Kartarik, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1953

103 N.L.R.B. 500 (N.L.R.B. 1953)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guards, section supervisors, line supervisors, production expediter,
head mechanic, construction department supervisor, head marke,.,
head cutter, folding and boxing supervisor, patterns and sample mak-
ing department supervisor, receiving and stock department super-
visor, building and equipment superintendent, shipping department
supervisor and assistant supervisor, and all other supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of
collective bargaining.
[Text of Direction of Election omitted from publication in this
volume.]
KARTARIK , INC. and DISTRICT LODGE 77, INTERNATIONAL ASSOCIATION
OF MACHINISTS , A. F. OF L. Case No. 18-CA-406. March 13,
1953
Decision and Order
On January 27, 1953, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report,2 the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.3
'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Houston , Styles,
and Peterson].
2 The Intermediate Report contains an inadvertency which does not affect the Trial
Examiner 's ultimate conclusions or our concurrence therein. Accordingly, we make the
following correction : District Lodge 77, International Association of Machinists , A. F. of L.,
has at all times since April 11, 1952, rather than since April 1, 1952, been the exclusive
bargaining representative of the Respondent 's employees in the unit found appropriate
therein.
3 The Respondent has excepted to the Trial Examiner 's finding that "The record does not
disclose what relationship , if any, was maintained between Respondent and the Union since
[February 3, 1947, the date on which the Union was certified ] to the period which gave
rise to the controversy with which we are concerned ," and has pointed out that the record
discloses facts which indicate that the Union ceased to represent the Respondent 's employees
on or about June 15, 1949 . It contends , therefore, in its brief , that the present proceeding
"must be treated similarly to an initial representation case and the background of relation-
ship between the parties is completely immaterial as it would effect [sic ] the right of the
complaining union to represent these employees ." While we hereby correct the Trial
Examiner 's statement to accord with the record, neither the Trial Examiner nor the Board
relied upon these background events in finding that on April 11, 1952, the Union repre-
sented a majority of the employees in the appropriate unit.
103 NLRB No. 64.
KARTARIX, INC. 501
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Kartarik, Inc., its officers,
agents, successors, and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership is District Lodge 77, International
Association of MachimsLs, A. F. of L., or in any other labor organiza-
tion, by discharging, or refusing to reinstate, any of its employees, or
by discriminating in any other manner in regard to their hire, tenure
of employment, or any term or condition of employment.
(b) Refusing to bargain collectively concerning wages, hours, and
other conditions of employment with District Lodge 77, International
Association of Machinists, A. F. of L., as the exclusive representative
of all employees at its St. Paul plant, but excluding office employees,
guards, and supervisors as defined in the Act.
(c) Interrogating its employees concerning their union activities,
threatening to shut down the plant or other reprisals, and promising
them economic benefits to discourage their union affiliations and activi-
ties; and in any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the rights to self-organization, to
form labor organizations, to join or assist District Lodge 77, Inter-
national Association of Machinists, A. F. of L., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in labor organ-
izations as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively concerning wages, hours,
and other conditions of employment with District Lodge 77, Interna-
tional Association of Machinists, A. F. of L., as the exclusive repre-
sentative of all employees in the aforesaid appropriate unit, and if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Offer Libo Napoli, John Suchan, and Frank Koch, immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges.
(c) Make whole the said three individuals in the manner set forth
in the section of the Intermediate Report entitled "The Remedy" for
257965-54-vol. 103 -33
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any loss of pay they may have suffered by reason of the Respondent's
discrimination against them.
(d) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the amounts of back
pay due under the terms of this Order.
(e) Post at its plant in St. Paul, Minnesota, copies of the notice
attached to the Intermediate Report and marked "Appendix A."'
Copies of said notice, to be furnished by the Regional Director for the.
Eighteenth Region, shall, after having been duly signed by the Re-
spondent or its authorized representative, be posted immediately upon
receipt thereof and be maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. The Respondent shall take reason-
able steps to see that such notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for the Eighteenth Region, in
writing, within ten (10) days fom the date of this Order, what steps
the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent granted its employees wage increases and increased
vacation benefits to discourage their engaging in union activities, be,
and it hereby is, dismissed.
