a resolution of this conflict is not material to our findings herein
4 Armstrong, Biaye , Cole, Poling, Thompson , Hasty, Ralph Nelsen, Henry Jens, and
Joseph ilichon
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B The refusal to bargain
1. The appropriate unit
The complaint alleges that the pi dduction and maintenance- em-
ployees at the iespondent's Nebraska City plant, excluding supervisory
and clerical employees, constitute a unit appropriate for the purposes
of collective bargaining. The respondent did not raise any objection
to the unit claimed by the Union.
However, there is a dispute concerning the status of George Shoop
and Leonard Martin, i. e, whether the foimer was at all times material
herein a supervisor and the latter a clerical employee Shoop's duties
were those of an inspector of cans, in that capacity he was iequiled to
examine the cans for defects and to see that no imperfect cans left the
plant. He had no authority to hire or discharge or to recommend such
action Maitin, until January 15, 1942, when he became chief clerk,
devoted part of his time to office work and the rest to the plant duties of
"forking" cans and assisting on the machines. Although Armstrong
testified that the other employees considered Martin ineligible for
membership in the Union because he woiked in the office, Martin testi-
fied without contradiction that Brame had asked him to join the Union,
but that he had refused Under the circumstances, we find, as did the
Trial Examiner, that Shoop and Martin should be included within the
appropriate unit.
We find that the production and maintenance employees of the
respondent at its Nebraska City plant, excluding supervisory and
clerical employees, at all times material herein constituted and now
constitute a unit appropriate for the purposes of collective bargaining,
and that said unit insures to employees of the respondent the full belie-
fit of their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
2. Representation by the Union of a majoi ity in the apps opriate unit
The respondent's pay roll for the week ending October 19, 1940,
shows that there weie 13 employees within the appropriate unit as
of that date. Ten of these employees 5 signed the petition referred to
above, designating the Union as their' collective bargaining represen-
tative . The respondent did not dispute the genuineness of the
signatures on the petition.
Thompson, a witness for the respondent, testified that, although he
signed the petition and paid the required initiation fee, he decided to
"drop" the Union prior to October 16, 1940, the date of the alleged
e Armstrong , Braye, Cole , Hasty, Hunt , Jens, Michon , Nelsen , Poling, and Thompson
Lawience Krueger, the other person whose name appears on the petition , left the respond-
ent's employ prior to October 14, 1940
CROWN CAN COMPANY 1165
refusal to bargain He admitted, however, that he at no time informed
the Union of his decision, nor does it appeai that, at any time prior to
the hearing, he openly disavowed this affiliation with the Union or
otherwise manifested an intention to withdraw therefrom his prior
authorization . In the absence of an overt act unequivocally indicating
a contrary intention, we must find that as of October 16, 1940, Thomp-
son had authorized the Union to represent him in collective bargaining'.
We find that on October 16, 1940, the Union represented 10 of the
employees within the appiopriate unit
During the hearing, employees Cole, Hunt, Michon, Poling, and
Thompson, all witnesses for the respondent, testified that they no
longer wished to be represented by the Union for the purposes of
collective bargaining However, as is more fully shown hereinafter,
Cole, Hunt, Michon, and Poling decided to_ withdraw from the Union
after, and as the result of, the respondent' s refusal to bargain on
,October f6 Under such encumstances, their defection cannot operate
to change the status of the Union as the representative of a majority
of the employees within the appiopriate unit 6 In any event, as
of October 16, the date of the refusal to bargain, they had authorized
the Union to repiesent them
We find, as did the Trial Examiner, that on October 16, 1940, and
at all times theieaftei, the Union was the duly designated repre-
sentative of a majority of the employees in the appropriate unit, and
pursuant to Section 9 (a) of the Act, the Union was and has been
the exclusive representative of all the employees in such unit for the
puiposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain; nnterfeience, restraint, and coercion
On October 14, 1940, pursuant to the authorizations given the Union
by the signed petition, Brewer sent the following lettei by iegistered
mail to Louis Zanetti, then highest-ranking official 7 of the Nebraska
City plant
This is to advise you that a majority of your employees have
selected the American Fedeiation of Labor to iepresent them as
their collective bargaining agent, for the pin pose of negotiating
and [sic] agreement with your Company covering hours of work,
rates of pay and conditions of employment.
