Karp Metal Products Co., Inc.

National Labor Relations Board - Board Decisions

Jul 8, 1942

42 N.L.R.B. 119 (N.L.R.B. 1942)

In the Mattel of KARP METAL PRODUCTS Co, INC, and FABRICATED
METAL LOCAL 1225, UNITED ELECTRICAL, RADIO & MACHINE WORK-
ERS OF AMERICA. C I 0
Case No C-0097 -Dec de d July 8, 1942
Jurisdiction . sheet metal pi oducts manufactuinig industi y
Urifair 'Labor Practices
Inteiteienee, Restraint, and Cociiion use of obscene, thicatenuig, and
coercive language by supervisory employees toward employees who joined
of supported union,_use of thieats and coercion to induce employees to with-
diaw from union, speech by respondent's president containing thinly veiled
reference to union menibeis as enemies of the counti3 and saboteurs of the
defense piogram attempt to coerce union stewards into iemoring their
buttons, and to discredit them in the eyes of union membeis
Company-Dominated Union formed at suggestion of employer after majoiity
of employees had suppoited strike called by a legitimate union, and after
employer made it clear that he would not eaten into contiact with any
union, but was willing to deal with own employees, held company-instigated ,
Balleisen contracts signed by individual employees held illegal and void,
support rendered by allowing free use of bulletin boards and setting ahead
of night shift so that employees might attend meetings, extensive interfer-
ence by supervisory employees in actual conduct of its affairs, declarations
of union preference
Collective Bargatining majority established by signed application cards, des-
ignations not affected by union's oral persuasion-refusal to bai gain collec-
tively; refusal by employer to allow union to prove its claim to represent
employees by either of two reasonable methods, employer not Justified in
such iefusal by reliance on contract with employer-dominated organization,
strike, called because of such refusal, and respondent's other unfair labor
practices, held not to suspend or annul employer's duty to bargain
Remedial Orders : employer ordered-to disestablish dominated Employees Union,
cease giving effect to contract with it, and to inform in writing employees
who have signed individual contracts that such contracts are void as viola-
tive of the Act, employer ordered to bargain, upon request, with union
Practice and Procedure : petition of employer and newly formed organization
to reopen hearing to receive evidence that such new organization is now
representative of a majority of employees denied on ground that the allega-
tions of the petition, even if true, are subsequent to and in no way affect the
acts complained of or the legal conclusion to be drawn therefrom
Unit Appropriate for Collective Bargaining , all employees in employer's three
shops excluding clerical and office employees, salesmen, the superintendent,
the night superintendent, the stock clerk, foremen, and other named per-
sons,-persons in supervisory capacities excluded over protest, of employer
where it is found that they have extensive supervisory powers and regularly
attend foremen's meetings where general questions of production, wage rates
and abilities of employees are discussed
Mr Christopher W Hoey, for the Board
Rubinton c(i Coleman, by Mr Samuel Rubinton and Mr Lester M
Rosenbloom, of New York City, for the respondent.
42 N L R B, No 34
119
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr Frank Schem er, Mrs Ruth Reenter, and Mr Nat Lerner, of
New York City, for the Union
Mr Henry M Schnealerman and Mr Philip Stra'iss, of New York
City, for the Intervenor
Mari M Persinger, of counsel to the Board
DECISION
AND
ORDER
STATEMENT OF THE CAST;
Upon charges and amended chaiges duly filed by Fabiicated Metal
Local 1225, United Electiical, Radio and Machine Workers of Amer-
lca, C I O 'l herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Second Region (New Yoik City), issued its complaint dated July 10,
1941, against Karp Metal Products Co, Inc, New York City, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commeice, within
the meaning of Section 8 (1) and (2) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat 449, herein called the
Act Copies of the complaint and notice of hearing, as well as sub-
sequent notices of postponement of the hearing, were duly served
upon the respondent, the Union, and The Collective Bargain-
ing Committee of the Employees of Kaip Metal Products Co,
Inc, also known as Karp Metal Products Employees Union,
herein called the Employees Union Thereaftei, an amended com-
plaint, dated August 25, 1941, was served upon the above-named par-
ties At the opening of the hearing on September 11, 1941, at New
Yoik City before C W Whittemore, the Trial Examiner duly des-
-ignated by the' Chief Trial Examiner, counsel for the Board moved
further to amend the complaint, and at the same time served upon
the respondent, the Union, and the Employees Union, copies of the
proposed amended complaint. The motion to amend was granted.
The complaint as thus amended alleged that the respondent had
engaged in and was engaging m unfair labor practices, within the
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and
(7) of the Act. The Trial Examiner then adjourned the hearing
until October 2, 1941, after having granted a motion by the Em
'The complaint designated the charging Union as Local 1225 , United Electrical, Radio
&'M clime Workers of America, C I 0 It appeared from the evidence , however, that the
correct name of the Union is that stated above , and the compl a int was accordingly amended
b3 the Trial Examiner in this particular
KARP MEIAL PRODUCTS CO, INC 121
ployees Union to iiitei vene in the proceeding to the extent of its
interest.
With respect to the unfair labor practices the complaint as amended
on September 11, alleged in substance (1) that on or about February
5, 1937, the respondent caused the formation of and interfered with,
dominated, and contributed support to the Employees Union; (2)
that, on of about February 5, 1937, February -18, 1938, , Februai y 28,
1939, January 2, 1940, and Januaiy 31, 1941, the respondent entered
into contiacts with the Employees Union and with its employees as
individuals, as a part of its plan to dominate, support, and interfere
with the administration of the Employees Union; (3) that on or about
June 3, 1941, and at all times thereafter, the respondent refused to
bargain with the Union as the exclusive representative of its em-
ployees in an appropriate unit, (4) that in and after December 1936,
the respondent urged, persuaded, and warned its employees not to
joni or aid the Union of other labor organizations, and threatened
said employees with discharge or other reprisals if they-did so, of
failed to become or remain, members of the Employees Union ; laid o$
employees who did not comply with its wishes in this respect and
promised pay incieases to those who agreed to comply; ordered its
employees to cease wearing union buttons and dealt with its employees
directly during a strike in 1941; made the signing of individual con-
tiacts a condition of employment and advised its employees that it
would not enter into a contract with a bona fide union; (5) that be-
cause of the foregoing unfair labor practices, the employees, on June
5, 1941, went on a strike which continued until June 30, 1941, (6) that
because they joined or assisted- the Union or went. on strike the re-
spondent (a) on June 30, 1941, and thereafter refused to reinstate
Paul Kamner, (b) on July 1, 1941, assigned Morton Goldstein to
less desirable work and on July 2 lard off Goldstein and has refused
to reinstate him ; (c) on July 7 and thereafter refused to reinstate
Tony Pagliaro ; and (d) on July 12, 1941, laid off and discharged,
and has since refused to reinstate Constantine Dordom; and (7) that
by the foregoing acts and conduct the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act
In- their answers to .,the complamnt,2 the respondent and the Em-
ployees Union denied all allegations of unfair labor practices
Thereafter, pursuant to notice duly served upon all the parties.
the adjourned hearing was held in New Yolk City from November
the respondent s answer dated Jul\ 29 1941 is to the original complaint It was
stipulated -it the healing tLat thi, pleading should also be construed as n answer to the
eomnlamt as amended on September 11 ana flat all new matter alleged in the amended
complaint would be deemed denied The answer of the Emplo3ees Union filed on August
22 was lihetcise cosered o} tnis stipulation
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
17, 1941, to December 12. 1941, before J J Fitzpatrick, the Tiial
Examiner duly designated by the Chief Trial Examiner The Board,
the respondent, the Union, and the Employees Union were iepiesented
by counsel, all pai ticipated in the hearing Full oppoi tunity to be
heard, to examine and cioss-examine witnesses and to introduce evi-
dence bearing upon the issues was afforded all pasties During the
hearing, the Union withdrew its charges of discirmmation as to the
discharge of Constantine Doidom, and as to the refusal to, reinstate
Paul Kamner , wbeieupon counsel for the Board moved for leave to
withdi aw from the amended complaint the allegations covering these
two persons The motion was granted ' At the request of counsel
for the respondent and the Board, the Trial Examiner also dismissed
the allegations of the complaint which alleged a refusal to reinstate
Tony Pagharo During the hearing, Boaid's counsel stated that be-
cause of an adjustment made with the respondent in the case of Morton
Goldstein, the allegations of discrimination as to Goldstein was to be
considered withdrawn. To this the respondent agreed Although no
formal motion was made, the Trial Examiner , in his Intermediate
Report, dismissed the allegation; of the complaint with respect to
Goldstein
At the conclusion of the hearing, both the respondent and the Em-
ployees Union moved to dismiss the amended complaint The motion
was denied as to the Employees Union , and ii as taken i nder advise-
ment as to the respondent The respondent's motion was denied by
the Trial Examiner in his Intermediate Repoi t A emotion by counsel
for the Board to amend the pleadings to conform to the proof, was
granted without objection During the coarse of the hearing, the Tiial
Examiner made rulings on othei motions and on objections to the ad-
mission of evidence The Board has reviewed the rnlmgs of the Trial
Examiner and finds that no prejudicial eiioi was committed The
i ulrngs are heieby affirmed After the hearing, counsel foi the Board
filed with the Trial Examiner a letter discussing certain issues in the
case Replies to this letter weie filed thereafter by the respondent and
the Employees Union
On February 11, 1942, the Trial Examiner issued his Inteinnediate
Report, copies of which were duly served upon all the parties He
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section 8
(1), (2), and (5) and Section 2 (6) and (7) of the Act, and iecom-
mended that the respondent cease and desist fiom such unfair labor
practices , disestablish .the Employees Union, and take other affirmative
action to effectuate the policies of the Act V -
On March 20 , 1942, Karp Employees Union, an organization which
was not in existence at the time of the hearing, petitioned for leave to
KARP METAL PRODUCTS CO, INC - 123
inteivene in the pi oceechng and moved to ieopen the hearing to take
additional testimony On the same day the respondent filed a motion
to reopen The motions of both paities were supported by affidavits
which alleged, in substance, that Karp Employees Union currently
iepiesents the free and uninfluenced choice of a majority of the re-
spondent's employees, that the employees have repudiated the Union,
and that the respondent signed a contract with Karp Employees Union
on January 23, 1942, which does not expire until 1945. For the reasons
discussed below we herewith deny the motion to reopen filed by the
i espondent and the petition and motion filed by Karp Employees
Union
On March 30, 1942, the respondent filed exceptions to the Inter-
mediate Report None of the parties requeste&permission to argue the
issues orally. The Board has considered the letters filed by the parties
and the exceptions, filed by the respondent and, to the extent that the
exceptions are inconsistent with the findings of fact, conclusions of
law, and order set forth below, finds them to be without mei it
Upon the entire i ecord in the case, the Boai d makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Karp Metal Pioducts Co, Inc, is a New York coiporation with
offices and plants located in New York City The respondent is engaged
in the manufacture , sale, and distribution of specially fabricated sheet-
metal products During the year 1940 the iespondent purchased steel,
paint, and various other mateiials , valued at moie than $150,000, of
which approxiately 40 percent was shipped to the respondent from
points outside the State of New York . During the same period the
respondent 's sales amounted to more than $400,000, and appi oximately
50 percent of its finished products were shipped to points outside the
State of New York -
II THE ORGANIZATIONS INVOLVED
Fabi icated Metal Local 1225, United Electrical, Radio & Machine
Woikers of America, C. I 0, is a labor organization admitting to
membership employees of the respondent
The Collective Bargaining Committee of the Employees of Karp
Metal Products Co., Inc , also known as Karp Metal Products -Em-
ployees Union, is an unaffiliated labor organization which limits, its
membership to employees of the iespondent.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A Chronology of events
In 1933, Metal Workers Industrial Union, herein called the M W. I.