4 This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner " and substituting in
lieu thereof the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed April 22, 1952, by District Lodge 77, International Associa-
tion of Machinists, A. F. of L., herein called the Union, the General Counsel of
the National Labor Relations Board issued a complaint against Kartarik, Inc.,
herein called Respondent, alleging that Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3),
and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat.
136, herein called the Act. Copies of the charge, complaint, and notice of hearing
were duly served on the appropriate parties.
With respect to the unfair labor practices, the complaint alleged, in substance,
that since April 16, 1952, Respondent interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed by the Act by (a) questioning
them regarding their concerted and union activities, (b) making promises of
benefits if they refrained from engaging in concerted and union activities and
KARTARIK, INC. 503
making threats of reprisals if they engaged in such activities, and (c) granting
a wage raise and increased vacation benefits to discourage the same activities.
The complaint also alleged that on or about April 17, 1952, Respondent discharged
its employees Libo Napoli, John Suchan, and Frank J. Koch, and has since failed
and refused to reinstate them because they joined or assisted the Union and have
otherwise engaged in concerted protective activities. It further alleged that on
and after April 16, 1952, Respondent failed and refused to bargain collectively
with the Union, although the latter was at all times on and after April 16, 1952,
the exclusive bargaining representative of all employees in an appropriate unit.
By its answer Respondent denied, generally, that it committed any of the unfair
labor practices alleged in the complaint. It specifically denied having discharged
Napoli and Koch, and pleaded that these employees had only been temporarily
terminated in their employment; with respect to Suchan, Respondent pleaded
that it discharged him because of insubordination.
Pursuant to notice, a hearing was held November 3-6, 1952, at Minneapolis,
Minnesota, before the undersigned Trial Examiner.' All parties appeared and
were represented by counsel or other representative, were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, to argue orally at
the conclusion of the evidence, and to file briefs. Respondent filed a brief which
has been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Minnesota corporation having its principal office and place of
business at St. Paul, Minnesota, where it operates and maintains a tool and die
shop engaged in the manufacture, sale, and distribution of tools, dies, and related
products. In the course and conduct of its business operation at said plant during
the period from September 1, 1951, to September 1, 1952, Respondent "sold to
firms in interstate commerce and directly in interstate commerce, including sales
to various defense projects," products having a value of $105,027.87. During the
same period, Respondent sold products of the value of $47,226.61 to defense plants
having a direct contract or subcontract with the United States Government. By
its answer Respondent admitted, and I find, that at all times material herein Re-
spondent has been engaged in commerce within the meaning of Section 2 (6) of
the Act.'
II. THE LABOR ORGANIZATION INVOLVED
District Lodge 77, International Association of Machinists, A. F. of L., is a
labor organization within the meaning of Section 2 (5) of the Act admitting to
membership employees of Respondent.
I Respondent's objection to General Counsel Exhibits 5A-5B, on which ruling was reserved,
is hereby sustained.
2 Though admitting in its brief that Respondent "is engaged in interstate commerce under
existing labor laws," Respondent urges that "due to the size of the plant and its very inci-
dental effect upon interstate commerce " that the Board should decline to assume jurisdiction
and relegate the dispute to "the jurisdiction of the State of Minnesota ." By a series of
decisions issued in October 1950, the Board announced its policy to govern the future exer-
cise of jurisdiction . The commerce facts found in the text bring this proceeding into two
of the class of cases in which the Board will assert its jurisdiction . Stanislaus Implement
& Hardware Company, Ltd., 91 NLRB 618; Westport Moving & Storage Co ., 91 NLRB 902.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
On February 3, 1947, following a Board-conducted election (Case No. 18-R-
1786), the Union was certified as bargaining representative of Respondent's
employees. Shortly thereafter, differences arose between Respondent and its
employees resulting in a strike. The record does not disclose what relationship,
if any , was maintained between Respondent and the Union since that time to the
period which gave rise to the controversy with which we are concerned.
