Fein's Tin Can Co., Inc.

National Labor Relations Board - Board Decisions

May 28, 1940

23 N.L.R.B. 1330 (N.L.R.B. 1940)

In the Matter of FEIN'S TIN CAN CO., INC. and STEEL WORKERS'
ORGANIZING COMMITTEE , LODGE No. 2072 , AFFILIATED WITH TEE
COMMITTEE FOR INDUSTRIAL ORGANIZATION
Case No. C-1285-Decided May 28, 1940
Tin Can Manufacturing Industry-Interference, Restraint, and Coercion:
(1937) anti-union statements; fostering company union; reading loyalty pledge
to employees stating that employee who presented pledge does not belong to
any union; (1938) use of employment application form requiring disclosure
of union membership-Unit Appropriate for Collective Bargannsng: production,
maintenance, and shipping and receiving employees, exclusive of supervisory
and clerical employees and chauffeurs ; no controversy as to-Representatives:
proof of choice : majority designation admitted by employer-Collective Bar-
gaining: charges of refusal to bargain collectively dismissed ; impasse on
closed or preferential shop ; refusal by union to discuss other terms at sug-
gestion of employer-Lock-out: allegations of, dismissed where employees left
plant voluntarily pursuant to strike call of union president-Strike: not a
result of or prolonged by unfair labor practices-Discrimination: discharge
of four employees and reduction of working hours of one - employee ; all rein-
stated following strike in 1937 pursuant to strike settletent agreement ;
reinstatement of only a portion of strikers pursuant to union .application fol-
lowing 1938 strike held non-discriminatory where employer reinstated as marty
strikers as feasible in view of curtailed production and preferred those who
continued to reapply ; failure to displace one strike-breaker non-discriminatory
where strike neither caused nor prolonged by unfair labor practices ; offers
of reinstatement to three employees following strike in 1938 held discrimina-
tory refusal to reinstate where conditioned upon repudiation or abandonment
of union activities ; bona fide statement of employee to employer 's customers
that lock-out was in progress and requesting them not to buy, employer may
not lawfully condition reinstatement upon repudiation of-Reinstatcinent Or-
dered: of three strikers offered positions upon illegal condition ; misdeameauor,
conviction of, no bar to reinstatement where employer offered to reinstate
with full knowledge of acts leading to conviction-Back Pay: not awarded
to employees discriminated against in 1937 in view of reinstatement pursuant
to subsequent strike settlement agreement wherein Union waived claims to
back pay and in view of absence of discrimination during term of agreement;
awarded to three striking employees discriminatorily refused reinstatement
in 1938-Notice: further posting ordered where Board, reversing Trial Exam-
iner, found employees discriminatorily refused reinstatement and respondent
admittedly continued to engage in conduct found to constitute interference-
Procedure: evidence in support of findings as to interference and discrimination
in 1937 not set forth in detail in absence of exceptions by respondent to Trial
Examiner 's findings ; issues raised by Union's exception to failure by Trial Ex-
aminer to find additional acts of interference in 1937 not reviewed in view of
findings of unfair labor practices during this period and respondent's com-
pliance with Trial Examiner's recommendations for remedying such practices.
23 N. L. R. B., No. 137.
1330
FEIN 'S TIN CAN COMPANY, INC. 1331
Mr. Mark Lauter, for the Board.
Mr. Malvin B. Mariash , of New York City, and McCabe, O'Dough-
erty , and Lee, by Mr. Peter A. McCabe, Mr. Harold O'Douylierty,
and Mr. Robert E. Lee, all of New York City, for the respondent.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee, Lodge No. 2072,1 herein called the Union, the
National Labor Relations Board, herein called the Board, by the Re-
gional Director for the Second Region (New York City), issued its
complaint, dated November 1, 1938, against Fein's Tin Can Co., Inc.,
Brooklyn, New York, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. A copy of the complaint accompanied
by notice of hearing was duly served upon the respondent and upon
the Union. Thereafter the Regional Director duly issued and served
notices of postponement of the hearing.
With respect to the unfair labor practices the complaint alleged in
substance that: (1) on or about April 15, 1937, the respondent dis-
charged 13 named employees,2 herein referred to as the 1937 discharges,
because they joined and assisted the Union and engaged in other con-
certed activities for the purposes of collective bargaining and other
mutual aid or protection, and refused to reinstate them until on or
about June 26, 1937; (2) on or about February 1, 1938, and at all times
thereafter, the respondent refused to bargain collectively with the
Union as the exclusive representative of employees in an appropriate
1 Prior to October or November 1937, when it received a charter from Amalgamated As-
sociation of Iron, Steel & Tin Workers of North America , this labor organization was known
as Steel Workers Organizing Committee , Lodge No 1939 . Upon receipt of the charter its
name was changed to Steel Workers Organizing Committee , Lodge No 2072. It was agreed
by the parties , and we find , that Steel Workers Organizing Committee, Lodge No 2072;
Steel Workers Organizing Committee, Lodge No 1939 ; and Amalgamated Iron , Steel & Tin
Workers of America, as signatory to certain documents referred to infra, all affiliated with
the Committee for Industrial Organization ( now the Congress of Industrial Organizations),
are names used on different occasions to describe the same labor organization . Accord-
ingly, "Union," as used herein, refers to this labor organization as variously designated
2 The names of these persons are: Pat Tuccillo ( also known as Pasquale Tuccillo), John
Tuccillo, Joseph Catoggio , Vincent Catoggio , Angelo Laurenzelo , Dominick Anselmo, AI
Hollander , Frank Ruiz ( also known as Eusebio Martinez ), Charles Mucella , Gabriel Aiello,
Angello Cordova , Morris Steinberg , and Louis Badalaty The complaint named Pat Tuccillo
as Pat Tucilla , John Tucillo as John Tucilla , and Frank Ruiz as Frank Ruez At the
hearing the complaint was amended to set forth correctly the names of these individuals.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit composed of all production, maintenance, and ship-
ping and receiving employees, exclusive of supervisory and clerical
employees and chauffeurs, although the Union had been designated
by a majority of such employees as their exclusive representative for
the purposes of collective bargaining on or about May 27, 1937, in
an election by secret ballot conducted by the Board pursuant to the
consent of all parties and has at all times thereafter been the exclusive
representative of such employees; (3) on or about March 1, 1938, the
respondent locked out from its plant 85 named employees because they
joined and assisted the Union and engaged in other concerted activities
for the purposes of collective bargaining and other mutual aid or
protection, and on or about March 2, 1938, said 85 employees, together
with other production, maintenance, shipping and receiving employees
pf the respondent went on strike because of the unfair ,labor prac-
tices of the respondent; (4) on or about June 14, 1938, said 85 em-
ployees applied to the respondent for reinstatement,.but the respondent
refused to reinstate them because they,joined and assisted the Union
and engaged in other activities for the purposes of collective bargain-
ing and other mutual aid or protection; (5) from on or about April 1,
1937, down to and including the date of the issuance of the complaint,
the respondent has urged, persuaded, and warned its employees to
refrain from becoming or remaining members of the Union, has
threatened its employees with discharge and other reprisals if they
became or remained members of the Union, has vilified and :defamed
the Union, and has kept under surveillance the meetings and meeting
places of union members; and (6) by the foregoing acts and other
acts the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
On or about November 10, 1938, the respondent filed its answer ad-
mitting certain allegations of the complaint concerning the nature
and interstate character of its business, and also admitting the alle-
gations of the complaint concerning the appropriate unit and the
designation of the Union as representative of the employees in such
Unit, but denying that it had engaged in any unfair labor practices.
With respect to the 1937 discharges,3 the answer admitted that two
of said employees, Pat Tuccillo and Morris Steinberg, had been,dis-
charged but averred that they were .discharged "for causes other than
their union activities," and, as a separate defense to the allegation
that these employees had been discriminatorily discharged on,or about
April 15, 1937, averred that on or about June 26, 1937, the respondent
and the Union "entered into ,an agreement, wherein and whereby all
differences existing between respondent and the employees were ad-
justed, settled and released."
3 See footnote 2, supra.
FEIN'S TIN CAN COMPANY, INC. 1333
Pursuant to the notices of hearing and postponement, a hearing
was held at New York City on November 25, 1938, before James C.
Paradise, the Trial Examiner duly designated by the Board. At the
commencement of the hearing, before any evidence was received, the
respondent applied for an adjournment. This was granted until
November 28, 1938, and thereafter, without a further hearing, until
December 8, 1938. On various days from December 8 to 29, 1938,
a hearing was held before Joseph L. Maguire, the Trial Examiner
duly designated by the Board in place and stead of James C. Paradise.
The Board and the respondent were represented by counsel and
participated in the hearing; the Union did not appear. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
During the Board's case, at the close of the Board's case, and at the
close of the hearing, the respondent made several motions to dis-
miss or strike the complaint and charges or various portions thereof,
on the grounds, in substance, that certain of the unfair labor practices
alleged in the complaint were compromised and settled by an agree-
ment entered into by the Union and the respondent on June 26, 1937,
and that the evidence failed to substantiate the allegations of the
complaint. Except for the denial of one such motion made during
the Board's case, the Trial examiner reserved ruling on these motions
to dismiss and ruled upon them in his Intermediate Report. At the
close of Board's case, the respondent moved to strike all testimony
of witnesses relating to events transpiring prior to June 26, 1937,
on the ground that on this date "all labor difficulties were compro-
inised." The Trial Examiner denied this motion.4 At the close
of the Board's case the Trial Examiner granted without objection
a motion by counsel for the Board to strike the names of seven
persons from those alleged in the complaint to have been discrimi-
natorily discharged in 1937.5 At the close of the hearing the Trial
Examiner also granted without objection motions by counsel for
the Board to strike the names of Charles Spallina and Joe Buovolo
from those alleged in the complaint to have been locked out and
discriminatorily refused reinstatement in 1938, and to conform the
complaint to the proof with respect to inaccuracies in names, dates,
* In Matter of Ingram Manufacturing Company and Textile Workers Organizing Com-
mittee . 5 N L R B. 908, 912, we pointed out that• ". evidence concerning unfair labor
practices under the Act, even though there has been a settlement of such matters binding
upon the Board , may, nevertheless , be relevant to the consideration of evidence of unfair
labor practices alleged to have been committed subsequently. A course of conduct, al-
though itself not within the operation of the Act, may throw light and color upon other
activities , and evidence concerning such conduct may therefore be relevant to matters at
issue and consequently admissible It is upon this theory that we have often considered
evidence of conduct which occurred prior to the effective date of the Act."
5 The names of these persons are. John Tuccillo , Angelo Laurenzelo , Dominick Anselino,
Charles Mucella, Gabriel Aiello, Angello Cordova, and Louis Badalaty.
288034-41-vol 23-83
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and places. During the hearing the Trial Examiner made several
other rulings on motions and on objections to the admission of evidence.