U, called a strike at the respondent's plant The strike was abandoned
it short time later. At about this time, an informal committee of em-
ployees, herein called the Shop Committee, was formed and met from
time to time thereafter with the respondent The record is not clear
as to the method by which the Shop Committee was selected, nor the
extent of its activities; in any event it had no connection with the
M W I. U.
On January 28, 1937, after oiganizational efforts beginning in 1936,
International Association of Machinists, herein called the I A M ,
called a strike, picketed the respondent's plant, and demanded recogni-
tion A large majority of the employees, including all the members of
the Shop Committee,3 suppor ted the strike 4 On February 1 1937,
while the strike was still in effect, Milton A Karp, president of the
respondent. instructed Foreman Charles Hyatt to deliver to the Shop
Committee the following letter :
If the regular Shop Committee of employees will call at my
office within the next hour I will advise them under what condi-
tions I will meet with your representative, even though they at e
not employees, to discuss the matters in question The Shop Com-
mittee should have with them, in addition to the regular fie e mem-
bers. the following employees
Raymond Lipinski
Michael Yurezko 6
Roy Bloom
Sam Silverman
Stanley Kaczmarczyk
Bill Kapplinghaus
I have chosen these additional men only because they are more
familiar with the English language and represent the different
departments of the factory
It will be to your advantage to attend this conference.
For sonic reason not apparent, Hyatt delivered Karp's letter to (Till,
an or;anrzei for the I A M who was directing the strike. Gill
e Zhe committee at this time consisted of Tom Regei, Harry Chaiatz, Fiarmy Lauder-
baugh and Joe Tuckei
4 President Kaip testified that on Febiuaiy 4 1937 he had approximatel3 85 employees,
Wind that 65 of th,m Reme on stoke
I)e,m natcd in the record a , Ras mond Lapm>ki
6 De, gaited um the teee,d a, tfichael Yuresko
KARP METAL PRODUCTS CO , INC 125
informed the stiikers of the contents of the letter, stated that Karp
had no right to dictate the members of a committee to meet with him,
and instructed the strikers to elect their own committee The strikers
theieupon elected Lapinski, Kapplinghaus, Tucker, Lauderbaugh,
and Reger as such a committee All of these persons were members
of the existing Shop Committee, or among those whom Karp had
mentioned in his letter as acceptable to him 7 The newly elected
committee at once proceeded to the plant where they conferred with
Karp At this meeting, Karp according to his own testimony, stated
that he was willing to discuss grievances with anyone the employees
(hose to represent them, but that since the strike had been called
without warning, he thought that the men should return to work im-
mediately and discuss giievances thereafter. Regei, speaking for
the committee, stated that the men wanted Karp to sign a closed-
shop contract with the I A M Reger testified without contradic-
tion and we find, that Karp refused to consider a closed-shop contract,
but said that lie would be willing to sign a contract with his own
employees which they could "call a union contract," embodying
teims which might be agreed on The members of the committee
then stated that they would discuss Kai p's proposals with the strikei s
According to Reger's undenied l estimony, when the committee re-
ported Karp's offer to the I A M organizers, the oiganizers iefused
to allow the offer to be conveyed to the strikers, and stated that the
strike must continue. Later on that same day, Kapplinghaus tele-
phoned Karp and told him that the men were insisting on a closed-
shop contiact, and that. the committee which met with him had not
been permitted to speak to the men Kaip thereupon piepaied and
mailed"to all his employees the following letter
FEBRUARY 1, 1937
DEAR EMPLOYEE This moining we invited a committee of
workeis to meet with us so that we could state our position We
feel that you have not been properly infoimed as to what took
place at that meeting We theiefoie briefly re-state what took
place
We, informed your committee that we were ready at all times
to discuss any complaints that you may have in regard to con-
ditions of employment. We offered to write a contract with ouy
working men containing an agreement in regard to hours and
wages. We told the committee that under no circunnstai,ces
would we enter into a written contract with any union or have
a closed shop No man need pay tiibute or graft to anyone to
Theie was evidence that some of these employees were also members of the I A M
strike committee
7
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work in oui plant We uphold the American principle that a
man is fiee to work under conditions suitable to himself
We requested the men to return to work and i nfoimed them that
after they i etui ned to work we would be glad to adjust any com--
plaint, if they had any complaint. TWPe told the committee that
we would not bargaiin with them while the men, were on strike
since a strike is the same as a gunman pointing a gun and demand-
ing that you do as he dictates.
We have al\\ ays been thoughtful of the w elfaie of oui employees
as is pioven by the fact that most of our workeis have been with
us for a good number of years. You know that we have always
been willing to discuss with you any complaints you may have
had
If you desiie to ietuin to work, we assure you that we will give
you full piotection of the law, and see that you can safely come
and go fiom your homes to the factoiy We know fioin what
your fellow workers have told us that it is only a small number
of woikeis that are threatening and frightening you from going
to woik We theiefore notify you that unless you ietuin to work
on Wednesday moinnig; Febiuaiy 3, at 7 30 A Al we will take
it for granted that you no longer caie to work foi us and will
ieplace you with other men
Yours vei y truly,
KARP METAL PRODUCTS CO , INC,
M J KARP , President
[Italics supplied]
Alex Ralston, who was foreman of welders during the 1937 strike,
testified without contradiction, and we find, that while the strike was
current, Lou Karp, brother of President Karp, told him (Ralston)
and employee Fred Roebkei that Karp was thinking of moving his
plant to Jersey City where there were "no labor troubles" Ralston
further testified
I asked Lou Karp how he expected the strike to end ultimately:
He said that Mr Karp wiis_going to get help from the Brooklyn
Chamber of Commerce
He said that Mr. M J [president] Karp was having a little
trouble getting such help because he had been very lenient with
us during the strike in 1933 and the Chamber of Commerce didn't
like the kind way he treated the strikers at that time, in 1933 ,
There was evidence that 20 or 30 strikebreakers were employed by the
i espondent toward the end of the strike, and that they were escorted
through the picket line bs aimed guaids employed by the respondent.
KARP METAL PRODUCTS CO, INC 127
On the inoriiing of Febiuaiy 4, 1937, while I A M officials and
oiganizeis were absent fiom stidke headquarters, some, of the stinkers
selected Kapplinghaus, Tucker, and Lapnrski to act as a committee
10 confer again with Karp This connnittee was to discuss the subject of
a contract with Karp, and report hack to the men The committee met
immediately with Karp Lapinski, as spokesman, advised Kaip that
the stiikeis had taken advantage'of the absence of the I A M offi-
cials and had sent the connnittee to advise Kaip that they wished to
return to woik Accoidnig to the undenied and mutually coiioboia-
tive testimony of Kapplingliaus and Regei, the committee then asked
that Kaip draw up "some foim of a contract" bete een the men and
the respondent, which would not be a "union contract " Karp ieplied
that he was in favor of this pioposal, and further agieed that all
strikei s would be taken back to won k He then stated that he would
prepare a contract, and instiucted the committee to iepoit to the
stiikeis the iesults of this conference, and if the pioposal for a con-
tract was satisfactory to the stiikeis, they should send back a larger
committee that afteiioon with autlioiity to acts Kaip, by his own
admission, then went to the Brooklyn Chanibei of Commerce wheie
he secuied contract forms fiom 1. 1. Balleisen who was in charge
of the labor depaitment of the Chamber of Commerce
On the afteinoon of Febiuaiy 4, the committee which had conferred
with Karp that morning, augmented by one or two moie members
including Toni Regei, ietuined to the plant The committee advised
Karp that it had been authorized by the stiikeis to deal with the re-
spondent on the proposed contract and to ignore the Union The
committee fuithei stated that the inen weie anxious to ietuin to work
as soon as possible Reger then said, accoiding to his undenied testis
moray, "How are w e going to call the contract? What ale we going
to call onrselves2 Are we goinggwto get an oiganization inade out of
ourseh es, or rani aiound the w ay e aie now?" - Regei fuithei testified
without coirtiadiction, and w e find as did the Tiial Examiner, that
Karp ieplied, "Call it the way you want to Call it the `Karp Metal
Employees' contiac,t You fellows should know " Regei's undenied
testimony continued, "At the end it came out it was the Karp Metal
Employees contract between the employees and Karp, the company";
that terms of the proposed contiact were then discussed, and that Kaip
explained that it was necessary that a bargaining committee be se-
'The finding that Karp, at the moining meeting, instiucted the stiikeis to send back a
huger committee with authonrty to act is based upon the direct testimony of Kapplinghaus,
which vras nncontradicted except that Kapplnnghaus testified later that in the afternoon
when the committee reported to the men, the nieu demanded that a laigeii committee be
sent to Karp , and that 'it was not Mi Karp " We find that this testimony is not neces-
sarily inconsistent with Kappli nghaus' ear her statement that at the mounng meeting
Karp suggested that a larger committee be selected
128 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
lected to represent all the employees Karp then inquired when the
men wanted to return to work, and Reger replied, "Well, if we hadn't
been down in the dumps i fight now we wouldn't have come up to you
and we want to come back to work tomorrow morning, if there is a
possibility, and you better get the contracts ready " Karp stated that
he would have the contracts ready the next morning at 7 30 at which
time the men should report at the plant After making some changes
in the Balleisen draft contracts to fit the needs of his business, Karp
had forms of a contract mimeographed at the Brooklyn Chamber of
Commerce
On the next morning, February 5, 1937, at the appointed time, all
the employees, with the exception of four or five, assembled at the
plant They were called into a general office on the second floor of
the plant, adjacent to President Karp's private office Kaip and all
the supervisors were present, with the exception of the superintendent
Karp told the assembled employees of his conferences with" the commit-
tee on the preceding day, and then read and explained, paragraph
by paiagraph, the terms of the contract he had prepared After each
paragraph was read the men discussed it among themselves After
the discussion, the employees voted on whether they would accept the
contract While the vote was being taken, Karp retied to his private
office, but the supervisors remained The vote on the contract was
taken by a show of hands, and the contract was accepted by a large
majolity. The matter of a bargaining committee to represent the em-
ployees, as suggested by Karp on the preceding day, was then con-
sideied Several names were suggested, and the employees finally
agreed that the committee should consist of the following. Abe Leifer,
Tom Reger, Frank Gawek, Bill Kapplinghaus, Harry Charatz, and
Mike Yuresco. Karp returned after the committee had been selected,
and requested the committee to sign a copy of the contract, which he
signed also When this had been done, Karp according to his own
testimony, stated to the employees • "So that there will be no question
about anybody raising any dispute about this in the future, and so
that there will be no misunderstanding, . I would like to have each
man sign a contract so as to designate these men as their bargaining
agency " Nearly all of the employees then signed individual copies
of the contract.