eNational Labor Relation, Boa,d v Bradford Dyeinq Ass'n, 310 U S 318, National
Labo, Relations Boa,d v Chicago Apparetus,Go, 116 F (2d) 753 (C C A 7), Cf
International A,s'n of Machinists v National Labo, Relations Boaid, 311 U S 72
'The iecoid refers to Zanetti as-"plant malinger'-and "superintendent," titles which
are used interchangeably heienn
11
1166 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
As their representative I would like to make arrangements to
meet with you at the earliest mutually agreeable date.
Will you please advise me by return mail when it will be pos-
sible to meet with you and whether or not you are willing to
recognize the A F of L as their representative
An immediate reply will be appreciated
The return receipt shows that the letter was received on October 15.
Zanetti testified that he was too busy to answer the letter and that,
in any event , he assumed that a, representative of the Union would
call upon him. He testified further that sometime between October
21 and 23 he handed the letter to Edward Rodeo, who , sometime
during that period, replaced Zanetti as superintendent , saying,
" . . . you may have someone to call on -you fioin this organization.'
Rodeo admitted taking the letter from Zanetti. The former did noth-
ing about it until charges had been filed herein by the Un>ron ; there-
upon, on December 28 , 1940, he ti ansmitted the letter to the main
office in Philadelphia The respondent never replied to the letter;
'nor is there any showing that it ever attempted to communicate with
Brewer or arrange for a meeting with him or with other representa-
tives of the Union
Nevertheless, the letter of October 14 did rouse the respondent td
activity . On the morning of October 16, a meeting was held in Zan-
etti's office The testimony as to how the meeting came about is vague
and contradictory . Michon testified that he called together the "ma-
chine operators" (presumably Cole, Hasty, Hunt, Poling, and himself)
to discuss among themselves whether or not they should remain in
the Union and that the meeting was held in Zanetti's office in the
latter's absence He further testified, that he did not request Zanetti's
permission to use the office, but admitted that he had never before
entered Zanetti's office without the latter 's approval. Michon did not
explain the circumstances under which Zanetti joined the meeting in
his office and denied that he informed Zanetti of the meeting . Zanetti
testified that he had no knowledge of the meeting until Michon told
him, while he was in the plant, that the employees would like to talk
with him Zanetti further testified that, when he entered his office,
he noticed that three employees were "missing" and that, "in fairness
to them," he thought they should be present His further testimony
as to his conversation with the assembled employees is as follows :
He turned to the employees and asked , "Now what's your trouble, boys 2
What have you got that's troubling you? " When no one responded,
Zanettr told them, "Well , now, Ill do this I'll take and I'll ask one by
one . . . Don't be afraid to speak up. You speak your mind I want
to know just what is wrong " Then, addressing one of the employees,
CROWN CAN COMPANY 1167
Zanetti said, "Now, you've been trained on the machines and you have
been given a fair chance, and I done all I could to educate you. Now,
what is it that's wrong 2" The'only response he received from the men,
with the exception of Armstrong, was; "I have no complaint "
Armstrong and Hasty testified, without contradiction, and we be-
lieve then testimony, as did the Trial Examiner, that Hasty informed
Braye and Armstrong that Zanetti wished to see them in his office.
According to their further testimony, when they arrived at Zanetti's
office, all the employees, with the) exception of Martin, Shoop, Jens,
and Nelsen, were present, and the meeting_ was aheady in, progress.
Armstrong testified that Zanetti was engaged in talking to the em-
ployees and that he heard Zanetti say that the gathering was a "little
family get together," that everyone was free to speak and should not
be aft aid of being discharged, that some of the boys seemed to have
"something against him," and that "I don't know what I ever done for
you guys to do a thing like this to me "
Armstrong's further testimony as to what occurred at the meeting
is as follows After Zanetti urged the men to speak up, Cole and
Michon explained to Armstrong that the "machine men" had already'
said "all we want to" and had decided to "stay by the company."
