J. Klotz & Company

National Labor Relations Board - Board Decisions

Jul 20, 1939

13 N.L.R.B. 746 (N.L.R.B. 1939)

In the Matter of JACOB H. KLOTZ AND RUTH KLOTZ, DOING BUSINESS
UNDER THE NAME AND STYLE OF J. KLOTZ & COMPANY and JOINT BOARD
OF SUITCASE, BAG & PORTFOLIO MAKERS' UNION, A. F. of L.
Case No. C-829.-Decided July 20, 1939
Luggage and Leather Goods Manufacturing Industry-Interference, Restraint,
and Coercion: determination to break union holding contract; runaway shop;
individual contracts ; hiring of non-union employees at lower wage scales ; lock-
out ; surveillance ; discharge of new union members ; encouragement of local hos-
tility to "outsiders"-Jurisdiction: effect of settlement of dispute by arbitrator :
no bar to holding that unfair labor practices were committed where they con-
tinued after arbitrator's award ; private agreement of parties cannot oust
Board 's jurisdiction-Unit Appropriate for Collective Bargaining: production
employees, excluding supervisory, clerical, shipping, and maintenance employees
and inside messenger boys-Representatives: proof of choice : membership in
union; membership cards; no question by employer in course of attempt to
negotiate-Collective Bargaining: prior determination not to deal with union on
expiration of contract; flat refusal to see or deal with union representatives;
refusal to allow manufacturer' s association to deal; refusal to cooperate with
own attorney in settlement of negotiations ; withdrawal from ultimate negoti-
ations before impasse reached ; employer ordered to bargain with union-Strike:
caused at least in substantial part, and prolonged, by employer's unfair labor
practices ; individual solicitation to return to work ; attempts to set up inside
union-Conciliation : efforts at, by United States Department of Labor and New
York State Mediation Board-Reinstatement Ordered: on application, to former
or substantially equivalent employment, displacement of employees hired after
strike-Back Pay: awarded beginning five days after application-Special Order:
payment to employees of expenses for transportation of themselves and families
to new site of factory or payment of bi-weekly trips to former residence to visit
families at option of each employee.
Mr. John T. McCann and Mr. Christopher Hoey, for the Board.
Mr. Sol A. Herzog, of New York City, for the respondent.
Mr. Elias Lieberman, by Mr. Nathaniel H. Janes, of New York City,
for the Union.
Mr. Richard Salant, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Joint Board of Suitcase , Bag & Portfolio
Makers' Union, A. F. of L., herein called the Joint Board, the National
13 N. L. R. B., No. 84.
746
JACOB H. KLOTZ 747
Labor Relations Board, herein called the Board, by Elinore M. Her-
rick, Regional Director for the Second Region (New York City),
issued a complaint dated October 13, 1937, against Jacob H. Klotz and
Ruth Klotz, doing business under the name and style of J. Klotz &
Company, Pawling, 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)
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On October 14, 1937, copies
of the complaint, accompanied by notice of hearing thereon to be held
in New York City, were duly served upon the respondent and the Joint
Board.
In respect of the unfair labor practices, the complaint alleged in
substance (1) that on and after January 1, 1936, the respondent urged,
persuaded, and warned its employees to refrain from becoming or
remaining members of Joint Board of Suitcase, Bag & Portfolio
Makers' Union, herein called the Joint Board, threatened its employees
with discharge if they became or remained members thereof, and kept
under surveillance the meetings of the members of said organization;
(2) that on or about August 17, 1936, and at all times thereafter the
respondent refused to bargain collectively with the Joint Board al-
though the latter represented a majority of the employees in the unit
alleged to be appropriate; and (3) that as a result of such unfair labor
practices, the employees went on strike on August 17, 1936.
On November 30, 1937, the Regional Director issued a notice of con-
tinuance of hearing in Pawling, New York, and on December 7, 1937,
issued an amended notice of continuance of hearing. Copies of these
notices were duly served upon the parties. On December 7, 1937, the
respondent filed an answer denying the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Pawling, New York, on
December 10, 1937, before Charles E. Persons, the Trial Examiner
duly designated by the Board. The Board and the Joint Board were
represented by counsel but the respondent did not appear. On De-
cember 9, 1937, counsel for the respondent had lodged with the Re-
gional Director a request for an adjournment. At the opening of the
hearing, counsel for the Board stated that the Regional Director
acquiesced in the respondent's request provided that the hearing would
be reconvened on 2 days' notice. Accordingly, the Trial Examiner
adjourned the hearing to proceed on 2 days' notice. On December 14,
1937, the Regional Director issued notice of continuance of hearing
on January 4, 1938, in New York City, but subsequently the hearing
was again postponed.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1
Pursuant to notice, a hearing was held in New York City on Janu-
ary 7,1 10, and 11, 1938, before Charles W. Whittemore, the Trial
Examiner duly designated by the Board to act in place and stead of
Charles Persons. On January 11, 1938, counsel for the respondent
did not appear because of illness and the proceedings were adjourned
sine die,, to be reopened on 2 days' notice. Pursuant to notice, hear-
ings were continued in New York City on January 20 and 21, 1938,
in Pawling, New York, on February 24, 25, and 26, 1938, and in New
York City on March 14, 1938, before Joseph Maguire, the Trial Ex-
aminer duly designated by the Board to act in place and stead of
Charles W. Whittemore. The Board, the respondent, and the Joint
Board were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
the parties.
At the close of the Board's case, the respondent moved to dismiss
the complaint, to strike out all testimony concerning events prior to
August 17, 1936, the date of the alleged refusal to bargain, to strike
out all testimony concerning events prior to March 26, 1936, the date
of an agreement between the Union,2 and the respondent, and to strike
out separate portions of the complaint. The motions were denied.
At the end of the respondent's case, these motions were renewed and
were again denied. These rulings are hereby affirmed.
On July 30, 1938, Trial Examiner Maguire filed an Intermediate
Report, copies of which were duly served upon the respondent and
the Joint Board, in which he found that the respondent had engaged
in unfair labor practices affecting commerce as alleged in the coin-
plaint, except that he recommended that the complaint, in so far as it
alleged unfair labor practices prior to March 26, 1936, be dismissed.
He further recommended (1) that the respondent cease and desist
from engaging in the unfair labor practices; (2) that it bargain col-
lectively with the Joint Board upon request; and (3) that it offer
to those employees who went on strike on August 17, 1936, immediate
and full reinstatement to their former or substantially equivalent
positions.
On August 25, 1938, the respondent filed exceptions to various rul-
ings of the Trial Examiners and to the Intermediate Report. At the
request of the respondent, oral argument was scheduled to be held
before the Board on December 22, 1938. Prior to that date, however,
on application by the respondent, oral argument was postponed.
After several postponements both at the request of the Board and
1 Hearings on this date were adjourned in the afternoon when counsel for the respond-
ent stated that it was impossible for him to proceed in the cross -examination of Board's
witness.
For the relationship between the Union and the Joint Board, see Section II, infra.
JACOB H. KLOTZ 749
of the respondent, on May 25, 1939, oral argument was held before
the Board. The respondent and the Joint Board were represented
by counsel and participated in the argument. The Board has re-
viewed the rulings of the Trial Examiners on objections to the admis-
sion of evidence and on other motions not specifically mentioned above,
and finds that no prejudicial errors were committed. Their rulings
are hereby affirmed. The Board has also considered the exceptions
to the Intermediate Report and finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent's business is owned and operated individually by
Jacob H. Klotz. The name Ruth Klotz, Jacob Klotz's wife, is in-
cluded for the sole purpose of the trade name J. Klotz & Company,
which is filed with the County Clerk of the County of Duchess, New
York. The respondent's place of business and factory are at Pawling,
New York. It has a branch sales office in New York City. It is
engaged in the manufacture and sale of school bags, bathing bags,
zipper bags, and articles of a similar nature.
In the manufacture of its products the respondent uses fiber, fabri-
koid, weather proof, and other similarly treated fabrics, zippers,
rivets, and buckles. These raw materials total in value annually
between $50,000 and $100,000. Forty-seven per cent in value of such
raw materials are shipped to the respondent's plant in New York from
points in New Jersey, Connecticut, Massachusetts, Rhode Island,
Pennsylvania, Ohio, and Virginia. The respondent 's annual sales
total in value between $100,000 and $200,000. Of the finished products,
14 per cent in dollar volume and 84 per cent in actual volume are
shipped annually out of New York to "every State in the Union."
The respondent owns a trade-mark, "Jayklo," registered in the United
States Patent Office.
II. THE ORGANIZATION INVOLVED
Suitcase, Bag & Portfolio Makers' Union, herein called the Union,
is a labor organization and is one of seven locals throughout the East
forming the Joint Board of Suitcase, Bag & Portfolio Makers' Union.
The Joint Board has no individual employee members but the mem-
bers of each local are automatically members of the Joint Board.
Murray Baron, the general manager of the Joint Board, is ex officio
general manager of each local, including the Union. The Union,
which has jurisdiction over, employees in New York and vicinity, is
affiliated with the Central Labor Body of the American Federation
7 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Labor. The Union admits to membership skilled operators engaged
in the manufacture of luggage and allied products, exclusive of super-
visory, clerical, shipping, maintenance, and floor workers.
III. THE UNFAIR LABOR PRACTICES
A. Events prior to August 17, 1936; the removal of the plant; inter-
ference, restraint, and coercion
Since 1933 or 1934 the respondent had been a member of the Lug-
gage and Leather Goods Manufacturers' Association, herein called
the Association, a "collective organization of manufacturers" com-
posed of some 60 individual employer members. For several years
prior to 1935, the Joint Board, representing the local unions and
their members, bargained collectively and negotiated agreements with
the Association, representing its employer-members. Each employer-
member signed a document authorizing the Association to "enter into
an agreement" with the Union. In pursuance of such an authoriza-
tion signed by the respondent, among others, the Association signed
a contract with the Union on August 21, 1935. This contract, which
was to remain in effect until August 15, 1936, made full provision for
wages, hours, and other conditions of work, and further included
an agreement that members of the Association shall:
employ none but members in good standing of this Union in any
and all branches of work connected with the manufacture or
making of any and all kinds of suit cases, bags, portfolios, brief
cases and all other kinds of luggage, and the Association and the
employer agree to maintain a union shop . . . The term "union
shop" is understood to mean a shop where only union members
in good standing are employed .. .
