D. Gottlieb & Co.

National Labor Relations Board - Board Decisions

Feb 27, 1953

102 N.L.R.B. 1708 (N.L.R.B. 1953)

1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain , or refrain from becoming mem-
bers of the above-named union or any other labor organization , except to the
extent that this right may be affected by agreements in conformity with Section
8 (a) (3) of the National Labor Relations Act, as amended October 22, 1951.
GREENEVILLE CABINET CO., INCORPORATED,
Employer.
By --------------------------------------------
(Representative ) (Title)
Dated --------------------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
D. GOTTLIEB & Co. and DIE AND TOOL MAKERS LODGE No . 113, INTER-
NATIONAL ASSOCIATION OF MACHINISTS , AFL. Case No. 13-CA-848.
February Q7, 1953
Decision and Order
On September 11, 1952, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of the Act, and recommending that it cease and
desist therefrom, and take certain affirmative action as set forth in
the copy of the Intermediate Report attached hereto. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and
Members Murdock and Peterson].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed.'
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
I At the hearing , the General Counsel moved to interrogate the Respondent 's plant
superintendent under rule 43 (b) of the Rules of Civil Procedure . This motion was denied
by the Trial Examiner , his reasons therefor being fully set forth in the Intermediate
Report. As the General Counsel made no exception to this ruling, the Board hereby
adopts such ruling without further comment.
The Board does not disagree with the Trial Examiner 's action in this case in not using
statements in the affidavits of Romano, Schmidt , and Jerard in support of the General
Counsel's case -in-chief . However, we note that Trafford Coach Lines, 97 NLRB 938, cited
by the Trial Examiner as a basis for so ruling , was subsequently modified by the Board in
Trafford Coach Lines, 99 NLRB 399, where the Board indicated that a party's previously
sworn statement may, under certain circumstances , have some probative value.
102 NLRB No. 173.
D. GOTTLIEB & CO. 1709
findings ,2 conclusions , and recommendations of the Trial Examiner,
with the following exceptions , additions, and modifications : 3
1. We agree with the Trial Examiner that Superintendent Jerard's
talk to the toolroom employees on May 15 , immediately following the
Respondent 's receipt of the Union 's request to bargain , constituted a
violation of Section 8 (a) (1) of the Act.
However, unlike the Trial Examiner , we also find that the Respond-
ent, following the receipt of such request , refused to recognize and
bargain with the Union in violation of Section 8 (a) (5) and 8 (a)
(1) of the Act
As fully set forth in the Intermediate Report , the Respondent's
president Gottlieb, upon the receipt of the Union 's request on the
morning of May 15, immediately sent Superintendent Jerard to find
out whether or not the Union did , in fact , represent a majority of its
employees in the toolroom . Superintendent Jerard , upon ascertaining
that the Union did represent such a majority, made the talk, above
referred to, which we have found to be violative of the Act . Following
such talk, later on the same day , Romano, one of the toolroom em-
ployees , informed Superintendent Jerard that the toolroom employees
were withdrawing their applications for membership in the Union.
The record shows that such withdrawals did, in fact , occur within the
next day, resulting in the Union 's loss of its majority.
The Respondent in its brief contends that it did not answer the
Union 's bargaining request because, upon being informed by Romano
2 As the Trial Examiner discredits Melohn except where corroborated and there is no
testimony , other than Melohn's, concerning a second meeting on the morning of May 15, a
portion of which testimony is set forth in the Intermediate Report, the Board , in adopting
the Trial Examiner 's findings has, accordingly , given no weight to such testimony.
3 The Intermediate Report contains the following minor errors , none of which affect our
agreement with the Trial Examiner 's ultimate conclusions : ( 1) Although Superintendent
Jerard admits that be told the toolroom employees on May 1& that it was not necessary
to operate the toolroom and that, in fact , it would be more advanageous to the Respondent
to use the toolroom space for production, the record does not show that he admittedly
made specific reference to a large backlog of production orders or that he admittedly used
the phrase "'farm' such work out" with reference to the toolroom work as stated in the
Intermediate Report ; ( 2) the record does not show that 3 employees informed Superin-
tendent Jerard within an hour after his meeting with them on May 15 that they were
withdrawing from the union but rather that Romano Informed Superintendent Jerard later
during the afternoon on the day of such meeting that "the fellows had all talked it over
and they decided they didn 't want any part of the union ;" and (3 ) , the Trial Examiner
states that the chain of events began sometime in May 1952 , that they began with the
employment of Melohn on or about April 30, 1952, that by May 9 or 10, 1952, certain
employees had signed authorization cards , and that on May 14 , 1592, the Respondent had
6 employees in the toolroom . Obviously, the correct year is 1951.
• Although the Trial Examiner did not find that the Respondent violated Section 8 (a)
(5) of the Act, in order to effectuate the purposes of the Act he recommended an order
under the broad provisions of Section 8 (a) (1) directing the Respondent to bargain upon
request with the Union. In support of such recommendation , the Trial Examiner cited
International Broadcasting Corporation , 99 NLRB 130, which (with Chairman Herzog
dissenting on the point ) applied the doctrine set forth in D . H. Holmes Co ., Ltd., v.
N. L. R. B ., 179 F. 2d 876 (C . A. 5). Under the circumstances of this case, we find no
basis for applying the Holmes ' rationale , but rather, as pointed out herein , we find a clear
violation of Section 8 (a) (5)' warranting the Board 's usual order covering such a
violation.
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the afternoon of the very day it received such request, that the
employees were withdrawing from the Union, it had an honest doubt
as to the Union's continuing majority, which doubt was subsequently
confirmed. However, we find, in agreement with the Trial Examiner,
that the Union's loss of majority was directly attributable to Super-
intendent Jerard's interim talk to the toolroom employees. Thus, we
find no merit to the Respondent's defense that it did not reply to the
Union's request because of a genuine doubt as to its continuing major-
ity, as it is well settled that defections from a union which have been
induced by an employer's unfair labor practices do not excuse an
employer from a continuing duty to bargain with such union.5 Thus,
we find that on May 15 the Union was, and at all times thereafter has
been, the exclusive bargaining representative of the employees in
question in accordance with the provisions of Section 9 of the Act.
The Respondent further contends in its brief that it was required to
exercise only reasonable promptness in answering the Union's re-
quest, so that there was no refusal to bargain until such time expired.
We reject this contention. The fact that Superintendent Jerard's
talk was made immediately upon his learning that the Union repre-
sented a clear majority of the toolroom employees, indicates a rejec-
tion of the collective-bargaining principle from the very moment that
the Union's request was received.,, Accordingly, we find that the Re-
spondent refused on May 15, 1951, and at all times thereafter to bar-
gain with the Union in violation of Section 8 (a) (5) and (1), of the
Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, D.,Gottlieb & Co.,
Chicago, Illinois, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Die and Tool Makers
Lodge No. 113, International Association of Machinists, AFL, as the
exclusive representative of the employees in the unit found appro-
priate herein with respect to terms and conditions of employment.
(b) Discouraging membership in Die and Tool Makers Lodge No.
113, International Association of Machinists, AFL, or any other labor
organization of its employees, by interfering with, restraining, or
' See Geigy Company, Inc., 99 NLRB 922; Sue-Ann Manufacturing Company, 98 NLRB
848; Reeder Motor Company, 96 NLRB 831; Nash San Diego , Inc., 90 NLRB 86, 94.
The fact that the Union may have subsequently lost its majority, in any event, because
of a turnover in personnel is immaterial under the circumstances . Superior Engraving
Company, 183 F. 2d 783 (C. A. 7), rehearing denied, 183 F. 2d 783, cert. denied, 340
U S. 930
6 See Howard -Cooper Corporation, 99 NLRB 891 ; Consolidated Frame Company, 91
NLRB 1296; Louisville Container Corporation, 99 NLRB 81.
D. GOTTLIEB & CO. 1711
coercing them by means of threats of reprisals or promises of benefits,
in their attempts to exercise the rights guaranteed them in Section 7
of the Act.
(c) Interrogating its employees as to their affiliations with or senti-
ments toward Die and Tool Makers Lodge No. 113, International Asso-
ciation of Machinists, AFL, or any other labor organization of its
employees.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Die and Tool Makers Lodge
No. 113, International Association of Machinists, AFL, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization 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) Upon request, bargain collectively with Die and Tool Makers
Lodge No. 113, International Association of Machinists, AFL, as the
exclusive bargaining agent of all employees in its toolroom at its Chi-
cago, Illinois, place of business, excluding office and clerical employees,
professional employees, guards, supervisory employees as defined in
the Act, and all other employees, with respect to rates of pay, wages,
hours of employment and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in Chicago, Illinois, copies of the notice at-
tached hereto as Appendix A.7 Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by the Respondent's representatives be posted by him for
sixty (60) consecutive days 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.
(c) Notify the said Regional Director, in writing, within ten (10)
days from the date of this Order what steps the Respondent has taken
to comply therewith.
''In the event that this Order is enforced by a decree of the 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 "
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
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, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Die and Tool Makers
Lodge No. 113, International Association of Machinists, AFL, or
any other labor organization, to bargain collectively through
representatives of their own choosing and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act, as
amended.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and if an understanding is reached, embody such understanding in
a signed agreement. The bargaining unit is :
All employees in our toolroom excluding office and clerical
employees, professional employees, guards, supervisory em-
ployees as defined in the Act, and all other employees.
All our employees are free to become, remain, or refrain from becom-
ing members of the above-named union or any other labor organization
except to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the amended Act.
D. GoTTLIEB & Co.,
Employer.
