David E. Kennedy, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1938

6 N.L.R.B. 699 (N.L.R.B. 1938)

In the Matter of DAVID E. KENNEDY, INC. and ISIDORE GREENBERG
Case No. C-438.-Decided April f21,1938
Asphalt Tile and Cork Tile Manufactnring^ Indnstry-Iterference, Restraint
or Coercion : opposition to outside union expressed through suggestion that em-
ployees elect committee to bargain with respondent-Company-Dominated
Union: employees ' collective bargaining committee initiated and sponsored by
employer ; domination of and interference with formation and administration ;
support ; participation and representation on committee , of supervisory em-
ployees; acquiescence in unconscionable contract and adoption by individual
employees ; disestablished as agency for collective bargaining ; contracts in-
validated-Contract : "yellow dog ", involved-Discrimination : discharges: for
union activity and opposition to company-dominated committee-Reinstatement
Ordered-Back Pay: awarded.
Mr. Richard J. Hickey, for the Board.
Mr. J. Emil Walscheid, of Jersey City, N. J., for the respondent.
Isserman & Isserman, by Mr. Sol. D. Kapelsohn, of Newark N. J.,
for Greenberg, Bulkowski, and Fitzpatrick.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by Isidore Green-
berg, the National Labor Relations Board, herein called the Board,
by Elmore M. Herrick, Regional Director for the Second Region
(New York City), issued and duly served its complaint dated No-
vember 9, 1937, ' against David E. Kennedy, Inc., New York City,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (2), and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On November 15, 1937, the respondent
filed its answer to the complaint denying that it had engaged in
the unfair labor practices alleged therein, and denying that its busi-
ness affects commerce, within the meaning of the Act.
Pursuant to notice, a hearing was held in New York City on No-
vember 18 and 19, 1937, before Harold R. Korey, the Trial Examiner
duly designated by the Board. The Board, the respondent, and
the three employees alleged to have been discriminatorily discharged
699
700 NATIONAL LABOR RELATIONS BOARD
were represented by counsel, participated in the hearing, and were
afforded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence bearing upon the issues.
During the course of the hearing and at the conclusion of the
Board's case, the respondent moved to dismiss the complaint on the
grounds, inter alia, that its business is not in interstate commerce;
that the activities alleged in the complaint do not constitute unfair
labor practices, within the meaning of the Act; and that the Board's
failure to serve necessary parties and lack of jurisdiction to pass
upon the validity of the respondent's contracts with its employees,
preclude a finding that it has engaged in unfair labor practices,
within the meaning of Section 8 (2) of the Act.' At the conclusion
of the case, counsel for the Board moved to amend the pleadings to
conform to the proof. The former motion was denied and the latter
granted. These rulings are hereby affirmed.
On February 14, 1938, the Trial Examiner filed his Intermediate
Report, in which he found that the respondent had engaged in the
unfair labor practices alleged in the complaint. He accordingly
recommended that the respondent cease and desist from engaging in
the unfair labor practices, that it reinstate with back pay the three
employees found to have been discriminatorily discharged, that it
cease giving recognition to, and disestablish, The Col-
lective Bargaining Committee of The Employees of David E. Ken-
nedy, Inc. as the collective bargaining representative of any of its
employees, and that it cease giving effect to the individual contracts
of employment with its employees.
On February 24, 1938, the respondent filed exceptions to various
rulings of the Trial Examiner and to the Intermediate Report. The
Board has reviewed the rulings of the Trial Examiner on objections
to the admission of evidence and on other motions not specifically
mentioned above, and finds that no prejudicial errors were com-
mitted. His rulings are hereby affirmed. The Board has also con-
sidered the exceptions to the Intermediate Report and finds them to
be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a New York corporation with its principal office
and place of business at Brooklyn, New York, is engaged in the
1 The respondent erroneously urges that the Collective Bargaining Committee of The
Employees of David E. Kennedy , Inc., and the individual employees who signed contracts
with the respondent should have been served with the complaint and notice of hearing.