Late in January 1936, while this contract was still in effect, the
respondent moved its plant from 14th Street in New York City, to
Pawling, New York. Jacob Klotz testified that this shift in location
was "because the lease expired, and I tried to get other locations, and
rents were too high, and then again, due to constant doctor's bills
which I paid in New York on my youngster, which he is an allergic
child. The various doctors said the best thing would be for him to
live in a country town where the climate is high and dry."
Neither of the reasons offered by Jacob Klotz bears close scrutiny.
Concerning his child's health, the respondent offered no evidence other
than Jacob Klotz's general statement that his son was "allergic."
The nature of the allergy was not specified, nor did the respondent
offer any evidence to show that the climate of Stirling, New Jersey,
where it first sought a site, or Pawling, New York, were more con-
ducive to the child's health than New York City.
JACOB H. KLOTZ 751
We are also impelled to reject the expiration of the New York City
lease as the true reason for the respondent's shift to Pawling. Jacob
Klotz testified that he received a letter from his New York City land-
lord which notified him that the premises must be vacated by February
1, 1936. This letter was dated December 13, 1935. Concerning this
letter, the respondent's counsel asked :
Q. Had you been told prior to that day that you would be
unable to secure a renewal?
A. (By Jacob Klotz.) No. This came as a complete surprise.
The evidence is convincing, however, that this letter which came as
a "complete surprise" to the respondent could not have been the reason
for moving its plant, since it had begun its plans to move at least a
month before December 13, 1935. Louis Friedman, who later became
general manager of the respondent's plant in Pawling, was hired by
Jacob Klotz in November 1935 to aid in the search for a new site.
Irving Klotz, Jacob Klotz's brother and general manager of the plant
while it was located in New York City, testified that he first became
aware of the plan to move on December 15, 1935, when Jacob Klotz
and Friedman announced, "Well, we got the place all ready in Pawl-
ing." Since the evidence shows that several other sites had been ex-
amined before the respondent chose Pawling, and since Irving Klotz
set December 15 as the day on which the place in Pawling was "all
ready" it is clear that even under Irving Klotz's testimony, the date on
which plans to move had been begun may fairly be set at a period sub-
stantially prior to December 15, 1935. Finally, Jacob Klotz testified
that on December 21, 1935, he paid Louis Friedman $300 for expenses
the latter had already incurred in connection with the moving. This
clearly indicates that preparations for moving had been continuing
for a substantial period before December 21, 1935. Finally, on cross-
examination, Jacob Klotz admitted that Friedman had begun to super-
vise the installation of heating at the Pawling plant as early as
November 1935.3
Thus we find that neither the claimed allergy of Jacob Klotz's child
nor the notification from the landlord were the true reasons for the
respondent's moving its plant from New York City to Pawling. There
is, on the contrary, ample evidence establishing that the respondent's
3 when the inconsistency of this testimony with his prior testimony on direct examina-
tion that the landlord 's letter of December 13, 1935, came as a "complete surprise" to
him was called to his attention by counsel for the Board , Jacob Klotz attempted to ex-
plain that be had been notified by letter some time before December 13, 1935, that his
lease would expire, that he had asked his landlord for an extension , and that the letter
of December 13 was the "final notice ." The alleged prior notification was not offered in
evidence , nor was there any corroboration of this new version testified to by Jacob
Klotz. Under the circumstances , we cannot accept Klotz's belated explanation as
credible.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motive was to evade its obligations under the contract between the
Association and the Union and to destroy the Union. Louis Friedman,
a witness called by the Board, and who, as described above, had been
hired to supervise the process of moving and became general manager
of the respondent's plant after it moved, testified that when he was
hired in November 1935, Jacob Klotz told him "he would like to move
to avoid any labor troubles which he has been having for the last so
many years that he had an agreement with the union," and that he,
Klotz, could hire labor more cheaply outside New York City. Fried-
man further testified, "I was given to understand from the moment I
was in his [Klotz's] employ that our main reason for going out of the
City ... was to rid ourselves from a union." Similarly, Abraham
Levine, who was employed by the respondent in New York City and
who became a foreman in Pawling, testified that on December 24, 1935,
Jacob Klotz gave him a bonus and told him that the plant was moving
to Pawling where "we won't have any trouble with the union at all ...
we will live like a happy family." Although the respondent introduced
evidence attacking the general credibility of both Friedman and
Levine, Jacob Klotz did not deny having made the statements
attributed to him by those two witnesses. Moreover, the testimony
of Friedman and Levine is consistent with and corroborated by the
events, described below, which followed immediately after the respond-
ent moved to Pawling. The Trial Examiner, who had an opportunity
to observe the witnesses, finds in his Intermediate Report that Jacob
Klotz made the statements as testified to by Friedman and Levine.
At first, on announcing his intention to move to Pawling, Jacob
Klotz gave indication of observing the Union-Association agreement.
On December 26, 1935, he wrote Maurice Levitan, secretary of the
Association, informing Levitan of his plan to move to Pawling and
stating that "it is our desire to retain all our present employees in-
eluding all members of [the Union]." 4 Thereafter, Jacob Klotz had
several conferences with Levitan and Murray Baron, the general man-
ager of the Joint Board and the Union. At these conferences Klotz
assured Baron that he "would cooperate with the union about giving
ample notice so that the workers would be sent." Klotz agreed that
no worker would be employed in the Pawling plant unless he pre-
sented a union card. On February 18, 1936, Jacob Klotz wrote to
the Association requesting that on February 26 the Union send certain
operators to Pawling and the Association so notified Baron.
* Such notice was apparently intended to comply with Paragraph Seventeenth of the
agreement between the Association and the Union, which provided : "It is agreed that
during the term provided for in this agreement neither the employer nor any of its . . .
officers . . . will open, manage , operate, finance or become directly or indirectly , interested
in any firm or corporation engaged in the making of any of the articles named in this
agreement in shop or shops inside or outside of the City, unless said shops have written
ag•eements with the Union."
JACOB H. KLOTZ 753
But the respondent's conduct, meanwhile, did not bear out its verbal
promises. The respondent's first step had been to assure itself that
the town of Pawling would be hostile toward the Union and toward
the contemplated "invasion" of the New York City union members.
Friedman testified that in December 1935 he and Jacob Klotz visited
Albert Slocum, Mayor of Pawling, in order to discuss "protection
from the union." Friedman testified that Jacob Klotz asked Mayor
Slocum "if there was any union people that would come what would
he do for them." The Mayor, according to Friedman, assured Klotz
that there need be no cause for worry, for "We will put them in their
place. We will even stick them in jail if we have to." In January,
according to Friedman, he and Jacob Klotz told Mayor Slocum that
the union members would soon arrive in Pawling, to which the Mayor
replied, "Well, you just leave it to me." Levine, who was present at
this latter conversation, corroborated Friedman's testimony, stating
that Klotz had asked Mayor Slocum what action he would take if
the union members arrived, and that Slocum replied, "Why here we
don't stand for things like that. People coming into town. We should
run them right out of town and put them back on the train and
send them home." Irving Klotz, Jacob Klotz's brother, testified that
in December the Mayor had said, "Well, if they come up and cause
any trouble, they will go right back." Irving Klotz testified that this
statement was made without the Mayor's inquiring into the likelihood
of any "trouble" or violence.
Mayor Slocum, who himself contributed a new boiler to the re-
spondent's plant and who assisted in raising funds among the Pawling
inhabitants to recondition the plant, testified, and was asked whether
he made the remarks attributed to him by Friedman. The following
colloquy ensued :
A. (By Mayor Slocum.) If I made it, there was nothing
wrong with it, was there?
Q. (By counsel for the respondent.) Did you say it in connec-
tion with union trouble, or was it in connection with something
else?
A. I don't remember that. I don't see anything wrong in that.
It was only after a leading question put by the respondent's counsel
to Slocum, a witness called by the respondent, that Slocum finally
stated that he was only referring to possible acts of violence. Simi-
larly, he denied Levine's testimony by stating, "I would be very foolish
to have made a statement like that unless they [the union members]
had done something so that I had the privilege of doing that. I say
I never made that statement unless it said-in case they did some-
thing."
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, we find that these incidents occurred
substantially as testified to by Friedman and Levine. We believe it
to be clear that the respondent warned Mayor Slocum of the arrival
of the union members, instilled fears of "trouble," and played upon
natural suspicion toward the arrival of "outsiders." 5 Having cleared
the way for a hostile reception to the Union, the respondent took
further concrete steps in order to avoid dealing with the Union.
Although, as described above, Jacob Klotz assured Baron that only
union members would be permitted to work in the Pawling plant in
accordance with the agreement with the Association, it is apparent
that Klotz attempted to begin the plant's operation without the aid
of the Union. Before February 26, 1936, the date on which the plant
was scheduled to open, several local Pawling employees had been hired
and had begun to work in the plant. The exact number of such em-
ployees is the subject of conflicting testimony. Baron estimated that
there were 23 local employees in the plant prior to February 26, 1936,
while Jacob Klotz admitted to only 6 or 8. We do not, however, find
it necessary to find which of these estimates most accurately reflects
the true number since in any event it is clear that at least some of these
employees were working on machines and were engaged in other oper-
ations before February 26, although such operations fall within the
Union's jurisdiction and although the respondent had agreed to abide
by the contract providing for a union shop. It is also clear that these
employees hired before February 26 were paid only $10 weekly, a sum
below the regular union scale. Further, the respondent persuaded
Abraham Harris and Irving Ulaner, union members and two of the
respondent's employees in New York, to begin work in Pawling before
February 26. These two employees went to Pawling under individ-
ual contracts, concluded in December 1935.° When the Union notified
Harris that he was violating its rules by such an agreement, Harris
left Pawling after 3 days since he did not "want to work against the
union."
Thus, prior to February 26, the respondent had assured itself that
the town of Pawling would show a sympathetic attitude in its stand
against the Union, and had further taken steps to operate the plant
without the Union. On February 24, 1936, however, after the Asso-
ciation notified Baron that it had received a letter from Klotz re-
questing that 15 union operators be sent to Pawling, Baron went to
° That the respondent was successful in encouraging such an attitude is shown by the
conference between Baron and Slocum on February 26, 1936, at which Slocum said,
"This plant was brought to Pawling to employ local help" and that Slocum "was not
going to tolerate the sending in of outsiders , New Yorkers , to take jobs "
° These contracts violated Paragraph Fourteenth of the Association -Union agreement,
which provided , "No individual contract shall be entered into by the employer with any
of his workers .. .