The Board has reviewed all the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial errors were committed. These
rulings are hereby affirmed.6
Thereafter, the Trial Examiner issued his Intermediate Report,
dated May 9, 1939, a copy of which was duly served upon the Union
and upon the respondent. The Trial Examiner found that the re-
spondent, by acts committed prior to June 26, 1937, had engaged in
and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act. He recommended that the respondent cease and
desist therefrom and take certain affirmative action to remedy the
situation brought about by the unfair labor practices found, but,
because of an agreement entered into by the respondent and the
Union on June 26, 1937, whereby all claims to back pay were waived,
did not recommend that the employees found to have been discrimi-
nated against during this period be awarded back pay. The Trial
Examiner further found that the respondent had not discriminated
against its employees in 1938 by locking out or refusing to reinstate
employees named in the complaint. Accordingly, he recommended
that the complaint be dismissed in this regard; he recommended,
however, that the respondent place on a preferential list those em-
ployees allegedly locked out and refused reinstatement who had not
been reinstated at the time of the hearing. The Trial Examiner also
found that the respondent had not refused to bargain collectively
within the meaning of Section 8 (5) of the Act, and granted the
respondent's motion to dismiss the complaint in this regard. This
ruling is hereby affirmed for reasons set forth below?
The Intermediate Report states that the Trial Examiner grants
the respondent's motion to dismiss with respect to the alleged 193T
discriminations, but denies the motion with respect to the alleged
discriminatory lock-out and refusal to reinstate in 1938. It would
appear that this was an inadvertent error in the Intermediate Re-
port, and that the Trial Examiner intended to dismiss the allega-
tions of discrimination in 1938. In any event, the dismissal of the
allegations concerning discrimination is reversed to the extent that
the dismissal is inconsistent with the findings we make below.8
The Regional Director has notified the Board that the respondent
has complied fully with the recommendations in the Intermediate
Report by placing employees not reinstated on a preferential list for
6 The rulings made by the Trial Examiner in his Intermediate Report upon motions on
which decision was reserved at the hearing are considered below
7 See Section III D 1, infra
8 See Section III C D 2, infra
FEIN'S TIN CAN COMPANY, INC. 1335
hiring and by posting notices as recommended in the Intermediate
Report.
On June 20, 1939, pursuant to an extension of time granted by
the Board, the Union filed exceptions to the Intermediate Report.
No exceptions have been filed by the respondent. Neither party re-
quested the Board for permission to file briefs or to present oral
argument.
The Board has considered the exceptions filed by the Union to
the Intermediate Report and finds them to be without merit in so far
as they are inconsistent with the findings, conclusions, and order
set forth below. The Board has also considered the exceptions of
the Union regarding certain alleged instances of improper conduct
of the hearing by the Trial Examiner. We have examined the
record not only with respect to the instances specified by the Union
but we have carefully examined the entire record in view of the
charge made. We find no basis for any claim of improper or preju-
dicial conduct.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT -
1. THE BUSINESS OF THE RESPONDENT
The respondent, a New York corporation having its principal
office and place of business in Brooklyn, New York,9 is engaged in
the manufacture, sale, and distribution of tin cans and steel pails.
From January 1, 1938, to October 1, 1938, the gross volume of the
respondent's purchases outside the State of New York was over
$150,000, which constituted approximately 75 per cent of the gross
volume of all the respondent's purchases of raw materials; the gross
volume of the respondent's sales of finished products shipped to
points outside the State of New York by railroad and trucks was
approximately $150,000, which constituted approximately 35 per cent
of the gross volume of the respondent's sales. The respondent
advertises its products in the American Ink Maker and Red Book,
publications which have a national circulation.
The respondent stipulated that it is engaged in interstate commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Steel Workers Organizing Committee, Lodge No. 2072,10 is a labor
organization affiliated with the Committee for Industrial Organiza-
tion," admitting to membership employees of the respondent.
9 The respondent also maintains a warehouse in Brooklyn , New York, and stores materials
in Trader 's Warehouse , Philadelphia , Pennsylvania , under a space -rental agreement.
10 See footnote 1, supra
n Now the Congress of Industrial Organizations
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Trial Examiner's findings of fact
In his Intermediate Report, the Trial Examiner, in substance,
made the following findings of fact :
Organizational activities among the respondent's employees
began in the early months of 1937. Alex Hollander, an em-
ployee of the respondent, assumed the initiative in seeking the
assistance of an existing organization, and, after interviewing
representatives of various organizations, sought and obtained the
assistance of the Steel Workers Organizing Committee.
In April 1937 preliminary organizational meetings were held;
union application cards were received and distributed by Hol-
lander to several of the respondent's employees; and a campaign
was instituted to obtain signatures to these cards. The organi-
zational efforts of these employees were countered by the launch-
ing of a campaign to organize the employees of the respondent
into an association called the Independent Workers Association
of 284 Furman St., Brooklyn, New York '12 hereinafter called the
Association. Irving Fein, vice-president of the respondent, at
the request of Palestino, who was in charge of four men in the
factory, accorded the use of an unobstructed portion of the third
floor of the factory for the conduct of several Association meet-
ings. Foremen were eligible to, and were members of, the
Association and, indeed, Severini, head of the shipping depart-
ment, and Isgro, head machinist, were the principal organizers
of the Association. Although there was testimony that Irving
Fein spoke at several such meetings, he admitted attendance at
only one. At this meeting he indicated his preference for an
inside organization, stating in substance that there was no neces-
sity of paying money to outsiders and that the employees could
have an organization of their own. On the only occasion on
which dues in the Association were collected, the collection
occurred in the plant near the office where the employees were
being paid. No objection to such collection was made by the
respondent.
Isgro spoke at some of the plant meetings and procured the
services of an attorney who was in attendance and addressed
at least two meetings. He also appeared at conferences held
with Irving Fein in the latter's office, attended by several em-
ployees who had been named delegates for the Association. On
or about May 5, 1937, the respondent entered into an agreement
12 This is the address of the respondent
FEIN 'S TIN CAN COMPANY, INC. 1337
with the Association. There is no evidence that the Association
submitted proof that it had been designated by a majority of
the respondent's employees as their representative for the pur-
poses of collective bargaining , or that the respondent requested
it to do so.
On May 27, 1937, a consent election by secret ballot was con-
ducted under the auspices of the Board, in which the Union
obtained a majority of the vote cast . Thereafter, activity with
respect to the Association diminished and by the early part of
June 1937, the Association had become inactive.
During the organizational activities on behalf of the Union,
between the latter part of April and the first part of June 1937,
Hollander, Morris Steinberg, Vincent Catoggio, Frank Ruiz, and
Pat Tuccillo, all active on behalf of the Union, were dismissed.
The amount of work accorded Joe Catoggio was materially
reduced between May 13, 1937, and June 4, 1937.
In May 1937, Nicola Barbera received a pay raise, and there-
after delivered a loyalty pledge, signed by him, to Irving Fein,
who expressed pleasure at its receipt. Barbera indicated in the
pledge, after having stated his loyalty to Irving Fein and the
respondent, that he did not belong to any union. That same af-
ternoon Fein addressed a group of workers in the factory and
read the pledge to them.
About the middle of May 1937, anticipating trouble and, as
Irving Fein testified, in fear of a sit-down strike, he telephoned
the Police Department and requested protection. In response to
the request a policeman was stationed in front of the plant daily
from the middle of May until sometime about the end of June
1937.
The respondent's employees went on strike on June 4, 1937.
There was considerable violence during the strike by both strik-
ers and non-strikers. Several strikers were convicted of
charges of assault which occurred near the factory; a striker
was subjected to a beating and another striker died on June 25,
1937, as the result of a blow he received while on the picket line.
The following day, June 26, 1937, the respondent and the Union
entered into a contract to terminate February 28, 1938, "whereby
the then prevailing differences between the respondent and its
employees were composed." All employees who were alleged in
the complaint to have been discriminatorily discharged were re-
instated in the employ of the respondent pursuant to the terms
of said contract, and there is nothing in the record to indicate
that the -term of employment of such persons was interrupted
during the life of the contract. Concurrently with the execu-
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of this contract a supplemental agreement was executed
whereby "all claims for back pay or wages which any of their
employees may have had by reason of discharge, lay-off or strike
are waived and (that) no claim shall be made by any such
employee for such back pay or wages." Both parties were rep-
resented by counsel at the negotiations which resulted- in the
signing of the agreements; and both agreements bear the signa-
ture of counsel for the Union as witness thereto. The respond-
ent substantially adhered to the contract and supplemental
agreement of June 26, 1937, during the term thereof.
About one month prior to the termination of the aforesaid
contract the respondent rejected a proposal that the contract be
extended for 30 days, but stated its willingness to begin negotia-
tions for a new contract. Conferences were held between rep-
resentatives of the Union and representatives of the respondent
on February 24 and 28, 1938, at which the only item discussed
was a closed shop, inasmuch as the Union would not consent to
the respondent's suggestion that they forego discussion on that
subject matter temporarily and proceed to other items. No
agreement was reached. Approaching midnight at the confer-
ence of February 28, 1938, it was decided to defer negotiations
until the following day at 2 o'clock. A union meeting was to be
held after the conclusion of this conference. The respondent
agreed that employees might report to work late on the following
morning.
Those present at the union meeting were advised that nego-
tiations were progressing satisfactorily; that they should report
to work the following morning, though they would be excused if
they reported late. There was opposition by some of the men
to reporting to work, inasmuch as a new contract had not been
executed.
On the morning of March 1, 1938, all was in preparation for
operations. Although a full crew was not present as some em-
ployees had availed themselves of the privilege of reporting late,
those who were present started to work at 8 o'clock. At about
10 minutes past 8 o'clock, George Fein remonstrated with Morris
Engargola, president of the Union, for discontinuing work and
influencing others not to work and went to the office and sum-
moned Irving Fein. Irving upbraided Engargola for calling
upon the men to strike. Engargola and the group of employees
who had gathered around him left the building by way of a fire
escape. George and Irving Fein accompanied them reminding
them of the agreement of the night before and the scheduled
FEIN'S TIN CAN COMPANY, INC. 1339
resumption of negotiations, and Irving Fein exhorted the others
not to let Engargola bulldoze them and to return to work. An-
nouncements were made on other floors of the plant by a union
member that a strike was in progress, to shut off the power and
to come out on strike. A number of employees followed the ex-
ample of the Engargola group, while others remained at work.
The strikers congregated at union headquarters; by 9 o'clock in
the morning pickets appeared at the plant and later in the day
bore signs indicative of an existing strike.
Pursuant to arrangements, negotiations were resumed as sched-
uled at 2 p. m. on March 1. Again the only item discussed was
the closed shop, and the respondent remained adamant in its
refusal to agree thereto. Atallah, a representative of the Union,
rebuked the employees for striking, but they replied that it was
too late to do anything about it; that the men were already out;
and that they would not return unless a contract was signed.
Thereafter, several conferences were held at which little, if any-
thing, other than the Union's demand for a closed shop was dis-
cussed., The services of Commissioner Post of the United
States Department of Labor, and one La Noue, a representative
of the New York State Mediation Board, were availed of, but
without success. At one conference the respondent offered to
accept the terms set forth in a contract that the Union had signed
with the National Can Company, but the Union refused this
offer.
The factory was at no time shut down after March 1; men
were hired to replace the strikers; and several employees who
went out on strike returned before the strike was discontinued.