In March 1952, employee Libo Napoli, having at that time been refused a wage
increase, talked to 11 of the total complement of 12 men then employed in the
shop and asked if they would like to join the Union .' Receiving a favorable
reply from "most of them," Napoli conferred with Fred C. Lutz, business repre-
sentative of the Union, obtained from him a supply of union-authorization cards
and distributed them among Respondent 's employees . Seven of the employees,
including the 3 men alleged to have been discriminatorily terminated, signed
the cards and returned them to Napoli. The latter delivered the cards to Lutz
on or about April 15.
At about noon of April 16, Lutz went to Respondent's office and met Joseph
Kartarik, its president' He advised Kartarik that the Union represented a
majority of Respondent's employees and presented to him a letter containing
the same information. Kartarik invited Lutz to a cafe across the street where
Lutz asked him whether Respondent "would recognize [the Union] and negotiate
an agreement with [It] ." Kartarik stated that he didn't believe that the Union
represented a majority of the employees. When Lutz tried to assure him that
it did, Kartarik asked what the Union was "going to demand." Lutz answered
that if Respondent recognized the Union the latter was prepared to submit its
demands immediately, but that otherwise it would serve no purpose to submit
demands at that time. During the course of the conversation Kartarik "re-
peatedly stated that if the Union is not reasonable in their demands that [he]
will close the shop." The two men returned to the plant where they met John
Suchan who exchanged greetings with Lutz. Lutz admonished Kartarik "not
to interfere with the rights of his employees" to which Kartarik merely replied,
"We will see."
Shortly after noon of the same day , April 16, Kartarik approached Suchan, told
him he understood "the -boys have a majority for a union," and inquired what
Suchan knew about the matter and who was involved. When Suchan replied
that "nearly all" the men had joined, Kartarik countered with the threat that
if the Union came into the plant he would "chop the place down." At about 9: 30
a. m. of the following day, April 17, Kartarik approached Suchan and said to
him : "Consider this your last day. I am shutting down the plant. I am not
going to have a union telling me what to do." During that afternoon Kartarik
met Suchan and Napoli, told them that Respondent was discontinuing its Gov-
ernment work, and tendered a check to each of them. Their regular payday
being Monday, 4 days away, both men declined the checks.
During the same day, Kartarik approached Frank Koch and, after telling him
he was to impose some layoffs that evening, asked whether Koch wanted "to go
with them . . . or to stick with [Respondent]." Koch, who had previously
signed a card authorizing the Union to bargain for him, answered that while he
I It was stipulated that on April 16, 1952, Respondent had in its employ 12 full-time
and part -time employees.
4 Unless otherwise specified, all references herein to gartarik are to Joseph gartarik.
KARTARIK, INC. 505
had no objection to working for Respondent he would not go through a picket
line . When Koch went to the timecard rack the next day to punch out, his card
was missing . Kartarik approached him, told him he was being laid off and that
his "check and the excuse for the lay-off [was ] in the envelope" which Kartarik
then handed him. The enclosed memorandum , in relevant part , read as follows :
"Your employment with our Company is hereby terminated. . . . Reason for
lay-off : your job on Hobbing Press no longer exists and when you took the job
on Hobbing Press-with 10¢ hourly increase in wages-your old job on Punch
Press had been filled by other new men."
On April 18 , while Suchan was on his way to the dentist , he passed Respond-
ent's plant. LaMott, one of Respondent's employees, stuck his head out of a
shop window and asked Suchan to surrender a key to the plant which Kartarik
had given him when he was first engaged in 1948. Suchan replied that the key
was given to him by Kartarik and would be returned to Kartarik and no one else.
On the following day, Suchan and Napoli received in the mail the checks due
them and a memorandum purporting to give the reason for their termination.
