Jay Co., Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1953

103 N.L.R.B. 1645 (N.L.R.B. 1953)

JAY COMPANY, INC . 1645
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices
it will be recommended that they cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondents offer Michalski immediate and
full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges; and make him whole for
any wage losses suffered as a result of the discrimination, in accordance with
the Board's usual policies. See Chase National Bank, 65 NLRB 827; Crossett
Lumber Co., 8 NLRB 440; F. W. Woolworth Co., 90 NLRB 289.
It will be further recommended that the Respondents make whole their em-
ployees for the wage losses incurred as a result of the elimination of overtime
during the week of October 21, 1951.
Upon the basis of the foregoing findings of fact and the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. Local 155, International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of Anleriea (UAW-CIO) is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ed-
ward Michalski, thereby discouraging membership in a labor organization, the
Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
JAY COMPANY, INC. and HENRY SHANNON
JAY COMPANY, INC. and FURNITURE WORKERS, UPHOLSTERERS AND
WOOD WORKERS UNION, LOCAL 576, INDEPENDENT. Cases Nos.
$1-CA-1335 and :01-CA-1458. April 6, 1953
Decision and Order
On December 30, 1952, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
103 NLRB No. 141.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed .2
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications
and additions :
1. We agree with the Trial Examiner that Shannon was discharged
for his role in disbanding the Jay Company Employees Association,
thereby encouraging membership in that labor organization, in vio-
lation of Section 8 (a) (3) and (1) of the Act .3 The Trial Examiner
discredited the testimony of Respondent's president and plant super-
intendent, Josephson and Deitsch, respectively, that Shannon at-
tempted to "blackmail" the Respondent and was discharged for that
reason as well as for deficiencies in his work, characterizing such
testimony as "unconvincing and unreliable." The Respondent con-
tends that these credibility findings are in error.
Because of the importance of the demeanor of witnesses to any
findings as to their credibility, the Board will not overrule a Trial
Examiner's resolutions as to credibility except when it is convinced,
on a clear preponderance of all the relevant evidence, that the Trial
Examiner's resolutions were incorrect.4 In our opinion, no such
conclusion is warranted in this case. We therefore adopt the Trial
Examiner's credibility findings.
2. On August 22, 1951, the Respondent mailed a registered letter
to Shannon's last known address, in which it offered to reinstate him
to a substantially equivalent position. The postal authorities re-
ported that they had been unable to deliver the letter. About 1
month later, upon learning of the Respondent's attempt to com-
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this proceeding to a three -member panel [ Chairman Herzog and
Members Styles and Peterson].
'In its brief , the Respondent contends that the Trial Examiner erroneously refused to
consider evidence that the Union is not in compliance with Section 9 (h) of the Act,
because Gus Brown, business agent of the Union , although allegedly an officer of the
Union , had not filed the required affidavit . An investigation of this natter , however, has
not disclosed any evidence that Brown is an officer of the Union , and we are administra-
tively satisfied that the Union is, and has been , in compliance at all times material
, We do not rely upon the statements made by the Trial Examiner concerning the effect
to be given to Respondent 's oiler of reempl ^yment as evidence that Shannon 's discharge
was or was not discriminatory The record does not refute Respondent ' s contention that
such offer was made in order to toll the accumulati-n of any back pay which might be
awarded in the event the Board found the discharge to be violative of the Act.
4 Ozark Hardwood Company, 91 NLRB 1443; Standard Dry Wall Products, Inc., 91
NLRB 544, enfd 188 F. 2d 362 ( C. A. 3). See also N. L. R. B. v. Universal Camera
Corp., 109 F. 2d 429 ( C. A. 2) ; N. L. 2?. B. v. Dimon Coil Co., 201 F . 2d 484 ( C. A. 2)..
JAY COMPANY, INC. 1647
municate with him, Shannon phoned and explained to President
Josephson that he failed to receive the letter because he was not then
living at that address, but that he was then available for work and
would accept the offer. Josephson told Shannon that he had filled
the job and that the offer was no longer in effect.
The General Counsel excepts to the finding of the Trial Examiner
that the Respondent had made a valid offer which was not accepted,
to the failure to recommend that Shannon be offered reinstatement,
and to the recommendation that the Respondent's liability for back
pay be terminated as of the date the post office first attempted to de-
liver the letter. We find merit in the General Counsel's exceptions.
We are of the opinion that, as the letter did not reach Shannon, it
cannot constitute a valid offer of reemployment. Nevertheless, as the
record shows that the Respondent had made a bona fide effort to offer
reinstatement to Shannon, we shall toll the Respondent's back-pay
liability as of the date of the attempted delivery of the letter. We
shall, however, reinstate the Respondent's back-pay liability as of
the date Shannon learned of the offer and informed the Respondent
of his availability for work, but was denied reinstatement .5 We shall
also order the Respondent to offer Shannon immediate reinstatement 6
to his former or a substantially equivalent position,? without prejudice
to his seniority or other rights and privileges.