By letter dated June 10, 1938, the attorneys for the Union
wrote to the respondent applying for reinstatement of the strik-
ers. The respondent recognized this letter as a request for re-
instatement of all the strikers. In accordance with the letter,
the strikers appeared at the factory to report for work on June
14. They were interviewed individually within the plant, where
a number of them were told that they would be sent for shortly
thereafter, that time would be required to make adjustments
within the factory and for the release of those hired to replace
the strikers.
Strike activities were instrumental in causing an appreciable
recession in the respondent's sales. Consequently, at this time
and thereafter, the respondent's employee personnel was con-
siderably less than it had been prior to the strike.
Following the application for reinstatement, the respondent
terminated the employment of all those, except one, who had
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been hired to replace the strikers; and reemployed several of
the strikers. Some of the strikers continued to reapply for
work after June 14. These men were preferred in employment
inasmuch as the respondent felt that they evinced an interest
in their jobs and a desire to work.
In the latter part of July 1938, George Fein requested Abe
Woodman, a striker who had made several applications for
reinstatement, to notify his nephew, Alex Hollander, that there
was a job available and to report for work. Hollander, almost
a month subsequent to the date on which the strikers applied
for reinstatement, had been disseminating to customers of the
respondent literature under date of July 6, 1938, indicating
that a lock-out was in progress. Fein told Woodman to have
Hollander notify those to whom such literature was sent that
this characterization of a lock-out was inaccurate and that it
was depriving the respondent of business and militating against
the return of strikers who had not been reinstated. Hollander
refused to return to work.
B. The Trial Examiner's conclusions
The Trial Examiner found that by its acts in connection with the
Association, by reading Barbera's loyalty pledge to employees, by
discharging and refusing to reinstate Alex Hollander, Morris Stein-
berg, Pat Tuccillo, Frank Ruiz, and Vincent Catoggio, and by
curtailing the working hours of Joseph Catoggio, prior to the strike
which began on June 4, 1937, and by other acts described above
during that period, the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act,
and that the strike which began on June 4, 1937, was caused by the
aforesaid unfair labor practices. He accordingly recommended that
the respondent cease and desist from such unfair labor practices,
post notices in conspicuous places in its plant that it would cease
and desist in the manner aforesaid.
Inasmuch as he found that the respondent had reinstated the
employees alleged in the complaint to have been discriminated
against in 1937 pursuant to the terms of the contract of June 26,
1937, the provisions of which he found "were substantially adhered
to during the term thereof," and in view of the waiver of back pay
contained in the agreement, the Trial Examiner recommended that
the respondent should not be required to make any payment to said
employees for any loss of pay suffered by them by reason of the
aforesaid discrimination.
Since the Trial Examiner found that the respondent had not re-
fused to bargain collectively within the meaning of Section 8 (5)
FEIN'S TIN CAN COMPANY, INC. 1341
of the Act, and that it had not locked out or refused to reinstate
its employees in 1938 within the meaning of Section 8 (3) of the
Act, he recommended that these allegations of the complaint be
dismissed. He did recommend, however, that the respondent re-
instate those of said employees who had not been reinstated at the
time of the hearing, and that the respondent place them on a pref-
erential list for hiring and, offer to said employees, in accordance
with their respective seniority standings as the volume of the re-
spondent's business requires, reinstatement without prejudice to any
rights or privileges they previously had, to their former positions
or positions to which they would be as well qualified to perform as
new employees, before hiring any new employees.
C. Interference, restraini,t, coercion, and discrimination prior
to June 06, 1937
As stated above, the respondent filed no exceptions to the Inter-
mediate Report of the Trial Examiner. Accordingly, while we
have carefully reviewed the evidence with respect to interference,
restraint, coercion, and discrimination by the respondent prior to
June 26, 1937, and find that the respondent engaged therein by the
acts found by the Trial Examiner and summarized above, we shall
not set forth the evidence thereof in detail.13
We find, as did the Trial Examiner, that the respondent, by dis-
missing Alex Hollander, Morris Steinberg, Pat Tuccillo, Frank
Ruiz, and Vincent Catoggio, in April, May, and June 1937, and
refusing to reinstate them until on or after June 28, 1937, and by
curtailing the working hours of Joseph Catoggio from May 13 to
June 4, 1937, thereby discriminating in regard to their hire and
tenure of employment ands discouraging membership in the Union,
and by its acts in connection with the Association, by reading
Barbera's loyalty pledge to employees, and by other acts prior to
June 26, 1937, described above, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
D. The Union's exceptions
The Union excepted to the finding of the Trial Examiner that
the respondent had substantially adhered to the contract of June
26, 1937, and to the recommendation based thereon, that none of
is We construe the respondent 's failure to file exceptions to, and its compliance with, the
recommendations of the Intermediate Report, as an abandonment of its contention, made
at the bearing, that the collective bargaining contract and supplemental agreement with
the Union on June 26, 1937, operated as a compromise and settlement of unfair labor prac-
tices. In any event we should bold that contention to be without merit. Under the terms
of the contract and agreement the Union waived only the claims for back pay.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees found to have been discriminated against in 1937 be
reimbursed for any loss of pay suffered by reason of said discrim-
ination. The Union claims that the record establishes that the re-
spondent failed and refused to comply with the provisions of the
contract whereby the respondent agreed not to discriminate against
members of the Union, and that the agreement should not therefore
preclude the award of reimbursement for loss of pay suffered by
reason of the discrimination. The Union further excepts to the
findings of the Trial Examiner that the respondent, in 1938, had
not refused to bargain collectively with the Union and had not locked
out or refused to reinstate its employees. We shall consider these
contentions below.14
The Union also excepts to the alleged failure of the Trial Exam-
iner to find that the respondent had committed other acts of inter-
ference, restraint, and coercion. In so far as these alleged acts relate
to the period prior to June 26, 1937, we find it unnecessary to review
the issues raised by the Union's exceptions in view of the findings
made by the Trial Examiner with respect to other acts of interfer-
ence, restraint, and coercion committed by the respondent during that
period, the respondent's compliance with the recommendations of the
Trial Examiner, and the findings we have made with respect to those
acts 15 However, in so far as the Union's exceptions relate to alleged
acts of interference, restraint, and coercion from and after January
1938, a different situation is presented. The Trial Examiner found
that the respondent had not engaged in any unfair labor practices
during this period. In so finding he made no reference to the acts
to which the Union refers in its exceptions and which, the record
shows, are established by uncontroverted evidence. Under these cir-
cumstances, and in view of the nature of the acts charged we shall
consider below the evidence with respect thereto, the legal effect of
such acts and the necessity for requiring remedial action by the re-
spondent on account thereof.16
1. The alleged refusal to bargain collectively; the alleged lock-out
a. The appropriate unit
The complaint in the present proceedings alleges, and the respond-
ent's answer admits, that all production, maintenance, and shipping
14 The contention with respect to back pay is considered in Section V, infra, which deals
with the subiect of "Remedy " The contentions with respect to the respondent 's alleged
refusal to bargain and the alleged lock-out and refusal to reinstate are considered in Sec-
tion III D 1, 2, infra.
11 See Section III C above
11 See Section III D 3, infra. The remedy appropriate under the circumstances will be
considered in Section V, infra, in which we consider the general subject of "Remedy
FEIN 'S TIN CAN COMPANY, INC. - 1343
and receiving employees of the respondent at its Brooklyn plant,
exclusive of supervisory and clerical employees and chauffeurs con-
stitute an appropriate unit for the purposes of collective bargaining,
This, it is apparent, is the unit described in the contract of June 26,
1937, as consisting of all factory and plant employees, excluding
foremen, superintendents who have the right to hire and fire, truck-,
men, and office employees, and for which the Union was recognized
in that contract as the exclusive bargaining representative. We see
no reason to depart from the unit thus established.
We find that all production, maintenance, and shipping and receiv-
Ing employees of the respondent at its Brooklyn plant, exclusive of
supervisory and clerical employees and chauffeurs, at all times ma-
terial herein constituted and that they now constitute a unit approl.
priate for the purposes of collective bargaining, and that said unit
insures to employees of the respondent the full benefit of their right
to self-organization and to collective bargaining and otherwise effec-
tuates the policies of the Act.
b. Representation by the Union of a majority in the appropriate unit
The complaint in the present proceedings alleges, the respondent's
answer admits, and the record establishes that the Union on May 27,
1937, and at all times thereafter, has been designated by a majority
of the employees in the appropriate unit as their representative for
the purposes of collective bargaining.17
We find that the Union, at all times since May 27, 1937, has been
the duly designated representative of a majority of the employees in
the appropriate unit, and that, pursuant to Section 9 (a) of the
Act, the Union has been the exclusive representative of all the em-
ployees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, and other con-
ditions of employment.
c. The alleged refusal to bargain collectively prior to March 1, 1938
The contract executed on June 26, 1937, which Was to expire Feb-
ruary 28, 1938, provided that joint conferences of the representatives
of the respondent and the Union should commence on February 7,
1938, to negotiate a further agreement. In the latter part of Janu-
ary and.in February 1938, meetings of the Union were held at which
the negotiation of a new contract with the respondent was discussed.
17 In view of the respondent 's admission, it is unnecessary to set out other evidence,of
the Union's majority. We observe, however, that no probative value is to be attached to
statements made in June 1938 and thereafter by persons then employed or applying for
work who were required by the respondent (see Section III D 3 , Infra) to state whether
he was a member of a union
1344 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Proposals were drafted and read to the membership at one of these
meetings. Among the proposals was a provision for a closed shop,
which Engargola, the president of the Union, stated was the princi=
pal demand to be proposed. It was agreed that if the respondent
did not negotiate a written contract with the Union the men would
not continue to work after the expiration of the contract of June 26,
1937.
By letter dated January 26, 1938, E. J. Lever, field director of
the Steel Workers Organizing Committee, wrote to the respondent
requesting a 30-day extension of the current contract, and stating
that ".. . our members will not work without a signed agree-
ment ... " The respondent did not respond to this communica-
tion. Steuben, a representative of the Union, telephoned Irving Fein
on February 2 or 3, 1938, and inquired whether he would extend
the contract as requested. Irving Fein replied that he would not
extend the contract, but that he was willing to start negotiations at
once. Steuben, who stated that "they" were busy due to the expira-
tion of other contracts on February 28, called Irving Fein subse-
quently and arranged for a conference to be held, according to
Irving Fein, on February 24, 1938, at the Hotel St. George, Brooklyn,
New York.
Although the record is not clear, the testimony of witnesses for the
Board indicates that a conference was held prior to February 24,
1938. Engargola testified that he met Irving Fein in the lobby of
the Hotel St. George just before the first conference, which Engar-
gola stated was on February 17, 1938. Hollander also testified that
a conference took place at the Hotel St. George on or about Febru-
ary 17, 1938 . He stated that on this occasion , Irving Fein, George
Fein, and Hyman Fein, the president of respondent, were present
on behalf of the respondent ; Steuben , and the union negotiating
committee , composed of Hollander , Joe Catoggio , Ruiz, Engargola,
and James Di Pietro, were present on behalf of the Union. Ac-
cording to Hollander , Steuben made a "number of proposals" which
Irving Fein termed "kind of steep" in view of "tough competition
from other can companies ," and Fein said he would "bring in a set
of counter proposals to the next meeting that we would have at a
later date." Hollander testified that Steuben suggested that the
union negotiating committee would organize a competitor of the
respondent , referred to as "Eastern Can," if their pay would con-
tinue; that the respondent acceded to this suggestion , except that it
insisted that Engargola remain at work; and that the men on the
committee took the following week off and attempted to organize
Eastern Can . Irving Fein denied that he agreed to permit the men
to take a week off to organize Eastern Can . Hollander's testimony
FEIN'S TIN CAN COMPANY, INC. 1345
was corroborated by that of Ruiz and Joe Catoggio. The respond-
ent's pay roll for the week in question lists the members of the
negotiating committee, other than Engargola, as "out." We find
that Hollander's testimony is substantially correct.