By------------------------------
(Representative ) ( Title)
Dated------------------------
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 and Recommended Order
STATEMENT OF THE CASE
Upon an amended charge filed by Die and Tool Makers Lodge No. 113, Inter-
national Association of Machinists, AFL, herein called the Union, the General
D. GOTTLIEB & CO. 1713
Counsel for the National Labor Relations Board, by the Regional Director for
the Thirteenth Region (Chicago, Illinois),' issued a complaint dated March 27,
1952 , alleging that D . Gottlieb & Company , herein called the Respondent, has
engaged in , and is engaging in, unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and ( 7) of the
National Labor Relations Act, as amended (61 Stat . 136), herein referred to as
the Act. Copies of the complaint, the charges, and a notice of hearing were
duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that: (1) On May 14, 1951, and prior thereto, and at all times thereafter the
Union has been and continues to be the exclusive bargaining representative of
an appropriate bargaining unit of the Respondent's employees consisting of all
employees of the Respondent who are employed in its toolroom at its Chicago,
Illinois, place of business, excluding office and clerical employees, professional
employees, guards, supervisory employees as defined in the Act, and all other
employees of the Respondent, constitute, and at all times referred to herein
have constituted, a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (a) and (b) of the Act ; (2) on or about May 15,
1951, and at all times thereafter, the Respondent with full knowledge that the
Union represented its employees in said unit in violation of Section 8 (a) (1)
and (5) of the Act, has refused and continues to refuse to bargain collectively
with the Union as the exclusive bargaining representative of the employees in
the appropriate bargaining unit, though requested to do so by the Union on
May 15, 1951; and (3 ) the Respondent also violated Section 8 (a) (1) of the
Act by interrogating employees concerning their affiliation with, and activities
on behalf of the Union ; by stating in effect to its employees that it would close
its toolroom and send the toolroom work out to other undesignated firms and
utilize the space occupied by the toolroom for production employees if the
employees in the unit continued to manifest interest in, and engage in concerted
activities on behalf of the Union ; by stating in effect that it would no longer
provide employment for its employees in the unit if they continued to manifest
interest in, and engage in concerted activities on behalf of the Union ; and that
by the statements described above, and other similar statements , did instigate,
cause, and procure four of its employees in said unit to write the Union to the
effect that they no longer desired the Union to represent them.
The Respondent in its answer to the complaint, admitted certain jurisdictional
allegations, and in effect generally denies that it committed any of the unfair
labor practices alleged in the complaint.
Pursuant to notice, a hearing was held in Chicago, Illinois, on May 5 and 6,
1952, before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel, the Respondent, and the Union were repre-
sented by counsel, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the close of the General Counsel's case-in-chief the Respondent, though given
ample opportunity to call witnesses to testify in its behalf, chose to do otherwise
and rested its case. Since the close of the hearing, counsel for the Respondent
and the General Counsel filed briefs with the undersigned on July 10 and June
i The General Counsel and the staff attorney appearing for him at the hearing are herein
referred to as the General Counsel; the National Labor Relations Board is referred to as
the Board.
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, 1951, respectively. They have been carefully considered by the undersigned.'
At the onset of the hearing the General Counsel called Anthony V. Jerard,
the Respondent's plant manager as a witness and moved "for leave to interrogate
the witness under Rule 43 (b) of the Rules of Civil Procedure and also pursuant
to Chapter 110, Section 184 of the Illinois Revised Statutes." 3 The undersigned
denied the motion The General Counsel excepted to his ruling then and re-
emphasizes his position in this regard in his brief. At the time the General
Counsel moved to invoke rule 43 (b) as regards Jerard the undersigned had
before him the following stipulation which he had approved upon the record.
"It is stipulated that as of May 15, 1951, the tool room employees of D. Gottlieb &
Co. were under the direct supervision of foreman Joseph Kondor who in turn
was responsible to and supervised by Anthony V. Jerard, plant superintendent ;
that the plant superintendent in turn was subject to the orders issued and the
policies determined by officials of the corporation who were rested with flxat
authority over all matters relating to the business of D Gottlieb & Co., located
at 1140 North Kostner Avenue, Chicago, Illinois" [Emphasis supplied.]
In the considered opinion of the undersigned this issue is of sufficient impor-
tance to merit more than passing or casual comment, since it involves a question
that may well arise in future cases. Simply stated the issue is this, did the
witness, Anthony V. Jerard, occupy such a position with the Respondent at the
times material herein that he could be classed as a "managing agent" within
the purview of the rule? The answer of course is the plain language of the
rule itself, its interpretation by the courts, and the facts as developed at the
hearing herein as regards Jerard's duties and relationship to the Respondent.
To begin with let us look at the rule, particularly that portion thereof with
which we are concerned :
RULE 43. EVIDENCE.
(a) Form and Admissibility.
(b) Scope of Examination and Cross-Examination. A party may interro-
gate any unwilling or hostile witness by leading questions. A party may
call an adverse party or an officer, director, or managing agent of a public
or private corporation or of a partnership or association which is an adverse
party, and interrogate him by leading questions and contradict and impeach
him in all respects as if he had been called by the adverse party, and the
witness thus called may be contradicted and impeached by or on behalf of
the adverse party also, and may be cross-examined by the adverse party
only upon the subject matter of his examination in chief.
As the undersigned interprets the rule "managing agent" means a person who
is on the same level of responsibility as a party, an officer, or director of a public
or private corporation or of a partner in a partnership relationship. Jerard
was and still is the plant superintendent and is vested with powers ordinarily
associated with one so employed, such as overall supervision of the production
and maintenance employees, both supervisory and nonsupervisory. He has no
authority as regards the office or clerical employees In the normal course of
business he hires and discharges employees whenever it is necessary to take
such action. The Respondent has no "personnel officer" as the term is usually
used in Board terminology. Jerard acts as such and interviews prospective
2 On July 21, 1952, the parties herein filed with the undersigned a stipulation to
"Correct Transcript of Testimony" in eight specific instances The stipulation is hereby
accepted and made a part of the record herein, and placed with the exhibits admitted at
the hearing herein and marked for the purposes of identification and received in evidence,
as Trial Examiner's Exhibit No 1
8 Quoted portions from the record.
D. GOTTLIEB & CO. 1715
employees and hires whom he pleases. In the event business conditions war-
rant the hiring or layoff of a large number of production employees he discusses
the situation with the Respondent's president, David Gottlieb, before taking
any definite action. The selection of those to be hired or laid off in either event
would be left to Jerard's discretion. Other than these powers the record is
silent. He is not an officer, director, or a stockholder of the corporation. He
is paid a salary for his services. His immediate superior is President D. Gott-
lieb, who is in direct charge of all the Respondent's operations, and whose offices
are located on the plant premises. There is no substantial evidence in the
record indicating that Jerard has any authority or in fact was even consulted
as regards such top level problems as fiscal policies, sales and services to cus-
tomers, and the countless other problems that are strictly the concern of manage-
ment other than the mechanics involved in the physical production of its products.
Jerard described his position as follows "I am in charge of the development,
engineering, and design of our product; in charge of production, in charge of
tooling, and engineering work."
Jerard's office is located in that portion of the Respondent's plant that has
been set aside for such purposes, and adjoins those of President Gottlieb. That
the major policies of the Respondent are controlled by President Gottlieb is
evidenced by Jerard's uncontradicted and undenied testimony in this regard.
It follows below :
Q. (By Mr. McLeod) Mr. Jerard, who is the president of the corporation?
A. Mr. David Gottlieb.
Q. And I believe you stated he has offices in the plant also?
A. Yes ; he has his office in the plant.
Q. What does he do at the plant?
A. Well, he is the president of our corporation ; he has the final authority
as to the product that we make, whether or not we build it. He also super-
vises the distribution and sales . He is in direct charge also of our Mr.
Nate Gottlieb, who handles the distribution and sales.
Q. Does he have anything to do with the designing of your product?
A. Well, he is the man who finally approves or disapproves of the final
product that we design.
Q. And he makes the final decisions as to that product?
Mr. SMITH: I object to that.
A. As to that product.
Trial Examiner SHAW: Well, if he knows.
Q. (By Mr. McLeod) If you know.
Trial Examiner SHAW: Objection overruled.
A. He makes the final decision, yes.
Q. (By Mr. McLeod) Now, in the hiring of personnel, does he have any-
thing to do with that?
A. At any time I am going to hire help, I inform him of the fact but he
don't tell me who to hire. I hire people, interview them and hire the best
people suited to the job. He doesn 't interfere in that at all.
I advise him when I am going to hire help ; by the same token I advise
him when we are going to cut down our force.
Q. If production is insufficient and you feel you need more help.
A. Then I tell him I need more people to produce this product, and I go
ahead and hire more help.
Trial Examiner SHAW: The same in reverse?
The WITNESS: That is right.
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That President Gottlieb controls the Respondent's labor policy is also amply
demonstrated by the record. For example, Jerard' s uncontradicted and un-
denied testimony as regards the circumstances surrounding the receipt of the
Union's letter of May 15, 1951, in which it was requested as the bargaining agent
of the toolroom employees.
Q. After you received it, what did you do?
A. After reading the letter I took it in to Mr Gottlieb's office and showed
it to Mr. Gottlieb.
Q. Following that, what did you do?
A. He read the letter and he said: Well-
Mr. McLEOD : Objection.
Q. (By Mr. McLeod) I am not asking you what he said to you. I am
asking you what you did after you took it in to Mr. Gottlieb.
A. I waited for him to read it.
Q. Then what did you do?
A. I waited for his instructions
Q. Following which what did you do after you received his instructions?
A. After I received his instructions I went out to the tool room.
Q. After you got to the tool room what did you do there?
A. I wanted to %erify whether or not the contents of that letter were
correct.
In the considered opinion of the undersigned Jerard's position with the Re-
spondent as described above is not of such a nature that he can be classed as a
"managing agent" within the meaning of the rule. An examination of the
authorities indicates that a managing agent must be "some person vested with
general powers involving the exercise of judgment and discretion, as distin-
guished from an ordinary agent or attorney, who acts in an inferior capacity and
under the direction and control of superior authority, both in regard to the
extent of his duty and the manner of executing it.,, " .lerard does not meet
this test.
An examination of the Board's decisions throws little light on this subject.