JACOB H. KLOTZ 755
Pawling to arrange the details of their arrival. Since Klotz had re-
quested that these 15 former New York employees begin work on
February 26, Baron suggested to Jacob Klotz that it would be advisa-
ble that these men take a train to Pawling from New York City on
February 25 so as to assure their presence at the factory when it
opened at 8: 00 a. m. on February 26. Klotz told Baron that this was
unnecessary, and that it would be satisfactory if they left New York
City on February 26 on the 5:45 a. in. train, which would arrive at
Pawling at 8: 13 a. in.
In pursuance of these arrangements between Baron and Jacob
Klotz, the employees arrived in Pawling at 8 :13 a. in. and walked up
a hill to the plant. The group was led by Louis Rady, an employee of
the respondent and the shop chairman of the Union. The workers
walked single file along a narrow path leading to the door of the fac-
tory. Rady, who was in the front, rang the bell. The precise events
which followed are the subject of some conflicting testimony.
Rady testified that, after he rang the bell, Jacob Klotz opened the
door and said, "You are too late. Go on home. We start at eight
o'clock." Similarly, Louis Friedman testified that Klotz answered
the door and told Rady, "We opened the factory at 8 . . . when you
are to report at 8, you are to report at 8, not 8: 30." The door was then
shut and the group of employees left. Although the respondent did
not deny that the employees were thus turned away, it attempted to
shift the responsibility for this incident upon Louis Friedman, then
acting as general manager and in charge of personnel. Irving Klotz,
Jacob Klotz's brother and a foreman at the Pawling plant, testified
that Friedman answered the door and spoke to Rady, and that he
"didn't see" Jacob Klotz in the plant on February 26 at all. Fred
Klein, Jacob Klotz's brother-in-law and also a foreman, testified that
Jacob Klotz was present in the factory but that Friedman talked to
Rady. Jacob Klotz testified that he was at work in another part of
the building and that Louis Friedman had full charge of the matter.
He denied that he took any part in this incident. Further, Irving
Klotz and Klein both testified that it had been Friedman who through-
out had been opposed to sending for the former New York City
employees, and that Friedman had accused Jacob Klotz of being a
"damned fool" for sending for the New Yorkers. On the other hand,
both Friedman and Levine testified that Jacob Klotz had, prior to
February 26, held several conferences with the supervisory officials
concerning what action should be taken concerning the arrival of the
group of employees and the best way for the respondent to rid itself
of them. Levine also testified that Jacob Klotz had directed the men
already in the plant on February 26 to stand watch at the windows
in order to announce when the group of New York employees was
approaching.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of course, the respondent cannot avoid responsibility for this inci-
dent whether or not Friedman was the principal actor. Friedman
was the respondent's general manager in charge of hiring and dis-
charging and was clearly a supervisory official. Further, in the light
of Jacob Klotz's subsequent conduct on February 26 and thereafter,
we cannot credit the testimony that Friedman acted against Jacob
Klotz's wishes. Such subsequent conduct demonstrates that, at the
very least, Jacob Klotz expressly authorized and ratified the lock-out
in the morning. Further, Rady was a credible and consistent wit-
ness, and he was corroborated by Friedman. Under all the circum-
stances, we find that Jacob Klotz was the principal actor in this
incident and that it occurred as testified to by Rady.
Immediately on being refused admittance, Rady telegraphed to
Baron, in New York City, and in response Baron arrived in Pawling
at 10: 44 a. m. Baron and Rady returned to the factory. Jacob
Klotz opened the door slightly and, after Baron had remonstrated
with him concerning the earlier happenings of the morning, Klotz
said, "it is not any use talking about it. I am sorry." Baron asked
Klotz whether he refused to allow the men to begin work; Klotz
replied "Yes" and shut the door. In the afternoon of February 26,
at Mayor Slocum's request, Jacob Klotz, Friedman, and Baron visited
the Mayor at the latter's grocery store. Baron testified that to every
question asked of Klotz, Klotz replied, "I have nothing to say." The
Mayor, according to Baron, stated that he was "not interested in
either side of this case, but that this town would not tolerate outside
agitators ..." Baron's testimony was corroborated by Friedman.
Neither Jacob Klotz nor Mayor Slocum were called upon to deny
the substance of the testimony of Baron and Friedman and, accord-
ingly, we find that this conference occurred as described by Baron.
At the conclusion of this conference, Baron and the 15 union mem-
bers returned to New York City.
Indicative of Jacob Klotz's lack of good faith concerning the
events of February 26 is the letter he wrote on February 27 to
Levitan, the secretary of the Association. In this letter, Klotz wrote
"The union has failed to comply with our request ... These opera-
tors . . . not reporting to work here yesterday at the usual working
time, our factory foremen concluded that they would not show up
and therefore left the premises. While the operators were here at
our office they were instructed to report for work the following
morning, today, February 27th. None of them came to work here
today." The evidence shows that this letter is false and misleading
in several respects, an attempt to shift the blame to the Union. The
letter omits any reference to the fact that it had been at Klotz's
suggestion that the employees arrive at 8: 13 a. m. Moreover, Klotz
JACOB H. KLOTZ 757
and all the foremen were in the factory when the employees arrived,
and the New York group had never been allowed in "our office."
Finally, at the hearing, none of the respondent's witnesses testified
that the group had been "instructed to report to work the following
morning,", and Rady expressly denied that they had been so in-
structed. If Jacob Klotz had wished the employees to return, or if,
as he claimed, Friedman was responsible for the lock-out and Klotz
disapproved of it, the latter had full opportunity to rectify the error
at the two conferences with Baron later on February 26. Yet, as
we have found, Klotz flatly refused to discuss the matter with Baron
at all. Under these circumstances, we find that Jacob Klotz was
personally responsible for the lock-out of the New York City union
members.
In accordance with the provisions of the contract between the
Union and the Association, Baron referred the dispute to Dr. Paul
Abelson, Impartial Chairman appointed under the contract. Pend-
ing Abelson's decision, Baron began efforts to organize the Pawling
employees of the respondent. This campaign, too, was met with the
respondent's hostility. In March, Baron met five or six Pawling
men who were then employed at the respondent's plant. Baron drove
these employees in his car to a nearby beer hall. When Baron
stopped to buy gasoline, a car, in which, according to Baron's testi-
mony, Friedman, Jacob Klotz, and Irving Klotz were sitting, passed.
The next morning when the employees who had been with Baron
reported to work at the respondent's plant, they found that their '
time cards had been removed. Friedman informed them that they
had been discharged.
The respondent, at the hearing, attempted to shift the respon-
sibility for this incident upon Friedman.' Although not denying
that the incident occurred, Irving and Jacob Klotz denied that they
were present in the car. Irving Klotz testified that he remonstrated
with Friedman for discharging the employees, and that he called
the matter to the attention of Jacob Klotz, who stated that he would
take proper steps. Immediately thereafter, according to Irving
Klotz, Friedman was demoted to foreman of a small department and
was relieved of his right to hire and discharge.
The evidence refutes Irving`Klotz's testimony. As stated above,
Baron, a credible witness, testified that Jacob Klotz was in the car.
Friedman, who drove the car, testified that as soon as he and Jacob
Klotz saw the employees with Baron, they discussed what action
to take. Jacob Klotz expressed distress that Baron had "broken
1 As pointed out above, even if Jacob Klotz did not authorize Friedman , the respondent's
general manager, to engage in these activities , the respondent is legally responsible
therefor.
187930-39-vol. 13-49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the ranks," and Friedman and Klotz decided to go to the factory
early the next morning to discharge the employees. Further, the
respondent admitted that, although this incident occurred in March,
it was not until several months later that Friedman was demoted.
Jacob Klotz, in his testimony, made no reference to the conversation
with Irving Klotz testified to by the latter. Under all the circum-
stances, we find that Jacob Klotz approved of and participated in
the surveillance and the subsequent discharges described above.
The Union referred the matter of these discharges to Abelson..
On March 26, 1936, Abelson issued his award. He ruled (1) that
all the Pawling local help coming under the Union's jurisdiction
would be preferred in employment before any of the former union
workers of New York City were to be engaged; (2) that an incirease,
of $2 a week be granted; (3) that there be a 40-hour week; (4) that
15 New York City union members be employed at Pawling; and (5),
that the five employees who had been discharged be reinstated. The-
respondent signed the award and complied therewith and the 5 Pawl-
ing employees as well as the 15 New York City union members were.
reemployed
At the hearing, both the Union and the respondent agreed that
they considered that the Abelson decision and the respondent's com-
pliance therewith settled all disputes existing as of March 26, 1936.
Except for the attempts to bargain during the summer of 1936, as,
described below, there were no further relevant disputes between the.
'respondent and the Union before the strike on August 17, 1936, dis-
cussed below. Although he made findings concerning the events;
prior to the Abelson decision, the Trial Examiner recommended that
the complaint be dismissed in so far as it alleged that these occur-
rences were violations of the Act since they were matters settled by
the Abelson award. This recommendation is hereby rejected. The,
Abelson award did not purport to settle any disputes under the.
Act, nor was the question of violation of the Act as such before the,
parties or the Impartial Chairman. Moreover, a settlement of dis-
putes between the parties involved cannot oust the Board of juris-
diction in regard to those disputes where they involve unfair labor-
practices? In prior cases, the Board has stated that
'The contract between the Association and the Union provided in Paragraph Twenty-
second that : "All complaints, disputes or grievances between the parties shall be taken,
up for adjustment in the first instances between the employer . . . and the representative.
of the parties to this agreement . Should they fail to reach a satisfactory adjustment,
then the dispute . . . shall be referred to an Impartial Chairman and his decision, shall'
be binding upon all parties to this agreement and their respective members."
Section 10 ( a) of the Act provides : "The Board is empowered, . .. to prevent any
person from engaging in any unfair labor practice . . . affecting commerce . This power
shall be exclusive and shall not be affected by any other means of adjustment . .. that
has been or may be'established by agreement, .. .