See National Labor Relations Board, Petitioner v. Pennsylvania Greyhound Lines, Inc.,
and Greyhound Management Company, 303 U. S 261
DECISIONS AND ORDERS 701
manufacture , sale, and distribution of asphalt tile, cork tile, and re-
lated products . In the manufacture of its product the respondent
purchases principally asbestos , cork curlings, pitch, asphalt, and
cumar. Of the raw materials shipped to the respondent 's plant from
points outside the State of New York , a substantial part of the
asbestos is shipped from Canada , pitch from Illinois , asphalt from
New Jersey , cumar from Pennsylvania , and red oxide from Spain and
Persia. During the 12-month period ending September 30, 1937, the
respondent 's gross sales amounted to $701,681 .89, approximately 60
per cent of which were made outside the State of New York.
During the month of May 1937 when the events described below
occurred , the respondent had in its employ approximately 75 produc-
tion workers , 5 foremen, and 20' office employees.
H. THE ORGANIZATIONS INVOLVED
Textile Workers Organizing Committee, herein called the Union,
is a labor organization affiliated with the Committee for Industrial
Organization . It admits to membership the production employees of
the respondent , exclusive of supervisory employees.
The Collective Bargaining Committee of The Employes of David
E. Kennedy, Inc. is a labor organization designed to represent all of
the respondent's employees.
III. THE UNFAIR LABOR PRACTICES
A. The Formation of the Committee
On April 18 , 1937 , Isidore Greenberg , one of the respondent's em-
ployees, joined the Union and initiated a campaign to organize his
fellow workers . Enlisting the services of Frank Bulkowski , Thomas
Fitzpatrick, and two other employees, he distributed Union applica-
tion cards and solicited those of his fellow employees who he thought
would not apprise the respondent of their efforts to organize. The
testimony discloses that on May 19 or 20 , Reb Davidson who had been
so solicited , gave his Union application card to Joseph Curry, an
assistant foreman. On Friday , May 21, a notice appeared'on bulletin
boards throughout the plant announcing a meeting of employees for
the following afternoon in order to discuss "employer and employee
relationships ." Both Greenberg and Bulkowski were, in addition,
personal l y advised to be present by their foreman, Thomas Barr, Sr.
Although the record does not show what disposition Curry made of
the card, it is a reasonable inference that he brought the activity of
the Union employees to the attention of the respondent.
On Saturday afternoon after working hours, the employees , includ-
ing Joseph Curry, and Edward Meyers, a foreman,.assembled in the
702 _NATIONAL LABOR RELATIONS BOARD
packing room of the plant and listened to an address by David O'D.
Kennedy, the respondent 's president . Kennedy, reading from a mem-
orandum he had previously prepared, called their attention to the
Act, advised them of their right to bargain collectively with the re-
spondent, and stated that he believed in the theory of collective bar-
gaining. He pointed out that the respondent's relationship with the
employees had been friendly and pleasant for many years, that the re-
spondent "had always tried to be fair and just," and that he desired
that the pleasant relationship continue. "We know that neither you
nor we want to have any unsettled disagreements or loss of time in
this plant and we therefore are going to make a suggestion to you
which will make it possible for you to bargain with us collectively
as called for in the Wagner Act."
Kennedy thereupon proceeded to outline his plan, stating
that "we will be glad to bargain collectively with a committee of
your fellow workers, as provided in the Wagner Act, elected by
you." He agreed that if such committee were elected, he would
enter into a written contract with it on behalf of the em-
ployees , "and with each one of you separately , if you so desire."
Commenting on the contents of the contract, he observed that it would
cover hours of work, minimum rates of pay , and "if you so desire
it will also be provided that there shall be no lock-outs by us and
no strikes by you, and that all disputes will be settled peacefully by
discussion between ourselves , and if we cannot agree, [by ] arbitra-
ticm before a neutral outsider ." Kennedy concluded his address
with the following words :
If you desire to elect a committee , all of you who may agree to
this idea may sign your name to the bottom of the letter ad-
dressed to me, stating that you have elected a committee, and
giving the names of its members. In order to save you trouble, I
have had this letter made up in blank so that if you wish to do
so you may insert the names of the committee and your signatures
in the proper place. You will of course realize that I do not ask
you to sign this letter, you may do as you please and even if no
arrangement results from this we will still continue to operate
as we have heretofore. I am giving this letter to Mr. Barr, Jr.
