M. H. Birge & Sons Co.

National Labor Relations Board - Board Decisions

May 14, 1936

1 N.L.R.B. 731 (N.L.R.B. 1936)

In the Matter of M. H. BIRGE & SONS COMPANY and UNITED WALL
PAPER CRAFTS OF NORTH AMERICA
Case No. C-15.-Decided May 14, 1936
Wall Paper Industry-Strike-Uni- Appropriate for Collective Bargaining:
craft,; history of collective bargaining relations ; occupational differences-
Representatives: proof of choice : membership in union-Collective Bargaining:
employer 's duty , as affected by-established collective bargaining methods in
the industry , industry-wide negotiations with representatives of employees,
history of collective bargaining relations , joint action by employers in different
units of the industry , strike ; refusal to meet with representatives ; negotiation
in good faith : meeting with representatives , but with no intention of bar-
gaining in good faith ; distraction of representatives by misleading informa-
tion-Employee Status: during strike-Reinstatement Ordered, Strikers: dis-
placement of employees hired during strike ; preferential list ordered , including.
Mr. Darnel B. Sh,ortal for the Board.
Locke, Babcock, Hollister d Brown, by Mr. Louis L. Babcock and
Mr. George C. Levi, of Buffalo , N. Y., for respondent.
Mr. Stanley S. Surrey, of counsel to the Board.
DECISION
STATEMENT OF CASE
On, October 1, 1935, the United Wall Paper Crafts of North Amer-
ica, hereinafter referred to as the Union , filed with the Regional
Director of the National Labor Relations Board for the Third
Region a charge that the M. IT. Birge & Sons Company , Buffalo,
New York , hereinafter referred to as the respondent , had engaged in
and was engaging in unfair labor practices contrary to the National
Labor Relations Act, approved July 5, 1935. On November 9, 1935,
the, Board issued a complaint against the respondent , said complaint
being signed by the Regional Director for the Third Region.and
alleging that the respondent had colnmitteed unfair labor practices
affecting commerce within the meaning of Section 8, subdivisions
(1), (3) and (5), and Section 2, subdivisions (6) and (7) of the Act.
In respect to the unfair labor practices, the complaint alleged, in
substance :
1. The respondent, by its officers and agents, following a strike, had
refused to reinstate the twenty-five members of the local organiza-
tion of the Union previously employed by respondent because of
their membership and activity in the Union.
2. At various times in August and September, 1935, the respond-
ent, when so requested by the Union, had refused to bargain collec-
tively in good faith with the Union as the exclusive representative
of the print cutters, machine printers and color mixers employed
731
732 NATIONAL LABOR RELATIONS BOARD
by the respondent, said employees together -constituting an appro-
priate bargaining unit.
The complaint and accompanying notice of hearing were served
on November 12, 1935, on the parties in accordance with Article V
of National Labor Relations Board Rules and Regulations-Series 1.
The hearing, originally noticed for November 19, 1935, was post-
poned to December 3, 1935, and again to December 5, 1935; due
notice of said changes of date having been served on the parties.
Prior to December 5, 1935, ten of the twenty-five Union members
named in the charge and complaint were reinstated by the respond-
ent. The respondent filed an answer to the complaint in which it
denied that it had engaged in the unfair labor practices. therein
alleged and further stated that it was not engaged in interstate
commerce or a business affecting such commerce.
Commencing on December 5, 1935, a hearing was held at Buffalo,
New York, by William R. Walsh, the Trial Examiner designated
by the Board, and testimony was taken. Full opportunity,to be
heard, to examine and cross-examine witnesses and to introduce
evidence bearing upon the issues was, afforded to both parties. The
respondent moved to dismiss'the complaint on constitutional,.grounds,
involving the Fifth, Seventh, Ninth and Tenth Amendments to the
Constitution of the United States. This motion was denied, where-
upon the respondent, reserving all its rights under the motion, then
participated in the hearing. Upon the completion of the hearing
before the Trial Examiner the respondent again moved to dismiss
the proceeding upon the grounds stated above and upon the further
ground that the evidence failed to show any unfair labor practices.