3. The Respondent excepts to the Trial Examiner's findings with
respect to the 8 (a) (2) allegation, because they are based upon con-
duct occurring more than 6 months before the filing of the amended
charge, wherein the violation of Section 8 (a) (2) was first alleged.
The original charge, filed on February 5, 1952, alleged violations of
Section 8 (a) (3) and (1) ; the Section 8 (a) (2) allegation first
appeared in the amended charge, which was filed on July 14, 1952.
It is well established that an unfair labor practice finding may be
based upon any conduct which occurred within a 6-month period
prior to the filing of a charge, although the charge does not specifically
set forth such conduct as a violation of the Act, if the complaint is-
suing thereon alleges the conduct to be an unfair labor practice.8
Moreover, once the Board's jurisdiction is properly invoked by the
° In acc ordance with the Board' s usual practice , the period from the date of the Interme-
diate Report to the date of the Order herein is excluded in computing the back pay to
which Shannon is entitled , because the Trial Examiner failed to recommend that Shannon
be reinstated. Standard-Coosa-Thatcher Company, 85 NLRB 1358 ; Union Starch d Refln-
sng Company, 87 NLRB 779.
° See Deena Products Company, 93 NLRB 549, 554.
In accordance with the Board' s consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equiva-
lent position ." See The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827.
8 Gagnon Plating and Manufacturing Company, 97 NLRB 104; I. B. S. Manufacturing
Company, et at., 96 NLRB 1263.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timely filing and service of a charge, any unfair labor practices un-
covered while the charge is being investigated become cognizable by
the Board and maybe included in the complaint. This is so whether
or not amended charges are filed alleging such newly discovered un-
fair labor practices. As the conduct found to be violative of Section
8 (a) (2) in the instant case occurred within 6 months of the filing
and service of the original charge, Section 10 (b) of the Act does
not bar the issuance of a complaint based on such conduct.9
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Jay Company, Inc., Los
Angeles, California, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Jay
Company Employees Association or with the formation and adminis-
tration of any other labor organization, or contributing support to the
Association or any other labor organization.
(b) Recognizing the Association, or any successor thereto, as a
representative of any of its employees for the purpose of dealing with
it concerning grievances, labor disputes, wages , rates of pay, hours
of employment, and other conditions of employment.
(c) Giving effect to any and all contracts, supplements thereto, or
modifications thereof, with the Association.
(d) Encouraging membership in the Association by discharging
any of its employees or by discriminating in any manner in regard
to their hire or tenure, or any term or condition of employment.
(e) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form,
join, or assist the Union or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining,
or other mutual aid or protection, and to refrain from any and all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
s Local 404, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, 100 NLRB 801 ; Pacific American Shipowners Association, et al.,
98 NLRB 582; Ferro Stamping and Manufacturing Co., 93 NLRB 1459; Cathey Lumber
Co., 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5), dismissed on other grounds 189 F. 2d
428 (C. A. 5)i; N. L. R. B. v. Kobritz, et al., 193 F. 2d 8 (C. A. 1) ; American Shuffleboard
Company, et al. v. N. L. R. B., 190 F. 2d 898 (C. A. 8).
JAY COMPANY, INC. 1649
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Henry Shannon immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges.
(b) Make whole Henry Shannon for any loss of pay suffered by
reason of the Respondent's discrimination against him, in the manner
specified in the section of the Intermediate Report entitled "The
Remedy," by payment to him of a sum of money equal to the amount
which he normally would have earned as wages during the periods
from (1) February 1, 1951, the date of the Respondent's discrimina-
tion, to August 23, 1951, the date of the attempted delivery of the
Respondent's letter offering Shannon reinstatement; (2) the date of
Shannon's announcement to the Respondent that he was available for'
work to the date of the Intermediate Report herein, and (3) the date
of our Decision and Order herein to the date of the Respondent's offer
of reinstatement, less his net earnings during said periods.
(c) Withdraw and withhold all recognition from, and completely
disestablish, the Association as the representative of any of its em-
ployees for the purpose of dealing with it concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or any other con-
ditions of employment.
(d) Upon request, make available to the Board, or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due under the
terms of this Order.
(e) Post at its plant in Los Angeles, California, copies of the notice
attached hereto marked "Appendix." 10 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region (Los
Angeles, California), shall, after being duly signed by Respondent's
representative, be posted for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
customarily are posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply therewith.
}° In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the
words, "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL oFFER Henry Shannon immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and
make him whole for any loss of pay suffered as a result of the
discrimination against him.
