E. R. Haffelfinger Co., Inc.

National Labor Relations Board - Board Decisions

May 14, 1936

1 N.L.R.B. 760 (N.L.R.B. 1936)

In the Matter of E. R. HAFFELFINGER COMPANY, INC. and UNITED
WALL PAPER CRAFTS OF NORTH AMERICA, LOCAL No. 6
Case No. C-46.-Decided May 14, 1936
Wall Paper Industry-Discrimination : discharge-Reinstatement Ordered-
Back Pay: awarded.
Mr. Gerhard P. Van Arkel for the Board.
Palmer ct Series, by Mr. Frank R. Series, Jr., of New York City,
for respondent.
Mr. Alfred H. Billet, of York, Pa., for the Union.
Mr. Isaiah S. Dorfman, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 17, 1935, United Wall Paper Crafts of North America,
Local No. 6, hereinafter referred to as the Union, filed with the
Regional Director for the Fourth Region, a 'charge that the E. R.
Haffelfinger Wall Paper Co., Hanover, Pennsylvania, had engaged
in and was engaging in unfair labor practices contrary to the
National Labor Relations Act, approved July 5, 1935, hereinafter
called the Act.
On November 19, 1935, the Board issued a complaint, signed by the
Regional Director for the Fourth Region, alleging that respondent
had committed unfair labor practices affecting commerce.within the;
meaning of Section 8, subdivisions (1) and (3) and Section 2, sub-
divisions (6) and (7) of the Act, in that on August 16, 1935, it dis-
charged from its employ three color mixers : Clifton Fuhrman, Virgil
Loss and George E. Rebert; and five machine printers: Ira Brown,
Guy Brown, Raymond Kopp, Allen Messinger and Richard Blettner,
and has since that date refused to reinstate them, because they joined
and assisted a labor organization, known as United Wall Paper
Crafts of North America, Local No. 6.
The complaint and the accompanying notice of hearing were duly
served upon respondent and the Union. On. November 25, 1935
an answer was filed on behalf of respondent. Subsequently, at' the
hearing held on December 9, 1935 at York, Pennsylvania, before
Joseph Knox Fornance, Trial Examiner duly designated by the
Board, respondent filed an amended answer which admitted the
760
DECISIONS AND ORDERS 761
discharge of the eight men; denied each and all of the other allega-
tions in the complaint pertaining to the discharge; denied that its
transactions and operations constitute "a continuous flow of com-
merce among the several states", and alleged that it is not engaged
in interstate commerce and that the discharged men were not en-
gaged in any operation affecting commerce; and that in so far' as
the Act is intended to apply to the relations of respondent with its
employees engaged in the manufacture of goods, it is unconstitu-
tional. Full opportunity to be heard, to examine and cross -examine
witnesses and to introduce evidence bearing upon the issues was
afforded to all parties.
At the hearing the charge and complaint were amended to read
"E. R. Haffelfinger Co., Inc." instead of "E. R. Haffelfinger Wall
Paper Co." Counsel for respondent orally moved to dismiss the
complaint for the reasons stated in the amended answer. The mo-
tion was denied as prematurely made, but counsel was given leave
to file a brief in support of his motion. At the 'conclusion of the
testimony in support of the complaint, counsel for respondent moved
to dismiss on the ground' that the Board had failed to prove that
the discharge of the eight employees interfered with the free • flow'
of, or hindered commerce. The Trial Examiner reserved decision.
At the close of the hearing counsel for respondent moved to dismiss
for lack of jurisdiction and for failure to prove the facts alleged in
the complaint. The Trial Examiner reserved decision as to these
motions also. Upon agreement of counsel, counsel for the Board
and for respondent were given leave to file an affidavit and counter-
affidavit, respectively, on the nature of the wall-paper industry. The
affidavit and respondent's memorandum in reply thereto were re-
ceived by the Trial Examiner on December 27, 1935. The affidavit
(by Justin Allman) is hereby received in evidence, and it, together
with the memorandum in opposition to the affidavit, are made part-
of the record in this matter.
On January 8, 1936, the Trial Examiner duly filed with the Re-
gional Director an Intermediate Report in accordance with Article
II, Section 30 of National Labor Relations Board Rules and.Regu-
lations-Series 1. The Trial Examiner found that respondent had
not committed unfair labor practices within the meaning of Section
8, subdivisions (1) and (3) of the Act as alleged in the complaint.
He found further that, "respondent is not subject to regulation by
the National Labor Relations Board, and the National Labor Rela-
tions Board has. no jurisdiction over the matters set forth in the
charge and complaint." Upon these findings the Trial Examiner
granted respondent's motions to dismiss the complaint for lack
of jurisdiction, and for failure to prove the facts alleged in the
complaint.