There are two cases, however, that by analogy may be considered in point. They
involve the service of a union's initial bargaining request upon a proper com-
pany official. The cases referred to are discussed and distinguished one from
the other in a recent Board decision, James Thompson & Co., Inc., and Textile
Workers Union of America, CIO, 100 NLRB 456. In this case the Board said :
In finding that the Union's initial bargaining request in this case was not
made upon a proper company official, the Trial Examiner relied upon the
Board's decision in Bausch & Lomb Optical Company, 69 NLRB 1104. In
that case, the Board dismissed a refusal-to-bargain complaint where the
union made its bargaining request to an employer's labor relations counselor
at the very plant where company officials maintained their headquarters.
However, more recently, in Somerset Classics Inc., 90 NLRB 1676, enfd. in
193 F. 2d 613 (C. A. 2), where, as here, the union's bargaining request was
made upon the only company representative stationed at the plant, the Board
factually distinguished Bausch & Lomb on the ground indicated and held
that it was inapplicable to such a situation. We conclude that Plant Super-
intendent Flanagan, who had sole charge of the Valley Falls plant subject
to the control of absentee owners, had at least ostensible authority to re-
ceive a bargaining request, and thus was a proper person to whom to address
* Quoted portion from "Words and Phrases" Permanent Edition, Volume 26, at page
292 et aeq.
D. GOTTLIEB & CO. 1717
the Union's bargaining request. It is significant in this respect that Flana-
gan did not assert any lack of authority on his part or refer Cohen to the
Judells, and Flanagan in effect bargaining directly with the employees
rather than with the Union after he had communicated with the Judells.
Moreover, when the Union addressed a written request to bargain to Presi-
dent Judell on January 10, 1951, as more fully set forth below, the Re-
spondent refused to honor the request.
Since in the cases cited above the Board itself has made a distinction between
an "agent" at the place where the companies' officials maintain their offices and
where the situation is otherwise, it would seem to follow that Jerard's position
would by analogy be the same as the "agent" in the Bausch & Lomb case, and
the undersigned so finds.
There remains one other case, that throws some light on the question,
N. L. R. B. v. Garfunkel, 162 F. 2d 256-257 (C. A. 2). In that case the court held
"that it was not an error to allow the Board's attorney to cross-examine the re-
spondents or those of its supervisory employees who were charged with unfair
labor practices, even though the Board had called them." By the same token the
undersigned is convinced that it was not an error to deny the General Counsel's
request to invoke the rule as to Jerard.°
In such a state of the authorities the undersigned is convinced that we should
next look and attempt to rationalize the reason behind the rule, and its purpose.
The rule, as indicated above, permits a party to call an adverse party for the
purposes of cross-examination. The idea being, as the undersigned sees it, to
permit interrogation of such a witness by leading questions, the presumption
being that since he is a "party" he is not only an adverse witness but hostile
as well and is called to testify as regards pertinent and material matters that
could not be elicited in such a manner if he were called as a witness by the
party as his own, and also precludes the possibility that the adverse party would
not call the witness as its own, and consequently deny any cross-examination at
all of such a witness.
Whether or not the rule as it now stands is a wise one, is practical, equitable,
or serves any useful purpose at all is not for the undersigned to say. That others
have disagreed with the rule as it now stands is amply demonstrated by the fact
that on several occasions proposed drafts submitted by the Attorney General
advocating a change have been rejected by the Supreme Court e
In any event the undersigned is convinced that the General Counsel was in no
way prejudiced by the ruling. Even though the General Counsel was as a result
of said ruling compelled to call Jerard as his own witness, the record clearly
indicates that he [Jerard] was not necessarily a hostile witness, as the term
is usually used.? Had it been demonstrated that he was such a witness, the
General Counsel was not without a remedy for the simple reason that any wit-
ness who exhibits hostility, or testifies in a manner that evidences reluctance,
surprise, or is inconsistent with previous testimony, then of course the party
calling him may resort to the use of leading questions in his interrogation of
Neither the Board's Decision and Order nor the Intermediate Report discuss the issue
as presented in the instant case.
9 See discussion in "Federal Practice and Procedure," Barron and Holtzoff, Civil Sec-
tions 481 to 1190, Rules 17 to 53
7 As to the undersigned's evaluation of Jerard's testimony see infra. Though the record
shows an instance where he might be so dubbed the undersigned is convinced that this inci-
dent is not germane to this section of the report, and consequently is disposed of
hereinafter.
250983-vol 102-58-109
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the witness.8 That this is the general rule is evidenced by the following excerpts
from "§ 966-Examination and Cross-Examination, Federal Practice and Pro-
cedure-Barron and Holtzoff, Civil 'Sections 481-1190, Rules 17-52":
Rule 43 (b) provides that a party may interrogate any unwilling or
hostile witness by leading questions This provision recognizes and excep-
tion to the general principle that a party may not use leading questions to
interrogate his own witness.
The rule contains no specific provision concerning the cross-examination,
contradiction, or impeachment of a witness who is not a party or an officer,
director or managing agent of a party. However, it would seem to recognize
the general principle that a party who calls a witness as his own vouches
for his credibility but that the Court in its discretion will allow a party to
cross-examine and impeach his own witnesses if it appears that the witness
is hostile."
69 See for example Knott Corp. v. Furman, C. C. A. 4, 1947, 163 F . 2d M.
Di Nwole v. Pennsylvania R. R Co., C. C. A. 2, 1946, 158 F. 2d 856.
A controlling factor in the undersigned's reasoning at the time he denied the
General Counsel's motion to invoke rule 43 (b) was the fact that if one were
permitted to call a witness such as Jerard as a "managing agent," then where
should the line be drawn, should foremen, or any person in the top echelon
of supervision be so considered, and hence subject to the rule? The answer is
not an easy one, but surely some discretion must lie in the trier-of-the-facts in
his decision in such matters.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At the hearing herein the parties stipulated as follows :
It is stipulated that D. Gottlieb & Co. is a corporation duly organized
under and existing by virtue of the laws of the State of Illinois, maintaining
its principal office and place of business at 1140 North Kostner Avenue,
Chicago, Illinois, where it is engaged in the business of manufacturing
amusement machines for distribution and sale
During the course of its most recent fiscal year ending December 31, 1951,
and which is representative of its current operations, it sold and shipped
to points located within points of the United States other than the State of
Illinois, products manufactured by it, valued in excess of $100,000. Solely
for the purposes of the instant proceeding, D. Gottlieb & Co. concedes that
it is engaged in commerce and that its operations affect commerce within
the meaning of Section 2 (6) and (7) of the Act, as amended.
Upon the basis of the foregoing the undersigned finds that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Though the Respondent in its answer alleges that "it has no knowledge or
information sufficient to form a belief as to the truth of the allegation of Para-
8 See infra as regards the undersigned 's rulings as regards other witnesses called by
the General Counsel at the hearing herein.
D. GOTTLIEB & CO. 1719
graph 5 of the complaint and therefore denies . . . " that the Union herein is a
labor organization within the meaning of the Act, the undersigned is con-
vinced and finds that there is ample testimony in the record both oral and
documentary to support a contrary finding. Consequently, the undersigned finds
that the Union herein is a labor organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain
1. The background and the events leading up to the issues involved
As indicated above the issues herein center around the employees in the
Respondent 's toolroom . The events occurred for the most part in the month
of May 1951 . In order to visualize the Respondent 's premises and the relation-
ship of the toolroom to the rest of the plant, the undersigned is convinced that
the following stipulation of the parties is pertinent to a proper understanding
of the events that created the issues with which we are concerned.
Mr. MCLEOD. The seventh stipulation reads as follows :
It is stipulated that the place of business of D. Gottlieb & Co. is located
at the premises known as 1140-1150 North Kostner Avenue, Chicago, Illinois ;
that it consists of a one-story structure , measuring approximately 330 feet
east and west, by 117 feet north and south ; that the tool room is located
along the northerly 330 foot wall of the said structure starting at approxi-
mately the center thereof, and extending eastward approximately 89 feet,
and that the dimensions of the said tool room are approximately 89 feet
by 20 feet, the said 20 feet extending southward into the interior of the
structure ; that the said tool room area is marked off from the remainder of
the interior of the plant by a wire fence approximately seven feet high,
extending along the entire south and west sides , and a portion of the east
side ; that the ceiling at that point is approximately 13 feet high ; that the
said tool room is the situs of substantially all of the tools , machines and
equipment utilized by the tool room employees , except that they may have
occasion to use some of the machines and equipment stationed in the punch
press room.
The chain of events with which we are concerned started sometime in the
early part of May 1952 . They began with the employment of one John Melohn,
as a tool and diemaker by the Respondent on or about April 30, 1952. Melohn
was hired by Anthony V. Jerard, plant superintendent . At the time he was
interviewed , Jerard queried him as regards his experience and qualifications as
a toolmaker. At Melohn's request Jerard showed him around the toolroom
and pointed out its facilities and the like . During the course of their conversa-
tion Melohn asked Jerard if it was a union shop, and was advised that it was
not. Melohn then informed Jerard that he was a member of the Union. Fol-
lowing the interview Melohn was hired at $2.35 per hour.
With the hiring of Melohn the Respondent now had seven employees in the
toolroom. They were as follows :
(1) Joseph Kondor, foreman.
(2) Arthur P. Jerard, employee.
(3) William Katuska, employee."
(4) John H . Melohn , employee.
9 Katuska, though hired after Melohn, is placed on the list for purposes which will be
obvious hereinafter in that section of this report dealing with "The Union 's majority."
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) John Romano, employee.
(6) Robert Schmidt, employee.
(7) Louis Giannini, employee.
Shortly after Melohn went to work he had a conversation with John Romano
in which they discussed working conditions and the like. During the course
of the conversation Melohn informed Romano that his hourly rate was $2.35
per hour. Romano advised Melohn that he received a lower rate, and inquired
of Melohn ways and means of securing for himself and the other employees in
the shop a higher rate per hour. Melohn, who was and still is an ardent union
roan, suggested that the employees in the toolroom affiliate with the Union
Romano liked the suggestion and agreed to join the Union and to assist in
organizing the employees in the toolroom. Melohn then contacted the Union
and secured application-for-membership cards. Within a few days all had
signed cards except Arthur Jerard and an apprentice employee, William Katuska.