Zanetti then proceeded to question the employees because, as Zanetti
stated at the time, some of the boys seem to have something against
me." He turned to Bi aye and "proceeded to tell what he had done
for Earl, and he asked Earl what lie had ever done to him" to cause
him to Joint the Union. He asked the same of Armstrong. Braye and
Armstrong told Zanetti that they had nothing against him personally
but that some of the employees had decided to form a union and that
they were helping to of ganize it Zanetti then stated,. "if you boys
insist on pushing this organization," the respondent's Nebraska City
plant "will fold up" because, in comparison with the respondent's other
plants, the former nn as "Just a drop in the bucket " Hunt and Hasty
confirmed Armstrong's testimony that Zanetti stated at the meeting
that the Nebraska City plant was "just a drop in the bucket to the
rest of its holdings" and might close "if they kept pushing this Union "
Poling's and Thompson's recollection of what occurred at the
meeting was vague, but they accepted as tine a statement which
they made prior to the hearing, to the effect that, when Armstrong
came into the office, Zanetti asked him "what he had against him"
that caused him to organize a union'at the plant. Poling, a witness
for the respondent, also testified that he received the impression at
the meeting that Zanetti was "hurt" about the advent of the Union at
the plant. Poling also testified, without contradiction, that during
the meeting Zanetti asked Armstrong if he thought he could run
the plant better than Zanetti. It is undisputed that, before the meet-
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing closed, Zanetti asked the employees whether they had any griev-
ances; Armstrong was the only one to state his complaints Finally,
according to Armstrong, Zanetti stated, "If it is a wage increase you
want, I will see what I can do about it " In the statement which
Thompson admitted making prior to the healing, he declared, "Mr.
Zanettrsaid also that he had been trying to get the employees a raise
in pay and he thought that they would get one in a week or ten
days." `
Zanetti denied that the word "Union" was mentioned in any con-
nection at the meeting. He specifically denied having threatened to
close the plant or having attempted to induce employees, through
promises of wage increases, not to continue membership in the Union.
He also testified that "no discussion whatsoever" took place at the
meeting except the complaints of Armstrong. Zanetti denied further
that he had' ever "interfered with, restrained or coerced any of the
employees . . . in such a manner so as to discoui age them from be-
longing to any union " He also denied broadly having ever com-
mitted any of the other unfair labor practices alleged in the com-
plaint. His testimony as to how the meeting was called and what was
considered and discussed cannot be credited It appears altogether
unlikely that Zanetti would desire the presence of the "'missing" em-
ployees "in fairness to them" if, in fact, he had no piior information
concerning the meeting and believed that the employees wished to
talk to him about some undisclosed subject From his own testimony
it is apparent that his attitude at the meeting was aggressive, and en-
tirely inconsistent with his protestations that he knew nothing
about the purpose of the meeting and that he had been summoned to
it because the employees had something to say to him Nor do we
credit Michon's testimony that he called the meeting on his own initi-
ative, in view of his admission that he had never before used Zanetti's
office without peimission. We find from Zanetti's conduct at the
meeting, from his desire to have all employees present, fiom the fact
that he had just received Biewer's letter, and from the unconvincing
character of Michon's testimony, that the meeting was called pursuant
to Zanetti's instructions. We also find that the meeting occurred
in accordance with the testimony of Armstrong, Hasty, Hunt, Cole,
Poling, and Thompson, as hereinabove set forth.