JACOB H. KLOTZ 759
The Board itself, representing the United States, is a party
in interest in proceedings relating to unfair labor practices under
the Act. No private party can sanction an employer's interfer-
ence, restraint or coercion in the exercise of rights guaranteed
by Section 7 of the Act ... °
and that in cases of such agreements
The Board in its discretion may proceed to take what action
it deems necessary in connection with such matter in order to
effectuate the purposes and policies of the Act u
These conclusions are applicable in the instant situation where, at
the time of the award, the Board was in no way connected with or
apprised of the events. It is true that, in substance, by providing
for the reinstatement of the employees who were locked out and dis-
charged, and by settling the particular matters then in dispute be-
tween the parties, the award was consonant with the purposes of
the Act. Had the respondent then abandoned its efforts to wreck
the Union, the Board might, in its discretion, regard the award as
having closed the dispute. As described below, however, the re-
spondent regarded the award merely as a temporary set-back and
it persisted, after the award, in its anti-union conduct and continued
its unfair labor practices. Under these circumstances, the policies of
the Act would not be effectuated by disregarding the respondent's
activities occurring before the Abelson award.
Conclusions with respect to the events prior to March 26, 1936
We have found (1) that the respondent, as a member of the Asso-
ciation, had a collective bargaining agreement with the Union, under
which it was operating; (2) that the respondent, during the life of
the contract, moved its plant from New York City to Pawling; (3)
that, in violation of its agreement that it would employ only union
members on union operations in Pawling, the respondent hired sev-
eral Pawling employees for union work, and hired two union mem-
bers under individual contracts; (4) that the respondent encouraged
civic hostility to the Union and its members; (5) that the respondent
locked out members of the Union and forced them to return to New
York City; and (6) that the respondent spied upon its employees
and discharged them because it discovered them in the presence of
Murray Baron, the general manager of the Union. We have also
10 Matter of Ingram Manufacturing Company and Tewtile Workers Organizing Com-
mittee, 5 N . L. R. B. 908, 911.
n Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Local No. 1139, 10 N. L . R. B. 33; Matter of, The Kelly;
Springfield Tire Company and United Rubber Workers of America, Local No. 26 et al.,
6 N. L. R. B 325.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the reasons assigned by the respondent for its moving
from New York City to Pawling were not credible or consistent
with the other evidence. We conclude from the facts found in this
Section III A that the conduct of the respondent prior to March
26, 1936, including the six items specified above, was motivated by and
part of a scheme to deny to its employees their right to join a union
of their own choosing and to rid itself of the Union, and that, to
achieve this purpose, the respondent broke its contract with the
Union. We find, therefore, that by the acts described above, the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
B. The refusal to bargain collectively; the strike; interference, re-
straint, and coercion
1. The appropriate unit
The complaint alleges that the respondent's employees engaged in
production "exclusive of supervisory, clerical, shipping, maintenance
and inside messenger employees" constitute a unit appropriate for
the purposes of collective bargaining. In its answer, the respondent
denied any knowledge or information sufficient to form a belief as
to this allegation. The evidence shows, and we find, that these classes
of employees alleged in the complaint to fall within the appropriate
unit have been the ones covered by the contracts between the Union
and the Association. At the hearing, the phrase "inside messenger
employees" was clarified and was shown to include unskilled workers
such as general errand boys and those engaged in stuffing, trimming,
sweeping, and cleaning. At the hearing, the only substantial con-
flict between the parties concerning the appropriate unit related to
the inclusion of those employees engaged in riveting and pasting.
The evidence shows, and we find, that the practice in the industry is
to include such employees in the appropriate unit.12
We find that the production employees including those engaged
in riveting and pasting but excluding supervisory, clerical, shipping,
maintenance, and inside-messenger employees, as well as those en-
gaged in stuffing, trimming, sweeping, and cleaning, employed in the
respondent's plant in Pawling, New York, constituted and consti-
tute a unit appropriate for the purposes of collective bargaining, and
that such unit insures the employees the full benefit of their right to
self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act.
12 In the settlement of the dispute concerning the discharge of the five local employees,
the Impartial Chairman so found.
JACOB H. KLOTZ 761
2. Representation by the Union of the majority in the appropriate
unit
Counsel for the Board introduced in evidence a copy of the re-
spondent's pay roll for the week ending August 22, 1936. This pay
roll lists the names of the 74 employees working on August 17, 1936.
This total is brought to 76 by the addition of Louis Rady, who had
been temporarily laid off,13 and of Iola Burns, who had been ill.
There is, however, no indication from the pay roll to show what type
of work was performed by the named employees or whether their
work fell within the Union's jurisdiction.
However, the agreement between the Association, of which the
respondent was a member, and the Union provided in its second para-
graph that
The Association and each and every member thereof agrees to
employ none but members in good standing of this Union in any
and all branches of work .. .
and in its twelfth paragraph, that
The employer agrees to engage any and all new workers, except
floor workers, except floor workers (sic), through the office of the
Union only .. .
As it related to the respondent, this provision was expressly affirmed
by the Abelson award of March 26, 1936, which was signed by the
respondent and which provided that
All the Pauling (sic) local help which come under the juris-
diction of union membership according to the terms of the Agree-
ment, shall be preferred in employment before any of the former
Union workers of New York City are to be engaged, except that
all such local help must become members of the Union by April
1, 1936.
The contract between the Union and the Association did not expire
until August 15, 1936. The respondent insisted throughout that it
had observed the terms of the original contract as supplemented by
the Abelson agreement. Therefore it may be assumed that on August
17, 1936,14 the Union, in accordance with the contract, represented a
majority of the employees in the appropriate unit.
13 The lay-off was only for a day or two pending resumption of the operation of the
machine on which Rady was working . Such lay-offs occurred from time to time and Rady
would soon return to work. We find that Rady was an employee of the respondent on
August 17, 1936.
14 Except as noted below, there is no evidence that between August 15 , when the contract
expired, and August 17 , 1936, there were any defections from the Union or that any new
employees were hired.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This assumption is supported by other evidence. There is con-
siderable conflict concerning the ratio of employees falling within
the appropriate unit to those falling outside the unit. Murray Baron,
the Union's manager, testified that at the height of the season,15 em-
ployees performing non-union operations comprised 331/3 per cent of
the total employees, while during the slack season, 20 per cent of the
total employees were not in the appropriate unit. Under these esti-
mates, the Union would be required to have a membership of 26 at the
height of the season and 31 during the slack season, in the appro-
priate unit in order to represent a majority. Irving Klotz, however,
estimated that only 20 per cent of the total employees fell within the
appropriate unit. Thus, only 13 members would be sufficient to con-
stitute a majority. Finally, Fred Klein estimated that 50 per cent of
the employees were "Union operators." Under this estimate, 20 em-
ployees in the unit would constitute a majority.
Counsel for the Board introduced into evidence 40 membership
cards.1' Louis Rady, who obtained most of the signatures, testified
at length concerning these cards, and we find that there is nothing
to indicate that the cards were not signed voluntarily. Certain addi-
tions and subtractions are necessary, however. Five cards are dupli-
cates.17 Two cards were not signed until August 19,1936. 18 Iola Burns
and Marion Tate, although they signed membership cards, continued
to work after the strike on August 17, 1936, and so were automatically
suspended from the Union." Six other signatories 20 left the respond-
ent's employ prior to August 17, 1936. Thus we shall subtract 15
cards. There remains a total of 25. To these 25 must be added 12
employees 21 who had come to Pawling from New York City and
whose membership in the Union is undisputed. The respondent, how-
ever, raises various contentions in opposition to computing this ma-
jority of 37 members. We shall examine these contentions separately.
The respondent claims that 10 employees who signed cards do not
fall within the appropriate unit. Of these 10, we have already ex-
cluded from the computation Hastings, who joined on August 19,
15 August was a month during which the season was at its peak.
1e The Union also claimed as members Coe, Ezian, Wixon, and Smalley . Their cards
were not introduced in evidence and so are not here computed.
"Duplicates were signed by John Brill, Kenneth Brill, E. Lennon, and Elwood Oakley.
The fifth card , that of A. Goldstein , is not here computed since Goldstein was already a
member of the Union and is counted with the New York members.
15 These cards were signed by Agnes Peck and Henry Hastings.
19 Baron stated that the union rules provided for automatic suspension under such
circumstances.
20 These were T. Randazzo , Julia Valenti, Mary Wright, Karl Buchhalter, E. Cashman,
and E. Durkin.
The 12 New York employees are H . Levine, A. Goldstein, Irving Friedman, Joe
Dickman, William Zuckerman , Irving Ulaner, Abe Harris, Max Rosensheim , Lou Rosen,
Sam Cohen , S. Buchinger , and L. Rady.
JACOB H. KLOTZ 763
1936, and Wixon, whose card was not introduced in evidence. There
is no evidence concerning the nature of the work done by I. Ferris,
Russutto, and Ida Bennett, three other employees in this category.
We shall, therefore, not count these three. The remaining five em-
ployees who, the respondent contends, do not fall within the appro-
priate unit are John Brill, Kenneth Brill, Elwood Oakley, Sherwood
Ferris, and Emmett Lennon. These employees were, as described
above, discharged by the respondent the morning after they were dis-
^covered riding with Baron. The dispute concerning their status was
referred to Abelson, the Impartial Chairman. In his award, Abelson
stated :
The Union alleged that they [the five employees named above]
were discharged for joining the Union, and the firm contended
that they were unskilled workers, not coming under the terms
of the agreement.
The five workers who had been discharged . . . appeared
before the Impartial Chairman. The testimony showed that
before their discharge they were doing work [riveting and past-
ing] that would come under the terms of skilled work and the
jurisdiction of the Union.
Abelson further stated his belief that these employees were not yet
-equipped to perform the skilled operations of riveting and pasting;
he ruled, accordingly, that they be taught these operations and that
they perform both skilled and unskilled operations on weekdays and
unskilled operations only on Saturdays. The evidence shows, fur-
ther, that except for the Saturday work, it was agreed that "in all
other respects they would be accorded the protection of the union
agreement." After the Abelson decision, they continued, during the
week, to perform skilled operations falling within the Union's juris-
diction. We find, therefore, that these five employees are within the
appropriate unit and that their cards should be counted in the deter-
mination of the existence of a majority.
The respondent further contends that the employees who came
from New York City should not be computed. Irving Klotz and
Fred Klein testified that several of the New York City members had
stated, during the summer of 1936, that they were determined to
return to New York City on August 15, 1936, when the contract ex-
pired. Nevertheless, these members were employed by the respond-
ent on August 17, 1936, and joined in the strike. Further, although
several of these employees testified, there was no evidence that they
actually did leave the respondent's employ, nor did they testify that
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had intended to do so. Accordingly, we shall compute the 12
New York City members.