762 NATIONAL LABOR RELATIONS 'BOARD
Exceptions to the Intermediate Report were filed on behalf of the
Union in accordance with Article II, Section 32 of National Labor
Relations Board Rules and Regulations-Series 1.
Upon the entire record in the case, the stenographic report of the
hearing and all the evidence, including oral testimony and other
evidence offered and received, the Board makes the following :
FINDINGS OF FACT
1. Respondent is a corporation organized and existing under the
laws of the State of Pennsylvania. Its principal office and place
of business is in the City of Hanover, York County, Pennsylvania,
where it is engaged in the manufacture, sale and distribution of
wall-paper. Everett R. Haffelfinger is the principal stockholder,
owning x,11 but a few shares of the stock of respondent corporation.
2. In the production of wall-paper, respondent uses paper, color
pigments, starch, clay, glue and other raw materials. It purchases
all of its paper in the States of Maine and New York; about fifty
per cent of its starch in Michigan and Illinois, and the balance in
Pennsylvania; all of its clay in Georgia; and its glue in Pennsyl-
vania, although it is manufactured in New York. These materials
are transported to respondent by rail and truck. -.A railroad siding
facilitates delivery directly to the loading platform of the plant,
where respondent's employees unload the goods. Respondent pays
the freight charges for all goods delivered at the plant, some of
the charges being remitted.
3. Upon delivery, the materials are stored for use in production
of wall-paper. The imprinted paper is fed through a grounding
machine to impart to it a ground coloring. After the appropriate
colors have been mixed, the paper is put through printing machines.
The printed paper is then dried, after which it is rolled and is nor-
mally ready for shipment. Part of respondent's wall-paper output is
embossed; that is, an embossing machine softens the colors and gives
the paper a rough appearance. Except for embossing, the process is
continuous. The finished product is then stored for shipment and
for stock. Normally, respondent employs about sixty workers in
the entire process, including among them three color mixers and six
printers. On the date of the hearing, however, respondent employed
only fifty-five employees at this work. The work of the color mixers
and the printers is indispensable to the production of wall-paper.
4. Respondent also employs, on a salary and commission basis,
about seven road salesmen, five of whom use automobiles supplied by
respondent, and two of whom use their own cars. They operate in
the States of New York, New Jersey, Ohio, Oklahoma. Kansas and
Texas, and in the Southern and New England States. The salesmen
DECISIONS AND ORDERS 763
obtain orders and mail them to respondent, which then fills the orders
and causes the finished wall-paper to be transported to the customers.
5. Respondent's gross income from sales in 1934 amounted to about
$200,000, representing the production and sale of approximately two
and a half million rolls of paper. Sales in 1935 were between ten
and twenty per cent less than in 1934. Between 60 and 70 per cent
of respondent's wall-paper is sold and transported to customers in
twenty states of the United States other than the State of Pennsyl-
vania. Approximately seventy-five per cent of such paper is con-
veyed by rail and twenty-five per cent by truck. Normally, a truck,
owned by respondent and operated by one of its employees, carries
the wall-paper from respondent's plant to the appropriate railroad
station, but on occasion the railroad company sends a truck for the
paper.
6. Besides respondent, there are only about thirty-four wall-paper
producing companies in the United States, all of whom are located
in States east of the Mississippi River. Respondent is in direct com-
petition with each and all of the other wall-paper producing com-
panies. In the industry generally, as in the case of respondent, most
of the raw materials used are purchased from States other than those
in which the wall-paper plants are located. From July 1, 1934, to
July 1, 1935, 342,000,000 rolls of wall-paper were produced by the
industry. A total of approximately 700 color mixers and printers
were employed in the production of that wall-paper. An average of
eighty per cent of all wall-paper produced is warehoused preparatory
to shipment throughout the United States and twenty per cent for
stock purposes.
7. The operations of respondent constitute a continuous flow of
trade, traffic and commerce among the several States.
THE UNFAIR LABOR PRACTICES
8. Haffelfinger entered into the business of producing wall-paper
at Hanover, Pennsylvania, in 1910. At that time the color mixers
and printers employed by him were members Of a labor organization.
In 1911 or 1912 his color mixers and printers joined with others of
the same occupation in an industry-wide strike. During the course
of that strike he began to operate on an "open shop" basis, and con-
tinued that policy to July 1933.
9. In July 1933, the eight employees here involved and one, Walter
Bankert, a printer, became members of the Union. Shortly there-
after, a representative of the Union presented to Haffelfinger for
consideration a proposed agreement to be entered into between re-
spondent and the Union. Haffelfinger said to the representative, "I
don't want anything to do with it." When asked, "Just what part
764 NATIONAL LABOR RELATIONS BOARD
of it do you object to?", Haffelfinger replied, "I object to the whole
thing. I will never sign any agreement." The nine color mixers
and printers who had joined the Union, and who were the only color
mixers and printers employed by respondent, then went out on strike
for a period of about three weeks. No wall-paper was produced at
respondent's plant during that period, and shipments of wall-paper
to respondent's customers were seriously curtailed.