Suchan was advised that he was being discharged for "insubordination-re-
fusing to give up shop key . . . when asked for it." Napoli was informed that
his employment "was being terminated" for the following reason : "Tooling on
government work is completed-have no suitable work for you as a die and tool
maker-and several weeks past we were paying tool makers wages , but you were
working as a polisher."
Late on April 17, Kartarik approached employee William J. Shonka and
asked him if he "knew anything about the boys being signed up . . . and if Libo
Napoli had anything to do with the organizing of the boys." On the following
day, Kartarik informed Shonka that he didn't want "the union in the shop
and that if they did come in . . . he would lock the place up, close the doors."
Three or four days later, Kartarik again talked to Shonka about the Union
and promised him a 2 weeks ' vacation and a raise of pay if he would "get away
from the Union."
About April 18 or 19, Kartarik asked employee Wallace Brindamour if he
knew anything about the Union and Brindamour replied that he was not inter-
ested. At about the same time, he got a 10-cent hourly increase. The parties
stipulated that another employee, Arletta Costello, received a 10-cent hourly
raise, first reflected in his paycheck of April 21 , 1952. Brindamour and Costello
were not among the 7 employees whose cards authorizing the Union to represent
them were received in evidence.
Though Respondent admitted that it had hired 1 temporary and 2 permanent
employees since April 1952, none of the 3 employees whose services were termi-
nated as above described have been recalled to work . No evidence was offered
that Respondent has bargained with the Union for the appropriate unit here-
after found with respect to rates of pay, wages , hours , and other conditions
of employment.
B. Concluding findings
1. Interference, restraint , and coercion
By Kartarik's interrogation of Suchan , Shonka, and Brindamour concerning
their union membership or activities, and by his threats to Suchan and Shonka,
all as found above, Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by Section 7 of the Act and
thereby violated Section 8 (a) (1) thereof. Respondent likewise violated
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (1) by Kartarik's promise to Shonka of a 2 weeks' vacation and
raise in pay if he would "get away from the Union." With respect to other
conduct claimed by the General Counsel to be in violation of the same section,
I find that he has not sustained the burden of proving such additional violative
conduct by a preponderance of the evidence.
2. Discrimination
On the entire record I am convinced and find that Respondent terminated
the employment of Napoli, Suchan, and Koch for the reasons pleaded in the
complaint. The union animus displayed by Kartarik, his interrogation to ascer-
tain union strength and activities, his threats to close the plant, when coupled
with the precipitate nature and timing of the terminations, all combine to estab-
lish a prima facie case of discrimination. While the burden of proof to establish
discrimination remains on the General Counsel throughout the proceeding, the
prima facie case heretofore detailed made it incumbent on Respondent to go
forward with the evidence and to offer a satisfactory explanation for the dis-
charges. This, Respondent has failed to do.
In its brief, Respondent argues that "poor business conditions" arising out of
the cancellation of a contract with the Remington Arms Company, and a
"threatened" cancellation of another contract with the same Company, made it
"necessary to terminate three of the employees."' However, the first contract
referred to was not terminated until May 24, 1952 , more than a month after
these 3 employees were laid off. The second contract was only "threatened"
with cancellation on September 5, 1952, almost 5 months after the 3 men were
laid off.
While there was loose and generalized testimony that Respondent "was in
bad financial condition," no credible, probative evidence was offered to estab-
lish that fact. Kartarik testified that he decided to reduce the staff about 3
months before the terminations actually took place. If business conditions
were actually as bad as Kartarik generalized, no satisfactory explanation was
offered why these layoffs were postponed 2 to 3 months and then imposed, with-
out notice, in the middle of a pay period, on the day following the Union's de-
mand for recognition. Nor is the defense of "poor business conditions" con-
sistent with other portions of Kartarik's testimony.' Thus, he testified that at
the time of the layoffs the men "were working about 60 hours a week," and had
been doing so "for somewhere around 5 months," since the award of the Rem-
ington Arms contract on October ^1, 1951.