WE HEREBY DISESTABLISH JAY COMPANY EMPLOYEES ASSOCIA-
TION as the representative of any of our employees for the purpose
of dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, and we will not recognize it or any successor thereto for any
of the above purposes.
WE WILL NOT dominate or interfere with the administration
of any labor organization or contribute support to it.
WE WILL NOT give effect to any and all agreements and con-
tracts, supplements thereto or modifications thereof, or any super-
seding contract with JAY COMPANY EMPLOYEES ASSOCIATION, or
any successor thereof.
WE WILL NOT influence our employees in their choice of bar-
gaining representatives, or in any other manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
FURNITURE WORKERS, UPHOLSTERERS AND WOOD WORKERS UNION,
LOCAL 576, INDEPENDENT, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the National Labor Relations Act.
All our employees are free to become or remain members of any
labor organization except to the extent that this right may be affected
by an agreement.in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee
JAY COMPANY, INC. 1651
.because of memhers1lip_in or activity on behalf of any such labor
organization.
JAY COMPANY, INC.,
Employer.
Dated -- ------------------ By ---------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on February 5, 1952, by Henry V. Shannon (being
Case No. 21-CA-1335) and upon a charge duly filed on July 14, 1952, by Furni-
ture Workers, Upholsterers and Wood Workers Union, Local 576, Independent,
herein called Local 576 (being Case No. 21-CA-1458), the General Counsel of
the National Labor Relations Board, herein respectively called the General
Counsel and the Board, by the Regional Director of the Twenty-first Region
(Los Angeles, California), issued his amended and consolidated complaint on
July 23, 1952; against Jay Company, Inc., Los Angeles, California, herein called
Respondent, alleging therein that Respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of Section
8 (a) (1), (2), and (3) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act.
Copies of the amended and consolidated complaint, the charges, notice of hear-
ing, and order of consolidation were duly served upon Respondent, Shannon,
Local 576, and upon Jay Company Employees Association, herein called the
Association, a labor organization alleged in the amended and consolidated com-
plaint to be existing in violation of the Act and which is a party to a collective-
bargaining contract with Respondent covering the latter's nonsupervisory pro-
duction and maintenance employees.
With respect to the unfair labor practices, the amended and consolidated com-
plaint alleged in substance that Respondent (1) formed the Association in or
about September 1951, and thereafter dominated it, interfered with its adminis-
tration, and contributed support thereto; (2) on or about September 1, 1951, en-
tered into a collective-bargaining agreement with the Association containing a
union-security provision violative of the Act; (3) on or about February 2, 1952,
recreated and reestablished the Association and since that date has dominated
and interfered with its administration and contributed support thereto; (4) on
or about February 1, 1952, discharged Shannon, and thereafter refused to re-
instate him, because of his activities in disbanding the Association; and (5)
by the aforesaid acts and conduct interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
On August 6 Respondent duly filed an answer denying the commission of the
alleged unfair labor practices. On November 5 Respondent duly filed "Amend-
ment to Answer" wherein it averred that on or about August 22, 1952, without
admitting liability, it offered Shannon immediate and full reinstatement to his
former job but that he did not accept.
'On the same day , the said Regional Director, pursuant to Section 102.33 (b) of the
Board's Rules and Regulations , Series 6, as amended , issued an order consolidating the
above-numbered cases.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was duly held from November 3 through Novem-
ber 7, 1952, at Los Angeles, California, before the undersigned, the duly desig-
nated Trial Examiner. The General Counsel and Respondent were represented
by counsel. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence relevant to the issues was afforded all parties.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS ACTIVITIES OF RESPONDENT
Jay Company, Inc., a California corporation, has its principal offices and place
of business in Los Angeles, California, where it is engaged in the manufacture,
sale, and distribution of infants' furniture. Respondent's annual out-of-State
sales exceed $25,000.
Upon the above admitted facts, the undersigned finds that Respondent is en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Furniture Workers, Upholsterers and Wood Workers Union, Local 576, Inde-
pendent, and Jay Company Employees Association, unaffiliated, are labor or-
ganizations admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Formation, domination, support, and interference with the administration of
the Association; interference, restraint, and coercion
During the summer of 1951, Local 576, as well as an affiliate of AFL, and a
CIO affiliate each put on a campaign to organize the employees of Respondent.
In August or September, a group of employees informed Joseph Josephson,
Respondent's president, that they "wanted to have a union" and were "attempt-
ing to organize" one and then requested Josephson "to talk to the employees
relative to what further steps they were to take" with respect thereto. After
Josephson had agreed to address the employees, Forelady Anna Berkowitz, pur-
suant to the instructions of Plant Superintendent Theo Deitsch, assembled the
employees and Josephson then addressed them.