The respondent also contends, although it offered no evidence, that
three employees, Russutto, Taney, and Bennett did not sign member-
ship cards until after 5 p. m. on August 17, 1936. We have already
omitted both Bennett and Russutto from the computation on the
ground that there was no evidence indicating the nature of the work
done by them. Louis Rady testified, however, that these three em-
ployees signed immediately after 10 a. m. on August 7, 1936. We
shall, therefore, count the card signed by Taney.
Conclusion concerning majority
As stated above, after deducting duplicates, cards signed after
August 17, 1936, and cards signed by employees who were suspended
or voluntarily quit, there remain 25 membership cards of employees
in the appropriate unit on August 17, 1936. From this total of 25,
those signed by Russutto, Bennett, and I. Ferris have been subtracted,
leaving a total of 22 cards. To the 22 cards signed in Pawling are
added the 12 New York City union members employed by the re-
spondent. The evidence shows, therefore, that on August 17, 1936,
the Union had a membership of at least 34 of the respondent's em-
ployees 22 in the appropriate unit. Adopting the percentage esti-
mates of the respondent's witnesses as described above, the Union
represents a clear and substantial majority. If we adopt Baron's
percentage estimate applicable on August 17, 1936, which was during
the peak season, the Union represented 8 more employees than the
26 necessary for a majority. Even if we were to adopt Baron's esti-
mate that 20 per cent of the employees do not fall within the appro-
priate unit-the estimate least favorable to the Union and applicable
only during the slack season-it is apparent that 61 of the 76 employ-
ees on the respondent's pay roll of August 22, 1936, would fall within
the appropriate unit. Thus, 31 would be sufficient to constitute a
majority, as against a minimum of 34 employees in the appropriate
unit whom we have found to be members of the Union on August 17,
1936.
We find that on August 17, 1936, and at all times thereafter'23 the
Union was the duly designated representative of the majority of the
22 The employees in the appropriate unit, who we find were members of the Union on
August 17 , 1936, are : Una White, Elwood Oakley, Grace Bierce, Anne McDonald, Sadie
Martin, Mary Lorey , John Brill, Kenneth Brill , Vincent Bona , Maud Corbin , Emmett
Lennon, Bessie Ulaner, Catherine Curry, Sherwood Ferris, John Marinan , Elizabeth
Bradley, Helen Sobol, Emma Taney , Anna Gallagher , Emma Farrell, Agnes Bauer , Michael
Severino , and the 12 employees listed in footnote 21 above.
2,s At no time in the course of the many months during which the Union attempted to
deal with the respondent on and after August 17 , 1936, did the respondent ever raise any
question concerning the Union 's representation of a majority of the employees in the
appropriate unit.
JACOB H. KLOTZ 765
employees in the appropriate unit for purposes of collective bargain-
ing, and, pursuant to Section 9 (a) of the Act, was the exclusive
representative of all the employees in such unit for purposes of
collective bargaining.
3. The strike; refusal to bargain; interference,
restraint, and coercion
a. The strike
The evidence shows that some time prior to the expiration of the
contract between the Association and the Union on August 15, 1936,
the respondent determined not to renew its contractual relations
with the Union. Louis Friedman testified that in December 1935,
Jacob Klotz remarked to him that Klotz "would divorce himself
from any union that existed." Friedman also testified that during
the summer of 1936, Jacob Klotz told Friedman that Baron had
been attempting to discuss the renewal of the contract, and that
Klotz remarked that he was "just laying it off until we finish
our season." Similarly, Baron testified that he made several
unsuccessful attempts to discuss a new contract with the respondent.
In June 1936, according to Baron, when Baron suggested that the
existing agreement be continued except as to hours and wages,
which were to depend on the action of the Association, Klotz replied
that he was "sorry but he could not do anything at all in that con-
nection." Again in July 1936, when Baron brought up the subject
of renewal, Jacob Klotz, according to Baron, replied that his attitude
had not changed and that "he cannot deal with me in connection
with anything beyond August 15." Baron testified that he made a
third attempt early in August, and that Jacob Klotz told him that
"there is no use bothering me, Baron. I know what you are after
but it is no use." Rady, who was present at the first two conferences,
substantiated Baron's testimony concerning them and testified that
in July "Mr. Klotz declined even to talk about it."
Al Levine, one of the respondent's foremen, who, during the strike
became a member of the Union, similarly testified to the respondent's
refusal to discuss a renewal of the contract. He testified that late
in March 1936, after the Abelson agreement had been executed, Jacob
Klotz visited him and stated, "I can't do anything now. They have
got me licked because I have an agreement signed up with them till
August. And they could sue me for all I am worth. I signed up
till August, but after that they can't bind me toward anything. I
won't sign anything. After that I can do as I damn please but not
DOW." Levine also testified that Jacob Klotz's "favorite saying,
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he said a countless number of times" during the summer of
1936, was "The only time I will ever sign an agreement with that
union is when hair will grow right over here on the palm of this
hand and not before."
Jacob Klotz denied the statements attributed to him by Levine.
Friedman's testimony was not expressly denied. Jacob Klotz
admitted that he talked with Baron concerning the renewal of the
contract. He testified that he rejected the suggestion of a contract
for the respondent alone since he was a member of the Association
and he did not "want to be a privileged character." Jacob Klotz's
testimony concerning the position he took in relation to the question
of renewal was not, however, consistent. At one point he insisted
that all during the summer he had told Baron that he would "sign
an agreement based on the outcome of the Association," while at
another point, Klotz testified that he told Baron that "when it will
come to renew the agreement that we will have to work a little
different" because of the peculiar problems raised by the fact that
the plant had moved to Pawling.
In view of the consistent testimony of Friedman, Rady, Levine,
and Baron on this point, and in the light of the respondent's prior
efforts to avoid dealing with the Union as described in Section III
A above, we find that these incidents' occurred substantially as tes-
tified to by Friedman, Rady, Levine, and Baron, and that, before
the expiration of the contract on August 15, 1936, the respondent
had determined not to renew the agreement or make any agreement
at all with the Union.
Despite the protest of Friedman, who told Klotz that it looked too
much like a celebration, the respondent held a party for the
employees on August 14, 1936, the day before the agreement expired.
Meanwhile, the union members authorized Baron to call a strike in
the event that the respondent did not renew the agreement by
August 17, 1936. Accordingly, at a given signal, the members of
the Union walked out of the plant at 10 a. m. on August 17. The
strike was still in progress at the time of the hearing, although
picketing had ceased during the summer of 1937.
We find that the evidence supports the allegations of the com-
plaint alleging that the strike was caused by the. respondent's
unfair labor practices. As described above, the respondent had
moved its plant in order to avoid dealing with the Union, had hired
non-union employees to perform union operations in violation of
its contract, had locked out the union members when they reported
for work, had discharged employees suspected of joining the Union,
and had, even after the Abelson award, evinced its determination not
to bargain with the Union. It had flatly refused the request of
JACOB H. KLOTZ 767
Baron and Rady to discuss a new contract. It is evident that the
respondent's attitude, well known to the union members, precip-
itated the strike. The respondent, however, contends that since on
August 17, 1936, an industry-wide strike occurred on the failure of
the Association and the Union to reach an agreement upon the terms
of a new contract, there would have been a. strike against the
respondent regardless of any unfair labor practices on its part.
The evidence shows, however, that the respondent cannot thus iden-
tify itself with the Association so as to escape the consequences of
its own unfair labor practices.24 As described above, Jacob Klotz
himself testified that prior to August 17, 1936, he had suggested to
Baron that the respondent's new contract would have to be "a little
different" because of the peculiar problem arising from the location
of the plant in Pawling. Further, Levitan testified, and we find, that
shortly before August 15, 1936, Jacob Klotz called the Association
and announced his intention to "continue on his own way." The strike
against the respondent was in force at the time of the hearing while
the general strike ended with the execution of a new agreement on
or about September 1, 1936.
In any event, it is clear that the respondent's long course of anti-
union conduct and its unfair labor practices was at least one cause
of the strike. Under all the circumstances, we are unable to find that
the respondent has shown that a strike would have occurred if it had
not engaged in unfair labor practices.25 We cannot speculate as to
what might have occurred had the respondent not conducted itself
as it did. As stated by the United States Circuit Court of Appeals
for the Second Circuit :
But since the refusal was at least one cause of the strike, and
was a tort-a "subtraction"-it rested upon the tort- feasor to dis-
entangle the consequences for which it was chargeable from those
from which it was immune 26
Here the respondent has not shown that the strike would have
occurred even if it had not committed unfair labor practices. We
find, therefore, that the strike was caused at least in substantial part
by the respondent's unfair labor practices.27
24 The respondent 's relationship to the Association and the attempts of the Union to
settle the dispute with the respondent through the Association are described more fully
below.
25 Although the Association recommended that its members wait while the negotiations
were in progress , approximately 20 employer-members signed individual contracts with
the Union and thus avoided the strike.
26Nataonal Labor Relations Board v. Remington Rand, Inc ., 94 F. (2d) 862, 872
(C. C A. 2d , 1938), cert. den. 304 U. S. 576 ( 1938).
2' As discussed below, the respondent's refusal to bargain was a primary factor in the
prolongation of the strike.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The refusal to bargain
The period following the beginning of the strike was marked by
the Union's persistent attempts to negotiate with the respondent and
the respondent's equally persistent refusal to deal with the Union.
The Union's first such attempt occurred in the late afternoon or
evening of August 17, 1936, the day on which the strike began. Baron
telephoned Jacob Klotz at that time and requested Klotz to deal with
him. Baron testified that Klotz replied, "I have nothing to say to
you." Baron further testified that when he asked whether he should
deal with the Association, Klotz made a similar reply. Jacob Klotz
admitted that Baron called him on August 17 and requested negotia-
tions. Klotz testified that he told Baron that "if he [Baron] can give
me what I asked him to, I would talk business."
Although we find that Klotz made the statement attributed to him
by Baron, even if we accept Klotz's version, it is apparent that Klotz
made no attempt to deal with the Union. The obligation under the
Act to bargain collectively cannot be fulfilled by an offer to "talk
business" only if the respondent's terms are fully met. To impose as
a condition precedent to dealing with the Union at all the require-
ment that the Union surrender completely to the employer's unspeci-
fied demands is not collective bargaining within the meaning of the
Act.