[assistant factory manager] and you may get it from him if you
wish to use it.
At the conclusion of the speech Greenberg arose and suggested that
the election be postponed for a week . Kennedy indicated his ap-
proval of the suggestion and left the meeting. Thereupon Meyers
proposed that a temporary committee be elected to determine the steps
to be taken to organize , and he suggested , over Greenberg 's protest,
DECISIONS AND ORDERS 703
that the letter in Barr, Jr.'s possession be obtained. A committee of
seven employees, including Greenberg, Meyers and Curry, was elected
and'the meeting disbanded.
As he left the meeting, Greenberg met both Barr, Jr., and Barr,
Sr., Barr, Jr., gave him the letter and asked whether another em-
_ ployee, Parascendo, had been chosen for the committee. Barr, Sr.,
'commenting on the letter, said, according to Greenberg : "I think this
is a good thing. The men.ought to sign it." 2
On the following Monday Greenberg, during the lunch period 'and
before and after working hours, expressed the opinion to his fellow
workers that Kennedy was attempting to form a "company union"
and exhorted them to join the Union rather than follow Kennedy's
plans. As a result of Greenberg's admonitions, the employees agreed
to hold a meeting on the following Saturday afternoon in Prospect
Park, several blocks from the plant. Greenberg testified that on
Tuesday, he asked Kennedy for permission to post notices of this
meeting on the respondent's`bulletin boards, that Kennedy refused to
grant such permission and stated that another meeting would be held
in the plant the following afternoon, May 26, at 4: 30 p. in., at the
end of the day shift. Kennedy, denying that he had withheld the
use of the bulletin boards, testified that he knew nothing of the meet-
ing proposed for the following afternoon, and was not even aware
that such meeting was held. Kennedy's testimony, however, is un-
convincing. ' On the same day, notices of the meeting to be held the
next afternoon appeared on the bulletin boards, and the meeting held
pursuant to the notice was attended by practically every employee in
the plant. From all the evidence we are satisfied that the meeting of
Wednesday, May 26, was planned by Kennedy, and that he refused
Greenberg's request for permission to post notices of a meeting for
the following Saturday.
Greenberg presided over the meeting on Wednesday afternoon
which was attended by four foremen and one office employee, as well
as by all of the production employees. Greenberg first proposed that
supervisory employees be excluded from the meeting but his motion
was defeated after a vote by show of hands. Meyers then proposed
that a committee be elected under Kennedy's plan, and again over
2 With convenient spaces left for names of committeemen and signatures of employees,
the letter read as follows :
Attention Mfr. David O'D. Kennedy , President.
GnNTLEDtEN : We, the undersigned employees of David E . Kennedy, Inc, hereby
notify you that we have this day elected a committee of five of our fellow employees
as our representatives in collective bargaining with you. The members of this com-
mittee are as follows :
We authorize these representatives to enter into and sign a contract with you,
provided it contains substantially the provisions outlined to us by the Management.
We also hereby notify you that we have not authorized any other group to repre-
sent us in collective bargaining with you as our employer.
704 NATIONAL LABOR RELATIONS BOARD
Greenberg's objection that Kennedy's plan was illegal, a committee
of five was chosen to consider Kennedy's proposal although authority
to enter into a contract with the respondent was withheld. Again
Greenberg, Meyers, and Curry and five others were elected to the
Committee, and the meeting adjourned.3
On the following morning when the men came to work they were
met at the time clock by Engels, a foreman, who motioned them into
the office. Fitzpatrick testified that when he entered the office, an-
other employee, Sicigliano, offered him a copy of the letter prepared
by Kennedy, and asked him to sign it. Fitzpatrick pointed out that
Greenberg's name and that of another employee, Wakeham, had been
omitted from the committee and that the names of two other em-
ployees, Parascendo and Heims, had been substituted. He accord-
ingly refused to sign the letter and left the office. Greenberg testified
that although he was not invited into the office, nevertheless he entered
and noticed that the letter contained the names of two committeemen
who had not been elected the previous afternoon. Greenberg pointed
out the error and also stated that the committee had not been author-
ized to sign an agreement with the respondent. Apparently, however,
no steps were taken to correct the letter, and it was later submitted
to Kennedy bearing the signatures of a large majority of the em-
ployees, including those of several foremen. While in the office Green-
berg also saw a petition on the desk subscribed with the names of
several employees to the following effect :
We the undersigned employees of David, E. Kennedy, Inc.
hereby request the management to discharge I. Greenberg because
he is a busybody and general nuisance and is a trouble maker.