Irving Fein testified that the first conference held with the Union,
which, he stated, took place at the Hotel St. George on February 24,
1938, was attended by Irving Fein, George Fein, Hyman Fein, counsel
for the respondent, representatives of the Union, counsel for the
Union, and members of the negotiating committee of the Union.
Although Mariash, counsel for the respondent, sought to direct the
discussion to other matters, all that was discussed at this meeting
was a closed shop,18 to which the respondent refused to accede. The
parties agreed to confer again at a later date.
A further conference was held on February 28, 1938, at the Hotel
Bossert, Brooklyn, New York. Hyman, George, and Irving Fein
and Mariash were again present on behalf of the respondent; the
Union was represented by an attorney, at least one organizer, Stern,
and the negotiating committee of the Union. The testimony is
conflicting as to the course of negotiation at this conference. Irving
Fein testified that this meeting lasted from about 5 p. m. to mid-
night; that although the respondent sought to discuss wages and
hours, the Union refused; that discussion was restricted to the closed
shop, which he, Irving Fein, told the men he would not agree to
because "I wanted to be able to hire men who were able to work in
my plant and I did not want to discharge any good man who was
working in my plant at the present time because they would not join
their organization and they said they would have to join their or-
ganization if I signed up with them." Irving Fein further testified
that he suggested extending the existing agreement. George Fein
also testified that the Union would discuss nothing but a closed
shop despite the desire of counsel for the respondent to defer dis-
cussion of this subject pending negotiation on other issues, and
quoted Frank Ruiz as saying, "We cannot get Closed Shop, let us
go. No use in letting this go over to another time because the boys
are losing their morale; they are getting discouraged by telling
them we are going to lay off until another day. The boys will think
it over this way and that way." According to Irving Fein, no,
agreement was reached at this conference.
1s Irving Fein testified without contradiction that the proposed agreement provided "that
everybody would have to join their organization or they could not work there and that
they wanted a check-off system where we would have to collect the dues for them." When
asked whether it referred " to those who were presently employed and who were not mem-
bers of the, union at that ' time," he replied, "Anyone who is going to be employed by the
Fein Tin Can Company had to join that organization after the signing of the
contract."
4
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hollander testified that the meeting, which was scheduled to start
at 7 p. in., did not commence until 9 p. in. due to the tardiness of
Irving Fein; that Stern "asked for an agreement, of which the first
clause was a closed shop ; that Irving Fein refused to agree to a
closed shop;- that Stern then suggested" a preferential shop .. .
"[and] there was some dispute over the phrasing which lasted sev-
eral hours." Finally, according to Hollander, Engargola "asked
Mr. Fein whether he would sign on what had been agreed upon
about the preferential shop," and "Mr. Irving Fein said that he
would sign it, but that they should put it in the hotel safe." Hol-
lander testified, however, that Fein's suggestion was "passed by"
and "then there was more talk about it."
Ruiz testified that Irving Fein agreed to sign a "closed shop,"
but that it was to be kept in the hotel safe while the men returned
to work and that they should return 2 weeks later and discuss other
subjects. Ruiz stated , however, that the Union refused to agree to
this as they felt that Fein was "only trying to stall."
Near midnight it was decided to defer further negotiations until
2 o'clock the following afternoon, and it was agreed that the men
were to report for work on the following morning. Since there
was a meeting of the union membership scheduled at midnight fol-
Jowing the conference , the respondent granted permission for em-
ployees to report to work late on the following morning due to the
lateness of the hour at which the union meeting might adjourn.
At the meeting held at union headquarters following the confer-
ence, Engargola and representatives of the Union addressed those
assembled, instructed them to report to work the next day as nego-
tiations were progressing satisfactorily, and told them that per-
mission had been granted to report late. There was some opposition
to this procedure, as some of the employees present were of the
opinion that no agreement would be reached.
'We, conclude that the respondent and the Union in the first
instance were unable to reach any agreement because of the Union's
insistence that respondent agree to a closed-shop provision before any
discussion of other terms of a contract, although the respondent, after
'refusing to agree to a closed shop, proposed and was willing to nego-
tiate with respect to other matters. Upon the respondent's version
this again accounted for the inability of the parties to reach an
accord at the meeting on February 28. Moreover, the testi-
mony of Hollander and Rniz fails to establish that this was not the
case. According to them, the respondent expressed a willingness
to sign a closed-shop or preferential agreement,' but offered to do
"The testimony of Irving Fein shows that respondent would have regarded a prefei en,
tint agreement as objectionable
FEIN'S TIN CAN COMPANY, INC. 1347
so only if work were at once resumed, further negotiations deferred,
and agreement thereafter reached as to other terms and conditions.
While this may have been regarded by the Union as "trying to stall,"
and the proposal therefore rejected, neither Hollander nor Ruiz
testified that respondent did not remain willing to negotiate at once
with respect to matters other than a closed shop. Indeed, the de-
cision of the representative of the Union to continue negotiations
the next day, their report to the meeting of the Union that negotia-
tions were proceeding satisfactorily and the abandonment of the
previous plan to cease work if a written contract was not negotiated
on or before February 28, all show that respondent had not indi-
cated any unwillingness to negotiate with respect to terms and con-
ditions of employment. We conclude that the respondent had not
failed to bargain collectively with the Union prior to March 1, 1938.
cl. The alleged lock-out
On the morning of March 1, 1938, at 8 o'clock heat was on in
the plant and power was available for use; all was in readiness for
work to commence. A full crew was not present to start work at 8
o'clock since some employees availed themselves of the privilege of
reporting late.
The focal point of the events which soon transpired was the
middle floor of the three-story factory building. Six production
lines are located on this floor. It is the practice of George Fein,
who is production manager of the plant, to be present on this
floor prior to 8 o'clock every morning and to remain there until
assignments to any vacancies are made and the lines are in operation.
Due to the absence of a number of employees, only two lines
started to work at 8 o'clock. on the morning of March 1. Morris
Engargola, the president of the Union, who was working as a
solderer on line 2, testified that shortly after 8 o'clock Irving
Fein approached him and asked why he advised the men not to
come to work; that he (Engargola) replied that he told the men to
continue work; that Fein then grabbed him by the collar, called
him opprobrious names; dragged him from where he was working
on the second floor across the intervening space out on to a fire-
escape iron-grill-work landing, thence through an open doorway down
a flight of stairs in the shaftway, out on to the loading platform,
and from there down an iron ladder to the yard and out into the
middle of the yard ; and that Fein sought to strike him, but George
Fein and Sidney Rose, a relative by marriage of the Feins and an
employee of the respondent, restrained him.
- George Fein testified that at about 10 minutes past 8 o'clock, Engar-
gola put his soldering iron down, turned to the other workers and
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said, "Come on, boys, no sense of working there isn't enough men
here, let us go out"; that he (George Fein) reminded Engargola of the
agreement of the Union that the men continue work pending further
negotiation; that Engargola replied "there isn't enough work here-
we have no contract and we are not going to work." Engargola tes-
tified that he did not remember whether he had any conversation with
George Fein on that day.
George Fein immediately ran down to the office and summoned
Irving Fein and together they went to the middle floor, where they
found several employees grouped around Engargola. The testimony
of George and Irving Fein is substantially the same with respect to
.,he events that thereafter transpired. They testified that Irving Fein
asked Engargola why he was quitting work in view of the bargaining
conference scheduled for that afternoon; that Engargola, replied that
there were not enough men to work and that they would not work
without a contract; that Irving Fein replied that it wa.Q his worry
as to whether there were sufficient men to perform the work, but that
Engargola could do as he pleased; that Irving Fein turned to the rest
of the men and asked them to continue work, but that Engargola told
the men to leave ; that a few of the men returned to work, but Engar-
gola walked down the fire escape stairs followed by Irving Fein and
approximately 15 to 25 men; and that on the way down and after he
had reached the loading platform Irving Fein entreated the men to
return, but to no avail.
Although 15 to 30 persons were present at the time of these events,
none was called upon to corroborate Engargola's testimony. On the
other hand, the version of the events of that morning, as related by
George and Irving Fein, were corroborated in whole or part by Celano,
Caputo, Rose, Severini, and Siiberberg, employees called as witnesses
by the respondent. Moreover, Palestino, an employee called as a wit-
ness by the respondent, testified, without contradiction, that he had
met Engargola on a subsequent occasion and that Engargola "said he
didn't remember whether he had called the men out on strike or if the
men took him out or Irving threw him out or if he walked out." We
find, as did Trial Examiner, that Engargola voluntarily left the re-
spondent's plant, followed by other employees in response to
Engargola's strike declaration.
Steinberg, Pat Tuccillo, Vincent Catoggio, and Hollander testified
that shortly after the occurrence of the afore-mentioned events, George
Fein, Rose, and Isgro told them and other employees to leave the
plant. Isgro was not called as a witness, but Rose and George Fein
denied that they had told any employees to leave the plant, and Pales-
tino, who worked with Rose, testified that he did not hear Rose or the
Feins order any of the men to leave. We do not believe that the evi-
FEIN'S TIN CAN COMPANY, INC. 1349
dente establishes that the respondent ordered its employees to leave
the plant. We have found that Irving Fein pleaded with employees
to. remain at work ; indeed, several employees remained in the plant,
which at no time was shut down ; and, as hereinafter appears, at the
conference with the Union held that afternoon the respondent asked
the striking employees to return to work. On the other hand, it is
undisputed that one or more members of the Union circulated through
the plant, and announced that a strike was in progress and urged
employees to shut off the power and to come out on strike. We find
that the employees who ceased work did so voluntarily rather than
at the respondent's order.
Engargola, who lived a few blocks away from the factory, testified
that he went home to see if he was hurt as he "was dragged against the
fire escape," and then to the headquarters of the Union where others
who had left the factory gathered. Pickets appeared in front of the
plant at about 9 o'clock in the morning and later in the day began to
carry signs stating that a strike was in progress.
We find that the respondent did not lock out its employees on March
1, 1938, but that they went on strike. Inasmuch as we have found
that the respondent did not refuse to bargain collectively prior to
March 1, we further find that the strike was not caused by any unfair
labor practices but rather by the refusal of the respondent to negotiate
an agreement acceptable to the Union.
e. Resumption of negotiations
Pursuant to arrangements made on the previous night, negotiations
were resumed as scheduled at about 2 p. in. on March 1, 1938, in the
office of counsel for the respondent. The Union was again repre-
sented by organizers, counsel, and the negotiating committee; the re-
spondent by Irving and George Fein and counsel. Upon his arrival
Irving Fein refused to "sit there with a skunk like" Engargola.