Though Arthur Jerard at this time was sympathetic towards the Union, he
nevertheless was reluctant to commit himself and sign an application-for-member-
ship card. His reluctance to do so is understandable, since Anthony V. Jerard,
plant superintendent, was his brother. By May 9 or 10, 1952, all of the em-
ployees in the toolroom had signed application-for-membership cards and had
turned them over to Melohn, except Arthur Jerard and William Katuska.
On or about May 9, 1951, Melohn arranged a meeting between the employees
and one Joe Vrechek, business agent of Local No. 113. The meeting was held
around the corner from the plant in Vrechek's car. It was held late in the
afternoon after working hours. Present were the following : John Melohn, John
Romano, Louis Giannini, Arthur Jerard, and Vrechek.
Before proceeding to set forth what transpired in Vrechek's car, the under-
signed feels compelled to comment at some length not only on the testimony of the
General Counsel's witnesses in this regard, but on their demeanor in general.
During the course of the hearing the General Counsel called as witnesses to
testify in his behalf as regards the events herein the following employees of the
Respondent, all of whom were employees in the appropriate unit,10 at all times
material herein and had signed union cards : John Melohn, John Romano, Louis
Giannini, Robert E. Schmidt, and Arthur Jerard. With the exception of Melohn,
of whom more anon , all were reluctant witnesses and testified under an appre-
hension which the undersigned was and still is unable to fathom. Without a
single exception their testimony was at variance with that contained in pre-
viously sworn statements given to a Board field examiner, in the course of his
investigation of the charges filed by the Union. It was obvious to the under-
signed, that each of these witnesses was laboring under a sense of fear of retalia-
tion from one source or another. Even a cursory appraisal of the record by an
uninterested party would reveal this, as it is amply demonstrated therein. The
witnesses were advised of their rights as such, and assured by the undersigned
that in carrying out their responsibilities as witness called to testify under sub-
pena in a matter involving public rights, that they had nothing to fear and were
amply protected by the provisions of the Act." His assurances, however, went
unheeded. What the witnesses were afraid of and the cause of their reluctance
to testify is beyond the comprehension of the undersigned; consequently he is in
no position to add further comment. Suffice it to say, however, that on the whole
their testimony is a labyrinth of inconsistencies, and in some instances unbe-
lievable. That the General Counsel's representative was taken by complete sur-
See infra
The undersigned had in mind Sections 8 (a) (4) and (12) of the Act.
D. GOTTLIEB & CO. 1721
prise by their conduct is likewise amply demonstrated in the record. The under-
signed is convinced of this, the record so demonstrates , and it is so found.
As indicated, the employees named above met with Vrechek in his car on the
evening of May 9, 1951. According to Melohn the purpose of the meeting was to
discuss with Vrechek the procedure the employees and the Union were to follow
in order to secure recognition by the Respondent . Other than this Melohn offered
no further testimony in this regard on his direct examination, except to state
that it was decided that the Respondent was to be notified of their action by letter.
Arthur Jerard testified that he was present at the meeting with Vrechek.12 His
version of what transpired is best told in his testimony, particularly in view of
Melohn's testimony regarding the incident on cross-examination which will be
discussed hereinafter . It follows below :
Q. And what did the parties say there in the automobile, if anything?
What did they say?
Mr. McLEOD: What did who say?
Q. (continued by Mr. Smith) The parties who were in the automobile;
what did they say?
Trial Examiner SHAW : Identify them.
Mr. SMITH : Each one, as you speak of them.
Trial Examiner SHAW : Each one ; not as a group. What did Joe Jones
say to you, or Joe Doakes say, or Vrechek.
A. I didn't want to join the union. I told them I didn't. In fact, we
talked for three hours in the car. Mr. Vrechek said he wanted to get every-
body in the union.
I said if he wanted to go ahead and get the rest of the guys ; he said he
had to have me and if I didn't join he would pull the Kellogg job out of
the shop.
He said if I didn't join the union they had Tony over a barrel and they were
going to fine Mr. Gottlieb three years for back taxes. He said the reason for
that was that Tony hired a man for more than the top man in the tool room
was getting.
Trial Examiner SHAW : I didn't get the last part of that.
A. (continued) He said the reason for finding back taxes was that Mr.
Jerard hired a man for more than the top man in the tool room was getting;
the top man in the tool room wasn't getting as much as Melohn was getting,
so he said that was a violation of the Wage Act, of some sort, because he
hired a man for more than the top man in the tool room was getting.
Trial Examiner SHAW : I see ; then it wasn't taxes but violation of the
Wage and Hour Act?
The WITNESS : He said they would sue Gottlieb for back taxes , though.
I didn't know what it was all about.
Trial Examiner SHAW : Let us get that clear. You don't know whether
it was for social security payments or for unemployment insurance , or some-
thing like that.
The WITNESS : No, I don't know exactly what it was for but he just said
he had Tony over a barrel because Mr. Jerard hired a man for more than the
top man in the tool room was getting.
Trial Examiner SHAW : The statement about back taxes was all concerned
about the hiring of Melohn?
12 Though Romano and Giannini were present at the meeting , and testified in this regard,
the undersigned deems it unnecessary to set forth in detail their version of the incident,
since he is convinced that Jerard 's testimony is a more accurate and dependable account
thereof.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The WITNESS : Yes.
Trial Examiner SHAW : That he got more pay than the top man and his
pay had not been reported?
The WITNESS : I don 't know about it being reported or anything but
Melohn was a full -fledged tool maker.
Trial Examiner SHAW : But it was not about income taxes or anything
like that?
The WITNESS : No, he just said they would fine him for back taxes. All
that talk freightened me and for three hours we talked in the car, and I
told him I would think it over and I would let him know.
Q. (By Mr . Smith ) And was anything else said there?
A. There was an awful lot said there. We were there for three hours.
I don 't remember over what but I do remember that he threatened-
Q. Who threatened?
A. Mr. Vrechek threatened to take the Kellogg job out of the shop.
Q. What did you do after that?
A. I went home and talked it over with my wife and I told her about it
and I said : Well. I don 't know.
Melohn was queried at some length by the Respondent 's counsel as regards what
transpired in Vrechek 's car . An examination of his testimony when considered
in the light of Jerard ' s, and that of both Giannini and Romano, all witnesses
called by the General Counsel, convinces the undersigned that Melohn either
was reluctant to give a full account of the incident or was deliberately with-
holding important testimony in this regard. Excerpts from his testimony on
cross-examination follow :
Q. (By Mr. Smith) Now, you stated that the boys asked Verchek what was
the next thing to do, is that correct?
A. They asked Mr . Verchak what the next procedure was, what would take
place now that they have all joined the union.
Q. All right ; and what did he tell them?
A. He told them the next formal thing to do was to send Gottlieb a letter,
notifying them that they wished 113 to represent them.
Q. And was that all that was said in the car?
A. That is all.
Q. How long were you in the automobile?
A. Approximately 45 minutes.
Q. That conversation took forty-five minutes, is that correct?
A. Oh, other trivial things might have been said, which I do not recall.
Q. Was there anything said by Verchak about pulling the Kellogg job out
of the plant at that time?
A. None whatsoever.
Q. Was there anything said by Verchak about causing tax trouble for
Gottlieb & Co.?
A. Tax trouble?
Q. Yes.
A. Not that I recall.
Q. Was there anything said by Verchak about causing any trouble for
Tony Jerard, or about getting Tony Jerard, the superintendent, over a
barrel?
A. Not that I can recall.
Q. Might it have been stated?
D. GOTTLIEB & CO. 1723
A. It might have; I do not remember.
Q. Might it also have been said-might Verchak also have said that he
would cause tax trouble for Verchak?
A. Restate that question, please.
Trial Examiner SHAW: Will you read the question, please? (Record
read.)
Mr. SMITH : I will withdraw that question.
Q. (By Mr. Smith) Might Verchak also have said that he would cause
trouble for Gottlieb & Co.?
A. Not that I can recall.
Q. Might he have said it?
A. I do not know ; I don't remember.
Q. Isn't it true that you were in the automobile there for close to three
hours?
A. The time that elapsed I could not verify. I said about 45 minutes.
When the foregoing testimony of Melohn is considered in the light of his de-
tailed account of the events leading up to the Union's demand for recognition
in its letter to the Respondent dated May 14, 1951, and what followed thereafter,
it is inconceivable that he could "not recall" or "not remember" in any more
detail the conversations in Vrechek's car. In such a state of the record the
undersigned is convinced that Arthur Jerard's version of what transpired at the
meeting in Vrechek's car comes nearer being a true account of what transpired
at that time than that of Melohn. Consequently Jerard's version, where it differs
from Melohn's is credited, and Melohn's denials are discredited. A compelling
factor in the undersigned's finding in this regard is the fact that Vrechek,
though referred to adversly time and again in the record by the witnesses called
by the General Counsel, was not called to testify concerning the incident, nor
was any showing made at the hearing herein that he was unavailable as such.
In view of the foregoing the undersigned finds that Arthur Jerard did not
signify his willingness to join the Union until urged and persuaded to do so
by Vrechek in the mode and manner described above. The undersigned also
finds that but for Vrechek's threats of reprisal against both the Respondent and
his brother, Anthony V. Jerard, the plant superintendent, Arthur Jerard would
have chosen to refrain from engaging in the concerted activities described
above, and signing a union application-for-membership card.
In making the above finding the undersigned is not unmindful of the fact
that there is no charge before him as regards the Union but he is compelled
to take into consideration previous Board decisions involving similar circum-
stances, such as the Seamprufe, Inc., case, and cases cited therein.' Conse-
quently, in view of the undersigned's finding as regards Arthur Jerard, his
card will not be considered hereinafter under that section of this report dealing
with the union's majority.