Pursuant to the respondent's policy of granting blanket increases
throughout all its plants, a wage increase was given the employees
in the Nebraska City plant on October 20
After the meeting in Zanetti's office, neither Aimstrong, who re-
mained active in the Union, nor N C. Gardner, who represented the
Union in the Nebraska City area, was able to get the employees to-
gether to install the charter, which had been obtained by the union
CROWN CAN COMPANY 1169
representative on the day of the meeting Armstrong testified that
even Braye, who had cooperated with Armstrong in forming the
Union and had been acting as its tempo ] aiy secretary , told Arm-
strong after the meeting in Zanetti 's office that he was withdrawing
from-the Union . All attempts to set up a local at that time ceased
After a period of 3 months had elapsed without any payment of dues,
the charter was suspended.
During the period between October 16 , 1940, and June 24 , 1941, no
further union activity occurred at the plant On June 24, Armstrong,
who was then employed by Otoe Food Products Company and who had
replaced Gardner as local representative of the Union, and Brewer
called upon Poling at his home and discussed with him the possibility
of establishing the local as originally planned. Poling was giten a
petition similar to the one which 11 of the respondent's employees had
signed in 1940 On the same day, Armstrong and Brewer talked indi-
vidually with Cole and Michon Both Cole and Michon agreed that
establishment of the local was desirable . Within the following day or
two, accoi ding to the undisputed testimony of Armstrong , while Poling
was attempting to revive interest in the Union among the employees,
Martin , who was not a union member, told Poling that the respondent
did not like the Union and that he could not see why Poling "wanted
to start that trouble over again" A fight ensued , resulting in physical
injury to Poling Cole, who had obtained the petition fiom Poling,
returned it to Armstrong shortly thereafter with the statement, ac-
cording to Armstrong's unconti overted testimony , that the employees
did not want to have anything mote to do with the Union because
they were "afraid it would cause more trouble and they would lose
their fobs" No further attempt was made by representatives of the
Union to form a local at the plant of to bargain with the respondent.
4 Conclusions
When the respondent received the Union 's letter of October 14, 1940,
claiming majoiity representation and requesting recognition and a
conference , its duty under Section 8 (5) of the Act required a prompt
reply. Instead, the respondent sought relief from its duty to bargain
by proceeding immediately to induce its employees , by various devices,
to abandon the organization they had designated as their bargaining
agent. Toward this end, and pursuant to Plant Manager Zanetti's
instructions , a meeting of the employees was held in his office the day
following the receipt of the letter. At the outset, Zanetti attempted to
impress the employees with the fact that they had no need for a labor
organization by announcing that they were simply having a "little
family get together" and by ui ging them to confide their problems in
him and to tell him why they were "dissatisfied " Then he appealed
47 2 814-42-vol 42---74
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to their loyalty by appearing to, be "hurt" at their having, joined a
union He asked them why they had done "a thing like this" to him
and what Aimstrong had against him that caused him to oiganize a
union in the plant He pointed out to Br aye, who was active in or-
ganizing the men, how much he had done for him. _ Turning to. threats,
Zanetti told them that they faced loss of their jobs if they insisted
on "pushing" the Union, explaining that the Nebiaska City_ plant,
which was "j ust a drop in the bucket" to the respondent, would be closed
down Finally, he stated that if their desire for a wage increase
had led them to organize; such concerted activity was unnecessary,
as he had been attempting to obtain an increase for then which lie
believed would be forthcoming in a week or 10 days As the highest
official at the plant, Zanetti was undoubtedly aware at that time of
the fact that a wage increase was immumeut Hence, it is reasonable
to assume, and we find, that Zanetti used `his information of the pre-
viously planned wage increase to show the employees that the respond-
ent was ready and, willing to adjust unilaterally any grievai ices, they
might have and that resort to self-organization was -plainly
unnecessary 8
The success of the meeting in unequivocally accomplishing the
respondent's objective of dissipating the Union's majority is amply
demonstrated by the fact that, although the charter was to be in-
stalled that day, it was impossible to get the employees together for
that purpose Even as ardent a union advocate as Braye discon-
tinued his union activities and surrendered his office in the Union.