The contract recited that it was between the respondent, referred
to as the "Employer," and "the duly elected collective bargaining
committee consisting of the employees of the Karp Metal Products Co ,
and each and every one of the employees of said company, hereinafter
called the 'Enmployees "' It provided for the continuance of existing
^w age rates, a 40-hour week, and time and one-half for overtime The
KARP METAL PRODUCTS CO , INC 129
r
0
"Employer" agreed not to cause a lock-out if the "Employees" ob-
served the contract Paragraph four stated, "The employees agree
that henceforth and during the entire period of this agreement . ,
they or any of them, will not go out on sti ike " Paragraph five pro-
vided that the employees were flee to loin or refrain fiom joining any
union, and that
Furthermore, no employee or person working for the employer
shall be obliged or required to, but may voluntarily, join the
Karp Metal Products Employees' Union. The employees, or any
of them, shall not and have not the right to demand a closed shop
or recognition by the Employer of any union, and the Employer
has the absolute and unqualified right to hire or discharge any
employee or employees for any reason or for no reason, and re-
gardless of his or their affiliation or nonaffilration with any union 8
Paragiaph five further provided that "the question as to the pro-
priety of an employee's discharge is in no event to be one for media-
tion or arbitration " The piovisions as to hours and, wages were to be
operative for 1 year, the contract itself, however , was to remain in
effect until March 1942 -
Upon the signing of the contract, the strikers returned to work.
All signed copies of the contract were kept by the respondent's book-
keeper, who also kept a supply of unsigned copies Thereafter, accord-
ing to the unconti adicted -testimony of Karp and Reger which we
accept, as did the Trial Examiner, when a new employee was hired at
the plant he was approached by a member of the Employees Union,
and requested to sign the contract. If he agreed, a copy of the con-
tiact was secured froni the bookkeeper, and returned to him after
the new employee had signed it The practice of soliciting new em-
ployees to sign the contract was discontinued after 1937 Some 105
contracts were signed individually and filed with the bookkeeper
during that'year.
After the failure of the strike in February 1937, the I A M
became inactive in the respondent's plant
In March 1937, subsequent to the signing of the contracts, the first
meeting of the Employees Union was held. At this meeting the
'The record contains no +explanation of how the "Karp Metal Products Employees'
Union" came to be mentioned in a couti act drawn tip solely by the respondent Karp him-
self testified that "at the time that the contracts were signed , there was no organization
actually formed yet, but they said they were going to form an organization, and they
called themselves, foi the want of a better name, the Karp Metal Products Employees
Union , and the day before , when we talked about getting up the contract , we mentioned
that it would be something like the Karp Metal Products Employees Union And then
after that they began to sort of organizing and forming and functioning They d d not
have time between the, day before and the time of the signing of-the contract to actually
elect offieers,lai d decide definitely how they were going to function
472814-42-vol 42-9
130 DECISIONS OF NATIONAL" LABOR RELATIONS BOARD
C B. C YO was authorized to prepare a constitution and bylaws, and
application and membership cards ` At a meeting in May 1937, the
constitution and bylaws were adopted, officers were elected," and dues
of 25 cents per month decided on Only 1 month's dues were col-
lected According to Chairman Reger,_"It was ' not necessary to collect
any more dues," because the amount collected sufficed to pay for the
printing of application cards,- and other incidential expenses The
rental for the hall at Windmill Tavern, where membership meetings
were held, was paid by taking up a collection at the end of each
meeting After a few meetings, the owner of Windmill Tavern do-
nated the 'use of the hall in consideration of patronage received.
Several employees testified without contradiction, and we find as did
the Trial Examiner, that all employees of 6 weeks' standing or more
were, considered members of the Employees Union Membership
meetings averaged five or six a year Notices thereof were prepared
by it member of the C 'B C, or, at his request, by one of the clerks
in the respondent's production office, and posted on the bulletin board
in the plant Martin Gould testified without contradiction that while
he worked in the production office, he prepared about five such notices
at the direction of his immediate superior, Salvatore Emanuel. We
credit Gould's testimony, as did the Trial Examiner It is evident
from the uncontradicted testimony of Nathan Abramowitz, an em-
ployee on the night shift, that the night shift at the respondent's plant
was delayed in starting on those days on which the Employees Union
conducted meetings, so that all the employees' might attend the meet-
ings Abramowitz stated that on one occasion when he objected to
having to go to a meeting of *the Employees Union because he had to
make up the time lost by working overtime, Night Superintendent
Lou Karp told him that he must attend, stating "You could not work,
all the fellows are going and [you] would have to go." We accept
Abramowitz's testimony in this regard.
Each year after the 1937 contract was signed, the C B. C , pursuant
to instructions from the members of the Employees Union, met with
Karp and extended the terms of the original contract In 1941, how-
ever, upon the advice of his attorney, Karp proposed to the C.-B C.
that the prohibitions in the original contract against strikes, ,a closed
shop, and union recognition, be eliminated, and that the contract be
amended in this respect, to read as follows :
iO The documents continuing the February 1937 contract in effect were signed by "The
Collective Bargaining Committee of the Employees of the Karp Metal Products Co Inc "
Consequently , the actual negotiating committee of the Employees Union will b" herein
refeired to as the C B C , in order to distinguish it from tee labor organization itself
"Tom Regei w is elected chairman , Bill Kapplinghaus , vice chairman , Raymond Lapin-
ski, secretaiy , and harry Charatz , tieasurer As we find in Section III C 1, en/ra,
Kapplinghaus was head d e settee and a supervisory employee
KARP METAL PRODUCTS CO , INC 131
FIFTH Any employee has the right to join any Union of his
own choosing or to refrain from joining any Union It is
mutually agreed that the Employer 's plant will operate on the
open -shop basis Furthermore , no employee or person working
for the Employer shall be obliged or required to join the Karp
Metal Products Employees Union, and it does not in any way
preclude the employees from having any other organization or
association or agent representing them. or advising them in col-
lective bargaining The Employer has the absolute and unquali-
fied right to hue or discharge any employee or employees for
any season and regardless of his or their affiliation or non-
affiliation with any organization or association , except that the
Employer agrees that no employee of employees will be dis-
charged because of legitimate activities or affiliations with any
of gamzation of association
A discharged employee may submit either in person or through
his Committee to the Employer facts indicating that his dis-
charge was unreasonable and the Employer may at its discretion
reinstate said employee , it being the intention of the Employer
that employees be not unjustly discharged It is strictly under-
stood and agreed, however , that the question as to the propriety
of the employee 's discharge is in no event to be one for arbi-
tration and that any action of reinstatement, if any, will be
taken voluntarily by the Employer if it deems such reinstatement
advisable
The 1941 contract was, accordingly, so amended
During this entire period and up to the time of the 1941 strike,
hereinafter referred to, the C B C , in addition to its negotiations
concerning the contract, met with Karp and discussed grievances,
individual wage increases, and lay-offs Moreover, the C B C, pur-
suant to an informal understanding with the management, was
advised, and consulted with respect to all proposed discharges or
lay-offs - '
In August 1940 the Union first began to organize the respondent',
slant Louis Haberman, employed by the respondent as a die setter,
signed an application card in the Union at about this time After a,
month or two, however; activity on behalf of the Union subsided
Thereafter, during January 1941 there was a movement on the part
of some of the employees to elect Haberman, who was also a member
of the Employees Union, chair man of the C B C Gummed paper
slips reading "Lou Haberman for Shop Chapman" appeared in the
plant and,the same legend was scratched on the walls of the three
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lavatories in the iespondent's 30th Stieet shop 12 Mai tin Gould
testified that in January of eaily'Febiuaiy 1941, while he was working
in the pioduction office, he overheard Superintendent Willy Lampe,
Tom Reger, foreman of the bench-assembly depaitment, and Bill
Kapplinghaus, head die setter, speculating as to the probability of
Haberman being elected chairman of the C B C Gould testified that
Lampe inquired as to Habeiman's prospects of becoming shop chair-
man; that "Tom Reger asked Bill Kapplinghaus how he felt about
it as he was close to the men out in the shop", and that Kapplinghaus
replied that Haberman was "pretty much of a thieat" but he felt
that he could "handle the situation and that [Haberman] would not
become shop chair man " 13 Gould further testified as follows •
they said that Lew [Haberman] was getting a lot of support
from the men because of the fact that he was nailing demands and
interesting the men in the way that they wanted to get better
pay, better working conditions, that =they wanted to have a real
union, and that Lew was undermining the faith of the men in the
Karp Metal Employees Association, calling it a company union,
and other such things, and he felt that anyhow-that is, Bill
Kapplinghaus felt, and Tom Regei agreed with him, there were
possibilities of squelching any opinion at the coming Karp Metal
Employees Association meeting but that Lew would be defeated.