Kennedy testified that on the same morning, when he arrived at
the plant he found the letter and the petition on his desk, both signed
by a majority of the employees. After discharging Greenberg, he
called a meeting of the committee named in the letter 4 Although the
space thereon for the names of the members showed that erasures had
been made, apparently where the names of Parascendo and Heims
had been substituted for those of Greenberg and Wakeham, Kennedy
admitted that he did not question the validity of the letter or whether
the men who met with him were the duly elected representatives of
the respondent's employees.
That the negotiations which took place and were concluded that
same day were perfunctory plainly appears from Kennedy's own
description of them. He testified that the committee requested vaca-
tions with pay, but withdrew the request when he pointed out that
B Immediately after the voting, the men employed on the night shift returned to work,
Engels, a foreman , announcing that they would make up the lost time.
4 The discharge is described below.
DECISIONS AND ORDERS 705
the respondent had already subscribed for life insurance on behalf
of the employees and could not afford to grant vacations. The com-
mittee proposed time and a half wage rates for overtime but com-
promised on time and a quarter. He further testified that it was
agreed to continue the wage rates then prevailing as minimum rates.
That evening, with the assistance of his attorney, Kennedy pre-
pared a contract which embodied the terms. outlined above. In
addition, the contract provided that the respondent would not lock
out any of its employees because of any dispute arising thereunder.
The employees in turn agreed not to go out on strike during the
period of the contract, to June 1, 1942. A system of arbitration of
disputes was included with the proviso that the discharge of any
employee was not subject to arbitration. Paragraph "Seventh" which
prescribed the rights of the employees, read as follows :
Any Employee has the right to join any union of his own
choosing, or to refrain from joining any union. The employees,
or any of them, shall not and have not the right to demand a
closed shop or a signed agreement by the Employer with any
union. This does not in any way restrain the Employees from
having a union representing them or advising them in collective
bargaining, and the Employer has the absolute and unqualified
right to hire or discharge any Employee or Employees for any
reason or for no reason and regardless of his or their affiliation
or non-affiliation with any union. The Employer agrees that
no 'Employee will be discharged because of legitimate union
activities or affiliation with any union....
The next morning the committee signed the contract as The Col-
lective Bargaining Committee of The Employees of David E.
Kennedy, Inc. and distributed copies for the signatures of individual
employees. On the same day, during working hours, many of the
eployees signed, and at the time of the hearing all but two of them
had become individual parties to this contract.
The evidence clearly establishes that the course of events described
above, following the early attempt of the employees to organize
for the Union, was supervised and directed by the respondent. The
respondent urges that the meeting called on May 21 and the speech
by Kennedy were inspired by the desire to inform the employees of
their rights under the Act. The speech itself, however, is eloquent
testimony that the respondent desired rather to initiate the form of
collective bargaining that it preferred. The form letter it had
previously prepared and the suggestion that the employees elect a
bargaining committee from their own number conclusively shows
that it was chiefly interested in discouraging "outside" employee
representation and offsetting the Union activity which had come to'
706 NATIONAL LABOR RELATIONS BOARD
its attention 2 days before. Under no possible interpretation can
Kennedy's speech be described as a fair presentation of the rights
guaranteed employees under the Act; the very omissions in the
speech indicate the respondent's prejudice. Kennedy admitted that
he did not mention the right of the employees to become members of
an outside union , their right to select outside representatives, or their
right to organize free from the respondent's interference. In effect
they were told only of the right to bargain collectively through
employee representatives, and advised to follow the plan offered by
Kennedy.