On December 16, 1936, the Board, acting pursuant to Article II,
Section 35 of said Rules and Regulations, directed that the proceed-
ing be transferred to and continued before it. On January 13, 1936,
counsel for the respondent and a representative of the Union orally
argued the case before the National Labor Relations Board. There-
after, on April 10, 1936, the Board upon due notice held a further
hearing at Washington, D. C., for the purpose of taking additional
testimony bearing upon the unfair labor practices alleged in the
complaint. At said hearing, the respondent renewed its motion to
dismiss the complaint. That motion, and all similar motions pre-
viously made by the respondent, are hereby denied. Upon the en-
tire record in the case, including the pleadings, the stenographic
transcript of the two hearings, the documentary and other evidence
received at the hearings, and the oral argument, the Board makes
the following :
DECISIONS AND ORDERS
FINDINGS OF FACT
1. THE RESPONDENT
733
The M. H. Binge & Sons Company is a New York corporation
which owns and operates at Buffalo, New York, a plant for the manu-
facture, sale and distribution of wallpaper. The plant employs ap-
proximately two hundred employees. Included in these two hundred
employees are, under normal conditions, seventeen machine printers
and color mixers I and eight print cutters, all of whom are highly
skilled workmen earning on an average $44.00 per week when working
a full week of forty hours.
The employees are given an annual vacation in the summer months,
the vacation period in 1933 lasting from July 19 to August 11. Dur-
ing that period the plant is closed for repairs. When it reopens, the
first necessary work is that of mixing the colors that are to be applied
to the wallpaper. Until enough color to provide for several days'
work is mixed by the color mixers the other employees of the re-
spondent have not sufficient work to keep them fully occupied, so
that the color mixers are thus essential to the operation of the plant.
The machine printers also perform an indispensable function, for
they supervise, the- placing. of the patterns upon the printing ma-
chines and the operations of those"machines. On the other hand, it
is not necessary for the print cutters, who cut the blocks for new
designs, to commence work when the plant opens after the vacation
period. Asa general rule these print cutters begin work as late as
October or November of each year. The respondent is the only firm
in the industry that still does its own print cutting, the majority of
firms "farming out" this work to concerns specializing in that work.
The respondent purchases the greater part of its raw materials out-
side of the State of New York. Raw paper, clay and colors consti-
tute ninety-five per cent of the ingredients used in the manufacture
of its wallpaper. Clay is shipped entirely from Georgia although
purchased through an office in New Jersey; colors are obtained from
many states but the greater part is obtained from New Jersey and
Massachusetts; glue is bought from the Buffalo office of Armour and
Company, a Chicago concern, but is manufactured outside of New
York; a large portion of the raw paper is obtained from Massa-
chusetts and some from Pennsylvania. The raw materials on hand
are intended to provide for from two to three weeks of normal pro-
duction and must be replenished regularly.
The wallpaper manufactured by the respondent is sold through
sales offices, one in New York and one in Chicago. Twenty salesmen,
1 The record does not show the precise number of either the machine printers or the
color mixers
734 NATIONAL LABOR RELATIONS BOARD
traveling to various states, work out of these offices. All orders taken
by salesmen must be sent to the office in Buffalo to be accepted and
signed by respondent. After an order is received production is coin-
menced and the order filled. Most orders are shipped, f. o:,b. Buffalo
plant. For the fiscal year ending June 30, 1935, the respondent
shipped 4,250,000 rolls of wallpaper outside of the State of New York.
The remainder of the wallpaper manufactured by it, 840,000 rolls, was
shipped to points within that State.
The above operations of the respondent constitute a continuous flow
of trade, traffic and commerce among the several States.