Although Lampe, Kapplinghaus, and Reger denied participation in the
conveisation as related by Gould, the Trial Examiner credited the
testimony of Gould In view of what admittedly occuried at the
Januai y 28,,1941, meeting of the Employees Union, discussed below,
and the Trial Examiner's resolution of the conflicting testimony, we
also credit Gould's testimony
The Employees Union met on January 28, 1941, 3 days before the
signing of its annual coati act with the respondent Although the
i ecoi d is not entirely clear, it appears that some of Habeiman's sup-
porters piesent at the meeting, demanded a change in the personnel
of the C B C When this occurred, Foreman Tom Reger asked for,
and was granted, permission to address the meeting 14 Reger em-
11 Until October 1940, the respondent operated only 1 shop, employing 85 to 90 em-
=ployees, at 30th Street In that month an additional shop was opened at 38th Street In
Fibruaiy 1941 the respondent acquued a ,shop at 42nd Street The term "plant" as used
herein includes all the respondent ' s shops unless otherwise specified , if more than 1 shop
was in existence at the time
13 Kapplinghaus at this time was chaniran of the C B C and as such , presided at all
membership meetings as well as committee meetings As stated above, Kapplinghaus was
i ead die setter and a supervisor, employee
- 14 Reger had been made a foteman in August 1919 and at that time resigned as chair-
man of the C B C Prior to August 1939 foremen were not eligible to attend meetings
of the Employees Union At that time, howeer , the members agreed to permit foremen
to attend meetings , they were not, however, to lute or speak at such meetings without
permission from the members present
KARP- METAL PRODUCTS CO , INC. 133
phaslzed the fact that the existing C B' C was at that time engaged
In negotiations with President Karp about wage increases, and, ac-
cording to his own testimony which we accept, as did the Trial Exam-
iner, he further stated
Well, it is up to the men, up to all of youse, to decide on what you
want to do, if you aie going to have a new committee or not, but
from my knowledge I would say, let the old committee work for the
next month or so, and if you do find that the committee does not
function the way it is supposed to, you always have time enough
to change the committee and elect the men the way you want them
Constantine Doidonm, an employee, testified without contradiction and
we find, that after Leger had spoken, Haberman arose and remarked
that it was improper for foremen to take pait in the meeting; that
Reger replied that "the workers should be glad to have the foremen
in their meetings, because they could work side by side with the fore-
men and the foremen should work side by side with the workers" ; and
that when Haberman then urged that there be an election by secret
ballot for 'new members of the C B C, Roy Bloom, a supeivisor,
1 emai ked, "All right, can't we talk to one another here 2 We can have
an open vote 715 A motion was then made and carried, by a show
of hands, that the existing C B C continue to function unchanged
Agitation for a change in the membership of the C B C continued
after the January 28 meeting Alex Ralston testified that in Maich
of April 1941, just piior to a, meeting of the Employees Union, lie
was approached sepal ately by Foreman Regei, and Bill Kapplnlghaus,
both of whom asked him if he would accept the nomination for chair-
man of the C B C16 When Ralston asked why they wanted him
to run, lie was told by each that "there was some oiganizing by the
C I 0 going on in the shop and unless they could get some old timer
like myself as shop chairman they would lose control of the men m
the shop " Ralston refused to accept the nomination because he had
recently received a wage cut and felt that President Kamp might think
that he was attempting to further his own interests by becoming chair-
man of the C B C At the Employees Union meeting which followed
these conveisations, Ralston moved that the existing C B C be given
a vote of confidence The motion was carried by a show of hands
Although Reger and Kapphnghaus denied that they solicited Ralston
]a Bloom s supeivrsoi y status is fully consider( d in Section III C 1, antra
16 Ralston had been a leading member of the original Shop Committee which existed from
1933 to 1937 Ile resigned from the Shop Committee in 1936, however, when he was
made foicman of the welding department In 1938, Ralston served for a short time as
foreman of the bench assembly department, but at his own request, was i ( lieved of this
position The testimony is in conflict as to whether Ralston again became foreman of
welders, or whether he became an ordinary welder, when he left the bench assembly de-
partnrent At the time of the hearing he was no longer employed by the respondent
134 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
to run for chairman of the C B C, they both admitted discussing
Ralston's wage cut with him at the time. The Trial Examiner did
not credit the denials of Reger and Kapplinghaus , nor do we We
find that both supervisors solicited Ralston to run for chairman of
the C B C in April 1941 , substantially as testified to by the latter.
Constantine Doidoni testified that during the spring of 1941 he
worked at the 38th Street shop as a truck diiver undei Foieman Otto
Panzer, and that on one occasion clueing this period, Panzei instructed
Dordoni and employee Tony Randi to stop woik and go to an Em-
ployees Union meeting at Windmill Tavein Panzer stated to Dor-
doni that "Theie is a reelection for a new committee make sure
that this fellow there , Red, does not get in The little shoit Jew that
has got the glasses " Dordoni testified that he understood that Panzer
was referring to Louis Haberman . Panzer denied that he had in-
stiucted Dordoni and Randi to attend this meeting There is other
testimony; herein credited , that in the latter pait of 1940 and the early
part of 1941 the respondent's supeivisors weie aware of agitation
among the employees foe a change in the membership of the C. B C,
and made efforts to pievent such a change Accordingly, we accept,
as did the Trial Examinei , Dordoni's account of the incident related
above
In May 1941 two oeganizers for the Union appeared at the plant
and renewed the organizational activities begun in 1940 Meetings
were held outside the respondent 's plant for the benefit of workers
on the various shifts Pamphlets announcing meetings and advising
the workers of the activities and program of the Union were dis-
tiibuted and membeiships were solicited , both outside , and surrepti-
tiously within, the plant
On May 23, 1941, Nat Lerner, business representative of the Union,
wired President Karp, iequesting an immediate conference regarding
"hours, wages and working conditions foe union men in the plant "
Karp, after conferring with the C B C, replied to the Union's tele-
gram, stating that he knew of no grievances of the employees over
wages, hours , and working conditions , but "if you represent even one
employee, we are willing to consider any grievance that you may
present on his behalf " The letter then requested that the Union
"write us in detail as to . grievances , and we will give it due
consideration If it is one that we can coirect we will be glad to do
so"
The Union had arranged for a meeting at 4 p m on the afternoon
of May 26 at a restaurant near the plant In the moiniig and at
noon on May 26, organizers distributed pamphlets in front of the
KARP METhL PRODUCTS GO , INC -135
plant advertising the proposed meeting At about 3 45 p m 14
notices of an Employees Union meeting to be held also on May 26,
at Sunset Hall, appeared for the first time on the plant bulletin boards.
Tied Perri, an employee, testified without contradiction, and we find
as did the Trial Examiner, that at about 4 o'clock, Lou Karp, brother
of Milton J Kaip, and superintendent of the night shift at 30th
Street, stood at the entiance to that shop and reminded those on the
day shift, as they left, to attend the Employees Union meeting He
also instructed those ieporting for the night shift to attend this
meeting, advising them that there would be no work on the night shift
until the meeting was over
The scheduled meeting of the Union was not held at the restaurant.
Instead, its members went to the Sunset Hall meeting with 2 organ-
izeis, Nat Lerner and Matthew Miller More than 150 of the respond-
ent's employees were at the Sunset Hall meeting of the Employees
Union, including a number of foremen 18 Chairman Bill Kappling-
haus iefused to open the meeting while the 2 union organizers were
present, because they were not employees of the iespondent _ After
some discussion, it was decided to put to a ballot vote the question of
whether the oiganizeis should be excluded of permitted to remain and
speak to the employees Neaily_ all the employees piesent, except
Foremen Tom Regei, Otto Panzer, and Fled Roebker, participated in
the voting The vote was ovei whelmingly in favor of permitting the
organizers to speak Haberman then assumed chairmanship of the
meeting and introduced Nat Lerner While Leiner was speaking,
adheients of the Employees Union cleated a great deal of confusion.
Kapphnghaus, Reger, Bloom, Roebker, and Panzer left the meeting,
as did about 50 of 60 others
Maitrn Gould and Alex Ralston testified that Otto Panzer used
obscene and threatening language towri d those employees who refused
to leave the meeting Gould fuithei testified that while he was
distributing union caids at the meeting, Foremen Roebker and Reger
vigorously reproached him Gould testified that Roebker told him
he was "a damn fool for joining the C I 0 ", that he would receive
nothing from the C I 0 and would "get in trouble"; that Reger
thieatened to beat him up because he had joined the C I 0 and said,
"I will get even with you yet " Gould further testified that at the
14 Four p in was the houi when the day shift ended and the night shift began at the
plant
"The testimony of Foreman Panzer reveals the attitude of the foremen toward the
Emploiees Union He stated that at the time the union members arrivrd at Sunset Hall,
"We were holding our regular meeting and on , regular shop committee was up on the plat-
form " (Emphasis supplied) When counsel for the Board inquired whether he was a
member of the Employees Union, Panzer replied "I was considered one"
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, he saw both Panzer and Regei approach other men from
their respective department and ask them to leave Fled Perri testi-
fied that his foreman, Regei, approached him after the vote was taken
and said, "If you want to keep out of trouble, you better go home "
Notwithstanding this admonition, Peiii remained at the meeting
Roebker and Roger denied the testimony of Gould and Perri Panzer
admitted using obscene language at the meeting, but stated that he
was warning the men of the treatment they would receive from "these
kind of organizers", and that he told the employees "I am not going
to pay men outside, to work " The Trial Examiner did not credit
these denials nor do we We find that the three foremen, when it became
apparent that a majority of the employees of the iespondent clesiied
to listen to the C I 0 orgamzeis, used threatening language as they
left the meeting in an attempt to force employees under them to leave
also
Constantine Dordoni testified that while he was at woik on the night
of May 26, after having attended the Sunset Hall meeting, his fore-
man, Fied Roebker, in obscene language accused Doidoni of having
betiayed him "by bringing in the C I O" According to Dordom,
Roebker accused him of being "a Communist and an agitator"; adding
that instead of sending him home as he was tempted to do, Roebker
would give Dordom all the "donkey jobs" and make it "so tough"
for him that he would "have to quit " In view of the other anti-
union statements attributed to Roebker and herein credited, we do
not credit Roebkei's denial that he made the statements set forth above
We find as did the Trial Examiner, that Roebker made the remarks
ascribed to him by Dordoni
Martin Gould testified that when he reported to woik on May 27,
Ernest Knauf, under whom he was working as a general helper, re-
fused to lend him any tools or to woik with him When Gould com-
plained to Foreman Roger about Knauf's refusal, Roger said, "What
do you want the old guys to do? They don't like you young fellows
coming around heie showing them what to do by joining the C I 0 ,
being a big bunch of guys " Gould insisted that lie merely wanted
to work and that his C I 0 affiliation was "a piivate matter " Roger
responded "You didn't have to join the C I 0 You will get nothing
good out of that racket " Roger did not deny this testimony and we
find, as did the Trial Examiner, that he made these statements as
attributed to him by Gould On the same moini ng Reger asked Fiecl
Perri why he had iemamed at the meeting, and stated that Peiri would
"get in trouble hanging around with those Communists " Roger also
told Perri at that time that even though he, Ferri, had signed a union
application card, he could still change his mind and withdraw, and
x
KARP METAL PRODUCTS CO , INC 137
added that a few men had come into his office that morning, and had
torn up their union application cards In the afternoon, Roger again
spoke to Perri, telling him that he was foolish to join the Union, that
anything he wanted he could get from "Mr Karp," and that if there
was "any trouble at the shop and if I [Perri] want to work at another
,hop I would be blackballed because I was a union agitator " We
agree with the Trial Examiner that Roger's denial that this conveisa-
tion with Perri took place is not credible We find that Roger criticized
and threatened Gould and Perri because they had joined the Union,
and that he attempted to coerce Perri into withdrawing from the
Union
On May 26, after the Sunset Hall meeting, the Union's business
representative wrote to the respondent stating that "the majority of
your employees are members of our local union", and that "the Union
would like to discuss wages, hours and working conditions on behalf
of these members " He further requested that the respondent indicate
a time and place mutually convenient "to discuss these matters "
On May 27, upon receipt of the Union's letter, President Karp con-
ferred with the C B C and informed them of the Union's claim of
majority representation and its demand for recognition The C B C.