After the respondent had presented the plan, its adoption was
carefully directed by supervisory employees. As shown above, fore-
men attended the two meetings of employees and were represented
upon both committees elected by them. Although the record does
not show who changed the names of committeemen on the letter pre-
sented to Kennedy, it is clear that the respondent was not concerned
whether the men whose names appeared thereon had been duly
elected. Kennedy made no effort to check the validity of the letter,
even after Greenberg explained that he and `Vakeham had been
elected but that their names had been erased from the letter.
The contract signed by the committee and the individual employees
unquestionably did not result from the processes of collective bargain-
ing which the Act contemplates. It is apparent from the record that
the committee, with two foremen included in its personnel, did no
more than go through the form of bargaining on May 27. Its
acquiescence without protest on the following day to a form of
contract which deprived the employees of the rights guaranteed by
the Act confirms our conclusion that the committee acted as the tool
of the respondent rather than as the representative of the employees.
Kennedy testified that he prepared the contract with the aid of
his attorney, from several forms submitted to him by other employers
in the Borough of Brooklyn. The contract as finally drafted and
adopted, however, presents a remarkable similarity in language and
effect to the contract which this Board reviewed in Matter of Atlas
Bag and Burlap Company, Inc. and Milton Rosenberg, Organizer,
Burlap cfi Cotton Bag Workers Local Union No. 2/69, affiliated with.
United Textile Workers Union.5 In that case, the, employer sought
the advice of L. L. Balleisen, industrial secretary of the Brooklyn
Chamber of Commerce, who prepared a letter addressed to the em-
ployer from its employees in a form similar to the letter prepared
by Kennedy for the employees herein, which notified Kennedy that a
collective bargaining committee had been elected.
8 1 N. L. R. B. 292. See also Matter of The Jacobs Bros. Co , Inc . and United Electrioai
and Radio Workers of America, Local No. 1226, 5 N. L. R B 620 , in which a similarly
worded contract appears.
DECISIONS AND ORDERS 707
Although Kennedy denied that he had consulted Balleisen in the
preparation of the contract, it is clear from a comparison of the events
that occurred and the contract that resulted' herein, with the events
and the contract described in the Board's Decision cited above, that
Kennedy must have had the benefit of Balleisen's anti-union cam-
paign methods. ,The identical language and provisions of both con-
tracts cannot be ignored. In that case Balleisen also prepared the
contract which the Board in its decision described as follows : -
The contract deprives each employee who signs it of the right
to strike . . . , of the right to demand recognition of any union
by the employer, and of the right to question discharges for any
reason or no reason regardless of his affiliation or non-affiliation
with any union. Despite the lip-service rendered by the terms of
the contract to the right of an employee to join any union of his
own choosing, the agreement deprives each employee subscriber
of the fundamental rights inherent in union affiliation and ac-
tivity-the right to union recognition, which means the right
to collective bargaining, the right to concerted activities for
mutual aid or protection, which is guaranteed to employees in
Section 7 of the National Labor Relations Act, and the right
to protest against the employer's exercise of his most powerful
anti-union weapon, discharge for union affiliation or activity. It
would be hard to devise a more patently anti-union or "yellow
dog" contract, or one more discouraging to membership in a
labor organization.
The quotation above is equally applicable to the contract in issue
in this case.
We find that the respondent, by its activities described above, has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act; has dominated and
interfered with the formation and administration of The Collective
Bargaining Committee of The Employees of David E. Kennedy, Inc.
and has contributed support to it; and that by its conduct it has dis-
couraged membership in the Union. We further` find that the con-
tracts described above are unlawful and void.
B. The Discharges
Isidore Greenberg had been employed by the respondent since Sep-
tember 1, 1935, and at the time of his discharge on May 27, 1937, was
working as a sample maker earning 52 cents per hour and averaging
26 dollars a week. During the course of his employment Greenberg
had received three increases in wages, the last one having been granted
late in April 1937.
708 NATIONAL LABOR RELATIONS BOARD
As described above, Greenberg was the most active advocate of the
Union cause. He had first broached the subject of Union organiza-
tion in the respondent's plant, had distributed Union application
cards and leaflets, and had made every effort to prevent Kennedy's
plan from materializing.