10. In October, 1934, the Union presented another proposed agree-
ment which Haffelfinger again refused to consider. He said to the
Union representative at that time, "If there is any contract made it
will be made by me, and it will not be changed, and that will be the
only contract that will be signed." On October 11, 1934, the same
nine color mixers and printers who struck in 1933, again went out on
strike. During the course of this strike Bankert returned to work
for respondent, and thus forfeited his membership in the Union. The
strike continued to January 17, 1935, when pursuant to a decision
of the Philadelphia Regional Labor Board of the old National Labor
Relations Board, respondent reinstated the remaining eight striking
employees, who incidentally are the same individuals involved in
the matter before us.
11. On July 31, 1935 respondent sent to each of the said eight em-
ployees, the only union members in the plant, the following notice :
"DEAR SIR : Your services will not be required after August
16th.
Very truly yours,
E. R. HAFFE'LFINGER CO."
No such notice was sent to Bankert, and he was not discharged.
12. On or about August 14, 1935 a committee of the Union waited
upon Haffelfinger. Haffelfinger explained to the committee that he
discharged the men for "lack of production". When asked to recon-
sider, he replied that he would not; "that he had enough trou-
ble with his men for the last two years, and the Union struck on him
for two years now in succession and he was not going to have any
further trouble-"
13. On October 23, 1935, when Ira Brown, one of the discharged
men, inquired about reemployment, Haffelfinger said that he did
not want any union men. On November 7, 1935, when Loss, another
of the discharged men, applied for reemployment, Haffelfinger said
to him, "I don't want a union man in my shop any more."
14. At the hearing respondent alleged that during the first seven
months of the year 1935 production at the plant was lower than for
the same period in 1934, and that the amount of waste or spoiled
paper was greater than for the entire year 1934; that this was due
to carelessness or inefficiency on the part of the eight employees, and
that consequently they were discharged.
DECISIONS AND ORDERS 765
Respondent admitted that prior to the year 1935 it had no objec-
tion to the work of the discharged men. At the beginning of the
year 1935 respondent introduced for the first time in the plant a
water-proofing process which was applied to about forty per cent
of its wall-paper output. One of respondent's witnesses, Jacob C.
Eisenhart, a wall-paper manufacturer, testified that in the manu-
facture of washable wall-paper there is a fifteen per cent loss of time
in starting the machines and getting the colors in and that this loss
continues throughout the manufacturing season. Charles Miller,
superintendent of respondent's plant, testified that the printing of
washable paper invariably resulted in some increase of waste paper.
It also appears that there was frequent experimentation with ingre-
dients in the water-proofing process which on occasions caused the
color materials to harden and the paper to tear; that respondent
failed to furnish appropriate heating apparatus to dry the wet coated
paper; and that towards the end of the sampling season for a few
weeks there was a shortage of sticks upon which the printed paper
is normally hung to dry. Respondent had purchased an order of
green sticks, which when subjected to heat would curl and break. It
'being near.the • end of the'season, the superintendent determined to
get along with those sticks rather than purchase anew supply. The
combination of these factors could of itself account for the decrease
in production and increase in waste; in any event, respondent's evi-
dence fails to convince us that the decrease in production and in-
crease in waste was due to carelessness or inefficiency of the eight men.
15. Each of the eight discharged employees began to work for
respondent as a helper, and by a series of promotions became either
a printer or a color mixer earning a salary of $42 or $44 per week
at the time of the discharge. The youngest in point of service was
employed by respondent for a period of nine years, the oldest for
fourteen years.
16. Haffelfinger testified that he believed only some of the eight
employees to be inefficient. He did not, however, name those he con-
sidered inefficient. He stated that he spoke to Kopp regarding lack
.of production, and to Messinger relative to inferior work and inat-
tention to his work, but without more, the evidence would not sus-
tain an allegation that they were inefficient. When asked why he
discharged all eight, he stated . . ., "because they struck twice on
me as a body and that interfered with my business very seriously,
and I knew that they-I thought maybe they would stand together
and I just thought I would let them all work along until the end
of the year and let them go. There was a time I should have put
them out, some of them."
766 NATIONAL LABOR RELATIONS BOARD
Respondent has thus, by testimony of its principal officer, in effect
admitted that it was to prevent concerted activity on the part of its
employees, for the purpose of collective bargaining or other mutual
aid or protection, that all eight were discharged. If any further
proof of respondent's real reason for discharging the eight employees
is needed, it can be found in the coincidence that the only employee
among respondent's color mixers and printers who was retained was
Bankert, a non-union man, while the eight union men were dis-
charged. A more open and brazen attempt to discourage union affili-
ation by discharging union members than is offered in the plain facts
of this case would be hard to discover.