reported to Karp that as a result of the Union's claim to a majority,
a meeting of the Employees Union had been called, the preceding
evening at Sunset Hall, and that the meeting had been taken over by
the Union Notwithstanding this information, Karp replied to the
Union as follows
Your claim that you represent a majority of our employees is a
deliberate mis-statement of fact, since we know that you are fully
aware that our employees have designated a Collective Bargain-
ing Committee to represent them only last January, and again
this April have notified us that that agency still represents our
employees
The letter renter ated that if the Union would present in writing the
grievance of any employee "you may represent" it would be given
consider ation
On May 28, 1941, President Karp assembled at the 30th Street
shop during working hours nearly all the employees working in the
three shops of the respondent and delivered a prepared speech , Karp
referred to a recent speech by President Roosevelt on national defense,
and stressed the fact that the respondent was a defense industry, and
that he, Karp, wanted to avoid any niterr.uption in production He
discussed the contract with the Employees Union as it had existed
since February 1937, and stated that "under this system of collective
138
r
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining you have received great benefits" He referred to the
Union's efforts "to cause dissatisfaction " and read the correspondence
he had had with the Union up to that time Karp then remarked
We understand that this outside association has informed some
of our employees that they will call a strike unless the company
acceded to their demands, and that they will smash and damage
the cars of those employees who refuse to heed their advice, that
they intend to put sugar and emery into the motors of our trucks.
and stated that this indicated an intention to sabotage the defense
program by " enemies of this country " Referring to the Union he
asked, "What better conditions can they or anyone else obtain for
you than what you now enjoy? " and added that the respondent in-
tended "to use every legal means for the enforcement" of the contract
then in existence with the Employees Union
On Monday, June 2, shop stewards of the Union appeared at work
wearing their steward buttons Bill Kapplinghaus directed Martin
Gould to remove his button Gould refused Kapplinghause left,
and in about 5 minutes returned and ordered all the union stewards
at the 30th Street shop to report to Kaip's office When the stew-
ards did so, they found assembled the C B C, President Karp,-
Superintendent Lampe, and Foreman Reger Karp said to the stew-
ards , according to Martin Gould, "It is a violation of the Wagner
law for you fellows to wear those buttons in the plant. I am telling
you to take them off I will not be responsible for anything that
is going to happen to you men if you persist in wearing these buttons
in the plant " Karp then turned to Kapplinghaus and the other
members of the C B C and said, "You fellows don't worry about
these guys I recognize you as the bargaining agency for the work-
ers in this shop and I shall continue to recognize you " The stewards
then left the office but refused to remove their buttons Louis Hab-
erman corroborated Gould's statement of what took place at this
meeting Karp admitted that, upon complaint to him by some mem-
ber of the C B C , he sent for the union stewards and, in the
presence of the C B C advised the stewards to remove their buttons
or -"there might be trouble, and furthermore, wearing buttons was
disrupting production , and it was something that was not fair to
me " Karp denied that he said that the wearing of the buttons
was a violation of the Wagner Act Under all the circumstances, we
do not credit Karp's denial in this respect, and we find that he
made the statements attributed to him by Gould and Haberman.
After this conference , on the same day, Karp caused to be posted on
the time clock at 30th Street a notice as follows :
KARP METAL PRODUCTS CO , INC . 139
NOTICE TO ALL EMPLOYEES I
IT HAS COME TO OUR ATTENTION THAT CERTAIN EMPLOYEES
ARE WEARING BUTTONS DESIGNATING THEM AS SHOP STEWARTS
(SIC) AND AS CHIEF STEWART
YOU ARE HEREBY NOTIFIED, THAT THE MANAGEMENT DOES
NOT RECOGNIZE ANY SUCH POSITIONS IN THE COMPANY AND
THAT THESE MEN HAVE NO AUTHORITY WHATSOEVER IN THE
PLANT DURING COMPANY TIME OR ON COMPANY PROPERTY!
AND THAT EMPLOYEES ARE CAUTIONED TO PAY NO ATTENTION
TO ANY ORDERS OR REQUESTS MADE BY ANY SUCH INDIVIDUALS
THIS PLANT IS RUN ON THE OPEN SHOP PRINCIPLE AND YOU
ARE REPRESENTED BY A DULY ELECTED COLLECTIVE BARGAINING
COMMITTEE
IF YOU HAVE ANY GRIEVANCES THEY MAY BE PRESENTED TO
THEM AS USUAL
M J KARP, President.
B Concluding findings with respect to the respondent's interference
with the formation and administration of the Employees Union
and contribution of support to it; other acts of interference
It is clear that the respondent instigated the formation of the
Employees Union In January 1937 a majority of the employees
supported a strike called by the I A M Despite this fact, Karp
opened negotiations looking toward a conclusion of the strike, with
the pieviously existing Shop Committee of his employees He
theieby attempted to undercut the authoiity of the I A M, and
served notice upon the employees that he intended to deal with their
chosen repiesentatives only upon teims•agieed upon between himself
and the existing Shop Committee, supplemented by other employees
selected by Karp himself A leading member of the committee
which called upon Karp puisuant to his suggestion, was Bill Kap-
plinghaus, head die setter, and a supervisory employee During his
first conference with this committee, Karp made it plain that while
he would not sign a contiact with "any union," he was quite willing
to negotiate a contract with his own "working men " It is not sur-
prising, theiefore, that after the strike had continued for several
moie days, another committee was elected by the strikeis to secure
fi om Kai p a contract which would not be a "union conti act"
Kaip, rho had consulted the Brooklyn Chamber of Commerce
concerning ways and means of ending the strike, readily agreed to
prepare such a contract, and instructed the committee that had called
upon him to return later with a larger committee "with authority to
act " Kaip secuied from L L Balleisen a form of contract which
was thereafter submitted to his employees for approval This con-
tract was almost identical in form to other contracts emanating
from Balleisen and which we have considered in a number of 'cases
140 DECISIONS OF NATIONAL LABOR RRLATIONS BOARD
heretofore decided We have uniformly held that these contracts are
designed to discourage membei ship in a labor organization, and that
they are invalid 19 The contracts uncles consideration were between
the, employer and the company-instigated C B C, and the employer
and "each and every one of the employees" The signers of the con-
tracts relinquished the light to sti ike, and the right to demand a
closed shop or the iecognition of 'any union " Repiesentation by
a legitimate labor organization in the settlement of disputes or for
purposes of collective bargaining was thereby foreclosed The ie-
spondent contends that the 1941 "amendment" to the 1937 contracts
cured any taint of illegality attaching to the original contracts We
cannot agree Under the "amendment," most of the obstacles to
the exeicise of fiee collective baigaining rights weie retained We
find that the contracts and the amended coati acts are invalid and
void
Aftei the Employees Union was formed, the respondent not only
peimitted free use of its bulletin boards for notices of meetings, but
also set ahead the staiting hour of the night shift so that all em-
ployees might attend such meetings Moi eovei , it peimitted foremen
and other supervisory officials to take an active part in the meetings
of the Employees Union, makuig no effoit to infoim its employees
that the activities ,engaged in and sentiments expressed by these per-
sons did not accord with the respondent's own desires These facts
further reveal the respondent's active participation and Interest in
the formation and administration of the Employees Union
In January 1941, the Union became active in the respondent's plant
Immediately Lampe, Kapplmghaus, Regei, and Bloom, supervisory
officials, brought then influence to bear to prevent Haberman, t
staunch union adherent, from becoming chairman of the C B C ,
and to insure that the members of the C B C then serving, who
were docile to the wishes of management, remained in then positions
of influence When the Union scheduled its May 26 meeting, the
Employees Union also announced a meeting and employees were
instiucted by Lou Kaip, super intendent of the night shift, to attend
the meeting of the latter organization Thereafter, when the Union
took over the Employees Union meeting, Foremen Reger, Roebker,
and Panzer, in obscene and coercive language, berated employees for
their union sympathies and threatened them with demotion, black-
listing, and other reprisals
During this same period, Karp clearly demonstrated his preference
for the Employees Union and his hostility toward the Union, by con-
nMattei of National Lhco,tce Company and Baheiy it Confectionery IVoikers Interna-
tional Union of Amenca , Local Union y05, etc, 7 N L R B 537, aff'd in this particular in
National Licorice Co v N L R B, 309 U S 350
KARP' METAL PRODUCTS CO, INC 141
suiting the C B C concerning the Union's claim to a majority, and
by Iefusing to meet with any repiesentative of the latter group In
his May 28 speech, inoreovei, Karp seived cleat notice upon the em-
ployees that he intended to continue to deal with the Employees Union,
and that he i egaided members of the Union as saboteurs and "enemies
of this country." The latter accusation constituted a scurrilous and
unjustified attempt by the respondent to identify the Union, and its
members with Kaip's veiled references to sabotage of the defense
program 20
Further, on June 2 Karp, at the request of members of the C B C ,
attempted so to intimidate the stewards of the Union that they would
remove their union buttons, and followed this attempt with a notice
discrediting the Union's representatives and 1eaffirming his intention to
deal only w All the C B C
We find that the respondent dominated and interfered with the
formation and administration of the Employees Union, and that by
such conduct, as n^,ell as by its coercive acts and expressions of open
hostility toward the Union, as set forth above, the respondent has
inter fen ed' with, i esti allied, and coerced its employees in the exec case
of the i ights guaranteed in Section 7 of the Act
C The refusal to bargain collectively
1 The appropriate unit
The amended complaint alleges that all employees of the respondent
in its three shops, exclusive of supervisory, clerical, and office em-
ployees, and salesmen, constitute a unit appropriate for the purposes
of collective bargaining At the hearing, the respondent did not
object to the exclusion of clerical and office employees, and salesmen,
from the mut It agreed that Superintendent Willy Lampe and Stock
Clerk Heinz Ostlieimer should also be excluded It contended, how-
ever, that all other production supervisors in. its plant properly come
20 At the honing the cespondent contended that Kaip, in making the May 28 speech, was
mote ited b3 geruine feat of sabot ige, and not b3 any antiunion bias As support for
this contention, the tesponlent introduced cvidence that p rot to the time of the speech,
Karp had been in communication with the F B I and with an offlcei fioni the Naval
Inteil Bence Office concernu g nays mid means of guaiding his plant against sabotage
Afte, this et dunce had been intioduced, Bonds ccunsel prcceeded to crossesamme some
of the respondents witnesses who were obviously Getman of of Gelman eetiaction with
ieference to whethct they were cite/ens, had registered as aliens, of had lid their linget-
pruits tihen stating thit in seeking to elicit this mfoimithon be was testing the veracity
of the respondent's delense that it foaled sabotage and had t,ken steps in cooperation
with the F 'B 1 to eliminate the possibility of sabotage The respondent isserts that
this questioning bs Bo ird s counsel constituted an attempt to nntimidnte its witnesses,
although it alleges no spicifle mstmce of picjudice ausing theiefiom We find no merit
in th s assertion We believe that tlu cespondent cp2ned tie door to such qu2stionnng by
its attempted defense with ie-pect to the tespoident's main contention-that Kaip's
Ma} 23 sp,ech wis not calculated to connect the Union with prospective acts of sabotage
in the plant-we think the speech, on its face, belies 'my such contention
142 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
within an appropriate unit; while the Union asserted that foremen,
Kapphnghaus the head die setter, and Roy Bloom and William James,
the two lay-out men, should be excluded from such a unit.