Although it is not entirely clear, the respondent also apparently
contends that its refusal to deal with the Union on August 17, 1936,
was based on the fact that the Association was the proper agency with
which Baron should have dealt. As described above, however, the
respondent had already taken the position that a separate and indi-
vidual contract would have to be negotiated between the respondent
and the Union. Further, there is no evidence to show that the re-
spondent at any time demonstrated any intention to deal through the
Association. We find that, during the conversation on August 17,
1936, Jacob Klotz refused to reply when Baron said, "Levitan repre-
sents the Association. Can I assume that when the Association settles
you'll be included in the settlement ?" At no time during this period
did the respondent tell the Union that the Association was dealing
on its behalf. Rather, although the practice was for each employer-
member to sign an authorization permitting the Association to bar-
gain on its behalf, the respondent did not in 1936 sign any such
authorization.28 Finally, Levitan, the secretary of the Association,
testified, and we find, that in September 1936, Baron attempted to
28 At or about this time, the respondent permitted its membership in the Association to
lapse entirely, and we find that he severed his relationship with it.
JACOB H. KLOTZ 769
negotiate with the Association concerning the dispute with the re-
spondent, that Levitan thereupon called the respondent, and that
Jacob Klotz flatly refused to become a party to the collective agree-
ment entered into between the Union and the Association.
We find that in the late afternoon or evening of August 17, 1936,
the respondent refused to bargain collectively with the Union as the
representative of the respondent's employees.
On or about September 1, 1936, after the general strike had been
settled, Baron again telephoned Jacob Klotz in an attempt to nego-
tiate, and again Klotz replied that "there is nothing he has to say."
In October, Baron renewed his efforts to achieve a settlement of the
matters in dispute. He went to Pawling, visited Mayor Slocum and
suggested that Slocum telephone Jacob Klotz. Both Baron and Rady,
who were present, testified that Slocum telephoned Klotz and said,
"I have Baron here Mr. Klotz. Would you want to see him and try
to settle up this matter . . . ?" After a pause, Slocum said to Baron,
"There you are. I am sorry. He refuses to see me." Similarly,
Slocum testified that he requested Klotz to confer with him and
Baron, and that "Mr. Klotz refused to come over." Jacob Klotz
admitted the telephone call, but testified that he told Slocum that
"Mr. Baron knows what I want, and if he is interested, he can get
in touch with me, and I shall be too glad to negotiate with him."'
Although we find that Klotz's reply was substantially as testified to
by Slocum, Baron, and Rady, even if we accepted Klotz's testi-
mony, his conduct would constitute a refusal to bargain.
Finding the respondent adamant in its refusal even to discuss the
matters in dispute, the Union then turned to governmental agencies
for aid. In December 1936, Baron attempted to procure negotiations
with the respondent through the Regional Office of the Board. The
attempt was fruitless. Next the Union appealed to Federal and New
York State counciliators. At Baron's request for intervention, Wil-
liam Liller, a Federal conciliator, entered the scene. After con-
ferring with Baron, Liller went to Pawling. On his return, accord-
ing to Baron's testimony, Liller told Baron that "it was a hopeless
case . . . that he could not get to first base with Mr. Klotz in the
matter." Jacob Klotz testified, on the other hand, that Liller "just
asked some questions," never mentioned the contract and made no
attempt to bring him and the Union together. Klotz's version of
the activities of the Federal conciliator is inherently improbable and
under all the circumstances, we cannot accept it as credible. We find
that Liller made the statement attributed to him by Baron and' that
the incident shows the continuance of the respondent's attitude of
resistance to bargaining collectively with the Union.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's attitude toward the Union was again made clear
at a meeting of the citizens of Pawling and of the Village Board on or
about February 15, 1937. After Baron had requested the Village
Board to intervene because of the loss to the community resulting
from the strike, a meeting of the strikers, the respondent, and the
public was called to "explain the strike." Jacob Klotz addressed the
meeting and, according to Baron, announced "that he would never
reach an agreement except over his dead body." That Klotz made
such a statement is not only corroborated by several witnesses but
admitted by Klotz himself. The respondent, however, attempted to
explain that this statement had reference to and was provoked by
"threats against himself [Klotz], his wife and baby." Fred Klein,
Jacob Klotz's brother-in-law, testified that Klotz meant by his state-
ment "that if they do kill him, then they could have a union shop."
Jacob Klotz also insisted that he had meant the statement literally.
He testified that at the meeting Baron "expressed a threat," and that
Klotz thereupon told Baron that "If that is the way you are going
to force things, you can only get a union agreement over my dead
body." When asked on cross-examination what threat Baron "ex-
pressed," Klotz insisted that Baron's exact words, spoken to Klotz,
were, "I believe the only way we can make Mr. Klotz come across
is if we threaten his family."
Although we assume that Jacob Klotz did receive threats,29 the
record is entirely devoid of any evidence either that the Union was
responsible for the threats or that the respondent made any effort, at
the meeting, to limit its statement to so literal a meaning. Further,
we find Jacob Klotz's testimony concerning Baron incredible.30 We
therefore reject the respondent's explanation of this statement and
find that, by such statement, it announced its refusal to bargain with
the Union.
In March 1937, Baron again met Klotz on the train to Pawling.
Baron offered to leave the question of wages and hours to a third
party and call off the strike provided the respondent would recognize
the Union. Baron testified that Klotz replied, "I see you are still
after something. But I have lost enough money and I am not going
to lose any more money that I can afford." When Baron pointed
out that this did not answer the question, Klotz, according to Baron,
29 Counsel for the Board conceded that, in pursuance of a telephone call made by Jacob
Klotz to the Poughkeepsie District Attorney's office, an Assistant District Attorney came
to Pawling apparently to investigate the threats.
s" Compare Klotz's testimony with the description of Baron by Maxwell Lustig, Klotz's
attorney : "I was very agreeably impressed by Mr. Barron ( sic). Instead of meeting what
I supposed would be a 'bruiser ' or typical strike agitator , I found a very affable and
gentlemanly person-reasonable and anxious to arrive at a fair and peacabie conclu-
sion . . . He has no personal feelings in the matter and satisfies me that he wants to
be friendly to JK [Jacob Klotz] and helpful."
JACOB H. KLOTZ 771
said, "That is my answer." When the train reached the station,
Baron requested an appointment to discuss the matter further, but
Klotz said, "I am very busy. Good-bye." Jacob Klotz testified to
a somewhat different version of this conversation. He testified that
he said, "All I am interested in is to do things here for these local
people. For that purpose I don't need you." Although we accept
Baron's version of the incident,31 we find that Klotz's statement would
also consitute a refusal to bargain.
Early in March, after Baron had called Ernest Lanoue, representa-
tative of the New York State Mediation Board, in an effort to pur-
suade the respondent to deal with the Union, the respondent called in
Maxwell Lustig as its attorney. Lanoue visited Jacob Klotz but failed
to secure a settlement or hearing; Klotz, however, referred Lanoue
to Lustig.
On March 5, 1937, and thereafter, Lanoue and Lustig held several
conferences. Lustig, who subsequently withdrew as the respondent's
attorney, made a record of these conversations immediately at the
conclusion of each one. These records were introduced in evidence
in lieu of Lustig's oral testimony concerning these conferences. These
records present a clear picture of Jacob Klotz's persistent refusal to
join in the negotiations.
The first conference between Lustig and Lanoue lasted for 3 hours.
The situation was canvassed and Lanoue suggested that Baron and
Jacob Klotz confer with him. Lustig then wrote to Klotz suggesting
that Klotz confer with Baron and Lanoue, and offering certain ad-
vice "to put you in a receptive frame of mind." There is no evidence
to show that Klotz responded to Lustig's letter. On March 9, 1937,
Lanoue, 'Lustig, and Baron, but not Klotz, conferred for 4 hours.
Lustig, in summarizing the conference, expressed pleasure and sur-
prise at Baron's helpful attitude. Both Lanoue and Baron suggested
that Lustig step in as mediator. "Mr. Barron (sic) went so far as
to suggest unofficially ... that he would be willing to make conces-
sions to JK which are not ordinarily made in negotiations of this
kind," wrote Lustig. It is apparent from Lustig's memorandum
that he and the other conferees regarded the central issue as one of
recognition of the Union.32 At this conference, however, Lustig had
`laid the foundation upon which to favorably negotiate" and accord-
ingly he "strongly suggested a final conference with Lanoue, Barron
31 Lustig's description of Klotz's attitude during this period , described below, supports
our findings of Klotz's flat refusals to negotiate.
82 Lustig wrote , " If JK must eventually unionize or go out of business-or permit
himself to be ruined in fighting the union . . . JK now has a more favorable opportunity
to make better terms . . . In the final analysis , JK must understand and acknowledge
that the USSteel Corp-General Motors and other great industries . . . have come to
terms with the Union . . . JK certainly has neither the millions nor the power or
Influence to resist the Union . . .
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(sic) and JK." Although Lustig felt that he had paved the way for
a settlement, and although in his oral testimony Lustig stated that
Klotz did talk with him and "was very anxious to work with the
Union," it is evident that Klotz rejected the idea of a conference,
since on March 13, 1937, Lustig wrote to Klotz that Lanoue had
telephoned to inquire concerning the progress of the negotiations
and that "I told him of my conference with you and my opinion
that you should be left free to work out the problem in your own way
for a month or more and if you thereafter felt you would like to
confer with him and Mr. Barron, (sic) you would let me know."
In this letter, Lustig also informed Klotz that Lanoue opposed an
indefinite delay and "requested me to write to you to ascertain if
you will authorize me to arrange for such a conference." Klotz
refused to attend the proposed conference. Some further conferences
were held between Lanoue, Lustig, and Baron, but Klotz did not
participate, and this phase of the negotiations ended.
It is abundantly clear from the evidence above described that
Jacob Klotz forestalled the realization of any effective results from
these negotiations. Baron, in his anxiety to settle the matter, even
stated to Lustig, the respondent's own attorney, that Baron was.