According to Berkowitz' credible testimony, Josephson told the assembled
employees, among other things, that he was aware that several labor organiza-
tions were attempting to organize the employees ; that as far as he was con-
cerned they could affiliate with an outside union or could form a union of their
own for he was primarily interested in production ; that after making some
remark about a bonus plan he stated he would give the employees "more than
the outside union would give" them ; and that if the employees "cooperated"
with him the number of persons employed would be increased threefold.2
Berkowitz credibly testified further that the same day Josephson addressed
the employees, or the next day, Josephson asked her what she thought of a
"company union" ; that she replied that she thought favorably of it ; that Joseph-
son then inquired if she would "cooperate"; and that when she replied in the
affirmative, Josephson stated, "I know you are for the Company."
2 There is considerable variance between Josephson's version of what he said on the above-
mentioned occasion with that of Berkowitz'. The undersigned was favorably impressed
with the honest and sincere manner with which Berkowitz testified On the other hand,
Jrsephson did not so impress the undersigned for Josephson's testimony is marked by
evasions and subterfuges cleverly designed to mislead.
JAY COMPANY, INC. 1653
After Josephson concluded his remarks, the employees met in the shop and
proceeded to organize the Association. At this meeting officers were elected.
Shannon was elected president. Later that day, a committee informed Joseph-
son that the employees had formed an Association, that it represented the ma-
jority of the employees, and then requested him to negotiate a collective-bargaining
contract. A discussion was then had regarding the provisions of such a contract.
After several such meetings a contract, dated September 7, 1951, was entered into.
By its terms the contract remains in full force and effect until January 1, 1954,
and thereafter annually automatically renews itself unless either party, within a
prescribed time, gives notice, in writing, of its desire to modify or change the
wage scale appended thereto either on January 1, 1953, or at the end of any
subsequent yearly period.
The aforesaid agreement contains a clause reading as follows :
The Company agrees that all production and maintenance employees,
including production working foremen who work on production more than
fifty (50%) per cent of their time, who have been employed more than
thirty (30) days past are now and have been and shall at all times be and
remain members in good standing of the Union as a condition of employment.
The Company agrees to afford the Union an equal opportunity with any
other sources available to furnish competent help whenever the Employer
needs help. Newly hired employees who are not already members in good
standing with the Union shall sign an application for membership not later
than thirty-one (31) days after going to work. Such application shall
authorize the Employer to check off a sum equal to the first month's dues
plus the initiation fee after a thirty (30) day period of employment, the
said sum must be paid to the Local Union within six (6) weeks from the
date of employment and such employees shall become and remain members
in good standing of the Union as a condition of employment. The Company
agrees to furnish the Union with an up-to-date list of employees covered
by the agreement every sixty (60) days. All periods mentioned in this
agreement are calendar periods, unless otherwise mentioned.'
Former employee Julio Varela testified without contradiction, and the under-
signed finds, that he was hired by Respondent sometime after the execution of
the above-mentioned contract had been executed; that on the second day of
his employment, Deitsch told him that there was a company union in the plant
which "was going to give a lot of benefits to the company and it was good and
[Deitsch] wanted the cooperation of all the members"; and that Deitsch told
him he had to join the Association.
Berkowitz, who became assistant production manager in or about December
1951, testified without contradiction, and the undersigned finds, that when she
hired new employees she informed them of the Association's "rules and Regula-
tions" and also told them that they had to join the Association after being in
Respondent's employ for 30 days.
On either January 30 or 31, 1952, Shannon called a meeting of the Association's
members.` Shannon stated to the membership, among other things, that Re-
spondent had not lived up to the terms of the contract with the Association and
then suggested that the Association disband. Some members, including Berko-
Respondent, pursuant to written authorizations of the Association' s members , checks off
their dues and turns that money over to the Association.
f This meeting, like all association meetings , was held on Respondent 's premises after
office hours.
257965-54-vol . 103--105
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witz, who was then a member of the Association,' argued against disbanding and
others spoke in favor of the action. A vote was then taken which showed that
the majority of those voting favored Shannon's suggestion.
The day of the aforesaid meeting, or the next day, Shannon prepared a letter
addressed to Respondent informing it, among other things, of the Association's
action and requesting a meeting with management. The letter, after it had
been signed by Shannon and two other Association officials, was placed on
Deitsch's desk on January 31 by Shannon as he was leaving the plant at the
completion of his day's work.
When Shannon reported for work on Friday, February 1, Deitsch called Shan-
non into his private office and told Shannon ". . . I [am] ashamed of [your]
attitude, [your] work record and [your] attempts to sell [yourself] and the
company down the river, to sell [your] union short, and generally [to engage in]
conduct unbecoming any member of society." After some further remarks be-
tween Deitsch and Shannon , Deitsch instructed Shannon to go to work. At the
end of that day's shift Deitsch handed Shannon his pay check and said to him,
"[this] is what [you have] been expecting, here it is. God bless [you] wherever
[you go] ; lots of luck."