Counsel for the respondent and Irving Fein left the room and, as
stated by Irving Fein, the former "started to talk to me for about a
half hour before I cooled down then, and then I came in and I agreed
to sit there but I said I would be there mostly as a listener ." Irving
Fein's testimony concerning what then occurred is as follows:
Mr. Atallah [a representative of the Union] argued with them
why they went out on a strike when they had the meeting this
afternoon, and he was arguing with his own men, and, well, they
said, "It is too late, we are out now and we can't bring the boys
back-have got to stay out and we won't come back unless we
get a signed contract,". and we started- to discuss the contract
and we got as far as the closed shop business and did not get any
further again.
283034-41-vol. 23-86
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irving Fein further testified that Atallah had stated that he had tried
to induce the men to return to work that morning but they had refused.
Hollander testified that after Irving Fein returned to the room
Stern "asked Mr. Fein whether they should take up where they left
off last night, and Mr. Fein said, `Forget about it. We will start from
scratch"'; that counsel for the respondent suggested to them that the
men return to work, but Stern refused and said, "If we send them back
to the plant, Mr. Fein will only have the chance to throw them out
again"; that "there was more discussion," during which Irving Fein
said that "the men could parade around the streets for six months .. .
I have enough stock to keep my customers going for that long." 20
Several conferences were held thereafter. Irving Fein testified
without contradiction that at another conference held on March 4,
1938, all that was discussed was the closed shop, about which no
agreement was reached, and that the conference was terminated
abruptly due to an argument begun by Stern's statement: "Now,
these men have been browbeaten and been mistreated long enough,
and now we have to fight for them." Irving Fein testified that the
next conference was held on March 9, 1938, at the Hotel Commodore.
One Herman Bushman of the National Can Company, who at that
time was "negotiating his contract with the C. I. 0."121 had offered
to "act as an arbitrator" and met with Irving Fein, and representa-
tives of the Union. Bushman informed Irving Fein that he had
signed a contract with the "C. 1. O.," whereupon Irving Fein said,
"Well, if you did I would be only too glad to accept the same contract
disregarding [sic] what the contract is if they give it to me the same
as yours." The offer was declined, the conference continued, but no
agreement was reached.
Hollander testified that a conference was held approximately a
week or 10 days after March 1, 1938, at which one La Noue, an agent
of the New York State Mediation Board was present. The record
does not show whether this conference was one to which Irving Fein
had referred to as held on March 4 or 9. All that Hollander's testi-
mony discloses with respect to the negotiations at this conference was
that Irving Fein objected to the personnel of the union negotiating
committee, inasmuch as it was made tip of younger employees and
included none of the "old can men." 22
20 As stated above, at the time of the hearing , the respondent had one warehouse in
Brooklyn , New York. In the early part of 1938 the respondent also maintained another
warehouse in Brooklyn . At the time of the hearing the respondent employed six men in
the shipping department on a single shift ; In February 1938. the respondent employed six
men in the shipping department on the day shift , and one man on the night shift. An
analysis of the respondent ' s records indicates that the respondent , in January and Febru-
ary of 1938 , had the largest stock of cans on hand at any time during 1938
21 "C. I 0 ." referred to the Union.
22 The Union subsequently changed the personnel of the committee
FEIN ' S TLN CAN COMPANY , INC. 1351
Thereafter , about four more meetings were held between counsel
-for the respondent and the union committee . However, no evidence
was introduced regarding any subsequent conferences except the final
conference between the Union and the respondent which was held in
April 1938 . Post, a mediator from the United States Department
of Labor, presided at this conference , and the following is the only
evidence with respect to what occurred at the conference . Irving
Fein testified.:
Well, the same question came ui about the closed shop and we
were discussing that for a while and during this discussion Frank
Ruiz got up al-id said that if he had to kill a couple of people
in order to make me sign up he would do it. Mr. Mariash got
up and objected to Mr. Post to such language being used around
there and Mr. Post answered hint:
"Well, what can you expect of these people ? You have got to
expect such things during a strike."
Hollander testified that Atallah, one of the representatives of the
Union, proposed a preferential shop but that the proposal was
rejected. He further testified that Post sought to obtain statements
concerning the respondent's position with respect to raising wages,
renewing the contract which had terminated on February 28, 1938,
and granting seniority rights. According to Hollander , Irving Fein
indicated that he would not be willing to offer these inducements to
the Union , and stated that he believed certain of the jobs were pres-
ently too highly paid and that he, therefore , proposed to reduce wages
in those instances.
We are of the opinion that the evidence fails to establish that the
respondent refused to bargain collectively with the Union after the
strike began on March 1 , 1938. In so far as the record discloses, the
respondent at no time during the strike refused to meet with the
Union. While the Union seeks to attach importance to Irving Fein's
initial reluctance to meet with it in Engargola 's presence at outset
of the conference held on March 1, such conduct does not establish
a lack of good faith on the part of the respondent since it is undis-
puted that the respondent thereafter , at the same conference , offered
'to reinstate all employees and proceeded to negotiate with the Union.
Likewise , the request of Irving Fein, at a subsequent conference, that
the Union add older employees to the negotiating committee , fails to
prove an absence of good faith . So far as the record discloses the
Union had no objection to doing so and, indeed , no evidence was
introduced to show that at this, or at the next four conferences, the
respondent did not bargain with the Union. Moreover , it appears
that at one of the meetings held in March the respondent offered to
4
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enter into a contract similar to that which the Union was negotiating
with another can company . Finally, even if Hollander 's testimony
as to the further and last conference is accepted , we do not find
a failure to bargain shown. Irving Fein's responses to Post's inquiries
at this conference appear to be no more than a statement of the
respondent 's position with respect to matters concerning which there
is no evidence that the Union was ready and willing to negotiate.
In view of the past course of negotiations, during which the Union
rejected the respondent 's proposal to consider subjects other than
a closed shop or preferential shop, we cannot infer that the Union
would have negotiated on such matters at this final conference, or
that the respondent had reason to believe that it *would , particularly
since, according to Hollander , the only proposal emanating from a
union representative at this conference was Atallah 's request for a
preferential shop.
Consideration of the testimony concerning the several conferences,
beginning with that held on March 1, 1938, leads us to conclude that
the negotiations were unavailing because of an impasse created by
the Union 's insistence on and the respondent 's refusal to agree to a
closed shop , or accepting Hollander's testimony , a preferential shop.
We find, as did the Trial Examiner , that at no time did the respondent
refuse to bargain collectively with the Union. Accordingly, we
shall dismiss the allegation of the complaint that the respondent has
refused to bargain collectively with the representative designated
by a majority of the respondent 's employees in an appropriate unit
for the purposes of collective bargaining.
2. The refusals to reinstate employees who went on strike on
March 1 , 1938, or thereafter
The complaint, as amended at the hearing, alleges that on or about
June 14, 1938, the respondent refused and has continued to refuse
to reinstate 83 employees who were on strike because they joined and
assisted the Union and engaged in other concerted activities for the
purposes of collective bargaining and other mutual aid or protec-
tion. It further alleges that by such refusal to reinstate these
employees, the respondent discriminated against them in regard to
their hire and tenure of employment in violation of Section 8 (3) of
the Act. These allegations are denied by the respondent.
By letter dated June 10, 1938, counsel for the Union wrote to the
respondent as follows :
We have been authorized by the Steel Workers Organizing
Committee , on behalf of your employees, to make formal appli-
cation for the reinstatement of those of your employees who have
been on strike since on or about February 28, 1938.
FEIN'S TIN CAN COMPANY, INC. 1353
These employees are willing to return to work on Tuesday,
June 14, 1938.
Please telephone this office or wire us collect upon receipt of
this letter, as to whether you will reinstate the men and whether
it is acceptable that they return on Tuesday, as requested.
We trust that if you make reinstatement such reinstatement
will be without discriminating against any of the employees who
have been active in the conduct of the strike.
Although the respondent did not reply as requested, it recognized
and treated the letter as a request for reinstatement of all strikers,
and Irving Fein testified that he instructed George Fein to discharge
employees hired during the strike in order to reinstate the strikers.
On June 14, 1938, approximately 77 of the strikers appeared at
the factory. Joe Silberberg, a striker who had returned to work on
June 6 and who, shortly thereafter, was promoted to a position as
foreman , was given a desk in the outer office and, as instructed, re-
corded the names and addresses of those who applied. Silberberg
told several of the strikers when registering them that they would be
sent for shortly thereafter and that time would be required to make
adjustments within the factory and for the release of those hired to
replace the strikers.
Following the application for reinstatement, the respondent termi-
nated the employment of all persons except one then in its employ
who had been hired to replace the striking employees, and to the time
of the hearing employed no persons other than the striking em-
ployees. The only person hired during the strike and not thereafter
discharged was one Anthony Savarese, who had previously been em-
ployed by the respondent.23 Of the 83 striking employees, 35, whose
names are listed in Appendix A, were reinstated by the respondent
on various dates prior to the close of the hearing. The respondent
contends , the Union does not challenge, and the record shows that
the respondent's volume of production decreased and its-personnel
was accordingly reduced after the strike.
However, the Union contends that the respondent, in reinstating
certain of the strikers, discriminated against "the most active mem-
bers of the Union," who are defined by the Union in its exceptions
to the Intermediate Report as all of the employees who were dis-
criminated against in 1937. The evidence does not support this
claim.
a' Since the strike was neither caused nor prolonged by any unfair labor practice, the
failure to replace Savarese by one of the strikers did not constitute discrimination against
the latter . Cf. N. L. R. B. v. Mackay Radio and Telegraph Company, 304 U. S. 333, enf'g
Matter of Mackay Radio and Telegraph Company, a Corporation and American Radio TeleD-
raphtsts' Association , etc., 1 N. L. R. B. 201.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Fein testified that seniority was not a criterion observed
in reinstating the strikers and that the only period during which the
respondent had ever considered seniority in regard to hire and tenure
of employment was from June 26, 1937, to February 28, 1938, when
it was bound to do so pursuant to contract. He further testified that
in reinstating the striking employees, the respondent gave preference
to those who continued to reapply for work. As expressed by
George Fein, "The boys [who were reinstated] all kept coming back
every day and we gave them preference first because they seemed to
be anxious to work." The record does not reveal that any of "the
active members of the Union" returned to the plant seeking work
after June 14, 1938, except Pat Tucci]lo, who filled out an applica-
tion card on November 9, 1938, shortly prior to the hearing. Nor,
except with respect to Alex Hollander, does the record show that
such "active members of the Union," apart from their membership
in and activities on behalf of the Union, would have been selected
for positions given to the 35' strikers who were reinstated by the
respondent. Moreover, the respondent reinstated certain striking
employees who, the record reveals, were active in the affairs of the
Union. Under these circumstances we conclude that continued re-
application for work was the criterion adopted and applied by the
respondent in reinstating the strikers other than Alex Hollander, Abe
Woodman, and Morris Engargola, whose cases are considered below.
Except with respect to these three employees, we find that respondent
did not discriminate against the striking employees by refusing to
reinstate them on and after June 14, 1938.
a. The discriminatory refusal to reinstate Alex Hollander and
Abe Woodman
As stated above, Hollander originated the organizational activities
among the respondent's employees, and continued as one of the
Union's active leaders. During the strike which began on March 1,
1938, Hollander was vice president of the Union, a member of the
negotiating committee, and chairman of the customer's committee.