"willing that you should sit here as mediator and try to solve this
problem." Despite the fact that Lustig had prepared the way for
peaceful and quick settlement, and despite the efforts of Lanoue and
Lustig, Jacob Klotz persisted in his refusal even to appear at the
conferences and in his insistence on "working out the problem in his
own way." Solely because of Klotz's refusals, these conferences were
entirely unilateral, with the Union making every effort toward set-
tlement and the respondent preventing such settlement by its absence.
We find that throughout this period, the respondent refused to•
bargain collectively with the Union.
Toward the end of April, the Union once again turned to the
Regional Office of the Board in an effort to persuade the respondent
to deal with it. At the request of agents of the Board, Jacob Klotz;
finally attended a conference on April 24, 1937. Also present were-
Elias Lieberman, attorney for the Union, and Lustig. Lieberman
stated that "there is no sense of our going into any conference until
one thing is definitely settled : either your client will unionize 33 or
he will not. If he will not, there is no sense of our discussing any-
thing . . ." Lustig promised to let Lieberman know. On April
27, 1937, at a second conference attended by Lustig, Jacob Klotz,
and Lieberman, Lustig announced that "Mr. Klotz had consented to
a unionization of his factory." Thereafter, the meeting was ad-
m Lustig . who testified concerning this , used the word "unionize ." It is apparent, and
we find , that recognition of the Union was meant by this word.
JACOB H. KLOTZ 773
journed in order that the parties could prepare to talk terms for an
agreement.
A further conference was held on May 4, 1937. Jacob Klotz,
Lustig, and Lieberman all testified concerning the conference. Jacob
Klotz testified that the negotiations broke down when the Union in-
sisted that employees hired during the strike be replaced by the
union members who struck. Although Klotz at first testified that he
had flatly refused this term, later, after his attorney asked him a
leading question, Klotz agreed that he offered to reinstate the strik-
ing employees "gradually if business picked up." Lieberman testi-
fied that "one of the most paramount" issues was the reemployment
of strikers, and that Klotz flatly refused to reinstate any of them
for the present. Lieberman further testified that "Mr. Klotz then
took the position that either we get to some kind of arrangement
that day, or never, and that the only possible way would be that the
Union would not insist upon the reemployment of people formerly
employed." Lustig, however, testified that the question of reinstate-
ment had been settled by the Union's acceptance of the respondent's
offer to reemploy the strikers as soon as business permitted, and
that the only question left open was that of wages. Thereafter the
conference ended.
We do not find it necessary to determine the precise issues over
which the negotiations broke down. We believe that at the hearing
before the Trial Examiner there was an honest disagreement over
what actually occurred at the conference on May 4, 1937. In any
event, it is clear that no impasse was reached. The witnesses other
than Klotz agreed and we find that further discussion was planned.
The questions, whether of wages or of reinstatement, were left open.
The respondent, which had for almost a year flatly refused even to
enter into discussions with the Union, was under a clear duty to
attempt to explore the full possibilities of settlement since the com-
plications which had arisen in the interim were wholly of the re-
spondent's own making. Yet the respondent failed in this duty; as
stated above, Jacob Klotz took the position that the matter would
be settled at the single conference on May 4, 1937, or never. In this
attitude, the respondent persisted. After May 4, Lieberman tele-
phoned Lustig several times, but Lustig was unable to arrange fur-
ther conferences since Lustig "had no further information from Mr.
Klotz." 34 Although over a period of 9 months, the Union had
attempted to obtain negotiations, the respondent, after attending
only the single conference on May 4, 1937, made no effort to cooperate
with the Union or even to inform its own attorney of its availability
34 Late in May , Lustig withdrew as attorney for the respondent since Lustig did not
believe he was "specialist enough."
187930-39-vol 13-50
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any further negotiations. We find it abundantly clear that the
respondent, through Jacob Klotz, resumed after its one conference
requested by the Board's agents, its method of avoiding all negotia-
tions with the Union despite the efforts of its own attorney and the
Union.
Although the evidence does not show that it was a subject of dis-
cussion on May 4, 1937, the respondent at the oral argument con-
tended that it had refused to deal with the Union because of the
Union's failure to keep skilled New York City members in the re-
spondent's employ at Pawling. The respondent seems to take the
position that since such skilled employees were necessary to the con-
duct of its business, the Union's alleged failure to supply such
employees was the basis of the subsequent disagreement and relieved
it of any duty to discuss other terms. The evidence relating to this
matter shows that the union members who went from New York
City to Pawling had considerable difficulties and that as a result,
some of them refused to stay. The Union, however, had not guaran-
teed their presence but had simply agreed that
"Should any of the former employees supplied by the Union,
leave the employment, the Union will endeavor during the period
of this Agreement, to secure others to take a job at the Pauling
(sic) factory. This shall not be interpreted as an obligation on
the part of the Union, but as an endeavor in good faith."
It is clear that the Union made full effort to fulfill its duties in this
respect. It expended its own funds to pay for bi-weekly trips to
New York City and back in order that the New York City employees
could visit their families, and it constantly urged them to remain in
Pawling. In any event, the respondent cannot be heard to complain
of the difficulties arising from this situation since they were difficul-
ties created by the respondent itself. The New York City employees
were accustomed to observing their religious dietary laws,85 and Paw-
ling, a small rural town, was strange to them. The respondent made
no attempt to ease the situation. As we have found, it moved from
New York City in an effort to avoid dealing with the Union. In
Pawling, the respondent, prior to the arrival of the union members,
encouraged hostility to them by its references to "outsiders." Under
these circumstances, we are unable to find that the respondent's claim
in this respect is a valid defense.
Meanwhile, the respondent, besides refusing to deal with the Union,
took other steps to defeat the strike and break the Union. About 3
weeks after the strike began, Friedman and Jacob Klotz visited Mary
Lorey, a Pawling employee, offered her an increase in pay as well as
85 The evidence shows that some of these employees returned to New York - City because
of the hardships of observing the dietary laws in Pawling.
JACOB H. KLOTZ 775
wages for the 3 weeks she had been out on strike if she returned to
work, and further suggested that "we would have a union of our
own in the shop." In the fall of 1937, Lorey applied for a job, but
Irving Klotz, who had since become general manager of the respond-
ent's plant, told her that "they had no intentions of having a union
there" and that "I would be better off if I worked in the shop without
a union." Madeleine Killarney, a Pawling employee who was not a
member of the Union, was absent from the plant on the day the
strike began. Grace Bierce, Killarney's mother, and one of the
respondent's employees, did go out on strike. When Killarney
returned to the plant a few hours after the strike began, Irving Klotz
would not allow her to work "so I wouldn't have anything to do with
it [the Union]." Irving Klotz told her "I couldn't resume my work
until my mother came back." In September 1937, Bierce wrote to
the respondent requesting employment, but Irving Klotz informed
Bierce's daughter that "they weren't taking on any help at the
present time."
Concluding Findings
In summary, we find
(1) That after the Abelson award and the respondent's agreement
thereto, the respondent determined to end its relations with the
Union immediately upon the expiration of the contract.
(2) That thereupon the respondent refused to discuss, at the
Union's request, the question of renewal of the contract, or the mak-
ing of any other contract.
(3) That the strike beginning on August 17, 1936, was caused at
least in substantial part by the respondent's unfair labor practices.
(4) That on August 17, 1936, on or about September 1, 1936, on a
certain day in October 1936, on a certain day in March 1937, and at
all times between those dates and until April 27, 1937, the respondent
refused to recognize or bargain collectively with the Union.
(5) That on May 4, 1937, the respondent met with the Union, but
although no impasse was reached, it at all times thereafter refused to
bargain collectively with the Union.
(6) That the above refusals to recognize or bargain collectively
with the Union were substantial factors in the prolongation of the
strike.
(7) That the respondent, by making manifest its hostility to the
Union by refusing, before the expiration of the contract, to discuss
a renewal thereof; by announcing publicly its refusal to deal with
the Union; by soliciting employees individually to return to work;
by refusing to reinstate union members; by suggesting the forma-
tion of its own union; by promising rewards to an employee to
abandon the strike; and by refusing to allow an employee to work
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the reason that she was related to a union member who had
struck, has pursued a course of coercion, intimidation, and inter-
ference for the purpose of interfering with the rights of its employees
to bargain collectively through representatives of their own choosing
and to engage in other concerted activities.
We find, therefore, that on August 17, 1936, and thereafter, the
respondent has refused to bargain collectively with the Union 36 as
the representative of its employees in respect to wages, rates of pay,
hours of employment, and other conditions of employment.
We further find that the respondent, by the acts and conduct set
forth in the two preceding paragraphs, has interfered with,
restrained, and coerced its employees in the exercise of their rights to
self-organization, to form, join or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection as guaranteed in Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom. In order to
effectuate the purposes and policies of the Act and as a means of
removing and avoiding the consequences of the respondent's unfair
labor practices, it is essential that in aid of our cease and desist order
the respondent be directed to take certain affirmative action, more
particularly described below.
We have found that the respondent has refused to bargain collec-
tively with the Union. We will therefore order the respondent, upon
request, to bargain collectively with the Union as the exclusive
representative of its employees in the appropriate unit.
Since the strike was caused and prolonged by the respondent's
unfair labor practices, we will, in order to effectuate the purposes and
30 The complaint alleged refusal to bargain with the Joint Board . There is no actual
variance , however, since, for the purposes of their negotiations and this proceeding, the
Joint Board and the Union are identical . Further, the respondent raised no objections
relating to this matter.
JACOB H. KLOTZ 777
policies of the Act, order the respondent to offer reinstatement, upon
application, to all the employees who went on strike on August 17,
1936, to their former or substantially equivalent positions. The offer
'of reinstatement shall be without prejudice to their seniority and other
rights and privileges. Such reinstatement shall be effected in the
following manner :
All persons not in the respondent's employ at the commencement
'of the strike, hired on or after August 17, 1936, the date of the com-
mencement of the strike shall, if necessary to provide employment
for the employees referred to in the preceding paragraph and who
accept reinstatement, be dismissed. If, after this is done, there is
not, by reason of a reduction in the force of employees needed,
sufficient employment immediately available for the remaining em-
ployees, including those referred to in the preceding paragraph and
who accept reinstatement, all available positions shall be distributed
among such employees, without discrimination against any employee
because of his or her union affiliation or activity, following a system
,of seniority or other procedure to such extent as has heretofore been
:applied in the conduct of the respondent's business. Those employees
remaining after such distribution, for whom no employment is im-
mediately available, shall be placed on a preferential list in accord-
ance with the principles set forth in the preceding sentence, and shall
thereafter, in accordance with such list, be offered employment in
their former or substantially equivalent positions, as such employ-
ment becomes available and before other persons are hired for such
work.