Following the above-described meeting in Vrechek's car the union's organiza-
tional efforts amongst the Respondent's employees proceeded in the mode and
manner described below in the following stipulation :
Mr. McLEOD : The Sixth stipulation reads :
It is stipulated that on Tuesday, May 22, 1951, Die & Tool Makers Lodge
No. 113, International Association of Machinists, affiliated with thp'AFI,,
filed a petition for certification of representatives with the Regions 1 Office
"See Seamprufe, Inc., 82 NLRB 892, enforced 186 F. 2d 671 (C. A. 10), Smith Ca$fnet
Manufacturing Company, Inc., 81 NLRB, 886; and Lerner Shops of Alabama, Inc, 81
NLRB 151.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the 13th Region of the National Labor Relations Board involving the
unit of D. Gottlieb & Co.'s employees heretofore in this proceeding stipulated
to be an appropriate unit, which was assigned and docketed as Case No.
13-RG-2002 ; that under date of May 22, 1951, a letter notifying D. Gottlieb
& Co. of the filing of the said petition for certification of representatives,
and the assignment of the case to field examiner Rush Hall for investigation,
bearing the signature of Ross M. Madden, Regional Director, was mailed
to D. Gottlieb & Co., a copy of which has been marked General Counsel's
Exhibit No. 9.
That on Wednesday, May 23, 1951, D. Gottlieb & Co. received the said
letter of notification ; that also on May 23, 1951, Anthony P. Jerard called
field examiner Hall by telephone and stated that he had been informed by
John Romano that the said John Romano and three of the other employees
who had signed application cards for membership in the union had with-
drawn their applications, as they had decided they did not want the union,
that therefore he presumed the case would be closed.
That under date of Thursday, May 24th, field examiner Rush Hall mailed
to D. Gottlieb & Co a notice scheduling a joint conference on the petition
for Monday, May 28, 1951, a copy of which has been marked General Coun-
sel's Exhibit 10.
That on Friday, May 25, 1951, D. Gottlieb & Co. received the said confer-
ence notice, and on the said date wrote the 13th Regional Office of the
National Labor Relations Board requesting postponement of the said con-
ference to June 25, 1951, a copy of which letter has been marked General
Counsel's Exhibit No. 11.
That said letter was received by the National Labor Relations Board on
May 28, 1951; that under date of Monday, May 28, 1951, Ross M. Madden,
Regional Director of the 13th Regional Office of the National Labor Relations
Board wrote D. Gottlieb & Co., informing them that the petition for cer-
tification of representatives in Case 13-RC-2002 had been withdrawn, without
prejudice, with the said Regional Director's approval, a copy of which letter
has been marked General Counsel's Exhibit No. 12.
And that on Tuesday, May 29, 1951, D. Gottlieb & Co. received the said
written communication from said Regional Director by regular mail.
That concludes stipulation No. 6.
Mr. SMITH. Before consenting to that stipulation, will the Examiner
please ask the reporter to read back the portion there, about the center of
the stipulation, where it states, I think, May 23, 1951, Anthony P. Jerard
called the field examiner Hall by telephone. That name should be Anthony
P. Jerard, instead of Anthony P. Jerard.
Trial Examiner SHAW. Is that the only change to be made?
Mr. SMITH. Except for that-
Mr. MANTYNBAND. There is one more, after May 28, 1951, he has his
pronoun wrong. He says informing "them" instead of "it." It should read :
"That under date of Monday, May 28, 1951, Ross M. Madden, Regional
Director of the 13th Regional office of the National Labor Relations Board
wrote D. Gottlieb & Co., informing 'it' -" instead of "them."
Other than that, it is correct.
Mr. McLEOD. We will accept the corrections.
Trial Examiner SHAW. All right, sir. With that statement by General
Counsel, do you still want it read back? Do you think it is necessary? You
have copies, I presume?
Mr. SMITH . Yes, we prepared it jointly.
D. GOTTLIEB & CO. 1725
Trial Examiner SHAW. If you have the copies I don't see the necessity of
having to read it back. If you want it done, of course, we will do it.
Mr. SMITH. Well, to clarify the record-I don't think there is any question
of the fact-but it might be better to have it read back.
Trial Examiner SHAW. Will you read it back, Mr. Reporter?
Mr. SMITH. As corrected.
Trial Examiner SHAW. Well, the reporter will read it back, and then it
may stand in the record as it is, because you have corrected it later in the
record.
(The record was read.)
Trial Examiner SHAW. Do you gentlemen join in the stipulation, as cor-
rected for the record by counsel for the Respondent, Mr. Smith and Mr.
Mantynband?
Mr. McLEOD. I join in the stipulation.
Trial Examiner SHAW. Mr. Denny?
Mr. DENNY. Yes, sir.
Trial Examiner SHAW. And the Respondent joins in that stipulation?
MR. SMITH : Yes, sir.
Trial Examiner SHAW : All right, it is so stipulated, with the corrections.
Let us proceed, Mr. McLeod.
As indicated above the Union wrote the Respondent the following letter on
May 14,1951:
You are hereby notified that a majority of all employees of the toolroom,
excluding office and clerical employees, professional employees, guards,
supervisory employees, as defined in the Act, and all other employees
of the Company, have authorized the International Association of Ma-
chinists, Die & Tool Makers Lodge No. 113, to represent them for the pur-
pose of collective bargaining in regard to rates of pay, hours of employment
and other conditions of employment in accordance with the terms of the
National Labor Relations Act, as amended.
We hereby request that you arrange a meeting with the undersigned for
the purpose of negotiating an Agreement or Recognition for the Union.
2. The appropriate unit
The parties stipulated at the hearing herein, and the undersigned finds that
the following constitutes an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) and (b) of the Act; "all em-
ployees of D. Gottlieb & Co., employed in the toolroom at its place of busi-
ness located at 1140 North Kostner Avenue, Chicago, Illinois, excluding office
and clerical employees, professional employees, guards, supervisory employees
as defined in the Act, and all other employees employed by the Respondent."
3. The Union 's majority status
Upon the record as a whole the undersigned finds that on May 14, 1952, the
Respondent had 6 employees in its toolroom . Of these 6 , 5 had signed union
application-for-membership cards. There is no substantial evidence in the
record that the following employees were intimidated or coerced by threats of
reprisal or promised benefits at the time they signed cards : 14
14 Melohn's statements as regards the benefits the employees could expect from unioniza-
tion were inconsequential and amounted to no more than the usual "puffing" that accom-
pany union organizational drives.
250983-vol. 102-53-11A
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Louis Giannini.
2. John H. Melohn.
3. John Romano.
4. Robert Schmidt.
The undersigned also finds that the above-named employees signed application-
for-membership cards of their own free will and accord, on or about May 9, 1951,
and had delivered said cards accompanied by their initiation fees to John
Melohn at about the same time. In view of his ultimate findings herein the
undersigned deems it unnecessary to appraise Melohn's testimony as regards the
time, place, and circumstances surrounding the delivery of the cards to him in
this section of the report. Suffice it to say, however, he has not overlooked nor
will he disregard Melohn's testimony in this regard, but will consider it in his
final appraisal of Melohn's credibility as a witness.
In view of the foregoing and upon the record as a whole, the undersigned finds
that as of May 14 and 15, 1951, the Union represented a clear and uncoerced
majority of the Respondent's employees in the unit found appropriate herein
above."
4. The refusal to bargain
As indicated above Superintendent Jerard received the Union's letter dated
May 14 on the morning of May 15, 1951. Immediately thereafter he took the
letter to President Gottlieb, and asked him what to do about it. Gottlieb, in
substance, told him to go out in the shop and find out if the Union did in fact
represent the employees in the tool room. Jerard did as instructed. What
followed thereafter will be discussed below.
There are three versions of what transpired in the toolroom on the morning
of May 15, 1951, that of Melohn, Superintendent Jerard, and Arthur Jerard.
Each will be discussed belowl8
In the considered opinion of the undersigned, particularly in view of the
"atmosphere" that accompanied the taking of the testimony at the hearing
herein, concerning which he has commented on at some length herein above, he
is convinced that Melohn's testimony on direct examination as regards Superin-
tendent Jerard's remarks to the employees on the morning of May 15, 1951,
should be set forth herein. Accordingly, his version of what transpired on the
morning of May 15, 1951, follows below :
Q. And do you recall what was said when he came back at that time when
you were present?
A. Yes, He said to me, direct to me, he says, "I want to bring you up to
date on what has taken place here." He says, "You know that all you fellows
decided to get a union in here," and he says, "When did you fellows all sign
these pledge cards?" And the remark was made, "Last week." One of the
following made a remark, "Last week some time."
He says, "It seems funny, here two weeks ago when I gave you all a dime
raise , you were all very happy and pleased with it, nobody had any gripes,
nobody was dissatisfied, you all took it and were very happy about it. Now
all of a sudden you want a union in here." He says, "There is enough of
you to have an election." He said, "Go ahead and have an election, and you
can get a union, but we won't sign a contract with any union, especially 113,
or any other union."
1s See supra as regards Arthur Jerard.
16 Though Romano, Schmidt, and Giannini testified as regards this incident the under-
signed for reasons indicated above will not elaborate on their testimony in this regard.
D. GOTTLIEB & CO. 1727
Q. Was there anything further said at that time?
A. Yes. He said to me, "Have you got any particular gripe?" I said,
"No, I haven't. I am receiving a good wage." I said, "I am receiving the
minimum wage around the city here." He says, "Well, you don't know how
nice we treat these boys around here." He says, "You haven't been around
here very long, but we are pretty good with them. When the production
workers are laid off we keep the tool room going. Usually the fellows work,"
he says, "We treat them pretty well around here."
He says, "We don't mind so much that the toolmakers, the skilled workers
get a union so much in here, but if we get a union here in the tool room they
will want it out there"-and he pointed towards the production department,
and he said, "We don't want anybody coming out telling how many screws
we have to put in a board a day, and telling us how to run our business."
He said, "We run our business to suit ourselves. Dave Gottlieb told me
when this letter Caine from the union, be said, `The heck with it, let's
close up the tool room, sell the machinery, send these dies back to Kellogg.
We have got enough business on our pin ball machines, we can use this
space for pin ball machines. It is valuable space."'
Q Do you recall anything further?