In the latter capacity, Hollander picketed one of the respondent's
customers.
At the hearing, the respondent introduced in evidence a mimeo-
graphed letter, dated July 6, 1938, over the name of-Hollander, as
chairman of the customer's committee of the Union, which stated :
At the present time there is a lockout of close to One Hundred
men in progress at the Fein Tin Can Co. We are asking for
your co-operation in discontinuing purchasing of cans from the
above company and an appointment at your convenience to
discuss the same.
FEIN'S TIN CAN COMPANY, INC. 1355
Hollander denied that he had sent these letters to customers or
that they had been sent at his instruction. However, he conceded
that such letters had been sent, that he knew who sent them, and
testified that "as far as I am concerned, the lockout is still on, I am
still locked out." We find that the respondent reasonably believed
that Hollander was responsible for the dissemination of these letters.
Hollander applied for reinstatement on June 14, 1938, but not
thereafter. Hollander's uncle, Abe Woodman, a striking member of
the Union who had several years of service with the respondent,
applied personally for reinstatement on about June 21 and there-
after about three times a week until he was rehired on August 23,
1938. According to Woodman, at the beginning of the month of
July, when applying for reinstatement, George Fein told him that
a job was available for Hollander; that Hollander should go to the
respondent's customers and tell them that no lock-out was in prog-
ress; and that he would give both Hollander and Woodman jobs.
The following are excerpts from Woodman's testimony :
Q. What did he [George Fein] say to you?
A. Told me that he give me the job back and give him
[Hollander] the job back.
Q. Can you remember the words that he used?
A. Well, he told me that he shall go back to the customers and
tell them there is no lockout and give the job back. -
Q. Did he tell you that he would have to go to the customers
and tell them there was no lockout before he could get his
job back?
A. No, he didn't tell me that.
Q. What did he say?
A. That is what he said, that is all.
Q. What did George [Fein] tell you about Alex [Hollander] ?
A. George told me he shall go back to the-he wants to give
him the job back-he goes to the customers and tell them it
wasn't no lockout.
Q. In other words, George said that if Alex went to the
customers and told the customers there was no lockout that he
could have his job back, is that it?
A. Yes, sir.
Q. And what did you do about it?
A. Didn't do anything. Just went over and tell him
[Hollander] the same story.
* * * * * * *
Q. Did George Fein say he would give Al Hollander his job
if he went to the customers or that he would give you your
job if Al Hollander went to the customers?
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No, him too.
Q. Give both of you your jobs back, is that right?
A. Yes, sir.
At the hearing Woodman's affidavit, dated August 9, 1938, was intro-
duced into evidence. It stated, in substance, that the real reason
for the respondent's refusal to reinstate Woodman was his failure to
induce Hollander to accept the respondent's offer to reinstate both
Hollander and Woodman if Hollander would "send out letters to the
customers that there had been no lockout and urging them to buy."
Immediately after Woodman was reinstated on August 23, 1938, he
sought the return of the affidavit from counsel for the Union. At
the hearing Woodman admitted that he had signed the affidavit after
its contents had been read to him, but testified that certain of the
statements contained therein were not true, and that George Fein did
not tell him to have Hollander send letters to the customers, but to
go to the customers and tell them there was no lock-out.
Hollander testified that Woodman came to his home on several
occasions near the end of July or in August, and told him "that if I
signed an affidavit, stating that there was no lockout, and that I had
not written any letters to Mr. Fein's customers, then Mr. Fein
would take me back and take him back to work. He said that Mr.
Fein would give me a better position, with more money involved."
According to Hollander, on one of these occasions, Woodman "told
my father to try to get me to sign papers, after he couldn't succeed
in getting me to sign these papers, stating that there was no lockout;
also that I didn't send letters to Mr. Fein's customers." Hollander
further testified that Woodman subsequently told him that George
Fein did not believe that Woodman had approached him, and re-
quested that Hollander call George Fein; that he, Hollander, called
George Fein who said, "If you do as your uncle tells you, you will
get back to work. Your uncle will be put back on the job. I will
make things easier for you, and perhaps give you a little more"; and
that he rejected Fein's proposal.
George Fein testified that when Woodman applied for a position
in the'latter part of July, he asked Woodman to inform Hollander
that a position was open for him, that he showed Woodman "letters
that we received from customers stating that there was one hundred
men locked out at the Fein Tin Can Company plant"; and that he
told Woodman :
Now, tell your nephew that he is telling an untruthful
fact . . . we are trying to get work for everybody to come back
to work and instead of that he is still trying to hold work away
from the plant . . . I also asked him to go to these customers
FEIN'S TIN CAN COMPANY, IN C. 1357
that received these letters and tell these customers that is not
true.
George Fein denied, however, that Hollander's reinstatement was
conditioned upon the performance of the requested acts. Fein also
testified that to assure himself that Woodman, who had reported
that he was not able to prevail upon Hollander to return, had notified
Hollander that a job was available for him, he asked Woodman to
have Hollander's father call at the factory. When Hollander's
father called upon George Fein, the latter told him that there was
a job available for Hollander and to have him report for work.
Several days latex Hollander's father returned to tell George Fein
that he was unable to prevail upon his son to return to his job.
We are convinced, and we find, that George Fein made the offer
of reinstatement of Hollander and Woodman conditional upon the
performance of the acts requested by George Fein. Although Wood-
man was obviously a reluctant witness, an analysis of his testimony
shows that the offer of reinstatement made by George Fein to Wood-
man and Hollander was conditioned upon the latter informing the
respondent's customers of his repudiation of the assertion contained
in the letters that the respondent had locked out its employees.
While George Fein denied that the reinstatement of Woodman was
conditioned upon the performance of the requested acts, his testi-
mony is directly contradicted by that of Hollander and Woodman.
Moreover, by his own admission, George Fein, in communicating the
offer of reinstatement through Woodman, accompanied it with a
request that Hollander inform customers that there was no lock-out.
Whether or not the request was stated in the express language of
a condition, the implication that the offer was conditioned upon
performance of the request was both obvious and intended. We
need not decide whether George Fein requested that Hollander effect
such repudiation by signing an affidavit retracting the statement
attributed to him, as testified by Hollander, or that Hollander do
so by personally communicating with the respondent's customers,
as testified by George Fein. Either act contemplated the repudiation
of, and a future restriction upon, the activities attributed to Hol-
lander. The question remains as to whether, under the circum-
stances, the activities which the respondent reasonably believed that
Hollander carried on come within the guarantee of the Act that
employees shall have the right, inter alia, "to assist labor organiza-
tions ... and to engage in concerted activities, for the purpose
of collective bargaining or other mutual aid or protection," 24 inter-
ference with which by an employer is proscribed by the Act, 15 and
if so, whether the respondent, by conditioning reinstatement upon
' Section 7.
25 Section 8 (1)
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the repudiation, has discriminated "in regard to hire or tenure of
employment or any term or condition of employment to encourage
or discourage membership in any labor organization." 26
Strikes and their concomitants, among which is the spreading of
anion propaganda, are typical and traditional union activity. Ac-
cordingly, the distribution of the letters referred to above, attributed
by the respondent to Hollander, was clearly a concerted activity.
Moreover, under the circumstances, the activity attributed to Hol-
lander must reasonably have been understood to involve not a
malevolent desire to injure the respondent, but a bona fide statement
of the Union's position that a lock-out existed, and an appeal to
the respondent's customers in order to advance the economic interests
of the employees represented by the Union.21 We find that the
activity in which the respondent believed that Hollander was engag-
ing as chairman of the customer's committee of the Union constituted
concerted activity "for the purpose of collective bargaining or other
mutual aid or protection." Because the respondent conditioned its
offer to reinstate Hollander upon his repudiation of this activity, the
respondent has interfered with the exercise of the rights guaranteed
in Section 7 of the Act.28 Since the condition was one which the
respondent might not validly impose,29 the offer was tantamount to
28 Section 8 (3)
27 We have found that the respondent ' s failure to reinstate all of the strikers did not
constitute a lock -out which interfered with the exercise of rights guaranteed under the
Act However , employees involved in a labor dispute cannot be expected to assert their
position in terms of legal conclusions which can be arrived at only after adjudication.
Cf Nann v Raimist , 255 N Y. 307 . 174 N . E 690, 694 (1931 ). That employees seek to
remedy their situation by self -help does not preclude them from invoking the procedure of
the Act Section 13 provides , "Nothing in this Act shall be construed so as to interfere
with or impede or diminish in any way the right to sti ike ." See N L R B. v Remington
Rand, Inc, 94 F. (2d) 862 , 871 (C C A 2), cert denied 302 U S . 576, enf'g Matter of
Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council
Office Equipment Workers, 2 N L R B 626
28 Cf Fort Wayne Corrugated Paper Cempavy v N L R B , 111 F (2d) 869 (C C A 7),
«here Judge Evans. speaking for the Court , said , with respect to an employer 's threat to
discharge an employee whose union activities on behalf of the employees of a customer of
the respondent caused said customer to withdraw its business from the respondent : "While
Corrugated's reaction in chastising and even threatening its employees whose acts caused
it real economic loss is readily understandable , it is not reconcilable with the above sec-
tions [ Sees 7 and S of the Act] " See also Matter of William Randolph Hearst, et al
and American Newspaper G uild , Seattle Chapter, 2 N L R B 530 , enf'd as mod N. L.
R B v William Randolph Hearst et at, 102 F. ( 2d) 659 ( C C A 9 ), in which the re-
spondent contended that the union was estopped fi om seeking relief from the Board
because it had engaged in a boycott of the respondent 's business We said • " It is
clear that the right of employees to join a labor organization, guaranteed by the Act,
cannot be affected by the participation of that organization in a boycott against the
employer "
Y9 We have held that an employer has violated Section 8 (3) of the Act by conditioning
employment on abandonment of a strike ( see e g Matter of Atlas Mills, Inc and Textile
House Workers Union No. 2269, United Textile Workers of America , 3 N 1, R B 10) . by
discharging employees for engaging in a strike ( see e g Matter of Seroel, Inc and United
Electrical , Radio and Machine Workers of America , Local No 1002, 11 N L R B 1295) ;
and by refusing to rern'tate employees for engaging in a strike to secure a contract pro-
viding for arbitration of disputes, although under State law such a strike was a civil tort
(see Matter of Reed & Prince Manufacturing Company and Steel Workeis Organizing Com-
mittee of the 0 1 0 , 12 N L R B 944)
FEIN'S TIN CAN COMPANY, INC. 1359
:a discriminatory refusal to reinstate.30 Moreover, since the respond-
ent's offer to reinstate Woodman was also conditioned upon Hol-
lander's compliance with the illegal condition, the offer constituted
as to Woodman, also, a discriminatory refusal to reinstate.31
We find that the respondent refused to reinstate Hollander and
Woodman on August 1, 1938,3- thereby discriminating in regard to
the hire and tenure of employment of said employees, and dis-
couraging membership in a labor organization; that by such acts
the respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of
the Act.
Woodman was reinstated by the respondent on August 23, 1938.
According to the respondent's pay roll for the week ending February
26, 1938, «Woodman, a piece-rate worker, earned $31. 62. Between
August 1, 1938, and August 23, 1938, Woodman had no earnings.