Months later, in June 1941, the employees were still "afraid" that
establishing a local of the Union, as originally planned, would, re-
sult in the loss of their employment, After the October 16 meet-
ing, as a result of which the respondent had successfully undermined
the Union's majority, the respondent continued to ignore the request
for recognition and a collective bargaining conference However,
since the defections from the Union were brought about by the re-
spondent's unfair labor practices, they cannot operate to relieve the
respondent of the duty to bargain which the Union's initial request
had imposed upon it 9 By ignoring the Union's request for recogni-
tion' and by engaging in anti-union conduct clearly indicative of it
disposition not to recognize and deal with the Union, the respondent
has failed in its duty to bar gain collectively 10
We find, as did the Trial Examiner, that on October 16, 1940,
and at all times thereafter, the respondent refused to bargain col-
lectively with the Union as the exclusive representative of its em-
"Cf N L R B v AshevilleHossey/ Co, 108 F (2d) 288 (C C A 4) , Atlas Underwear
Co V N L R B, 116 F (2d) 1020 (C C A 6), N L R B v Moench Tanning Co, 121
F (2d) 951 (C C A 2) -
0 See footnote 6, supra
10 See N L R B v Dix i e Motor Coach Corp , May 27, 1942 (C C A 5)
CROWN CAN COMPANY
ployees in the appropriate unit with respect to rates of pay, wages.
hours of employment, and other conditions of employment and has
thereby interfered with iestrained and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act
We also find that, by Zanetti's statements and conduct at the
meeting of October 16, 1940, as an uicegral part of the respondent's
anti-union prograin, the respondent has interfered With, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
C The discriminatory dzscharge of Armstrong
Gordon' Aimsti ong was employed on April 8, 1940, as a "forker" ii
and continued to work in that capacity until November 30, 1940 On
October 20, he received a wage increase as part of the general wage
mci ease desci rbed above. -
In the latter part of September- 1940, actor ding to Armstrong's
uncontradicted testimony; some of the employees were dissatisfied
with'conditions at the respondent's plant-and, at his suggestion, de-
cided to organize a union Thereupon, Armstrong and Braye com-
municated with Brewer and requested his assistance. Armstrong
was instrumental in obtaining signatures to the petition designating
the Union as the employees' collective bargaining representative.
He was the only employee at the October 16 meeting in Zanetti's
office to, state his grievances The respondent's knowledge of Arm-
strong's leadership in the move to organize the employees is evident
from Zanetti's inquiry of Armstrong at that meeting as to "what
he had against hun" which caused him to organize a union at the
plant. As shown above, Armstrong became the Union's local rep-
resentative and' in June 1941 attempted to revive interest in the
Union among the respondent's employees
At the time his employment ceased, Armstrong was one of the
respondent's three oldest employees. Although he was employed
longer than Nelsen, Jens, Wallace, and Thompson,=the other forkers,
he was "laid off" on November 30 with Nelsen and Jens Wallace,
(who had never signed the petition of October 7,1940,) and Thompson,
who had previously decided to "drop" the Union, were retained.
Rodeo, who replaced Zanettr as plant manager, testified that
Armstrong was chosen for "lay-off" because lie was the least efficient
"The iioik of a forker is essentially unskilled It consists of removing cans from a
conveyor belt as they reach the end of the line and stacking them in storage bins A
foiker handles approximately-12 to 16 cans on a fork, depending upon the size of the cans
when an order is to be filled, the forkers leserse the operation by taking the cans from
the storage bins and placing them on a conveyor belt The belt, in turn, carries them
into the adjacent plant of the Otoe Feed Products Company or over to railroad cars for
shipment
1
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "not . . . inclined for the speed of the work " Rodeo's testi-
mony is not supported by the credible evidence, and the respondent
offered no other evidence in support thereof The respondent's em-
ployment iecord of Armstrong rated his "skill" and "production" as
good Armstiong's work was never criticized by his superiois More-
over, Armstrong testified that Zanetti told Rodeo in Armstrong's
presence that Rodeo could "count on" Armstrong as much as on
Inspector Shoop "to see that no bad cans went through " Zanetti
did not deny making such a statement and Rodeo testified merely that
he could not recall that Zanetti had said anything about the character
of Armstrong's work We find, as did the Trial Examiner, that
Zanetti commended Armstrong on his woik in the presence of Rodeo.