Greenberg's version of his conversation with Kennedy preceding
his discharge is entirely plausible. Shortly after he had commenced
working on May 27, Kennedy summoned him to the office, showed
him the petition requesting his discharge, and asked him to resign,
at the same time observing that Greenberg was one of his best work-
ers but that the petition left him no alternative. Greenberg pro-
tested that the petition was preposterous. "I said it did not seem logi-
cal to me that the night before at a meeting of the employees of the
company the men should elect me on a committee to speak to' Mr.
Kennedy, and the following morning they should suddenly sign state-
ments asking Mr. Kennedy to fire me." Greenberg refused to resign
and Kennedy thereupon discharged him.
Kennedy denied that the petition had any bearing upon his action
but that he had discharged Greenberg because his work had been
unsatisfactory during the past 2 months and because he had reported
for work late on the previous morning without having telephoned
the office and offered an excuse for his tardiness. He further testi-
fied that the rule regarding unexcused latenesses was inflexible and
that a copy of the rule had remained posted on the bulletin board
near the time clock for many years. Although Greenberg admitted
having reported late for work on the previous day, he testified that
he had telephoned the office on that morning. He further contended
that the rule regarding lateness provided for a 3-day lay-off and not
a discharge.
The Trial Examiner, who had the opportunity to observe the wit-
nesses while they testified, found that Greenberg had been discharged
because of his union activities, thus resolving the conflict of testimony
in his favor. In the light of all the evidence we are satisfied that the
Trial Examiner's finding was proper. Kennedy did not deny showing
Greenberg the petition requesting his discharge and it was undoubt-
edly used as one reason for his dismissal. At the same time the
respondent had received notice of the election of the committee and
was fully aware that Greenberg had been elected to it. Prepared
to enter into an agreement with a rump committee, the only obstacle
to the culmination of the respondent's plan for "collective bargain-
ing" appeared to be Greenberg, who had previously demonstrated his
opposition to it and who the respondent must have known would
have combatted this final unlawful action. It is apparent that the
respondent desired to discharge him in order to avoid further oppo-
sition and that it advanced other. grounds for his dismissal in order
DECISIONS AND ORDERS 709
to conceal its true motive. We find that Isidore Greenberg was dis-
charged by the respondent because of his activities on behalf of the
Union and his opposition to the form of collective bargaining pre-
sented to its employees by the respondent.
Greenberg found other employment on July 1, 1937, at 19 dollars
a week. On September 1, his wages were increased to 25 dollars a
week which he was earning at the time of the hearing. Greenberg
desires reinstatement to his former position with the respondent.
Frank Bulkowski was employed by the respondent in January
1937, as a general repair man at 40 cents per hour. Several days,
later he was transferred to the packing department at 46 cents per
hour and on April 15 given a wage increase of an additional 4 cents
per hour. On May 3 Bulkowski was transferred back to the mastic
department with an increase in wages to 55 cents per hour, and on
May 20 he received another increase, bringing his total hourly wage
rate to 60 cents.
As described above, Bulkowski, a Union member, had actively as-
sisted Greenberg in attempting to organize the employees for the,
Union. He distributed Union application cards and at the meet-
ing of May 26 was one of the few employees who voted to exclude
supervisory employees. He had refused to sign the letter of May 27
to the respondent, and after the discharge of Greenberg he continued
to meet him outside the plant and at his home in order to plan fur-
ther Union activity among the respondent's employees. Although
Bulkowski signed the contract with the respondent, his testimony in-
dicates that he first considered it for several days and finally signed
it in the belief that it was necessary to safeguard his job.
•Bulkowski testified that he was discharged by his foreman, Downer,
without explanation, on July 3, 1937. He returned on July 7 and
asked Tyson, the respondent's secretary and treasurer, the reason
for his discharge, but Tyson could give him no explanation, stating
that he did not even know of the discharge. Bulkowski thereupon left
the plant and did not return thereafter. Neither Downer nor Tyson
was called by the respondent to deny this testimony, nor did the
respondent controvert Bulkowski's additional testimony that at the
time of his discharge, the employees in the mastic department com-
menced working 9 hours a day, 1 hour more than their usual day's
work.