A. And he said-there was other remarks made at the time, I don't re-
member, little things hack and forth, but he said, "Well, you fellows can go
ahead and sign a contract and get a union in here, and you can walk out
in front all you want to, but," he says, "We won't sign a contract with the
union."
Superintendent Jerard admitted that he went to the toolroom and questioned
the employees about their union affilations and activities: Upon being informed
by Romano, Schmidt, Arthur Jerard, and Giannini, that they had joined the
Union, he expressed his surprise at their action in this regard, and told them in
words or substance that if they had any grievances or were dissatisfied about
conditions in the toolroom, they should have first taken them up with him, and
not with the Union He reminded them that about a month before he had in-
formed them that since work in the toolroom was at a low ebb, and in fact
hardly enough to justify its continued operation, that nevertheless he had pre-
vailed upon top management to keep it in operation; and that as a result of
his appeal the Respondent had taken on the Kellogg job which was then being
processed in the toolroom." He also pointed out to them that the Respondent had
a large backlog of orders for pinball machines, in fact, business was so good
that space in the plant was at a premium ; and that from a business standpoint it
would have been advantageous to the Company to close the toolroom, and "farm"
such work out and utilize the space for the assembly and production of machines.
He also reminded them that the Company had voluntarily granted them a 10-
cent per hour wage increase about a month before. After pointing out all of
these benefits and the Respondent's efforts to keep the toolroom in operation so
that they could have employment under pleasant working conditions, he asked
them what they hoped or expected to gain by joining the Union.
Superintendent Jerard denied making any of the coercive remarks attributed
to him by Melohn.18
17 The "Kellogg" job which is referred to repeatedly in the record involved tool and
die work for the Kellogg Switchboard Co., who had sublet some of its work to the
Respondent.
is During the course of his interrogation by the General Counsel, Jerard was interrogated
relative to a proposed affidavit that was prepared by Field Examiner Hall, from informa-
tion gleaned from a conversation bewteen Hall , Attorney Siegal , and himself at a
conference in the Board' s Regional office. Jerard admitted that he received by mail such
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned after careful reflection is convinced that his ruling in this
regard did not prejudice the General Counsel in any respect when considered in
the light of the record as a whole. Consequently his ruling in this regard
stands.
In further support of his complaint the General Counsel called as witnesses
John Romano, Robert E. Schmidt, Arthur Jerard, and Louis Giannini. As
indicated above each of these witnesses not only testified contrary to their
previously sworn statements, but in effect repudiated all statements therein
that were adverse to the Respondent. In such a state of the record the under-
signed is convinced that little credence can be given to any of their testimony
except where it is corroborated by that of other witnesses. Adding further
confusion to the factual situation is the resolution of the testimony of Melohn,
as indicated above he did not impress the undersigned as a wholly reliable
witness, not only for the reasons pointed out above, but also because of the
inconsistency of his testimony as regards the circumstances surrounding the
procurement of the application-for-membership cards. Without going into
detail as regards this incident it is sufficient to point out that in his testimony
he gave at least three inconsistent versions. They were as follows that: (1)
The cards were signed in his presence; (2) the employees paid their initiation
fees to him personally at the time they signed the cards; (3) he gave the blank
cards to John Romano and did not see them again until Romano returned them
to him signed and at the same time gave him the individual employees' initia-
a document from Hall, but that it was his understanding that the proposed affidavit,
"would he prepared" and sent to him but that the signing of the "affidavit was going to
take place later if it met with the approval of the attorney " Jerard further testified
that he did not sign the affidavit what transpired as regards the proposed affidavit is
set forth in the record The Respondent strenuously objected to the use of this document
for the purpose for which it was presented to the witness. i e . " whether or not that
proposed affidavit reflected accurately what you told Mr. Hall in the presence of Mr.
Siegal the day before." The undersigned sustained the objection and permitted the
General Counsel to make the following offer of proof which was rejected :
Trial Examiner SHAW : I am going to sustain the objection and you can make an
offer of proof. This is your witness and you can make an offer of proof.
Mr McLEOD • The offer of proof-
Trial Examiner SHAW : Then it is before the board and if there is any error the
board can correct it.
Mr McLF.oD : I offer to prove that in the event the witness were permitted to
answer the questions propounded to him, that his answer would indicate that the
matter stated in the proposed affidavit in general reflected what he had told Mr.
Hall and that there possibly might be certain matters which required correction.
Trial Examiner SHAW : I suppose your offer of proof includes the offer of the pro-
posed statement. I am going to have to reject it and you might as well do it all
at once.
fir DIcLEOD : As part of the offer of proof, I also offer in evidence General Counsel's
Exhibits 13-A and 13-B.
Mr. SMITH . To which ojection is made.
Trial Examiner SHAW I will admit 13-A and I will have to reject 13-B, and put
it in the Rejected Exhibit File, because it is all a part of the offer.
Mr. McLEOD : I ask leave to withdraw General Counsel Exhibit 13-A and also a
copy of the proposed Exhibit 13-B, which has been rejected.
Mr SMITH • Note that there has been an objection to 13-A and 13-B.
Trial Examiner SHAW : There is no objection to 13-A, is there.
Dir. SMITH • I object to that as immaterial
Trial Examiner SHAW : I will admit 13-A into evidence, but I am rejecting 13-B,
but it will he in the Rejected Exhibits (The document heretofore marked General
Counsel's Exhibit 13-A for identification, was received in evidence
Mr. McLEOD. I believe that is all.
Dir. SMITH : No cross examination.
D. GOTTLIEB & CO. 1729
tion fees. Such testimony as this, when considered in the light of the confu-
sion in the record as regards the testimony of the other witnesses called by the
General Counsel , creates, to say the least, a dilemma . Faced with such a situa-
tion the undersigned is convinced that Melohn's testimony is likewise entitled
to little credence except where corroborated by that of other witnesses.
Though the undersigned admitted in evidence the affidavits of Romano,
Schmidt, and Arthur Jerard, he is convinced that he cannot use statements con-
tained therein as evidence of facts in support of the General Counsel's case,in-
chief. The only purpose , as the undersigned sees it, for which they can be
used is to impeach the testimony of the witnesses that was adduced before him.
This is particularly so in view of the holding of the Board in a recent case
(where an analogous situation was before it) ; in Anthony C. Markitell and
John H . Dent, partners d/b/a Trafford Coach Lines , et al., Case No . 6-CA-281,
97 NLRB 938 . In that case the Board said :
As Di Rito did not leave the hospital until September 28, after Cole, Tay-
lor, and Hopkins were discharged , it cannot be said that their activities,
in which he did not participate, were the motivating cause for the termina-
tion of his employment. There remains, then, for consideration, Di Rito's
participation in the unprotected strike of September 5. Again, the Trial
Examiner 's finding that the Respondents discharged Di Rito, at least in
part, for this reason , rests upon insubstantial evidence. Indeed, the only
direct evidence in this respect is found in Markitell's affidavit , given to a
Board investigator before the hearing and received in evidence . As stated
above, Markitell in effect disavowed this affidavit in all material respects
from the witness stand . Like the Trial Examiner , we place great weight
on this statement as discrediting Markitell 's testimony , particularly his
asserted reason for discharging the other three committee members. We
do not , however, place credence in it, and will not use it as probative evi-
dence to support an affirmative finding as to its contents .' [Emphasis
supplied.]
8International B,otherhood of Teamsters , Chauffeurs, Warehousemen ,i Helpers of
America, 87 NLRB 502, 522; Pillsbury Mills, Inc., 74 NLRB 1113, 1115.
As indicated above, John Romano disavowed the statements contained in his
pretrial affidavit . In testifying before the undersigned he was an evasive and
reluctant witness. Little , if any, of his testimony may be credited , primarily
because he "hedged" on answering directly pointed and controversial questions.
Nevertheless, from his testimony some substantial evidence as regards the issue
herein may be gleaned. For example, he testified, after his memory was re-
freshed by the General Counsel, that Superintendent Jerard did meet with the
employees in the toolroom on the morning of May 15, 1951, and at the time
asked him personally if he had "seen any union men," and that he told him that
he had. Romano's testimony in this particular regard is credited by the under-
signed."
According to Robert E. Schmidt, another of the General Counsel's witnesses
concerning whom the undersigned has also commented on above , testified in
about the same mode and manner as Romano . However , as in the case of
Romano , some credible evidence of a probative nature may be gleaned from
his testimony. Schmidt testified in substance that Superintendent Jerard came
19 Since the affidavits of John Romano, Arthur Jerard , and Robert Schmidt are referred
to throughout the record the undersigned is convinced that they should be made a part
of this report . Consequently they are attached hereto as appendixes B, C, and D,
respectively.
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the toolroom on the morning of May 15, 1951, and told the employees that
he "felt bad" about them signing the union cards, because they had gone about
it in such a "sneaky" manner ; that they should have first discussed the matter
with him before going to the Union ; and that if they had any grievances they
should discuss them with him. Other than the above Schmidt could not recall
anything else that Jerard said at the meeting. His testimony as set forth above
is credited by the undersigned.
Arthur Jerard testified that on the morning of May 15, 1951, Superintendent
Jerard came into the toolroom and told the employees that he had received
the union letter , in which the Respondent was advised that the toolroom em-
ployees desired a union to represent them. Since Arthur Jerard has been
referred to above on more than one occasion the undersigned feels that a portion
of his testimony should also be set forth below , particularly in view of his ulti-
mate findings herein.
The WITNESS : That the men wanted to join the union and he thought
we were all pretty well satisfied , we had never had any complaints ; we were
all getting all the benefits we could have gotten and he was a little bit
surprised.
So while he asked the boys if there was any complaint and nobody seemed
to have any real complaint about the shop itself, everybody was pretty well
satisfied and all that as it was, we were all satisfied and I was satisfied
because I didn 't want to join the union anyway and I had everything I
wanted and whenever I did want anything else, I would always see my
brother.