The respondent also contended that it did not reemploy Aimstrong
because he had entered the employ of the Otoe Food Products Com-
pany as a "permanent" employee, and that, according to Rodeo's
testimony, "it is not the policy of the Company to take an employee
away from a customer " This contention is wholly without support.
There is nothing in the record to show that the respondent had any
knowledge as to whether or not Armsti ong's employment with the
Otoe Food Products Company was "peimanent " Moreover, accord-
ing to the respondent's records and the undisputed testimony of Arm-
strong, when the respondent opened its Nebraska City plant in
April 1940, it hired Armstrong and Braye, knowing that they weie
then employed by the Otoe Food Products Company, which was at
that time its customer.
Nor did the respondent offer any explanation foi its failure to recall
Armstrong to work dining the period preceding his acceptance of
employment at the Otoe Food Products Company. Nelsen, who was
laid off at the same time as Armstrong and who had less seniority,
was rehired on April 8, 1941
Accordingly, we find that when Rodeo "laid off" Aimstrong, he
had no intention of recalling him and.that he was in fact discharged
We find fuither that the real reason for the discharge of, and the
refusal to reemploy, Armstrong was the respondent's fear that he
would continue his union activities among its employees That the
iespondent refused to countenance such, activities is shown by its
efforts to destroy the Union on October 16, 1940
We find, as did the Trial Examiner, that the respondent has dis-
criminated in regard to the hire and tenure of employment of Gordon
Armstrong, thereby discouragmg membership in the Union and inter-
fering with, restraining, and coercing its employees in the exercise
of the right guaranteed in Section 7 of the Act.
CROWN CAN COMPANY 1173 -
D. The alleged disch ar°ge of Hasty, Nelsen,, and Jens
The amended complaint alleged that on of about November 30,
1940, the respondent terminated the employment 'of Ralph Nelsen
and Henry Jens, and on or about December 7, 1940, the respondent
terirnated the employment of Cecil Hasty, because of their mem-
bership in and activities in behalf of the Union, and that at all times
since then, the respondent has refused to reinstate the said em-
ployees The Trial Examiner, after examining the evidence, found
that neither Nelsen, Jens, nor Hasty was discharged because of union
membership or activity and iecommended that tine complaint as to
them be dismissed. The Union did not except to the findings of the
Tiial Examiner We have examined the entire record and agree
with the conclusions of the Trial Examiner as to Nelsen, Jens, and
Hasty We shall, accordingly, dismiss the complaint as to them
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occur ring in connectioh with the operations of the respond-
ent 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.
V THE REMEDY
Having found that the respondent has engaged in ceitain unfair
labor practices, we shall order it to cease and desist therefiom, and
to take certain affirmative action designed to effectuate the policies
of the Act
We have found that the respondent has discriminated in regard
to the hire and tenure of employment of Gordon Armstrong be-
cause of his member ship in and activities in behalf of the Union
We shall therefore order that he be reinstated to his -former or
substantially equivalent position without prejudice to his seniority
,or other rights and privileges. We shall also oider the respondent
to make whole Gordon Ai mstrong for any loss of pay he may have
suffeied, by reason of the iespondent's discrimination, by payment
to him of a sum equal to the amount which he normally would have
earned as wages fiom the date of his discharge to the date of the
respondent's offer of reinstatement, less his net eaimngsY2 duiing
said period.