There are five foremen in the respondent's plant, namely, Otto
Panzer, Tom Reger, Fied Roebker, Anthony Aspromante, and Jack
Karsch 21 The recoi d clearly establishes that while for emen do not
have power to hue and discharge, they have authority over their par-
ticular depai tmenf s, discipline employees under them to a certain
extent, and ale consulted by both President Karp and Superintendent
Lampe concerning the performance and ability of the men they super-
vise. We shall, therefore, exclude the five foremen from the appro-
priate unit We'shall also exclude Lou Karp, brother of President
Karp and superintendent of the night shift, from such a unit
Bill Kapplinghaus has been head die setter in the pi ess department
since 1936 He is also a key man 22 There was undenied testimony
that since the resignation of Carl Reschenberg, foreman of the press
department, in April 1941, Kapphnghaus has been acting foreman
of the press department on the day shift He does very little produc-
tion work, devoting most of his time to supervising the work of those
under him. Roy Bloom and William James are also key men, and
the only two lay-out men in the plant 23 The lay-out men supervise
the cutting and bending of metal used in the production of articles
manufactured in the plant Moreover, Karp testified that since the
departure of Foreman Reschenberg, Bloom has been head of the bend-
ing department, and is responsible solely to Superintendent Lampe
The respondent contends that Kapplinghaus, Bloom, and James
do the same type of work as 8 or 10 other key men in the plant, and
that therefore all key men should be treated similarly with respect to
their inclusion in, or exclusion from, an appropriate unit We do
not agree with this contention In addition to the high degree of
supervisory power exercised by Kapplinghaus, Bloom, and James,
there was testimony by Karp himself that these 3 per sons regularly
attended foremen's meetings where general questions of production,
wage rates, and abilities of employees were discussed, while other key
men attended only special conferences relating to a particular prob-
lem of production on which they had been working We find that
Kapplinghaus, Bloom, and James per form supervisory functions and
should be excluded from the unit
Zr The respondent contends that Kirsch is only a key man, and not a foreman However,
Kaip testified that Karsch was acting foreman of the press department on the night
shift, and he was designated as a foreman on the respondent's June 3, 1941, pay roll We
find that Karsch is a foreman
22 Key men are the oldest, most highly skilled, and best paid men in their departments
They instruct new employees and, under the supervision of the foremen, direct the work
of learners and helpers
L2 William James left the respondent's employ during the course of the hearing The
record does not disclose who succeeded him
KARP METAL PRODUCTS CO, INC. 143
The parties made no specific contention as to the inclusion or exclu-
sion of employee Aithui Beattie The record discloses, however, that
Beattie is acting foreman of the paint shop on the night shift Under
these ciicumstances, we shall exclude Arthur Beattie from the appro-
priate unit
The Union agi eed at the heai ing that Stanley Kasczmarczyk should
come within the unit Since however, President Kaip and Superin-
tendent Lampe testified without contradiction that Kasczmarczyk was
acting foieman of the 10 metal cutteis in the plant, and that he iegu-
laily attended foiemen's meetings, we shall exclude him fiom the unit
also -
We find that all employees of the iespondent in its thiee shops in
New Yoik City, excluding cleiical and office employees, salesmen, the
superintendent, the night supeiiitendent, the stock cleik, foremen,
Bill Kapplmghaus, Roy Bloom, William James, Arthur Beattie, and
Stantey Kascznnaiczyk, at all tines material herein constituted, and
that they now constitute, a unit appiopriate for the purposes of col-
lective bargaining with iespect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and that said unit
insui es to employees of the i espondent the full benefit of the right to
self-organization and to collective baigaining and otherwise effectu-
ates the policies of the Act
2 Repiesentation by the Union of a majority in the appropriate unit
On June 3, 1941, the respondent employed 172 persons in the unito
found above to be appropriate In support of its contention that
it repiesented a majority of the employees, the Union produced at the
hearing application cards of 116 employees within such unit Eighty-
eight of these caids bore dates piioi to June 3, 1941, and 28 of them
were undated 14 As to the undated cards, seveial witnesses, credibly
and without contiadiction, testified that all but 5 of them had been
collected prior to June 3; and Hambuiger, who had signed 1 of the 5
remaining cards, testified that he did so piior to June 3 Another
witness, Abi amowitz, testified without contradiction that he also
had signed a card piior to June 3, but that his caid had been lost.
If the 4 cards not identified as to time of signing are omitted, there
remains competent and ciedible evidence that on June 3, 1941, 112
employees had signed application cards in the Union.
Concerning these 112 cards, counsel for the Employees Union intro-
duced evidence that 3 peisons signed caids because of fear of physical
violence, that 14 signed because the Union had represented that if
they did not sign and the Uijion was iecognized in the plant, these
employees could not continue to woik, that 4 peisons signed aftei
24 Arthur Beattie; s card , which wis undated, has been omitti d from any computation of
majority , since se have excluded him fiom the unit
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 3, 1941, and their cards bear incorrect dates (another of these
is among the 3 employees mentioned above who are alleged to have
signed through fear of physical violence) ; that 1 person was drunk
ashen he signed his card; that another did not remember signing a
union card, and that still another had changed his mind and had
asked for his card back before June 3 The respondent introduced
evidence, moreover, that 4 other individuals whose car ds were in eve-
dente, had ceased to be employed by the respondent on June 3
With respect to the 14 employees who testified that they signed
cards because of the Union's representations that if it were recognized
in the plant they would lose their jobs, we are of the opinion that the
testimony of these witnesses does not disclose facts which in any way
affect the validity of their designation of the Union as a collective
bargaining representative The Board and the courts have held that
oral persuasion in obtaining union applications, consisting of argu-
ments addressed to the employees self-interest, without threat of
physical violence, is not improper 25 Since we hold that these 14
cards are valid, it appears that the Union has a clear majority-98
out of 172 eligible employees-without regard to the remaining con-
troverted cards Under these circumstances we find it unnecessary
to pass upon the other cards alleged to be invalid 2e
We find that on June 3, 1941, and at all times thereafter, the Union
was the duly designated representative of a majority of the em-
ployees in the unit found appropriate and, pursuant to Section 9 (a)
0
25N L R B v Dahlstrom Metallic Door Company, 112 F ( 2d) 736 ( C C A 2), enfg
Matter of Dahlstrom Metallic Door Company and United Electrical , Radio it Machine
Workers of Ameisca , Local No 307, 11 N L R B 408, Matter of Delaware-New Jersey
Fei>y Company and United Marine Division, Local No 333, agi hated with the A F of L
and the I L A, 30 N L R B 820
20 It should be noted th it the following facts tend seiiously to impeach all evidence
introduced by Schneideiman, counsel for the Employees Union , that some of the Union
cards were inNalid
During the hearing, Schneiderman was permitted to take away with him for exami-
nation , Union cards winch had been introduced into evidence by the Board There-
after , Scbneidei man put on the stand the witnesses mentioned in the text above, woo
testified that they had signed Union cards solely because of tbieats, fear of violence,
etc Fifteen of these witnesses admitted on moss-examination that shortly before
they testified , their foremen , or Kapplinghaus , had asked them whether they had
signed Union cards, aid upon receiving an affirmative answer , had duetted them to
go and confer with Schneiderman about their cards These witnesses also stated that
no reason had baen given them for such an of der , and that Schneider man , question-
ing them sepaiatel3 , had meieli asked them why they signed the cards, without tell-
ing them where he had obtained the cards , or what lie intended to do with the
information lie was securing Typical of the improper manner in which the testi-
mony of these witnesses was seemed, is the following
Witness Di Palieo
Q Who told you to see Mr Schneiderman,
A There was 2 group going up to see him and I said , "Where are you going"
And then told me they wen e going up to see Alt Schneidei nian the lawn er, and I said,
"What foi And they said , "Everybody has got to go that signed cads " ( Italics
supplied )
Witness William Beattie testified that Foreman Panzer asked him if he had signed a Union
card , and then said, "You will have to go down and see AIr Schnoideirran
KARP METAL PRODUCTS CO , INC 145
of the Act, was the exclusive i epi esentative of all the employees in
such unit for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employmnent, and other conditions of
employment
3 The refusal to baigaln, the strike 0
a Sequence of events
The amended complaint alleges that "on o> about June 3, 1941,
and at all times theieafter" the iespondent refused to bargain with
the Union The Iespondent denies this allegation
As stated in Section III A, supra, when the Union notified Karp
on May 26, 1941, that it Iepresented a majority of the employees,
Karp conferred immediately with the C B C, and then wrote to
the Union stating that its claim was "a deliberate mis-statement of
fact " Ignoing its request for a conference, Karp further informed
the Union that it should file its grievances in writing Thereafter,
on May 28, Karp, in his speech to the employees, referred to the
Union's efforts to "cause dissatisfaction" and stressed the benefits
which had accrued to the employees under the contract with the
Employees Union.