Q. (By Mr. McLeod) Your brother is Mr. Anthony Jerard?
A. Yes, sir, and as it was I didn't want to join the union but I was sort
of forced into it, so after, I would say, about 20 months or so we went back to
work ; one of the boys came up to me and said that maybe we could write
letters and withdraw from the union. [The record is corrected by the
undersigned to read "about 20 minutes."]
Q. Do you recall before getting to that whether or not your brother said
anything else?
A. Well, he said that he could have, if he wanted to, he could have let
the Kellogg job go, that he wanted to have that Kellogg job in the tool room ;
he wanted to keep that tool room going ; before the Kellogg job was in the
shop he got the boys together and said it was a foot in the door , even if they
lose money in the shop, but he wanted to keep that tool room going, you might
say, more or less just to keep it going.
The undersigned credits the above testimony and finds that Superintendent
Anthony V. Jerard made the remarks attributed to him by Arthur Jerard.
In the considered opinion of the undersigned the remarks of Superintendent
Jerard contained therein subtle and covert statements that went beyond the
limits of "free speech " as sanctioned in Section 8 (c) of the Act . The under-
signed infers from the above findings that they contained veiled threats of reprisal
to the effect that the Respondent could get along very well without operating its
toolroom, and that if the employees continued their concerted activities and
insisted upon unionization , then, in that event it would "farm out" its toolroom
operation , thereby eliminating their jobs . That this was the message that Super-
intendent Jerard intended to get over to the employees , and did in fact succeed
in doing so , is amply demonstrated by the testimony of Louis Giannini , and the
events that followed thereafter.
Though Giannini, like Romano , Schmidt, and Arthur Jerard was an evasive
and reluctant witness for the General Counsel, nevertheless some of his testimony
D. GOTTLIEB ds CO. 1731
is not only pertinent, but to some extent belies the testimony of Superintendent
Jerard as regards the purposes and aims of his conversation with the toolroom
employees on the morning of May 15, 1951. Moreover, as indicated above, Gian-
nini's testimony though reluctantly given goes right to the heart of the General
Counsel's case. Accordingly, an excerpt therefrom follows below :
Q. Do you recall what was said?
A. Not everything, sir.
Q. What do you recall which was said, and by whom?
Trial Examiner SHAW : Give your best recollection.
The WITNESS : Pardon?
Trial Examiner SHAW : Just give us your best recollection, the gist of it.
The WITNESS : Well, Mr. Jerard says that he could, if he wanted to-
I mean , the Kellogg order was in-well, the exact words I don't know.
Trial Examiner SHAW : You don't have to give the exact words.
Q. (By Mr. McLeod) As nearly as you can recall, what were they?
A. Well, the Kellogg job was there, and there was supposed to be even
more work for us. That is all. He was going to try to take it on to help us
along, because we were pretty slow, but it was all up to us to work along
with it, and if he wanted to he could farm out this here Kellogg order or
else take it in himself.
Q. Was there any mention, made of the union at that time?
A. Well, we figured it was because of signing up for the union.
Giannini's testimony as set forth above is credited by the undersigned.
In view of the foregoing and upon the record as a whole the undersigned finds
that the above statements of Superintendent Anthony V. Jerard were violative
of Section 8 (a) (1) of the Act. Though couched in subtle and veiled language
they brought home to the employees the threat of reprisal it desired to convey to
them . It must be remembered that Superintendent Jerard's talk with the
employees occurred within less than a week after the employees had signified
their intent to engage in concerted activities by signing the union-authoriza-
tion cards, and on the very day that the Respondent received notice from the
Union as regards their intention . To be violative of the Act coercive statements
need not be couched in vigorous and antagonistic language, accompanied by
profuse use of "four-lettered" words, it is enough if they convey to the listener
the desired meaning.2° Such is the case here. That the desired result was accom-
plished is evidenced by the fact that within the hour following Superintendent
Jerard's remarks, at least 3 of the employees informed him that they were with-
drawing from the Union. The next day, Arthur Jerard told him that he also
had withdrawn from the Union. Their withdrawals were accomplished by
writing letters of resignation to the Union. Thus, within less than 24 hours the
Union lost its majority in the unit, and there remained but 1 union adherent
therein, John Melohn. Though there is no substantial evidence that Superin-
tendent Jerard specifically requested the employees to write withdrawal letters
to the Union, the undersigned is convinced and finds that this action on the
part of the employees was a direct result of his remarks to them on the morning
of May 15, 1951.
The Respondent did not reply to the Union's letter of May 14, 1951. According
to Superintendent Jerard he saw no necessity to reply to the letter since the
employees had resigned from the Union , and as far as he was concerned that
was the end of the affair.2'
20 See J. S. Abercrombie Co., 83 NLRB 524.
21 See the stipulation of the parties as regards the sequence of events.
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
In view of the foregoing findings and after careful consideration of the record
as a whole including the well-drafted briefs of the parties the undersigned is
convinced that the General Counsel has by a preponderance of reliable, probative,
and substantial evidence sustained his allegations in the complaint that the
Respondent by the conduct described above interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them in Section 7 of
the Act, and that by so doing independently violated Section 8 (a) (1) of the Act.
As to the General Counsel's allegation in the complaint that the Respondent
likewise violated Section 8 (a) (5) of the Act, the case to say the least presents
an "anomaly." There is no question but what the Union represented an un-
coerced majority as of May 14 and 15, 1951 (at least up until the letters of
resignation were mailed to the Union by 4 employees) and the undersigned
has so found above. He has also found above that the Respondent did not
reply to the Union's letter dated May 14, 1951, in which it notified the Respondent
that it represented a majority of the employees in the appropriate unit and
requested a conference with the Respondent for the purpose of discussing an
agreement or understanding. He has also found above that the Union's loss
of majority thereafter came about as a direct result of Superintendent Jerard's
talk to the employees. He has also found above that as of May 15 or 16, 1951,
the Union had but 1 adherent out of a total of 6 employees in the unit.
The record shows that as of the date of the hearing herein, there remained
within the unit but 2 employees who had been members of the Union at the
times material herein, Louis Giannini and Robert Schmidt. In the interim
the following employees had either left the Respondent's services or had been
promoted to supervisory positions, and hence excluded from the appropriate unit :
(1) Arthur Jerard-resigned January 10, 1951, to take employment elsewhere.
(2) John Melohn-resigned July 11, 1951, for the same reason.
(3) John Romano-promoted to foreman of the toolroom in July 1951, and
was so employed at the time of the hearing herein.
The facts herein are similar to those before the Board in International Broad-
casting Corporation (KWHH) and International Brotherhood of Electrical
Workers, AFL, Case No. 15-CA-312, 99 NLRB 130. In that case the union not
only suffered a loss of majority as a result of the employer's unfair labor prac-
tices, but in addition there existed a far more serious situation, that is violations
of Section 8 (a) (3) of the Act. There the Board took the position that even
though the Union had suffered a loss of majority and at the times material
therein, in fact, had no adherents at all, that even so the employer should not
be permitted to profit by his own wrongdoing. So that the parties may have
before them the Board's reasoning, in the case referred to above the undersigned
sets forth below pertinent and applicable excerpts therefrom :
2. We find, also that it would effectuate the policies of the Act to issue
an order directing the Respondent to bargain with the Union, upon request,
as the representative of the announcers .5 We reach this conclusion, even
though a majority of the Board (Chairman Herzog, Member Murdock, and
Member Peterson) does not find that the Respondent's refusal to recognize
the Union on March 30 violated Section 8 (a) (5) of the Act'
E Chairman Herzog would not issue a bargaining order in this case, in view of the
majority holding on the merits that there was no violation of Section 8 (a) (5).
The Chairman dissents to that extent from his colleagues ' Decision and Order , believ-
ing on precedent that the remedy directed , however befitting in fact, is inappropriate
in law.
" Chairman Herzog and Member Murdock find that there was no such violation
because, in view of the Board 's finding of the inappropriateness of the combined unit
D. GOTTLIEB da CO. 1733
While the Board 's bargaining orders have generally been predicated on a
finding that a respondent had unlawfully refused to bargain , the Act does
not preclude the Board from issuing such an order to remedy unfair labor
practices other than those proscribed by Section 8 (a) (5).' Section 10 (c)
of the Act empowers the Board to prescribe such affirmative action as will
"effectuate the policies of the Act."
Whether or not the Respondent was entitled to question the appropriateness
of the unit proposed by the Union on March 23 and to seek a resolution of
that question by the Board, it clearly was not privileged to utilize the delay
necessarily incident to a Board proceeding to engage in coercive conduct,
such as threats of reprisals and interrogation calculated to deter its nonunion
announcers from joining the Union, and its union announcers from remain-
ing members thereof. It was the duty of the Respondent to refrain from
disturbing the status quo by coercive conduct pending the resolution of the
representation question, and to permit the Union to have a free opportunity
to increase and retain its membership by legitimate organizational activity
and to participate in a free and uncoerced election, which would determine
whether or not it was the statutory representative of the announcers. This
the Respondent failed to do. By its coercive conduct found herein and
detailed in the Intermediate Report, Respondent nullified the organizational
efforts of the Union during the preelection period, thereby preventing the
holding of a free election and depriving the Union of any prospect of success
in the balloting. Moreover, within a few months after the petition had been
withdrawn, Respondent discriminatorily discharged the only remaining
union announcers, Marshall and Crawford, thereby forestalling any possible
resurgence of union activity among the announcers.
As a result of this unlawful conduct, the Union, which on March 23, repre-
sented a majority of the employees in the unit which the Board subsequently
found appropriate, found itself in November without a single adherent
among the announcers, and without any immediate prospect of achieving
certification as the representative of the announcers.
In a strikingly similar case ° the Court of Appeals for the Fifth Circuit
found, as does the majority of the Board here, that the Respondent's refusal
to bargain was not unlawful. It nevertheless held in effect, that, as the
union's subsequent loss of majority was attributable to the respondent's
unlawful preelection campaign of threats of reprisal and promises of benefit,
a provision requiring the respondent to bargain with the union, upon re-
quest, was directed to the situation calling for redress and was therefore an
appropriate remedy to eradicate the effects of respondent' s unfair labor
practices and to effectuate the policies of the Act. The result reached in
the Holmes case is consistent with the principle enunciated by the Supreme
Court in the Franks Bros. case,' that an employer should not be permitted
of announcers and control operators embraced in the Union 's own request for bar-
gaining, the Respondent was under no statutory duty to honor that request.