Prior to the strike of March 1, 1938, Hollander received 41 cents an
hour. Although the respondent operated upon the basis of a 40-hour
week under the contract which expired on February 28, 1938, Hol-
lander did not work full time. The record does not disclose the aver-
age number of hours that he worked per week. Hollander had no
earnings between March 1, 1938, and the date of the hearing.
Hollander desires reinstatement to his position at the respondent's
plant.
10 Cf. Matter of Electric Vacuum Cleaner Company, Inc . and United Electrical d Radio
Workers of America, Local 720 , 18 N. li R. B. 591 ; Matter of Mason Manufacturing Company
and United Furniture Workcis of America , Local No 576, 15 N. L R B. 295; N. L R B V.
American Manufacturing Company , 106 F. ( 2d) 61 (C C. A 2), aff'd as mod , 60 S Ct.
612, and enf'd as mod Matter of American Manufacturing Company , et at. and Textile
Workers ' Organizing Committee , C I. 0, 5 N L It. B 443; N L R B v. Carlisle Lumber
Co, 94 F. (2d) 138 (C C A 9), enf'g Matter of Carlisle Lumber Company and Lumber if
Sawmill Workers' Union. Local 3311, Onalaska, Washington, et al. , 2 N. L R B 248
31 Cf. Matter of Memphis Furniture Manufacturing Company and Furniture Workers
Local Union No. 1174, United Brotherhood of Carpenters and Joiners of America, 3 N. L.
R. B., 26, 33, enf' d Memphis Furniture Manufacturing Company v. N. L. R B, 96 F (2d)
1018 (C. C. A. 6) ; cert denied , 305 U. S. 627, , where we found that the discharge of a
woman because of her husband 's union membership and activities was a violation of Sec-
tion 8 (3) of the Act, we said : "A more effective mode of discouragement of union affilia-
tion could hardly be found than the knowledge that such activities put not merely the
union member 's employment but that of those closely related to him in jeopaidy " See
also Matter of Martel Mills Corporation and Textile Workers' Organizing Committee, 20
N L R B 712
ii The record is not clear as to the exact date on which the illegal offer of reinstatement
was made to Hollander and Woodman Woodman testified at first that it was made at
the beginning of July, then changed his testimony to the end of July. Hollander testified
Woodman had come to his home at "the end of July or August.'; George Fein testified
that he had sent for Ilollandei in "the latter pact of July" We conclude that the illegal
offer was made and received by Hollander at least by August 1, 19'(8 and we, theretoie,
find that this was the date of the act of discrimination
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The discriminatory refusal to reinstate Morris Engargola
In May 1938, during the strike, Engargola, president of the Union,
was convicted of assault in Kings County Court and was sentenced
on June 28, 1938.33 When convicted, Engargola was told by the court
to keep away from the respondent's plant. On June 14, 1938, Engar-
gola applied for reemployment with the other strikers. Engargola
testified "I figured there was no more activities, no more strike or walk-
out, or whatever it is, I was entitled to apply for my position." On
the following day, June 15, 1938, Engargola was called before the
judge who, according to Engargola's testimony, said, "Your employer
made a complaint that you went near the shop and so take him away."
Engargola remained in jail until on or about August 15, 1938, when
he was released pending an appeal of his conviction.
Approximately 2 or 3 weeks following Engargola's release from
jail, at about the beginning of September 1938,34 a conference was
scheduled at the Regional Office of the Board for the Second Region.
Engargola described a conversation between himself and Irving Fein
just prior to the conference as follows :
The next day .we went to the hearing and soon I come into the
waiting room. Irving Fein was sitting across with two other
lawyers, I remember, and in that room was also Mr. Protter [coun-
sel for the Union], and a few others. So he [Irving Fenn] got
up the chair towards me to talk to me. One, his lawyer, called
him back and whispered, but he took his own idea and come over
towards me, shake hands, and took me' out, from this room that
he wanted to talk to me nobody should listen what he wants to
tell me, and just come along with me. I want to talk to you. And
so he took me about, say, about twenty-five or thirty feet away.
Maybe a little more in the middle of the room of the Woolworth
Building, where the Relations Board is situation. He asked me,
"How old are you?" I don't know what he wanted to know for.
He asked me a couple times and I said I don't think it is nothing
wrong if I tell you my right age. I said fifty-two. He said,
"You don't want to start all over again, do you?" I said, "What
83
On December 5, 1938, the Appellate Division of the Supreme Court of the State of
New York reversed the conviction and remanded the case for a new trial People v. Engar-
gola, 255 App Div 980 Subsequently, Engargola pleaded guilty to assault in the third
degree, a misdemeanor ; he was sentenced on January 31, 1939 , to an indeterminate sen-
tence, the service of which was suspended "during [his ] good behavior" ; and he was
placed on probation for a period of 3 years . We discuss the effect of the conviction under
the "Remedy ," Section V, infra.
e' Engargola did not fix the date on which this conference was held. He testified that
it occurred near the beginning of September "between two or four weeks" after he was
released from jail on August 15, 1938. It is clear that this conference was held on or
before September 15, 1938, and accordingly we shall fix September 15, 1938, as the date
of this conference.
FEIN'S TIN CAN COMPANY, INC. 1361
do you mean?" I said, "You think I am old?" But I have
enough work to do yet. Well, he said, "This is the question. If
you show me that you go in there and tell them that you don't
care for a union and don't care for nothing and drop everything,
I will take care of you." I said, "I can't do that. I give you a
chance when I was in prison that I sent you a telegram. You
came, I appreciate your visiting, and then you told me to send
you a letter, which I did, but instead of taking me out, I say, "I
was put further and further." 35 He said, "Well, you know that
I put you in jail." I said, "I do know."
"Well, if you don't know what, don't do what I say, I put you
in jail again." So I didn't know what to do. He says, "Further-
more, when we go to conference, if you tell in the conference I'm
going to lie." Well, the conversation stopped and I say I wouldn't
do such a kind. I wouldn't lie for nothing. I say how could I
say I did strike or was a strike when I feel your hands on my
neck yet. So he said, "All right. Suit yourself." We went in
the conference room and Mr. Moskowitz 36 preside.
Irving Fein, who was called as a witness after Engargola, made no
reference to this conversation in his testimony. We find that the con-
versation which occurred is substantially as testified to by Engargola.
It is apparent, from the foregoing conversation, that Irving Fein
thus offered Engargola reinstatement conditioned upon his abandon-
ment of his activities on behalf of the Union. Having asked Engar-
gola his age and whether he desired "to start all over again," and
having received the reply that Engargola deemed himself capable of
continuing to work, Ir\Ting Fein's statement that he would "take care
of" Engargola if the latter would "drop everything" can only be con-
strued as a conditional offer of reinstatement. The condition obvi-
ously required a renunciation of the rights guaranteed in Section 7 of
the. Act, and as such, the offer amounted to a discriminatory refusal
to reinstate.17
We find that the respondent refused to reinstate Engargola on Sep-
tember 15, 1938, thereby discriminating in regard to the hire and ten-
ure of employment of said employee, and discouraging membership
in a labor organization; that by such act the respondent has interfered
with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
-^ On the first day of his incarceration Engargola sent a telegram to Irving Fein request-
ing him to visit him Irving Fein visited Engargola and told Engargola that if he had
anything to say to put it in writing . Accordingly,Engargola w rote a letter to Irving Fein,
in which he stated that he had renounced his affiliation with the Union . Engargola testi-
fied that this letter was dictated by a cell mate who assured him that "your boss reads
this here and take you out of Jail"
36 Regional Attorney for the Board
3 See cases cited in footnote 30, supra
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engargola received $1 per hour prior to the strike of March 1, 1938.
As stated above, under the contract which terminated on February
28, 1938, the respondent operated on the basis of a 40-hour week.
Engargola had no earnings between the date of the respondent's dis-
criminatory refusal to reinstate him and the date of the hearing. He
desires reinstatement to his•former position.
3. Other interference, restraint, and coercion in 1938
In connection with the reinstatement of the strikers, in the latter
part of June 1938. the respondent put into use application cards pre-
pared by Irving Fein and counsel for the respondent. According to
George Fein and Silberber., these cards were filled out by all
employees then working for the respondent and all persons who subse-
quently applied for employment. The cards contained the question,
"are you a member of any union ?" and, in the event of an affirmative
answer to that question, requested disclosure of the name of the organ-
ization.
Irving Fein testified that reemployment of the strikers was not con-
ditioned upon the responses made to the questions. He stated, how-
ever, that this was the case only "because we had to hire the men back
as they came regardless of what the cards said," "not that I am willing,
but ... because I have to according to the law." Moreover, George
Fein, who is in charge of hiring and discharging employees, testified
that he consults his file of application cards when hiring employees.
Pat Tuccillo testified that in making application for reinstatement,
he stated that he was not a member of the Union, because he thought
that was "the only way I could get back to work there." Of the 136
persons who signed these cards, only two, who listed an organization
affiliated with the American Federation of Labor, answered this ques-
tion in the affirmative.
We find that the respondent's use of employment application cards
containing questions as to membership in a labor organization, was
calculated to, and did, interfere with, restrain, and coerce the respond-
ent's employees in the exercise of the rights guaranteed by Section 7
of the Act.3S
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent, described in Section
III C, D 2, 3 above, occurring in connection with the operations of the
88 We have repeatedly held that an employer's questioning of employees about their
union affiliation and activities contravenes the Act Matter of Air Associates, Incorpo-
rated and International Union, United Automobile workers of America, Local No. 365,
affiliated with the C 1 0, 20 N. L R B 356; Matter of Foote Brothers Gear and Machine
Corporation and United Office and Professional workers of America, No 2§, et at, 14
N L R B 1045, 1054, and cases therein cited in footnote 14
41
FEIN 'S TIN CAN COMPANY, INC. 1363
respondent described in Section I above, have it 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.
V. THE REMEDY
It is essential in order to effectuate the purposes and policies of the
Act that the respondent be ordered to cease and desist from certain
activities and practices in which we have found it to have engaged,
and in aid of such order and as a means of removing and avoiding the
consequences of such activities and practices, that the respondent be
directed to take certain affirmative action, more particularly described
below.
We have found that the respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (1) and (3) of the Act by dis-
criminating against its employees in respect to their hire and tenure
of employment and by other acts of interference, restraint, and coer-
cion. Accordingly, we shall order it to cease and desist therefrom.
With respect to the discrimination which occurred in 1937, the
record shows that employees discriminated against were reinstated by
the respondent as provided in the collective bargaining contract en-
tered into by the respondent and the Union on June 26, 1937. There
is nothing in the record to indicate that their employment was dis-
criminatorily terminated during the terms of the contract. At the
hearing evidence was adduced for the purpose of showing that the
respondent discriminated in regard to the terms and conditions of
employment of certain active members of the Union during the term
of the contract. Such evidence need not be set out in detail. We have
considered it and find it unconvincing. Under the circumstances, and
since by a supplemental agreement entered into on June 26, 1937, the
Union expressly waived all claims for back pay, we are of the opinion
that it will not effectuate the policies of the Act to order the respondent
to reimburse said employees for loss of pay suffered by reason of the
discrimination against them prior to June 26, 1937.