17. We find that respondent discharged and refused to reinstate
the eight above mentioned employees for the reason that they joined
and assisted the Union, and engaged in concerted activities with
other employees for the purpose of collective bargaining and other
mutual aid and protection.
18. We find further that respondent discriminated against the said
eight employees with respect to hire and tenure of employment for
the purpose of discouraging membership in the Union, and has
thereby interfered with, restrained and coerced its employees in the
exercise of the rights of self-organization guaranteed in Section 7
of the Act.
EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
19. It was found above that color mixers and printers were in-
dispensable to respondent's production of wall-paper, between sixty
and seventy per cent of which is sold in interstate commerce. Strikes
involving color mixers and printers necessarily result in an interrup-
tion of the steady and continuous flow of commerce to and from
respondent's plant. The aforementioned strike at respondent's plant
in 1933 is illustrative. Respondent produced no wall-paper during
the course of the strike, and shipments from the plant were seriously
curtailed. In October, 1934 also, respondent's refusal to bargain
collectively with its employees caused a strike which continued until
January, 1935. This experience, according to the record, was also
shared by the United Wall Paper Factories Co., whose color mixers
and printers went out on strike on four occasions during the period
from 1920 to 1935. Each of the strikes seriously interrupted opera-
tions of that company and curtailed shipments in interstate commerce
to and from its plants.
20. The aforesaid acts of respondent have led and tend to lead to
labor disputes burdening and obstructing commerce and the free
flow of commerce,.
DECISIONS AND ORDERS
THE REMEDY
767
In order to undo, so far as possible , the harm resulting from the
unfair labor practices , we are ordering respondent to reinstate the
eight discharged employees . Normally , we would also order back
pay from the date of discharge to the time of respondent 's offer of
reinstatement . We believe , however, that in view of the Trial Ex-
aminer's recommendations , respondent could not have been expected
to reinstate the discharged men after it received the Intermediate
Report ( January 17, 1936 ), and therefore it should not be required
to pay back pay from that time to the date of this decision.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding the Board finds and concludes as a
matter of law:
(1) United Wall Paper Crafts of North America, Local No. 6, is
a labor organization, within the meaning of Section 2, subdivision
5, of the Act.
(2) Respondent, by discriminating in regard to the hire and tenure
of employment of Clifton Fuhrman, Virgil Loss, George E. Rebert,
Ira Brown, Guy Brown, Raymond Kopp, Allen Messinger and Rich-
ard Blettner, and each of them, has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8, subdivisions
(1) and (3) of the Act.
(3) Such unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2, subdivisions (6) and
(7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
respondent, E. R. Haffelfinger Co., Inc. and its officers and agents
shall :
(1) Cease and desist:
(a) From discouraging membership in United Wall Paper Crafts
of North America, Local No. 6, or in any other labor organization
of its employees, by discharging, threatening to discharge, or refus-
ing to reinstate any of its employees for joining said United Wall
Paper Crafts of North America, Local No. 6, or any other labor
organization of its employees; and
(b) From in any other manner discriminating against any of its
employees in regard to the hire or tenure of employment or any
term or condition of employment for joining United Wall Paper
768 NATIONAL LABOR RELATIONS BOARD
Crafts of North America, Local No. 6, or any other labor organiza-
tion of its employees; and
(c) 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 collec-
tively through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining or
other mutual 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 to Clifton Fuhrman, Virgil Loss, George E. Rebert, Ira
Brown, Guy Brown, Raymond Kopp, Allen Messinger and Richard
Blettner, immediate and full reinstatement, respectively, to their
former positions, without prejudice to any rights and privileges
previously enjoyed;
(b) Make whole said Clifton Fuhrman, Virgil Loss, George E.
Rebert, Ira Brown, Guy Brown, Raymond Kopp, Allen Messinger
and Richard Blettner for any loss of pay they may have suffered by
reason of their discharge, by the payment to each of them, respec-
tively, of a sum of money equal to that which each would normally
have earned as wages during the periods from August 16, 1935 to
January 17, 1936, and from the date of this decision to the time of
such offer of reinstatement, computed at the weekly wage at the time
of discharge, less the amount which each, respectively, has earned
during said periods; and in the event of any dispute as to the
amount due, the dispute shall be laid before this Board, for deter-
inination within the terms set forth in this order; and
(c) Post immediately notices to its employees in conspicuous
places in its plant stating (1) that respondent will cease and desist
in the manner aforesaid, and (2) that such notices will remain posted
for a period of at least thirty (30) consecutive days from the date
of posting.