We shall also order that the respondent make whole the employees
ordered to be offered reinstatement for any loss they will have suf-
fered by reason of the respondent's refusal to reinstate them, upon
application, following the issuance of this Order, by payment to
them, respectively, of a sum of money equal to_ that which each
would normally have earned as wages during the period from 5 days
after the date of such application for reinstatement to the date of the
offer of reinstatement or placement on the preferential list, less his
net earnings 87 during that period.88
87 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
America, 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 govern-
ment or governments which supplied the funds for said work -relief projects.
88 Oregon Worsted Co. v. National Labor Relations Board, 94 F . (2d) 671 (C. C. A.
9th), enforcing order in Matter of Oregon Worsted Company and United Textile Workers
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Effectuation of the policies of the Act is achieved by restoration
in so far as possible of the status quo existing before the commission
of the unfair labor practices. We have found that the respondent's
transfer of its plant from, New York City to Pawling was the first
and basic step in its scheme to rid itself of the Union and that such
transfer itself constituted an unfair labor practice. Many of the
difficulties subsequently occurring are attributable to the transfer
and to the respondent's encouragement of local hostility to the Union.
It is abundantly clear from the record that a return to New York
City would, under ordinary circumstances, most nearly achieve the
restoration of the status quo.89 However, a substantial majority of
the union members employed by the respondent reside in and around
Pawling, and to order the respondent to return to New York City
would leave such employees without remedy. Further, counsel for
the Joint Board stated at oral argument that the Union makes no
request that the respondent be ordered to return to New York City.
We will not order the respondent to return to New York City, but
in view of our findings concerning the respondent's moving to Pawl-
ing, and in view of the peculiar problems arising from the customs
of the New York City union members,40 we shall order the respond-
ent either to pay for the reasonable expenses entailed in the trans
portation and moving of the New York City union members and
their families from New York City to Pawling or to pay for the trans-
portation bi-weekly from Pawling to New York City and back for
those employees who wish to visit their families, at the (,ption of
the individual union members.41 Since the situation has been cre-
of America, Local 2435, 3 N L. It. B. 36; Biles-Coleman Lumber Co. v National Labor
Relations Board, 98 F . ( 2d) 18 (C. C. A. 9th), enforcing order in Matter of Biles-
Coleman Lumber and Puget Sound District Council of Lumber and Sawmill Workers,
4 N. L. R. B. 679.
19 Cf. Dubinsky V. Blue Dale Dress Co., N Y. Sup. Ct., N Y. L. J., Dec. 31, 1936,
p. 2454, col. 1 ; 50 Harv. L. Rev. 700. Lustig' s memoranda of the negotiations show that
he contemplated advising such a return , and that the Association , whose policies the
respondent had dislocated by its conduct, favored the respondent 's moving back to New
York City. Concerning this, Lustig wrote to Klotz that he considered such a return a
"compromise , in which you and the union might find mutual advantages . . .
40 In one of his memoranda , Lustig thus summarized Baron's attitude on this question :
"He [Baron] spoke of the moving of the pant (sic) from NY to Pawling and the efforts
and trouble which arose because of union employees who became dissatisfied because of a
combination of circumstances-distance from home and family-strangness ( sic) of
Pawling and inability to spend their time in Pawling when not working in a manner to
which they had been accustomed-the unfriendliness of the local people and the underly-
ing racial question , etc. Also that JK did not show the right spirit of overcoming some
of these difficulties, etc."
41 Cf. Matter of S. & K. Knee Pants Company, Inc. and Amalgamated Clothing Workers
of America, 2 N. L. It. B. 940. But cf. National Labor Relations Board v. Remington
Rand, Inc. (C. C. A. 2nd, 1938), where the Court refused to enforce a Board order direct-
ing payment of expenses involved in transportation of reinstated employees to new
localities In that case , however, the Board did not find that the movement of the plant,
entailing added expenses to the employees , was itself an unfair labor practice or part of a
scheme of the company to rid itself of the union . The Court stated in this connection
that "We can find nothing to support the inference that had they not struck , it would
JACOB H. KLOTZ 779
ated by the respondent's own unfair labor practices, the respond-
ent cannot be permitted to shift the burden of expenses on its
employees, and, therefore, we find that by such order, the policies
of the Act will be effectuated.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceedings, the Board makes the following :
CONCLUSIONS OF LAW
1. Suitcase, Bag & Portfolio Makers' Union and Joint Board of
Suitcase, Bag & Portfolio Makers' Union are labor organizations
within the meaning of Section 2 (5) of the Act.
2. The production employees, including those engaged in riveting
and pasting, but excluding supervisory, clerical, shipping, mainte-
nance, and inside-messenger boys, and also excluding those engaged
in stuffing, trimming, sweeping, and cleaning, employed at the re-
spondent's plant in Pawling, New York, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
3. Suitcase, Bag & Portfolio Makers' Union, was on August 17,
1936, and at all times thereafter has been, the exclusive representa-
tive of all the employees in such unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. The respondent, by refusing to bargain collectively with Suit-
case, Bag & Portfolio Makers' Union as the exclusive representative
of its employees in an appropriate unit, has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8
(5) of the Act.
5. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purpose of collective bargaining or other
mutual aid and protection as guaranteed in Section 7 of the Act,
has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
have added that inducement [ i. e. payment of transportation expenses ] . . . The powers
granted the Board under ¢ 10 (c) are only remedial; they are designed to enable it to
restore the status quo as nearly as possible had the wrong not been committed .
The instant case is distinguishable since the very wrong committed by the respondent
was moving its plant , forcing its employees to leave their homes, and thus adding burden-
some expenses and other hardships.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Jacob H. Klotz and Ruth Klotz, doing business under
the name and style of J. Klotz & Company, individually and col-
lectively, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Suitcase, Bag & Port-
folio Workers' Union as the exclusive representative of its produc-
tion employees, including those engaged in riveting and pasting, but
excluding supervisory, clerical, shipping, maintenance, and inside-
messenger boys, and also excluding those engaged in stuffing, trim-
ming, sweeping, and cleaning, employed at the respondent's plant in
Pawling, New York;
(b) Discouraging membership in Suitcase, Bag & Portfolio Work-
ers' Union, or in any other labor organization of its employees, by
discharging, laying off, refusing to reinstate, discriminating in regard
to hire and tenure of employment, or any term or condition of em-
ployment, or in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organi-
zation, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities, for the purpose of collective bargaining or
other mutual aid and protection, as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Suitcase, Bag & Port-
folio Workers' Union as the exclusive representative of its produc-
tion employees, including those engaged in riveting and pasting, but
excluding supervisory, clerical, shipping, maintenance, and inside-
messenger boys, and also excluding those engaged in stuffing, trim-
ming, sweeping, and cleaning, employed at the respondent's plant in
Pawling, New York, in respect to wages, hours of work, or other
conditions of employment;
(b) Upon application offer to all persons in its employ on August
17, 1936, who went on strike on August 17, 1936, and who have not
since been reinstated to their former or substantially equivalent posi-
tions, reinstatement to their former or substantially equivalent po-
sitions without prejudice to their seniority and other rights and
privileges, in the following manner :
All persons not in the respondent's employ at the commencement
of the strike, hired on or. after August 17, 1936, the date of the com-
JACOB H. KLOTZ 781
mencement of the strike, shall, if necessary to provide employment
for the employees referred to in the preceding paragraph and who
accept reinstatement, be dismissed. If, after this is done, there is
not, by reason of a reduction in the force of employees needed, suffi-
cient employment immediately available for the remaining employ-
ees, including those referred to in the preceding paragraph and who
accept reinstatement, all available positions shall be distributed
among such employees, without discrimination against any employee
because of his or her union affiliation or activity, following a system
of seniority or other procedure to such extent as has heretofore been
applied in the conduct of the respondent's business. Those employ-
ees remaining after such distribution, for whom no employment is
immediately available, shall be placed on a preferential list in
accordance with the principles set forth in the preceding sentence,
and shall thereafter, in accordance with such list, be offered employ-
ment in their former or substantially equivalent positions, as such
employment becomes available and before other persons are hired for
such work;
(c) Make whole the employees ordered to be offered reinstatement
in the preceding paragraph for any loss they will have suffered by
reason of the respondent's refusal to reinstate them, upon applica-
tion, following the issuance of this Order, by payment to each of
them of a sum of money equal to that which each would have earned
as wages during the period from 5 days after the date of such appli-
cation for reinstatement to the date of the offer of reinstatement or
placement on the preferential list, less his net earnings 42 during said
period; provided that the respondent shall deduct from the back
pay due each of said employees a sum equal to that received by said
employee for work done in Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects, and pay over the amounts, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(d) Offer to those employees, whose homes were formerly or still
are in New York City and who are employed at the respondent's
plant in Pawling, New York, either (1) payment for the reasonable
expenses entailed in the transportation and moving of such employ-
ees and their families from New York City to Pawling; or (2) pay-
ment for transportation bi-weekly from Pawling to New York City
and return; each of said employees to have the option of payment
either (1) or (2) ;
42 See footnote 37 above.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post immediately notices to its employees in conspicuous places
throughout its plant in Pawling, New York, stating: (1) that the
respondent will cease and desist in the manner set forth in para-
graphs 1 (a) and (b) of this Order; (2) that the respondent's em-
ployees are free to remain or become members of Suitcase, Bag &
Portfolio Workers' Union, and that the respondent will not refuse
to reinstate or otherwise discriminate against any employee because
of such membership ; (3) that the respondent will make payments
as ordered in paragraph 2 (d) above; and (4) that the respondent
will bargain collectively with Suitcase, Bag & Portfolio Workers'
Union or with Joint Board of Suitcase, Bag & Portfolio Workers'
Union, as the representative of all its production employees, in-
cluding those engaged in riveting and pasting, but excluding super-
visory, clerical, shipping, maintenance, and inside-messenger boys,
and also excluding those engaged in stuffing, trimming, sweeping,
and cleaning, employed at its plant in Pawling, New York;
(f) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of posting;
(g) 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.
MR. WILLIAM M. LEIsERsoN took no part in the consideration of
the above Decision and Order. -