At the close of business on Monday, February 4, Josephson, who had been
away from the plant on a business trip from January 30 until February 4, and
unaware of the Association's action to disband until he had returned to the
plant on February 4, called Deitsch and Berkowitz into his private office. There
Josephson, after stating that he did not know whether to close the plant or not
because the Association had disbanded and therefore an "outside" union might
supplant it, instructed Berkowitz not to allow any employee into the plant the
following morning, until he had a chance to address them.
When the employees reported for work at the usual hour on February 5, they
found the doors leading into the shop locked. When they inquired the reason
for such action, they were told by Berkowitz that they could not go into the
shop until Josephson arrived and spoke to them. Upon Josephson's arrival at
the plant, he assembled the employees and, during the course of his remarks,
according to Berkowitz' credible testimony, stated, "things were not right ; the
tables was costing more than [I] had figured and if another union came in [I do]
not know, myself, what [I would] do, whether [I] would contract it out back
east or whether [I will] close down ... [I do] not know what [I am] going to
do, but for the time being the plant [is] closed."
Employee Homes Hawes then said to the employees that they should cooperate
for "where else can you get a better chance than you do here?" Thereupon,
Naomi Phaar asked Josephson whether the bonus plan would be retained even
if the employees joined an outside union, and Josephson assured her it would.
Then Berkowitz, after stating, "we had taken a vote last night and the vote was
seven to seven, two undecided" as to whether or not the Association should dis-
band. Berkowitz then suggested that another such ballot be taken. Whereupon,
the employees went into the plant, voted to retain the Association, and then
elected officers anew. The employees' action was immediately transmitted to
Josephson who congratulated them and then permitted them to go to work.
Concluding Findings
The right of employees, under Section 7 of the Act, "to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
5P,erkowitz discontinued paying dues to the Associati n In March 1952, when she was
informed by its then president that, because of her supervisory status, she could no longer
be a member.
JAY COMPANY, INC. 1655
choosing . . . [and] to refrain from any or all of such activities" is effectively
implemented by Section 8 (a) (1) and (2). These provisions forbid employers
to "interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7," and likewise prohibit employers from dominating,
interfering with, or supporting labor organizations of their employees. The
employer's economic hold over his employees, which inheres in their relation-
ship, is thereby neutralized in matters of organization and representation, which
are peculiarly the concern of the employees. Interdictions against employer
intrusion in such matters are essential if employees are to be free from the
coercive influence of their employers, for employees are, as the courts have
repeatedly found, not insensitive to the advantages in their employment that
they consider are likely to flow from their choice of representative to coincide
with the wishes of their employer, nor the disadvantages which may attend
their choice of a representative opposed by their employer. And for the same
reason, employees cannot be expected to derive the full benefit from their pro-
tected right of self-organization if they believe, from "circumstances which the
employer created or for which he was fairly responsible,"' that their repre-
sentative, however chosen, is subject to the employer's compulsive will. Con-
sequently, the Act prohibits all forms of employer assistance to, or domination
of, his employees' labor organizations and interference in their organizing
campaigns which might operate to preclude an uninhibited exercise by employees
of their collective-bargaining rights.?
In open disregard of its duty of neutrality, Respondent foisted upon the em-
ployees a labor organization which met with its approval, for not only did
Respondent promise the employees greater benefits if they formed their own
organization rather than affiliate with an "outside union" but permitted the
Association to conduct its business on plant property and permitted Berkowitz,
a supervisor, to become a member thereof and to retain such membership until
an agent of the Board, some 6 months after she had joined, advised against
her remaining a member. Furthermore, when the Association voted to disband,
Respondent closed the plant and did not reopen it until Josephson had been
informed that the employees had voted to reestablish the Association. In
addition, after the Association came into being, in August or September 1951,
Respondent and the Association entered into a contract providing for a certain
form of union security in violation of the Act, for no election was conducted
by the Board authorizing the making of such an agreement as provided for
in Section 9 (e) (1) of the Act. Admittedly, at the time of the execution of
said agreement and for many months thereafter, the Association had not com-
plied with the provisions of Section 9 (f), (g), and (h) of the Act, and hence,
by entering into the September 7, 1951, agreement, Respondent lent further
support to the Association.'
s N L. R B v. Link-Belt Co , 311 U. S 584, 588.