Persuasive in arriving at my ultimate conclusion as to the termination is the
fact that though it was Respondent's position, at least with respect to Napoli and
Koch, that they were only temporarily laid off and had not been discharged,
neither man was recalled when Respondent apparently found need to employ
additional help thereafter. Thus, Joseph Keyser and Robert Siegel were hired
in August and October 1952, respectively, and were working for Respondent at
the time of the hearing herein. These new employees were hired notwith-
standing that Kartarik considered Napoli 1 of the 2 "best men in the plant" ;
that Suchan had approximately 15 years' machine-shop experience, had been
steadily employed by Respondent for almost 4 years, and had received an in-
crease in pay about a month before his discharge. Similarly, Koch had been
' Kartarik testified he lost between $10,000 and $15,000 as a result of the cancellation of
the first Remington Rand contract . As has previously been pointed out, this contract was
not canceled until more than a month after the terminations under consideration.
Kartarik was a most unconvincing witness and displayed an almost flippant demeanor
while on the stand.
KARTARIK, INC. 507
steadily employed by Respondent for about a year and had been awarded a pay
increase 2 months before the layoff .' The testimony does not establish what
type of work was performed by the new employees hired after the layoffs.
However , Henry Kartarik , who has "immediate supervision of the employees,"
testified that Respondent always maintained the "general practice of [shift-
ing] employees all around over the shop."
Nor is there any merit to Respondent 's contention that Suchan was discharged
on April 18 for " insubordination-refusing to give up shop key . . . when
asked for it." Suchan was acting reasonably , and within his rights , in refusing
to surrender the key to a fellow employee without express directions to do so
from management . When Suchan tendered delivery of the key to Kartarik
several days later, the latter refused to accept it and informed Suchan that the
latter 's earlier failure to deliver the key gave Kartarik the "excuse to fire"
that he wanted . I am in agreement with Kartarik that the key incident was
only an "excuse ," and find that it was a mere subterfuge to cover Kartarik's
real discriminatory intent.
Equally without merit is Respondent 's contention that the General Counsel
has failed to prove that Respondent had any knowledge of the union membership
or activities of the 3 employees involved , an element which admittedly must be
established before a finding of discrimination can be entered . However , direct
evidence , or admissions of such knowledge , is rare in cases of this type and it is
therefore well settled that resort may be had to the attendant circumstances to
determine whether the employer had such knowledge. Thus, as in this case,
where the Union 's organizational activities occur in a very small plant having
only 12 employees , it is reasonable to infer that such activities have come to the
attention of management. ' Napoli was the employee who secured and distributed
the union cards among the employees and solicited membership from at least
11 of the 12 employees . It would be unrealistic to assume that management was
not apprised of his activities. Furthermore , Kartarik 's blunt statement to
Suchan on the morning of April 17 that he was discharging him because he was
"not going to have [any] union telling [him ] what to do" could only mean that
Kartarik knew, or believed , that Suchan had been instrumental in bringing the
Union into the picture . With respect to Koch, it will be recalled that his services
were terminated only after he had informed Kartarik of his union sympathies
and obligations . On the entire record I find that Respondent on April 17, 1952,
discharged Suchan , Napoli , and Koch and thereby violated Section 8 ( a) (1) and
(3) of the Act.
3. The refusal to bargain
The parties stipulated , and on the entire record I find , that all of Respond-
ent's employees at its plant in St. Paul , Minnesota , excluding office employees,
guards, and supervisors as defined in the Act , constitute an appropriate unit for
the purpose of collective bargaining . At the hearing , there was received in
evidence a list of 12 employees representing the full complement of workers in the
above unit appearing on Respondent 's payroll on April 16 , 1952. There were also
7 The record has not persuaded me that Koch was laid off because he had negligently
broken one or more hobs . The cause of these breaks was the subject of several conferences
in the shop . Those participating in these conferences "all thought that it had something
to do with the steel structure ." Thereafter various other types of steel were used. In any
event, on April 17, Kartarik asked Koch whether he wanted "to go" with the men Kartarik
was laying off, or to stay on the job
sN. L. R B. v. Abbott -Worsted Mills, 127 F. 2d 438, 440 ( C. A. 1) ; Jackson Daily News,
90 NLRB 565; H and H Manufacturing Company , 87 NLRB 1373 ; Firestone Tire and Rub-
ber Company, 62 NLRB 1316.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received in evidence cards, dated between April 9, 1952, and April 11, 1952,
signed by 7 of the 12 employees in the above unit designating the Union as their
bargaining representative. Accordingly, I find that on April 11, 1952, the Union
represented a majority of Respondent's employees in the above-described appro-
priate unit and that at all times since then the Union has been and is now the
exclusive representative of all employees in the appropriate unit for the purpose
of collective bargaining.