Member Peterson , while believing that the Respondent would have been under a
duty to honor this request by the Union in the absence of a good faith doubt as to
the appropriateness of the unit , finds that the Respondent did in fact entertain such
a doubt , and lawfully declined to bargain for that reason.
' See D . H. Holmes Co., Ltd . v. N. L. It. B., 179 F. 2d 876 ( C. A. 5, 1950), enfg. as
mod. 81 NLRB 753. There , although reversing the Board 's finding that the respond-
ent had violated Section 8 ( 5) of the Act , the court affirmed the Board 's bargaining
order as a means of remedying the Respondent 's violation of Section 8 (a) (1) of the
Act. See further discussion of this case in the text below.
• D. H. Holmes Co., Ltd . Y. N. L. It. B., supra.
9 Franks Bros . Company v. N. L. It. B ., 321 U. S. 702, 704.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to profit by his own wrong , when he pleads, as a bar to a bargaining order,
a loss of the anion 's majority which resulted from his own illegal acts.
[Emphasis supplied.]
In the instant case, as in the Holmes case , the Respondent's unlawful pre-
election campaign precluded any possibility of the Union's achieving certifi-
cation through the exercise by the employees of a free and untrammeled
choice. We find therefore that an order requiring the Respondent to bar-
gain with the Union, upon request, as the representative of the announcers
is necessary to effectuate the policies of the Act. As in the Holmes case, such
an order will serve merely to restore the Union to the status of the ex-
clusive bargaining representative of the announcers , a status which it occu-
pied on March 30, 1950, before the Respondent intensified its unlawful anti-
union activity. The Respondent will thereby be prevented from profiting
by its own wrongful conduct in precluding a free election and certification
of the Union.
The record clearly shows and the undersigned finds that the Respondent
herein, like the employer in the above-cited case, refused to bargain with the
Union, the statutory representative of its employees in the toolroom when re-
quested to do so on May 15, 1951, and that by such conduct the Respondent in-
dependently violated Section 8 (a) (1) of the Act. For reasons stated above
and below he does not find that the Respondent's conduct was specifically viola-
tive of Section 8 (a) (5) of the Act.
In view of the foregoing and upon the record as a whole the undersigned is
convinced and he so finds, as did the Board in the International Broadcasting
case cited above, that it would effectuate the policies of the Act to recommend an
order directing the Respondent herein to bargain with the Union, upon request,
as the representative of the employees in the unit found appropriate above.
Such recommendation, however, will be made under the broad provisions of Sec-
tion 8 (a) (1) of the Act for precisely the same reasons as the Board did so in
the above cited case.
Under all the circumstances and for the reasons set forth above the under-
signed finds that the Respondent herein did not violate Section 8 (a) (5) of the
Act. Consequently it will be recommended that this allegation in the complaint
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities set forth in section III, above , occurring in connection
with Respondent's operations described in section I. above, have a close, inti-
mate, and substantial relations to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set
forth above, the undersigned recommends that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondent refused to bargain collectively with
the Union as the exclusive representative of its employees in an appropriate
unit, the undersigned recommends that Respondent upon request bargain col-
lectively with the Union as the exclusive representative of such employees with
D. GOTTLIEB & CO. 1735
respect to rates of pay, wages, hours, and other terms and conditions of employ-
ment
Because of the Respondent's unlawful conduct and its underlying purpose and
tendency, the undersigned finds that the unfair labor practices found are per-
suasively related to other unfair labor practices proscribed and that danger of
their commission in the future is to be anticipated from the course of the Re-
spondent's conduct in the past. The preventive purpose of the Act will be
thwarted unless the order is coextensive with the threat. In order, therefore,
to make effective the interdependent guarantees of Section 7, to prevent a recur-
rence of unfair labor practices, and thereby to minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act,
the undersigned recommends that Respondent cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. D. Gottlieb & Co. is engaged in commerce within the meaning of Section 2
(6) and (7) of the Act.
2. Die and Tool Makers Lodge No. 113, International Association of Machin-
ists, AFL, is a labor organization within the meaning of the Act.
3. At all times material herein, the following employees of D. Gottlieb & Co.,
at its Chicago, Illinois, plant have constituted and now constitute a unit appro-
priate for the purposes of collective bargaining : All employees who are employed
in its toolroom, excluding office and clerical employees, professional employees,
guards, supervisory employees as defined in the Act, and all other employees
of the Respondent.
4. On May 15, 1951, Die and Tool Makers Lodge No. 113, International As-
sociation of Machinists, AFL, was the exclusive representative of the em-
ployees in the aforesaid appropriate unit in accordance with the provisions of
Section 9 of the Act.
5. By refusing on May 15, 1951, and at all times thereafter to bargain col-
lectively with Die and Tool Makers Lodge No. 113, International Association
of Machinists, AFL, as the exclusive representative of all its employees in
the aforesaid unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of the Act.
6. By engaging in the conduct described in paragraph 5 immediately herein
above, and by interrogating its employees concerning their union affiliations
and activities, and by threatening to cease operations in its toolroom if
the employees insisted upon continuing such activities, Respondent interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
See N. L. R. B. v. Franks Brothers Co., 321 U. S. 702.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist any other labor organization, to bargain
collectively through representatives of their own choosing and to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as author-
ized in Section 8 (a) (3) of the Act.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement. The bar-
gaining unit is:
All employees in our toolroom, excluding office and clerical employees,
professional employees, guards, supervisory employees as defined in the
Act, and all other employees.
All our employees are free to become, remain , or refrain from becoming mem-
bers of the above-named union or any other labor organization except to the ex-
tent that this right may be affected by an agreement in conformity with Section 8
(a) (3) of the amended Act.
D. GOTTLIEB & CO.,
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.
Appendix B
JOHN ROMANO
I, John Romano, after being duly sworn, upon my oath, depose and say :
I live at 1032 W. Taylor St., Chicago, Ill. My phone number is Mo. 6-9732.
I have worked at Gotlieb about six years. I am a tool and die maker at $2.15
an hour. We got a 100 raise about a week or two before we signed union cards
for Lodge No. 113. That was about May 10, 1951.
On or about May 15,1951, Tony Jerard, rept., called all of us around him in the
toolroom around 10 o'clock. He asked us if we had seen any Union men and we
said yes. He said he had just received a letter from No. 113. He asked who
was the instigator and we said we were all in it together, that we had all
decided we wanted a Union. Tony said if the union come in he would shut the
toolroom down and have the work done outside. He said if he had to stay
open he would fire us all and hire men at $2.45 an hour.
After Tony had talkd to us we talked about withdrawing from the Union.
Tony didn't suggest it. We met in a tavern at Division and Kostner and de-
cided not to have them all the same. I wrote mine at home and mailed it. The
next day Art Jerard asked me if I had mailed it and I said I had. I wouldn't
have written it if Tony hadn't made the speech and threats.
John Romano.
D. GOTTLIEB & CO.
Appendix C
AFFIDAVIT
1737
I, Arthur P Jerard , after being duly sworn , upon my oath depose and say :
I live at 617 N. Hamlin Ave., Chicago, Ill My phone number is KE 3-8368.
I have worked for D . Gottlieb & Co. since 1943. I am a tool and die maker.
My rate is $2.20. We received a 100 raise about two weeks ago . My foreman
is John Romano who replaced Joe Kondor who went in the hospital about July.
Our acting foreman was Earnie Schmidt until Romano become foreman or my
supervisor about two weeks ago . My brother , Anthony Jerard , is plant super-
intendent.
I signed a card for Lodge No. 113, IAW, May 9, 1951. I met with the other
men and Joe Vrechek , Union rep., in his car about the next day and we dis-
cussed the sending of a letter to the Company requesting recognition.
On or about May 15, 1951, my brother Tony came out in the shop and called
us all together and said he had a letter from the union and asked who had
wanted to join. We all said we all had except Bill, the apprentice . We said
we all were desirous of joining the Union. Later Tea- field we it was he weeke
thing 4 l4 dene to him: A. P. J. He threatened to send out the tool room
work if the Union come in.
Tony didn 't mention to me that I should write a letter to the Union to with-
draw . Romano said maybe we'd better write letters and withdraw . He said
he thought he would write a withdrawal letter and I said I would too. I wrote
it at home and mailed it to the Union. I told Tony the next day but he wasn't
too concerned about it . He didn 't ask me to write it.
I have read the above statement consisting of two paper and swear that it is
the truth.
Appendix D
ROBERT E. SCHMIDT
Arthur P. Jerard.
I, Robert E. Schmidt, after being duly sworn upon my oath, depose and say :
I live at 2953 N. Nordick Ave., Chicago, Ill.
I have worked at D. Gotlieb Co. since 1943. I am a tool maker and make
$2.20 per hour. Joseph Kondor was our foreman in May but has quit. Anthony
Jerard is plant superintendent.
On or about May 10, 1951, I signed a card in Lodge No. 113 Tool and Die
Makers for John Melohn, another employee.
On or about May 15, Mr. Jerard called me and John Romano, Art Jerard, Louis
Grannini and John Melohn around his bench about 11: 30 a. m. He said he
got a letter from the Union and he wondered why we didn't come to him first
instead of going behind his back and going to the Union. He said we could
have a union but he would lose the toolroom and ship all the work out to be done
some place else and lay us off. He said they wouldn't stand for the Union being
there. He promised us a raise as we progressed. Jerard said if we didn't
want to go ahead or wanted to change our minds, we should write the Union
and tell Art I wrote my letter at home. Melohn gave me the Union address
Jerard did not see the letter but I told him the next day and he seemed happy.
He asked me if I had sent it. Nothing has been said about the Union then. We
haven't got a raise since.
Robert E . Schmidt.