On May 27, 1941, the Union filed at the Board's Regional Office
charges that the respondent had engaged in unfair labor practices 24
On May 29, 1911, Leiner wrote to the respondent requesting that it
cease dealing with the "so-called collective bargaining committee
as it is company dominated and no longer represents a majority of
the workers," and that it recognize "the CIO committee In the shop "
The letter submitted a list of demands and requested that the re-
spondent meet with representatives of the Union and "bargain col-
lectively in good faith" Leiner intimated that further delay in
ineeting with the union representatives might result in a strike.
On June 2 President Kai p called in the stewards of the Union and
unsuccessfully sought to coerce them into removing their steward's
buttons 28 At that conference, the C B C was present and Kaip
stated to its members, "You fellows don't worry about those guys
1 recognize you as the bargaining agency for the workers in this shop
and I shall continue to recognize you " At about this same time, an
official of the Board's Regional Office requested that a representative
of the respondent come to the Regional Office for a conference on
June 3 At this conference, the respondent was represented by its
attorney, Samuel Rubinton, the Union by its attorney, its business
agent, and a group of membeis, and the Employees Union by Bill
21 On the same date the Union filed ,ith the Regional Office a petition for investigation
and ceititication of representatnes pursuant to Section 9 (c) of the Act This petition
waq later withdrawn
28 See, Section III A, supra
472314-42-vol 42--10
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iiapplinghaus, Roy Bloom, Harry Charatz, and Henry Sigle, mein-
bers of the C B C During the conference, the Union, through its
attorney, again stated that it represented a majority of the respond-
ent's employees As proof of its claim it offered to produce its mem-
bership cards for inspection and check by the Board's representative
When the respondent refused this offer, the Union, as a compromise,
proposed that a consent election be held under the auspices of the
Board, with both unions appearing on the ballot Both the respond-
ent and representatives of the Employees Union refused to consent
to the proposed election, taking the position that the 1937 contract
was a bar to an election 2° This position was reaffirmed at a fuither
conference in the Board's Regional Office on June 1030
On the day following the June 3 conference, the respondent posted
on the time clock at its 30th Street shop, a notice reading
To all Employees
Do not be mislead by false statements in circulars being handed
to you :
This company and the independent shop union is not beaten!
The National Labor Relations Board made no decision yesterday
about your contract I They cannot make a decision until a hear-
ing is held No healing has been called for and no hearing has
been held !
Yesterdays meeting was only a conference for the National
Labor Relations Board to obtain information from both sides
The National Labor Relations Board decided about three years
ago that your contract is legal) It is just as legal today even more
so !
No court has thrown out your contract as being illegal )
M J KARP, President
JUNE 4, 1941
This notice was a misstatement of the purpose of the June 3
conference and what occurred therein, and of the action previously
taken by the Board relative to the 1937 contract 31
29 The respondent raised a further defense to its refusal , on June 3 , to consent to an
election, vv that the Union did not agree to abide by the results of such an election, but
ieserred the right , in the event the Employees Union won , to contest the validity of the
contract and the legitimacy of the Employees Union itself The Union's reservation, of
course, constitutes no defense to the respondent 's refusal to accept the results of a card
check , nor is it, in our opinion , a defense to the refusal to consent to an election Clearly,
a legitimate union cannot be required to wane its right to proceed with an 8 (2) charge
under the Act, while requesting an interim determination, by a ieasonable method, of its
right to represent the employees in collective baigai n ing
80 Tile facts concerning the conferences on June 3 and 10 are , substantially, not in
dispute
u The Board took no action on the 1937 contract at any time The respondent and the
Employees Union alleged as a separate defense to the complaint that on or about Septem-
ber 21, 1938 , the Board , through the Regional Director for the Second Region, issued a
KARP METAL PRODUCTS COY INC 147
On June 4, 1941, Karp laid off six men, all members of the Union,
until the following Monday, June 9 32 The C B. C. was consulted
prior to the lay-offs but the Union was not. Louis Haberman, chief
steward of the Union, on the night of June 4, demanded that Karp
i etui n the men to work the next day or "there would be trouble."
Karp refused to do so, stating that the men would be put to work the
following Monday. The- iespondent claimed at the hearing that these
,six temporary lay-offs were necessary because of its inability to secure
material, and that on the following Monday it proposed to reinstate
the six men and, if still short of material, to lay off other men tempo-
rarily Although the matter is not free from doubt, the Trial Exam-
inei found, and upon the entire record we agree, that these lay-offs were
not because of membership in, or assistance to, the Union.
In any event, however, the respondent's arbitrary attitude in refus-
ing to recognize the Union on June 3, and its failure to confer with
the Union prior to the June 4 lay-offs, appears to have created resent-
ment and confusion among the employees, and there was talk of a
strike According to the testimony of Tony Paghaio, he and other
employees were approached while at work on June 4, 1941, and
promised pay increases by their foreman, Anthony Aspromonte, if
they would not stop work if there was a strike Although Aspromonte
denied making any such promises, his denial is not credited in view of
the anti-union attitude of the respondent heretofore found We find,
as did the Trial Examiner, that Aspromonte promised union members
pay increases provided that they agreed not to support the Union
in the event of a strike
On the evening of June 4, as a result of the respondent's actions
above detailed, the executive board of the Union authorized a strike
in the respondent's plant, and the next morning pickets were placed
around each of the 3 shops When the strike staited, guards were
hired and remained on duty thioughout the strike None of the 3
shops was closed There was evidence that 104 employees went on
strike, 21 of them i emainmg out only pal t of the time
During the strike, effoits were made by attorneys for the various
parties to settle the strike, but without success
On June 6 the respondent sent to each of its employees the following
letter
complaint against the respondent, based upon similar charges by the complaining union
herein , that thereafter the union withdrew its charges and on August 10, 1939, the prior
complaint was withdrawn by order of the Board We find no merit is this defense
There was uncontradicted evidence that the prior charges were filed by Local 1223, U E
R M W A, a union separate and distinct from the union complaining here
ii The six men laid off were Ernest II Schwarts, Joseph Marcantonmo, Michael Gallaro,
Angelo Montalto, James Musella, and James Phmney The last named was also a union
steward -
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JUNE 6, 1941
DEAR SIR Our records show that you have failed to report to
work on Thursday June 5th and Friday June 6th, 1941
We request that you report to work immediately
We are enclosing herewith check covering wages due to date
Yours very truly,
KARP METAL PRODUCTS Co , INC ,
- President
mjk,mab
On June 10 the i esponclent sent the following letter to all employees
who had remained away from work during the strike
KARP METAL PRODUCTS CO, INC,
129-39th, St, Brooklyn, IV Y
JUNE 10th, 1941
DEAR SIR We have been mfoiined, by a number of out worker s
who have i eturned to work, and fioni some of the other workers
who are still out, that strange agitators have visited their homes,
neighborhood, or have called them on the telephone, mfoimmg
them that they would be beaten up and that then families would
suffer if they returned to work
Such acts are illegalI A recent New York Supreme Court
Decision has held that no one has the right in any way to inter-
fere, picket, or telephone the home of any workers who refuse
to go out on sti Ike
The right to work is as sacred as the right to strike I As you
know, the'stirke in our plant has been caused by strangers whom
we think have only one purpose in mind, that is, to sabotage the
National Defense Program s The company is using every safe-
guaid and every law enforcing agency so that those of its em-
ployees who desire to work may do so without fear Several of
the agitators of this strike have been given jail sentences for
committing illegal acts
The company has made arrangements to pick you up at your
home and to take you to and from your job If you desne to
return to work, please call-Mr Louis Karp, at-SOuth 8-3800,
who will make arrangements with you for your safe transit to
and from your house
We would also appreciate your informing us of any threats
that you or your family may receive Try to identify those
making the threats We will see that the law enforcing agencies
deal with these violatorsI
KARP METAL PRODUCTS COY INC 149
Do not be misled by agitators who ate not loyal Ameiican Citi-
zenst In our opinion, it is an act of Tieason to do anything
which would hurt the National Defense in this unlimited
emergency
We earnestly request you to return to work t Please give this
letter deep consider ation t We hope you will notify us of your
intentions to iesume work and thus help us fulfill our part in the
National Defense Program I
Yours very truly,
KARP METAL PRODUCTS COY INC,
pet M J KARP, President
During the strike President Kaip attempted on three different
occasions to take pictures of men on the picket line Karp testified
that the wanted the pictures in order to identify the pickets, so that
he could sue those who had individually signed the contract in 1937,
but that he had abandoned this plan on the advice of his attorney
On Fi lcday June 27, the union stn lke committee called upon Karp
and nifoimed him that the men would like to return to work Karp
notified the committee to tell the men to report on the following Mon-
day, June 30, and stated that he would reemploy employees except
those who had been convicted of disorderly conduct arising out of
violence during the strike 33 The committee agreed to this arrange-
ment On the morning of June 30, most of the strikers assembled
at the plant, and thereafter were returned to work as rapidly as
possible ,
b Concluding findings
Prior to June 3, 1941, the respondent clearly -demonstrated that,
regardless of contrary claims by the Union, it intended to continue
to recognize and deal ifith the dominated Employees Union This
illegal course of conduct had its culmination in the respondent's re-
fusal, on June 3, to allow the Union to prove its claim to represent a
majority by either of two reasonable methods Such a refusal, viewed
in the light of the respondent's manifest hostility toward the Union
and its clemonstiated favoiitism toward the Employees Union, con-
,elusively establishes that Kamp was determined not to deal with the
duly designated collective baigaining representative of his employees
That the respondent, by ielyumg on its contract with the company-
dominated C B C , cannot avoid its duty to bargain collectively with
the Union, is well established The Boam d has held in like circum-
stances that "the existence of a contra act with an employer-dominated
organization affoids no justification for an employer's refusal to bar-
31Three men were so convicted-Musella, Dominick Costaldo, and Joseph Andoleno
The first two were reemployed after the stake Andoleno did not apply for reinstatement
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain collectively with the duly designated representative of the
majoi ity of his employees within an appropriate unit.""