As I have found in a preceding section, Lutz, a union official, met Kartarik on
April 16 and informed him, both in writing and orally, that the Union represented
a majority of Respondent's employees. It has also been found that at the same
time Lutz asked Kartarik whether he would recognize the Union and negotiate
an agreement with it. Kartarik gave no unequivocal answer but instead insisted
upon finding out what demands the Union was making , coupled with the threat
that if the Union should demand terms that he would not consider reasonable
that he would "close the shop." Without deciding whether Kartarik's queries
as to the demands which the Union would make constituted a recognition of the
Union's right to make demands for the employees, I am convinced that Kartarik's
additional statement to Lutz that he would bargain with the Union only after
an election and certification constitutes no defense to the case established by the
General Counsel.
As the Board had occasion to say in a recent case ,' "an employer may in good
faith insist on a Board election as proof of the Union's majority but-it unlaw-
fully refuses to bargain if its insistence on such an election is motivated, not
by any bona fide doubt as to the Union's majority, but rather by a rejection of
the collective bargaining principle, or by a desire to gain time within which to
undermine the Union. In cases of this type, the question of whether an em-
ployer is acting in good faith or bad faith at the time of the refusal is, of course,
one which of necessity must be determined in the light of all relevant facts
in the case, including any unlawful conduct of the employer, the sequence of
events, and the time lapse between the refusal and the unlawful conduct."
Thus, although under the Act the Union was entitled to recognition as the
exclusive collective-bargaining agent for the employees in question, Respondent
could have entertained and given effect to a bona fide doubt that the Union
actually represented the required majority. However, as clearly revealed in
preceding portions of this report, Respondent here was not troubled with such
a doubt as to the Union's majority status. Immediately upon discovering that
the Union sought recognition in the shop, Respondent embarked upon a campaign
designed to undermine and eliminate the Union,30 committing in the process the
numerous acts found above which were unlawful in themselves. Having thus
clearly indicated that Respondent had no intention of recognizing the Union
it would be futile for the Union to propose specific demands, as Respondent in
its brief urges the Union was required to submit, before Respondent could be
charged with a violation of its duty to bargain under the Act.
On the entire record I find that on April 16, 1952, and at all times thereafter,
Respondent has refused to bargain with the Union as the exclusive representative
of all its employees in the appropriate unit, and that by such refusal it has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed by the Act, all in violation of Section 8 (a) (1) and (5) thereof.
Joy Silk Mills, Inc., supra; Long-Lewis Hardware Company, 90 NLRB 1403.
9Joy Silk Mils, Inc., 85 NLRB 1263, enforced 185 F . 2d. 732 (C. A. D. C.) ; cert. den.
341 U. S. 914.
20 By discharging the three employees , the Union's majority was destroyed.
KARTARIK, INC.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
509
The activities of Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It has been found that Respondent has discriminated in regard to the hire and
tenure of employment of Napoli, Suchan, and Koch. It will be recommended
that Respondent offer to all of them immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and that they be made whole for any loss of
pay they may have suffered by reason of the discrimination against them, by
payment to each of them of a sum of money equal to that which he normally
would have earned as wages from the date of discrimination to the date of offer
of reinstatement, less his net earnings" during such period. The back pay shall
be computed in the manner established by the Board, and Respondent shall make
available to the Board payroll and other records to facilitate the checking of
amounts due.'