i See N. L. R. B. v. Link-Belt Co , 311 U. S. 584 ; I. A. M v N. L R. B., 311 U S 72;
N. L R B. v. Electric Vacuum Cleaner Co, 315 U. S. 685; N. L. R B. v Southern Bell
Telephone & Telegraph Co., 319 U. S 50; N. L R. B. v. Kress Co, 194 F. 2d 444 (C A,
6) ; Harrison Sheet Steel Co. v N L It. B., 194 F 2d 407 (C A. 7)
s At the time the contract was executed Section 8 (a) (3) of the Act permitted agree-
ments between an employer and a union requiring as a condition of employment member-
ship therein on or after the 13th day following the beginning of such employment or the
effective date of the agreement, whichever was later, provided that the union was the bar-
gaining representative of the employees to be covered by the agreement and had been
authorized by the employees in a Board-conducted election to make such agreement. On
October 22, 1951, Congress amended the Act eliminating the requirement of a Board elec-
tion but left intact the other requirements for a permissible union-security agreement.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the credible evidence, as epitomized above, leads to the inescapable
conclusion that the Association was formed by Respondent and that it exists
and functions only through Respondent's control, participation, and sufferance.
In short, the Association is being used by Respondent as a substitute for col-
lective bargaining and, as such, is a device which repeatedly has been held to be
an outlawed form of labor organization.' Therefore, upon the entire record in
the case, the undersigned finds that Respondent formed, dominated, supported,
and interfered with the administration of the Association within the meaning of
Section 8 (a) (2) and (1) of the Act, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7
thereof. The undersigned further finds that Respondent violated Section 8
(a) (1) of the Act by Josephson's promises of benefits if the employees formed
their own union rather than affiliate with an "outside" labor organization, by
Josephson's closing the plant because the employees had disbanded the Associa-
tion, and by entering into the September 7, 1951, agreement with the Association.
B. The discriminatory discharge of Henry V. Shannon
Shannon was employed continuously by Respondent from about September
or October 1950 until his discharge on February 1, 1952, except for certain periods
when he was laid off for economic reasons. The amended and consolidated com-
plaint alleged that, in violation of Section 8 (a) (3) of the Act, Respondent
discharged Shannon because of his activities in disbanding the Association. Re-
spondent's answer denied that Shannon's discharge was violative of the Act
and its amendment to answer averred that on or about August 22, 1952, without
admitting liability, Shannon was offered reinstatement to his former or sub-
stantially equivalent position.
The credible evidence discloses that Shannon was among the most active in
forming the Association, was president thereof from its inception until it was
disbanded on January 30 or 31, 1952, and was the guiding spirit in having the
Association disbanded.
Josephson was the first witness in this proceeding. He was called by the
General Counsel as an adverse witness. He testified that during the plant's
year-end vacation shutdown, which occurred from about December 21, 1951,
until about the following January 3 or 4, he had Shannon and Bobby Berkowitz,
Anna Berkowitz' son, repaint Respondent's offices ; that because Shannon's
paint job was so bad, he would not allow Shannon or Berkowitz to complete the
job ; that because of Shannon's poor work, Respondent was obliged to call in a
maintenance company to clean up Shannon's "mess"; that when he told Shannon
of his dissatisfaction with the paint job he also told Shannon that if that job
was indicative of the work Shannon normally performs in the plant he could
not understand why Respondent retained him in its employ ; that nonetheless he
informed Shannon to report for work when the factory reopened after the vaca-
tion period ; that when the plant was shut down on January 17, for monetary
reasons, he told Shannon, "I [am] thoroughly dissatisfied with [your] work,
and that due to the number of complaints we had been getting from [customers]
throughout the country and due to the records of rejection and reasons for
rejections that we were getting at the inspection table that I couldn't see how
9 See N. L. R. B. v. Newport News Shipbuilding & Drydock Co, 308 U. S. 241; N. L.
R. B. v. Baldwin Locomotive Works, 128 F. 2d 39 (C. A. 3).; Bethlehem Steel Co. v.
N. L. R. B., 120 F. 2d 641 (App D. C.) ; Westinghouse Electric & Mfg Co. v. N. L. R. B.,
112 F. 2d 657 (C. A. 2) ; Budd Mfg. Co. v. N. L. R. B., 138 F. 2d 86 (C. A. 3) ; N. L. R. B.
v. Rath Packing Co., 123 F. 684 (C. A. 8).
JAY COMPANY, INC. 1657
we could take [you] back , but that my investigations [are] not complete and
I [don 't] have records of the amount of the troubles that existed due to the
inferior work we were producing , but that during [the] layoff period I [will]
complete my investigation and let [you ] know what I had decided to do"; that
he did not recall Shannon when the plant reopened on January 23, but Shan-
non voluntarily returned to the plant after a great many employees had been re-
called , and inquired when he may come to work ; that he replied , "I don't want
you back" ; that Shannon argued that as president of the Union he was entitled
to more consideration and more notice of termination ; that by way of compro-
mise , he agreed to allow Shannon to remain in Respondent 's employ for an
additional 2 weeks but assigned him to work where he could do no damage, and
then instructed Deitsch to supervise Shannon 's work carefully ; and that the let-
ter signed by Shannon and two other association officials announcing the dis-
bandment of the Association "was a contributory strong factor , as far as we
were concerned which led us to the conclusion that if we could not cut our
costs we would have to go out of business" because "we were in the red then over
a hundred thousand dollars."