We have found that the respondent discriminatorily refused to
reinstate Alex Hollander, Morris Engargola, and, for a time, Abe
Woodman. We shall, in order to effectuate the policies of the Act,
order the respondent to cease and desist from such unfair labor
practices and, with respect to these employees, with the exception
of Woodman, to offer immediate, and full reinstatement to their
former or substantially equivalent positions with the respondent,
without prejudice to their seniority and other rights and privileges,
and to compensate Hollander, Woodman, and Engargola for wages
lost subsequent to the discriminatory refusal to reinstate them. In
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case of Woodman, we have found that the respondent reinstated
him to his former position on August 23, 1938. Accordingly, we
shall not order the respondent to reinstate Woodman but will re-
quire that the respondent fully restore to Woodman any seniority
rights or other rights or privileges he may have lost by reason of
the discriminatory refusal to reinstate him to his former position
on August 1, 1938. We shall order that the respondent shall make
Hollander, Woodman, and Engargola whole for any loss of pay
they have suffered by reason of the discrimination against them by
paying to Woodman a sum of money equal to that which he nor-
mally would have earned as wages from the date on which he was
discriminatorily refused reinstatement to the date on which he was
reinstated, less his net earnings during such period.39 Inasmuch as
the Trial Examiner found that the respondent had not discrimina-
torily refused to reinstate them, and accordingly did not recommend
their reinstatment except in order of seniority, we shall order the
respondent to pay to Hollander and Engargola, respectively, a sum
of money equal to that which he normally would have earned as
wages for the period between the date on which he was discrimina-
torily refused reinstatement to the date of the Intermediate Report
and the period between the date of this Decision and Order and the
date each, respectively, is offered reinstatement,40 less his net earn-
ings 41 during such periods as aforesaid.
In determining the appropriate remedy for the respondent's dis-
criminatory refusal to reinstate Morris Engargola, we take judicial
notice of, and we, have fully considered, his conviction of assault
in the third degree, a misdemeanor, and his sentence, as set forth
above.42 The respondent, with full knowledge of the acts for which
Engargola was convicted, and indeed, during the period in which
he stood convicted of a more serious offense than that to which he
later plead guilty, offered him a position upon condition that he
forego his activities on behalf of the Union. Thereby the respond-
ent has demonstrated that it refused to reinstate Engargola because
By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440 . Monies received
for work performed upon Federal , State , county , municipal , or other work-relief projects
are not considered as earnings , but as provided below in the Order, shall be deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or governments
«hich supplied the funds for said work-relief projects
°Matter of E. R. Hafelfinger Company, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R. B . 760, 767
41 See footnote 39, supra
' See footnote 33, supra.
FEIN'S TIN CAN COMPANY, INC. 1365
of his union affiliation rather than an honest belief that by his acts
he had- proved himself unfit for reemployment, and may not now
urge that it has refused to reinstate him because of his conviction
for assault. The record does not disclose that the County Court
prohibited Engargola from accepting reinstatement if the respond-
ent were to offer it. Such a restriction would be so unusual that
in the absence of affirmative proof, we find that no such limitation
was imposed. In fact, the report of the Regional Director that the
respondent has complied with the recommendation of the Trial Ex-
aminer, that the strikers, including Engargola, be placed on a pref-
erential hiring list, indicates that no judicial impediment to his
reinstatement existed: Accordingly, we do not consider Engargola's
conviction a bar to his reinstatement.
The respondent has posted the notice recommended by the Trial
Examiner upon the basis of his finding that the respondent, in
1937, engaged in unfair labor practices within the meaning of Sec-
tion 8 (1) and (3). However, since we have found that the re-
spondent, in 1938, engaged in additional unfair labor practices
within the meaning of Section 8 (1) and (3) of the Act, we deem
it necessary to effectuate the policies of the Act that the respondent
post notices that it will not engage in such conduct and we shall
order accordingly.
We" have found that the respondent has not refused to bargain
collectively with the Union, that it did not lock out its employees,
and that, with the exception of Woodman, Hollander, and Engargola,
it has not discriminatorily refused to reinstate employees listed on
Appendices A and B. We shall dismiss certain allegations of the
complaint in accordance with these findings.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee, Lodge No. 2072, is a
labor organization, within the meaning of Section 2 (5) of the Act.
2. All production, maintenance, and shipping and receiving
employees of the respondent at its Brooklyn plant, exclusive of
supervisory and clerical employees and chauffeurs, at all times mate-
rial herein constituted and they now constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
3. Steel Workers Organizing Committee, Lodge No. 2072, is, and
at all times since May 27, 1937, has been, the exclusive representa-
283034-41-vol. 23-87
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of all employees in such unit for the purpose of collective bar-
gaining, within the meaning of Section 9 (a) of the Act.43
4. By discriminating in regard to the hire and tenure of employ-
ment of its employees, thereby discouraging membership in Steel
Workers Organizing Committee, Lodge No. 2072, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
7. The respondent has not engaged in unfair labor practices, as
alleged in the complaint, by refusing to bargain collectively, by lock-
ing out its employees, or, with the exception of Alex Hollander, Abe
Woodman, and Morris Engargo]a, by refusing to reinstate its
employees.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Fein's Tin Can Co., Inc., Brooklyn, New York, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Steel Workers Organizing Com:
mittee, Lodge No. 2072, or any other labor organization of its em-
ployees by discharging, laying off, or refusing to reinstate any of
its employees or in any other manner discriminating in regard to
hire or tenure of employment, or any terms or condition of employ-
ment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, 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, 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 :
41 See footnote 1, supra.
FEIN'S TIN CAN COMPANY, INC. 1367
(a) Offer to Alex Hollander and Morris Engargola immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges, and restore to Abe Woodman any seniority rights or
other rights or privileges he may have lost by reason of the discrim-
inatory refusal to reinstate him;
(b) Make whole Abe Woodman, Alex Hollander, and Morris
Engargola for any loss of pay they have suffered by reason of the
respondent's discriminatory acts, by paying to Abe Woodman a.
sum of money equal to that which he normally would have earned
as wages from August 1, 1938, the date on which he was refused rein-
statement, to August 23, 1938, the date of his reinstatement, less his
net earnings during said period, and by paying to Alex Hollander and
Morris Engargola, respectively, a. sum of money equal to that which
he normally would have earned as wages from August 1, 1938, and
September 15, 1938, the respective dates on which each of these
employees was refused reinstatement, to the date of the Intermediate
Report, and from the date of this Order to the date of offer of rein-
statement, less his net earnings- during said periods; deducting, how-
ever;- from the amount otherwise due each of these' employees,
monies received by him during said period or periods for work
performed upon Federal, State, county, municipal, or other work-
relief projects; and pay over the amount so deducted to the appro-
priate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for such work-
relief projects;
(c)_ Post immediately in conspicuous places at its Brooklyn plant,
and. maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating (1) that
the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) of this Order; and (3) that the
respondent's employees are free to become or remain members of
Steel Workers Organizing Committee, Lodge No. 2072, and the re-
spondent will not discriminate against any employee because of
membership or activity in that organization;
(d) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges (1) that the respondent has refused to
bargain collectively within the meaning of Section 8 (5) of the Act;
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) that the respondent has locked out the persons listed on Ap-
pendices A and B within the meaning of Section 8 (3) of the Act;
and (3) that the respondent has refused to reinstate the persons
listed on Appendices A and B, other than Alex Hollander, Abe
Woodman, and Morris Engargola, within the meaning of Section
8 (3) of the Act.
APPENDIX A 44
Date of Reinstatement
1 Abe Woodman_____________________________ August 23, 1938.
2. Benjamin Sherman________________________ September 8, 1938.
3. Frank Curbelo_____________________________ July 18, 1938.
4. Morris Fehl_______________________________ July 12, 1933.
5. Angel M Santana_________________________ August 8, 1938.
6. Candido Perez ----------------------------- July 25, 1938.
7. Louis A. Deucuppe________________________ August 8, 1938
8. Kristian Olsen ----------------------------- July 13, 1938.
9. Sam Kushner_____________________________ July 11, 1938.
10. Charles (Calcedonio) Di Domizo----------- August 1, 1938.
11 Emanuel Castelluzzio---------------------- October 25, 1938.
12. Charles Mauro____________________________ July 12, 1038.
13. Dominick Simonelli ------------------------ August 15, 1938.
14. Crescenzo Magleacano_____________________ July 13, 1933.
15. Dominick Irto_____________________________ July 11, 1938.
16 Dominic Anselmo__________________________ October 15, 1938.
17. Charles Topia_____________________________ December 5, 1938.
18. Alfred Zoilo_______________________________ July 12, 1938.
19. Lawrence Neal____________________________ July 12, 1938.
20. James Gallosi_____________________________ October 26; 1£38.
21. Frank Barba______________________________ August 1, 1938.
22 James DiPietro___________________________ November 3, 1938.
23. Pietro Caruso_____________________________ July 13, 1938.
24. Anthony Scalici___________________________ July 11, 1938.
25. Joseph Yatkowitz__________________________ July 26. 1938.
26. Guiseppe Berti----------------------------- November 1, 1938.
27. Nobab Ali_________________________________ July 13, 1938.
28. Daniel Aiello______________________________ October 26, 1938.
29. Joseph Dispigno___________________________ October 19, 1938
30 Frank D'Alessio___________________________ July 13, 1938
31. Frank Firenze____________________________ July 13, 1938.
32. Salvatore F. Giovannucci___________________ July 14, 1938.
33. Frank Cinquegrana________________________ October 19, 1938
34. John Bucemi______________________________ July 13, 1938.
35. Concetto Ferranto_________________________ October 19, 1938
"The spelling of many of the names , appearing in the Appendices varied in the record.
FEIN'S TIN CAN COMPANY, INC. 1369
APPENDIX B 4"
1. Morris Engargola.
2. John Capalda.
3. John F. Sannino.
4. Joseph Cattogio.
5. Joseph Sanchez.
6. Vincent F. Cattogio.
7. Alex Hollander.
8. Eddie Cintron.
9. Morris Steinberg.
10. Victor Ruiz.
11. Antonio Di Pietro.
12. Julia Faime.
13. Salvatore Lopica.
14. G. Roman.
15. Pasquale (Pat) Tuccillo.
16. Luigi Didonato.
17. Eusebio R. Martinez (Frank
Ruiz).
18. Angelo Laurenzello.
19. John Tuccillo.
20. Anthony Kala.
21. Angelo Cordova.
22. Elias Taime.
23. Vincent Castelluzzio.
24. Meyer Woodman.
25. John Somma.
26. Vincent Carbone.
27. Oresto Pinto.
28. Joseph Cannice.
29. Dominic De Palma.
30. Umberto Milo.
31. George Hagger.
32. Emil J. Delma.
33. Thomas Johnson.
34. Frank La Bate.
35. Rosario C. Riveccio.
36. George O. Williams.
37. Vincent Striano.
38. James Virono.
39. Joseph Cici.
40. Salvatore Mandello.
41. Angelo Vidal.
42. Joseph Pensabene.
43. Max Glaubach.
44. John Barile.
45. Conrad Kundle.
46. Frank Favillo.
47. Lewis Spinelli.
48. Sam Barba.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.
45 See footnote 44, supra.