Since it has been found that Respondent has refused to bargain collectively
with the Union, the statutory representative of all employees in an appropriate
unit, it will be recommended that Respondent bargain collectively with the Union
and embody any understanding reached in a signed agreement.
The character and scope of the unfair labor practices engaged in indicate an
intent to defeat self-organization of the employees. It will therefore be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees in the exercise of rights guaranteed
by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. District Lodge 77, International Association of Machinists, A. F. of L., is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Libo
Napoli, John Suchan, and Frank J. Koch, thereby discouraging membership in
the Union, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. All employees at Respondent's St. Paul plant, but excluding office employees,
guards, and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 ( b) of the
Act.
4. District Lodge 77, International Association of Machinists, A. F. of L., is
now, and has been at all times since April 1, 1952, the exclusive representative of
n Crossett Lumber Company, 8 NLRB 440.
F. W. Woolworth Company, 90 NLRB 289; see N. L. R. B. v. Seven-Up Bottling Co.,
844 U . S. 344 ( January 12 , 1953).
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all employees in the aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing on April 16, 1952, and at all times thereafter, to bargain collec-
tively with District Lodge 77, International Association of Machinists, A. F. of L.,
as the exclusive representative of its employees in the appropriate unit, Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendation of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in DISTRICT LODGE 77, INTERNATIONAL
ASSOCIATION OF MACHINISTS , A. F. OF L., or in any labor organization of our
employees, by discharging, or refusing to reinstate, any of our employees,
or in any other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment.
WE WILL NOT interrogate our employees concerning their union activities,
threatened to shut down the plant or other reprisals, promise economic bene-
fits to discourage union affiliation and activities, or in any other manner
interfere with, restrain, or coerce our employees in the exercise of their
right to self-organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may be affected
by an agreement requiring membership in labor organizations as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the Act.
WE WILL make whole the following named individuals for any loss of pay
they may have suffered as a result of the discrimination against them and
offer them immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other rights and
privileges.
Libo Napoli
John Suchan
Frank Koch
WE WILL bargain collectively upon request with the above-named labor
organization as the exclusive representative of all employees in the bargain-
ing unit described herein with respect to rates of pay, hours of employment,
or other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement . The bargaining unit is :
MASTRO PLASTICS CORP. 511
All our employees , but excluding the office employees , guards, and super-
visors, as defined in the Act.
All our employees are free to become , remain , or refrain from becoming mem-
bers of the above-named union, or any other organization except to the extent
that this right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
KARTARIK, INC.,
Employer.
Dated-------------------- By---------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
MASTRO PLASTICS CORP . AND FRENCH -AMERICAN REEDS MANUFACTUR-
ING CO., INC. and LOCAL 3127, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA . Case No. 2-CA-1799. March 13, 1953
Decision and Order
On June 11, 1952, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
together with supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.,
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
I During the course of the hearing, the Board denied the Respondents leave to appeal
several rulings of the Trial Examiner on the ground that the issues could best be resolved
on the basis of a full record. The Respondents moved to strike all allegations of the
complaint which concerned the strike at the Respondents' plant and the strikers on the
ground that the employee status of the strikers had become a representation matter.
During the strike at the Respondents' plant, the Board issued a Decision and Direction
of Election, Case No. 2-RC-3170, January 29, 1951, not reported In printed volumes of
Board decisions. The petition in that case was filed by the charging Union herein.
The direction contained the proviso that strikers and replacements could vote under
challenge and was later amended to defer the election until "such time as the Regional
Director deemed appropriate" because of the filing of the charges In the Instant case.
The Respondents contend, in their motions to strike, that the Board was without power
to refer Issues concerning the strikers to a Trial Examiner and that the Trial Examiner
was without jurisdiction to hear evidence on such issues because Section 9 (c) of the
Act provides that representation matters should be heard by an officer or agent of the
Board who can make no recommendations. The Trial Examiner denied the motions
based on this argument and his ruling is hereby affirmed. Cf. Times Square Stores
Corporation, 79 NLRB 361.
103 NLRB No. 51.