12 By "net earnings " is meant earnings less expenses , such as foi transportation, room,
and board , incuried by an employee in-connection with obtaining work and working else-
where than for the respondent , which Mould not have been mcuried but for his unlawful
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the respondent has refused to bargain collec-
tively with the Union as the repiesentative of its employees with
respect to rates of pay, wages, hours of employment, and other
conditions of employment, we shall order it, upon request, to bargain
with the Union as the exclusive representative of its employees within
the appropriate unit -
Upon the basis of the foregoing findings of fact and upon the
entree recoid in the case, the Board makes the following- -
CONCLUSION'S OF LAw
1. American Federation of Labor is a labor organization within
the meaning of Section 2 (5) of the Act '
2 All pioduction and maintenance employees of the respondent
at its Nebraska City, Nebraska, plant, excluding supervisory and
clerical employees, constitute, and at all times material herein con-
stituted, a unit appropriate for the purposes of collective bargain-
ing, with the meaning of Section 9 (b) of the Act
3 Since October 16, 1940, American Federation of Labor has been,
the exclusive representative of all 'employees in said unit for the
purposes of collective baigaming, within the meaning of Section 9 (a)
of the Act
4 By refusing on October 16, 1940, and at all times theieafter, to
bargain collectively with American Federation of Labor as the exclu-
sive representative of its employees within the appropriate unit,
the respondent rigs engaged in and is'engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act
5 By discriminating in iegaid to the hire and tenure of employ,- _
ment of Gordon Armstrong, thereby discouraging membership in
American Federation of Labor, the respondent has engaged in and is
engaging in unfair labor piactices, within the meaning of Section 8
(3) of the Act
6 By interfering with, restraining, and coercing its employees
in the, exercise of the i ights guar anteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair, labor practices,
within the meaning of Section 8 (1) of the Act
7 The afoiesaid unfair, labor piactices are unfair labor piactices
affecting commerce, within the meaning of Section 2,(6) and (7),of
the Act
8 The respondent has not engaged in unfair labor piactices, within
the meaning of Section 8 (3) of the Act, with respect to Ralph
Nelsen, Henry Jens, and Cecil Hasty
dischaige and the consequent necessity of his seeking employment elsenhere ' See Matter
of Cs ossett Lunabei Coonparty and United Brother hood of Carpenters and Joiners of America,
Lumbc, and Sawmill Workers Union, Local 2550 , 8 N L R B 440 Monies received for
aoik peifoimed upon Federal , State, county , municipal , of other work-relief projects shall
be considered as earnings See Republic Steel Corporation v N L R B , 311 U S 8
CROWN CAN COMPANY
ORDER
1175
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Crown Can Company, Nebiaska City, Nebraska, its
officers, agents, successors,, and assigns, shall
1. Cease, and desist from
(a) Refusing to bargain collectively with American Federation
of Labor•as the exclusive representative of its production and mainte-
nance employees, at its Nebi aska City, Nebraska, plant, excluding
supervisory and clerical employees;
(b) Discouraging membership in American Federation of Laboi
or any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees or by discriminating in
any other manner in regard to their hire or tenure-of employment or
any term or condition of their employment; _
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, of assist labor organizations, to bargain collectively through
i epiesentatives of their own choosing, and to engage in conceited
activities for'the purpose of collective bargaining or other mutual
aid and protection, as guaranteed in Section 7 of the Act
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act
(a) Upon request, bargain collectively with American Federation
of Labor as the exclusive representative of its production and main-
tenance employees, at its Nebraska City, Nebraska, plant, excluding
supervisory and clerical employees, in respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment;
(b) Offer to Gordon Armstrong immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges;
(c) Make whole Gordon Armstrong for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which lie
normally world have earned as wages during the period from the
date of such discrimination to the date of the offer of reinstatement
less his net earnings during such period;
(d) Post immediately in conspicuous places throughout its Ne-
braska City, Nebraska, plant, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices stating
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a), (b), and (c)
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereof; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a), (b), and (c) hereof, and (3) that the
iespondent's employees aie free to become or remain members of
American Federation of Labor and that the respondent will not
discriminate against any employee because of his membership in
or activity in-behalf of that organization;
(e) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that'the respondent has disciiminated against Ralph Nelsen, Henry
Jens, and Cecil Hasty, within the meaning of Section 8 (3) of the Act,
be, and it hereby is, dismissed
MR GERARD D REILLY took no part in the consideration of the
above Decision and Order.