Barr, Jr., denying that Bulkowski was discharged, testified that
he laid him off on July 6 for 3 or 4 weeks in order to make room for
the transfer of three skilled employees from the cork slab depart-
ment in which operations had been temporarily discontinued ; and
that he thereafter neglected to call him back since he had received a
letter from another company informing the respondent that it had
hired Bulkowski and requesting a reference on his behalf.
710 NATIONAL LABOR RELATIONS BOARD
An analysis of the record clearly establishes the discriminatory
nature of Bulkowski's discharge. His employment record, including
the numerous' wage increases he received, testifies to his efficiency as
an employee. In the light of his excellent record it is not convincing
that the respondent preferred to operate the mastic department on
an overtime basis rather than retain Bulkowski's services. The re-
spondent urges that the fact that in applying for a new position,
Bulkowski stated that he had been laid off by the respondent because
of lack of work, proves that he was in fact laid off for that reason.
It is not likely however, that in applying for a new position, he would
have had the temerity to confess that he had been discharged for
his union activity. The very fact, moreover, that Bulkowski did
seek another job would indicate that his employment with the re-
spondent had been definitely terminated. Finally, in connection
with the testimony regarding the discharge of Fitzpatrick discussed
below, the respondent contended that temporary lay-offs are not indi-
cated on an employee's record card. Yet Barr, Jr., testified that on
July 6, the day he claimed that Bulkowski was laid off, he inserted
that notation on the card. The inference is inescapable that Barr
had thus sought to cloak the true reason for dismissing Bulkowski.
From all the evidence we are satisfied that the respondent discharged
Bulkowski on July 3, 1937, because of his activities on behalf of
the Union.
A week after his discharge Bulkowski secured employment at 17
dollars per week. He desires reinstatement to his former position
with the respondent.
Thomas Fitzpatrick had been employed by the respondent since
1924 and at the time of his discharge was working in the cork tile
department earning 55 cents per hour and averaging between 25
,and 26, dollars per week.
Fitzpatrick, who was the oldest in point of seniority among the
other employees in the department; testified that he was laid off on
July 16, 1937, by Barr, Jr., who told him that business was slow
and that he would be notified when his services were again required.
Fitzpatrick was never recalled to work.
Fitzpatrick, together with Greenberg and Bulkowski, was active in
soliciting members for the Union. With Bulkowski he had voted
to exclude supervisory employees from the meeting of May 26 and
had conferred with Greenberg after the latter's discharge in order
to continue the organization of the respondent's employees. Fitzpat-
rick, after some delay, had also signed the contract with the respond-
ent in the belief that a refusal to sign would result in his discharge.
As in the case of Bulkowski, the respondent's contentions with
respect to Fitzpatrick's lay-off are not supported by the record.
DECISIONS AND ORDERS 711
Barr, Jr., testified that he acted as foreman of the cork department
while his father, Barr, Sr., the regular foreman, was on his vacation.
Finding that he was not securing Fitzpatrick's cooperation during-
his father's absence, and acting pursuant to Kennedy's suggestion,
he laid off Fitzpatrick for a period of 2 weeks, until Barr, Sr.,
should return. He further testified that Fitzpatrick did not there-
after apply for reinstatement. Barr, Jr., admitted, however, that
contrary to the usual practice, Fitzpatrick was paid in full on the
last day he worked instead of being required to return the following
week for his last week's wages.
Fitzpatrick testified that the cork tile department was busy both
at the time of his discharge and thereafter, and that the employees
therein regularly worked overtime during this period. This testi-
mony was not denied. Under the circumstances it is likely that the-
respondent would have notified Fitzpatrick, who had been employed
by it for a period of 13 years,, to return, if his lay-off had been con-
sidered only temporary.
From all the evidence it is clear, that the respondent seized upon
a pretext to conceal the motive for this discharge. In commenting-
upon Barr, Jr.'s testimony, the Trial Examiner stated in his Inter-
mediate Report : "From the manner in which Thomas Barr, Jr. testi-
fied, his statements cannot be seriously considered; it could readily be
discerned that there was no real reason for the discharge of Fitz-
patrick other than his union activities." We find that the respondent.
discharged Fitzpatrick on July 16, 1937, because of his activities on,
behalf of the Union.