When Josephson was called as a Respondent 's witness , he testified that when
Shannon returned to the plant after the mid-January shutdown he told Shan-
non, in response to Shannon 's query why he was not recalled , "the investiga-
tion that I had made had convinced me beyond all doubt that that (sic) was
one of the principal reasons why we were in the financial position we were in,
and that it would be best if he found something else to do, that I had no use
for him , or work for him in my plant " ; that Shannon argued that , as president
of the Association , he deserved better rights and better consideration, he was
entitled to 2 weeks ' termination notice, he was being discriminated against be-
cause he was colored , and he never got a chance or "a fair shake" from the per-
sons working in his department because he was colored ; that he advised Shannon
that he never permitted discrimination in the plant ; that because Shannon felt
that he was being discriminated against he told Shannon that he could work
around for a week or two until he found another job; that Shannon then left
the plant after remarking that he would report for work the following morn-
ing ; that Shannon reported for work as he said he would and later in the day
Shannon came to him and said that , to quote Josephson , "he was planning to
disband the union and that it would be necessary that we come to some sort of
an agreement . He wanted to be made a supervisor at $1.87 per hour and he
wanted to share the supervisors ' bonus, and if I would do that he would keep
the people in line"; that because he considered Shannon 's proposal a piece of
blackmail , even though the acceptance of which would have prevented the As-
sociation's contract from being cancelled and the Association from being dis-
banded , he told Shannon , "That was the end ... [you had] better be sure to
find something before the end of the week because [you are] through ... [you]
can do whatever [you] damned please" about the Association; and that he then
informed Deitsch of his conversation with Shannon and instructed Deitsch to
discharge Shannon at the end of the week.
Josephson further testified , under questioning by Respondent 's counsel, that
as early as August 1951 , he had received reports from Deitsch that "troubles"
had developed in Shannon 's machine and silk screen ; that twice the bearings
"burst" in the machine upon which Shannon worked ; that in September 1951,
when Deitsch reported that the finishing work "was going badly," he authorized
Deitsch to secure a new finisher ; that Deitsch obtained an exceptionally able
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finisher who replaced Shannon as finisher ; 10 that when Shannon complained
about being replaced, he told Shannon "[you] just could not do the job" because
"it was too big for [you]"; that Shannon replied that he could not understand
the reason for the move because he "had been doing such beautiful work";
that Yuller, the new finisher, complained that he could not do proper work
because "of the inferior preparation of [the] work [coming] from the sanding"
department ; and that Yuller told him, sometime about the time Shannon was
replaced as head of the sanding department (a nonsupervisory job), that he
suspected Shannon of putting water in the varnish tank."
Deitsch testified that Yuller and Thurston each complained to him about
Shannon's poor workmanship; that on "many, many occasions," prior to Janu-
ary 1952, he informed Josephson that Shannon was a poor worker; that on
January 29, 1952, the day before Josephson left for San Francisco on a business
trip, Josephson told him, "Mr. Shannon had decided to sell his union and his
company down the river to benefit [Shannon's] own interest; and I was to
keep my eye peeled on him and terminate him as of Friday of that week" ; that
when Shannon reported for work Friday, February 1, the day after Shannon
had left the Association "dissolution" letter on his desk, he called Shannon into
his office and "in no uncertain terms" told Shannon, "I [am] ashamed of [your]
attitude, [your] work record and [your] attempts to sell [yourself] and the
company down the river, to sell [your] union short, and generally [engage in] con-
duct unbecoming any member of society" ; and that at the end of that day's shift
he discharged Shannon. Deitsch further testified that when he spoke to Shannon
on the morning of February 1, he was "under such emotional stress" because the
Association's "disbanding notice was the, let me say, straw that broke the
camel's back."
Shannon denied that he told Josephson that unless he was made foreman and
given "some back pay" he would disband the Association. He also denied that
his work was unsatisfactory, that Josephson ever told him, "I will let you work
for two weeks instead of giving you two weeks' notice," that Josephson ever
said to him, "It is highly questionable if I ever take you back," or that, prior
to February 1, anyone connected with management ever indicated or said that
he was to be discharged.