On June 3 the respondent refused to allow the Union to prove
its claim to majority, thus evading its statutory duty to bargain
collectively On June 4, it notified its employees that its contract
with the C B S was legal and valid; on that saine day, Karp, after
conferiing with the C B C, but without notice to the Union, sud-
denly laid off six employees in the plant, and Foreman Aspromonte
attempted, by promises of a wage inci ease, to induce other employees
riot to noun the threatened strike Under such provocation, it is not
surprising that the employees struck in pi otest against the unfair
labor practices of their employei On June 6, the respondent warned
its employees to return to work, and on June 10, it reaffirmed its
refusal to- bargain and notified its employees that "agitators" and
"sti angers who [want to] sabotage the National Defense Program"
had caused the strike The strike, which was caused by the unfair
labor practices of the respondent, did not, of course, suspend of annul
the respondent's obligation to baigain 35 Since the Union was the
exclusive representative of the employees, the provisions and policy
of the Act clearly required that the respondent bargain collectively _
with it The respondent has evaded, and refused to fulfill this
obligation
Upon the entire record we find, as did the Trial Examinee, that
the respondent, on June 3, 1941, and at all times thereafter, has
iefused to bargain collectively with the Union as the exclusive rep-
resentative of its employees in an appropriate unit, that the respond-
ent, by the foregoing acts, has inteifeied with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act; and that the stiike of June 4, 1941, was caused and
prolonged by the unfair labor practices of the respondent
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curi ing 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 tend to lead
$ Win Tehel Bottling Company, a co-partnershv,p composed of Wm Tehel, Irma Holloway,
Melvrona Pitlik, and Anna Tehel and International Brotherhood of Teamsters, Chaujfeuvs,
Stablemen and Helpers, Local 238, affiliated with the Amerorocan Federation of Labov and
United Beverage Workers Association, party to the contract, 30 N L R B 440 See
Mattero of Bradford Dyeing Association (U S A ) (a Corporation) and Textile Workers
Otganizrong Committee of the C 1 0, 4 N L R B 604, aft'd, N L R B v Bradford
Dyeing Ass'n, 310 U S 318
S5 Jeffery-DeWstt Insulator Co v N L B B , 91 F (2d) 134 (C C A 4), cert denied,
302 U S 731, Black Diamond S S Corp v N L R B, 94 F (2d) 875 (C C A 2),
ceit denied, 304 U S 579
KARP METAL PRODUCTS CO , INC 151
to labor disputes burdening and obstructing commerce and the free
flow of commerce
V THE REMEDY
Having found-that the iespondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act, and to restore as nearly as possible the conditions which existed
prior to the commission of the unfan labor practices -
We have found that the respondent dominated and interfered v ith
the formation and administration of the Employees Union and con-
tributed support thereto In order to remedy this unlawful condi-
tion, we shall di ect the respondent to withdraw all recognition from
the Employees Union as the representative of, the respondent's em-
ployees for the purposes of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
and other conditions of employment, and to disestablish completely
the Employees Union as such representative
We have previously found that the limitations on union activity
imposed by the contracts interfered with, restrained, and coerced the
respondent's employees in the exercise of their right to self-organiza-
tion and collective bargaining Such contracts are necessarily void
as contrary to the provisions of the Act", They are void on other
grounds also, namely, the character of the instrumentality through
which they purported to be negotiated and the means by which the
signatures of the employees were obtained The C B C , executive
body of the Employees Union, was under the domination of the re-
spondent and was therefore not a proper bargaining representative for
its employees Furthermore, the signatures to the contracts were pro-
cured by means of the illegal suggestions of the respondent's presi-
dent The purported "amendment" to the contracts in no wise altered
their essentially illegal characteristics The respondent must cease
to give effect to its contracts with its employees and the Employees
Union or to any modification or extension thereof Nothing in our
order, however, shall be taken to require the respondent to vary those
wage, hour, and other such substantive features of its relations with
the employees themselves which the respondent may have established
in performance of those contracts as extended, renewed, modified,
supplemented, or superseded
As we have stated above, on March 20, 1942, Karp Employees Union
petitioned for leave to intervene in these proceedings and moved to
reopen the hearing to take additional testimony On the same day
the respondent also filed a motion to reopen the hearing The motions
"National Licorice Co v N L R B, 309 U S 350, aff'g as mod, 104 F (2d) 655
(C C A 2) anf'g as mod , 7 N L R B 537
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of both parties alleged, inter alza, that Karp Employees Union cur-
e ently repiesents a mad of ity of the respondent's employees, that the
employees have repudiated the Union, and that the respondent signed
a-contract with Karp Employees Union on January 23, 1942, which
does not expire until 1945 The allegations of these petitions, even if
ti ue, are subsequent to and in no Way affect the acts complained of or
the legal conclusion to be drawn therefrom 47
Since as we have found that the iespondent refused to bargain
collectively with the Union, we hold that an order requiring the re-
spondent to bargain collectively, upon request, with Fabricated Metal
Local 1225, United Electrical, Radio & Machine Workers of America;
C I 0 , as the exclusive representative of the employees in the appro-
pi rate unit with respect to rates of pay, wages, hours of employment, or
other conditions of en'iployment, is necessary to effectuate the policies
of the Act
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following
I CONCLUSIONS OF LAW
1 Fabricated Metal Local 1225, United Electrical, Radio & Ma-
chine Workers of America, C I 0, and The Collective Bargaining
Committee of the Employees of the Karp Metal Products Co , Inc , also
known as the Kaip Metal Products Employees Union, ai e labor organ-
izations within the meaning of Section 2 (5) of the Act
2 By dominating and interfering with the formation and admin-
istration of, and contributing support to, The Collective Bargaining
Committee of the Employees of the Kaip Metal Pioducts Co , Inc , also
known as Karp Metal Products Employees Union, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act
3 All employees of the respondent in its three Shops in New York
City, excluding clerical and office employees, salesmen, the supeiur-
tendent, the night superintendent, the stock clerk, foremen, Bill
Kapplmghaus, Roy Bloom, William James, Arthur Beattie, and Stan-
ley Kasczmarczyk, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act
4 Fabricated Metal Local 1225, United Electrical, Radio & Machine
Workers of America, C I O , was on June 3, 1941, and at all Imes
thereafter has been, the exclusive representative of all employees in
such unit for the proposes of collective bai gaining, within the meaning
of Section 9 (a) of the Act _
87 AT L B B v P Lorillard Co , 314 U S 512, reversing and ienianding 117 F (2d)
021, with directions to enforce 16 N L R B 684, N L R B Y The Louisville Refining
Company, 102 F (2d) 678 (C C A 6)
KARP METAL PRODUCTS CO , INC 153
5 By iefusing and continuing to refuse to bargain collectively with
Fabiicated Metal Local 1225 , United Electrical , Radib & Machine
Workers of America, C I 0, as the exclusive iepiesentative of its
employees in the above -described unit, the iespondent has engaged in
and is engaging in unfair labor practices , within the meaning of
Section 8 (5) of the Act
6 By interfering with, restraining, and coercing its employees in
the exercise of the rights guaianteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair laboi practices,
within the meaning of Section 8 (1) of the Act
7 The afoiesaid unfair labor practices aie unfair laboi practices
affecting commeice, within the meaning of Section 2 (6) and (7) of
the Act
ORDER
Upon the basis of the above findings of factand conclusions of law,
and pursuant to Section 10 (c) of the National Laboi Relations Act,
the National Labor Relations Board hereby orders that the iespond-
ent, Kaip Metal Products Co, Inc, New York City, and its officers,
agents, successors, and assigns shall
1 Cease and desist from
(a) Dominating and interfeiing with the administration of The
Collective Bargaining Committee of the Employees of the Karp Metal
Products Co , Inc , also known as Kaip Metal Pioducts Employees
Union, of with the formation of administiation of any other labor
oiganization of its employees, and from contributing financial oi. other
suppoi t to The Collective Bargaining Committee of the Employees
of the Kaip Metal Pioducts Co, Inc, also known as Kaip Metal
Pioducts Employees Union, or any other labor oiganization of its
employees,
(b) Recognizing The Collective Baigaining Committee of the Em-
ployees of the Kaip Metal Pioducts Co, Inc, also known as Karp
Metal Pioducts Employees Union, as the representative of any of the
employees for the purpose of dealing with the respondent concerning
gilevances, labor disputes, wages, rates of pay, hours of employment,
or othei conditions of employment;
(c) Giving effect to its contiacts with The Collective Bargaining
Committee of the Employees of the Karp Metal Pioducts Co, Inc,
also known as Karp Metal Pioducts Employees Union, and its
indiv.dual contracts of employment with its employees,
(d) Refusing the bargain collectively with Fabiicated Metal Local
1225, United Electrical, Radio & Machine Works of America, C I O ,
as the exclusive representative of all the employees in its thiee shops in
New York City, excluding clerical and office employees, salesmen, the
154 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superintendent, the night superintendent, the stock clerk, foi emen, Bill
Kapplinghaus, Roy Bloom, William James, Arthur Beattie, and Stan-
ley Kasczmarczyk, in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
loin, or assist labor oiganizations, to bargain collectively through
iepresentatives of their own choosing, and to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act
2 -Take the following affirmative action which the Boai d finds
will effectuate the policies of the Act
(a) Withdraw all recognition from The Collective Bargaining Com-
mittee of the Employees of the Karp Metal Products Co, Inc, also
known as Karp Metal Products Employees Union, as the representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, rates of pay, wages, hours of
employment, or other conditions of employment, and completely dis-
establish The Collective Bargaining Committee of the Employees of
the Karp Metal Products Co , Inc , also known as Karp Metal Products
Employees Union, as such representative.
(b) Personally inform in wiiting, the members of The Collective
Bargaining Committee of the Employees of the Karp Metal Products
Co, Inc, also known as Karp Metal Products Employees Union, and
each of its employees who has signed an individual contract of employ-
ment, that such contract constitutes a violation of the National Labor
Relations Act, that the respondent is therefore obligated to discontinue
such contract as a term or condition of employment ; and that the
employees are released from its obligations and the respondent will no
longer demand its performance;
(c) Upon request bargain collectively with Fabiicated Metal Local
1225, United Electrical, Radio & Machine Workers of America, C I.0 ,
as the exclusive repiesentative of all employees of the respondent in
its three shops in New York City, excluding cleiical and office em-'
ployees, salesmen, the superintendent, the night superintendent, the
stock clerk, foremen, Bill Kapplinghaus, Roy Bloom, William James,
Arthur Beattie, and Stanley Kasczmarczyk, in respect to rates of pay,
wages, hours of employment, or other conditions of employment;
(d) Post immediately in conspicuous places throughout its three
shops in New York City and maintain for a period of not less than
sixty (60) consecutive days from the date of posting, notices to its
employees, stating- (1) that the respondent will not engage in the
conduct for which it is ordered to cease and desist in paragraphs 1
(a), (b), (c), (d), and (e) of this Order; and (2) that the respondent
KARP METAL PRODUCTS CO) INC 155
will take the affirmative action set forth in paragraphs 2 (a), (b), and
(c) of this Order;
(e) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith
Signed at Washington, D. C, this 8th day of July 1942
MR GERARD D REILLY took no part in the consideration of the above
Decision and Order