Up to the time of the hearing Fitzpatrick had not secured other
employment and he desires to be reinstated.
C. Conclusions regarding the discharges
We have found that Greenberg, Bulkowski, and Fitzpatrick were
discharged for the reason that they joined and assisted the Union._
It is significant that these three employees were the most active-
exponents of the Union and were most bitterly opposed to the col-
lective bargaining committee fostered by the respondent. The dis-
charges not only amounted to an unlawful discrimination' against
these men but also constituted interference, restraint, and coercion of
all the employees in the exercise of their right to self-organization
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with its operations described in
80618-88-vor, vi-46
712 NATIONAL LABOR RELATIONS BOARD
Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
Upon the basis of the foregoing findings of fact and upon the en-
tire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile `Yorkers Organizing Committee and The Collective Bar-
gaining Committee of The Employees of David E. Kennedy, Inc.
are labor organizations, within the meaning of Section 2 (5) of the
Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of Isidore Greenberg, Frank Bulkowski, and
Thomas Fitzpatrick, and thereby discouraging membership in a labor
organization, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
3. The respondent, by dominating and interfering with the for-
mation and administration of The Collective Bargaining Committee
of The Employees of David E. Kennedy, Inc., and by contributing
support to that organization, has engaged in and is engaging in un-
fair labor practices, within the meaning of Section 8 (2) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
David E. Kennedy, Inc., Brooklyn, New York, and its officers, agents,
successors , and assigns shall:
1. Cease and desist :
(a) From dominating or interfering with the administration of
The Collective Bargaining Committee of The Employees of David
E. Kennedy, Inc., or with the formation or administration of any
other labor organization of its employees and from contributing
financial or other support to The Collective Bargaining Committee
of The Employees of David E. Kennedy, Inc., or any other labor
organization of its employees;
DECISIONS AND ORDERS 713
(b) From discouraging membership in Textile Workers Organiz-
ing Committee or any other labor organization of its employees by
discrimination in regard to hire or tenure of employment;
(c) From giving effect to the contract made with The Collective
Bargaining Committee of The Employees of David E. Kennedy, Inc.
on May 28, 1937, and to the individual contracts made with its
employees on that day and thereafter;
._(d) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Isidore Greenberg, Frank Bulkowski, and Thomas Fitz-
patrick immediate and full reinstatement to their former positions
without prejudice to their seniority and other rights and privileges;
(b) Make whole Isidore Greenberg, Frank Bulkowski, and Thomas
Fitzpatrick for any losses of pay they have suffered by reason of the
respondent's discriminatory acts, by payment to each of them of a
sum of money equal to that which each would normally have earned
as wages from the date of his discharge to the date of the respondent's
offer of reinstatement, less any amount earned by each during that
period;
(c) Withdraw all recognition from The Collective Bargaining
Committee of The Employees of David E. Kennedy, Inc., as a repre-
sentative of its employees for the purposes of dealing with the respond-
ent concerning grievances, labor disputes, rates of pay, wages, hours
of employment, or other conditions of employment, and completely
disestablish The Collective Bargaining Committee of The Employees
of David E. Kennedy, Inc., as such representative;
(d) Personally inform in writing each of its employees who has
entered into the individual contract of employment, that the obtain-
ing of such contract by the respondent constituted an unfair labor
practice within the meaning of the National Labor Relations Act,
and that therefore the respondent is obliged to discontinue such con-
tract as a term or condition of employment and to desist from in
any manner enforcing or attempting to enforce such contract ;
(e) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of thirty (30) consecu-
tive days, stating (1) that the respondent will cease and desist as afore-
said; (2) that the respondent withdraws and will refrain from all
recognition of The Collective Bargaining Committee of The Em-
714 NATIONAL LABOR RELATIONS BOARD
ployees of David E. Kennedy, Inc., as a representative of its employees
and completely disestablishes it as such representative; and (3) that
the contract made with The Collective Bargaining Committee of The
Employees of David E. Kennedy, Inc. on May 28, 1937, and the
individual contracts made with its employees on that day and there-
after are void and of no effect;
(f) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.