Upon the entire record in the case, which clearly discloses Respondent's un-
relenting desire to retain its supported and dominated Association as the em-
ployees' bargaining agent, and in view of the unconvincing and unreliable testi-
mony of Josephson and Deitsch regarding the reasons for Shannon's discharge,
the undersigned is convinced, and finds, that Shannon was discharged because
he had proposed and secured the Association's dissolution. This finding is
buttressed by the admission of Deitsch, whose demeanor while on the witness
stand evidenced to the undersigned a desire to withhold the true facts regarding
Shannon's discharge, that the Association's "disbanding notice was the . . .
straw that broke the camel's back." Furthermore, the utter transparency of
Josephson's reasons for Shannon's dismissal requires no elaboration when con-
sideration is given to the fact that he indicated, when he was being questioned
by the General Counsel, that he was unaware that Shannon was a poor worker
10 Shannon was then transferred to the sanding department.
n Puller was hired about August or September 1951 , and was fired about a month later
because he hit another employee Thurston was placed in charge of the sanding depart-
ment "around the end of August" 1951 , and left Respondent's employ about the following
October or November.
JAY COMPANY, INC. 1659
until sometime in January 19,12, whereas, under examination by Respondent's
counsel, he testified that as early as August or September 1951, he knew of
Shannon's poor workmanship and to the fact that, although he considered
Shannon was attempting to blackmail him on Tuesday and that he feared that
Shannon might immediately cause "further damages or troubles," he retained
Shannon in Respondent's employ for 3 additional days.
Moreover, if Shannon's work record had been as bad as Josephson and Deitsch
testified it was, it is not unreasonable to conclude that when Respondent offered
Shannon reinstatement to his former job on August 22, 1952, after the amended
and consolidated complaint herein had been served, Respondent realized its mis-
take in discharging him, and therefore offered to reinstate him for that reason "
Contrary to the General Counsel's contention, the undersigned finds that Re-
spondent offered Shannon full reinstatement in its August 22, 1952, letter. The
fact that Respondent's registered letter was returned by the Post Office Depart-
ment because it was unable to deliver it was no fault of Respondent. Accord-
ingly, the undersigned will not recommend that Respondent again offer Shannon
reinstatement. However, the undersigned will recommend that he be awarded
back pay from February 1 until August 23, 1952, the date the Post Office Depart-
ment attempted to deliver the aforesaid letter.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III above, occurring in con-
nection with Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in viola-
tion of Section 8 (a) (1), (2), and (3) of the Act, the undersigned will recom-
mend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As found above, Respondent formed, dominated, and interfered with the admin-
istration of the Association and contributed support to it. The undersigned is
convinced, and finds, that the present existence of the Association and Respond-
ent's continued recognition thereof constitute a continuing obstacle to the exer-
cise by the employees of the rights guaranteed them under the Act. Therefore,
in order to effectuate the policies of the Act and to free the employees from the
effects of Respondent's unfair labor practices, the undersigned will recommend
that Respondent withdraw all recognition from the Association as a representa-
tive of any of its employees for the purpose of dealing with it concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, and conditions
of employment and to completely disestablish it as such representative.
As previously found, Respondent's conduct in executing the contract with the
Association constituted unlawful assistance to the Association. This contract
has been a means whereby Respondent has utilized the unlawfully formed, domi-
nated , and supported Association to frustrate self-organization and to defeat
"See N. L. R. B. v. Vincennes Steel Corp., 117 F. 2d 169 (C A 7) ; N. L. R. B. v. Ent-
wistle Mfg. Co., 120 F. 2d 532 (C. A. 4).
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
genuine collective bargaining by the employees. The undersigned, therefore,
recommends that Respondent cease and desist from giving effect to said contract
or to any renewal, extension, modification, or supplement thereof. Nothing
herein shall be taken to require Respondent to vary the wages, hours, seniority,
and other substantive features of its relations with the employees themselves
which Respondent has established in performance of the said contract or any
revision , extension, renewal, or modification thereof.
Having found that Respondent discharged Henry V. Shannon on February 1,
1952, but offered him full reinstatement to his former job on the following August
23, the undersigned will recommend that Respondent make Shannon whole for
any loss of pay he may have suffered during said period, by payment to him of
a sum of money equal to the amount he normally would have earned, less his
net earnings . Loss of pay shall be computed in accordance with the formula
enunciated by the Board in F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices found to have been engaged in by Respondent are
of such a character and scope that in order to insure the employees here involved
their full rights guaranteed them by the Act it will be recommended that Re-
spondent cease and desist from in any manner interfering with, restraining, and
coercing its employees in their right to self-organization.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLusioNs OF LAW
1. Furniture Workers, Upholsterers and Wood Workers Union, Local 576,
Independent, and Jay Company Employees Association, unaffiliated, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Henry
V. Shannon, thereby encouraging membership in Jay Company Employees As-
sociation, thereby interfering with the rights of its employees to refrain from
union activities, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By forming, dominating, and interfering with the administration of the
Association and by contributing support to it, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act.
4. By entering into and giving effect to the contract with the Association, which
contract was executed in violation of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (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.
[Recommendations omitted from publication in this volume.]