II. HISTORY OF THE LABOR RELATIONS IN THE INDUSTRY AND BETWEEN THE
RESPONDENT AND THE UNION
A. In the industry
The United Wall Paper Crafts of North America is a labor organi-
zation which represents the machine printers, color mixers and print
cutters employed in the wallpaper industry. The remainder of the
workers in the industry are less skilled and are not represented by
the Union. In the year 1912 there occurred a general strike lasting
thirteen weeks which resulted in an agreement signed by many of
the manufacturers and the Union. At the expiration of this agree-
ment the firms and the Union signed other agreements. Another
general strike in the industry occurred in 1921. This strike lasted
nine weeks and resulted in a three-year agreement between the same
firms and the Union. Other three-year agreements succeeded that
of 1921. During the five years last past a yearly contract between
the union manufacturers, twelve in number out of a total of thirty-
two firms in the industry, and the Union has been regularly executed
upon the expiration. of the preceding contract or shortly thereafter.
In the past fourteen years it has been the custom for the union
manufacturers in the industry to commence negotiations with the
Union for the purpose of executing a new annual agreement a few
weeks prior to the date of expiration of the existing contract. The
union manufacturers or their representatives meet with the repre-
sentatives of the Union to formulate the contract for the coming busi-
ness year. Such negotiations have lasted from two to eight weeks.
After the general terms of the contract had been agreed upon in these
conferences between the two groups, the General Secretary of the
Union prepared a written contract embodying those terms 'and pre-
sented it to the spokesman for the manufacturers' group. These ,two
would then make whatever revisions were necessary to be made, the
final agreement conforming to the understandings reached at the gen-
eral conferences. The final contracts were then printed. Since this
process took considerable time, between thirty to sixty days, it was
DECISIONS AND ORDERS 735
the prevailing custom to predate the new agreement so that its terms
would take effect as of the date of expiration of the contract for the
preceding year. In some years, even the general conferences continued
after the expiration date of a contract.
B. Between the respondent and the Union
The respondent has bargained collectively with the Union or its
predecessors for a period of at least forty years. Each general agree-
ment concluded between the union firms and the Union has been
signed by the respondent. In the past five years an officer of the re-
spondent has been present at most of the meetings between the repre-
sentatives of the employers and the representatives of the Union and
has taken an active part in the collective bargaining that occurred.
The local organization of the Union in respondent's plant, herein-
after referred to as the Locals, consisted of two groups, composed
respectively of the seventeen machine printers and color mixers and
the eight print cutters. The two groups together constituted a bar-
gaining unit, although annually the respondent had signed a separate
agreement, with each. The negotiations leading to such agreements
were always carried on as described above by the national officers and
representatives, of the Union. The Locals did not bargain with the
respondent in respect to the annual, agreements.
It is clear from the record, and it is not disputed by the respondent,
that in August and September, 1935, the period in question in this
case. the above two groups of the specially skilled employees of the
respondent-color mixers and machine printers, and print cutters-
constituted a unit appropriate for the purposes of collective bargain-
ing and that the Union, by virtue of the membership of all such
employees, was the exclusive representative for such bargaining.
111. THE UNFAIR LABOR PRACTICES
In October , 1934, the twelve union firms , in accordance with custom,
entered into an agreement with the Union which was to run until
August 31 , 1935. Again, as .had been the custom, these firms met with
the Union on August 16, 1935, at New York City to discuss an agree-
ment concerning rates of pay , wages, hours of employment and other
conditions of employment for the following twelve months ., At this
meeting the Union was represented by its Executive Committee, its
President , Collins, and its General Secretary , Billet, the latter acting
as spokesman . Palmer , President of the United Wall Paper Com-
pany, acted as. spokesman for the manufacturing firms, many of
whom were represented by their officers . The respondent was repre-
sented by Stroman, its Vice-President. At this meeting the Union
presented demands for an increase in wages and certain changes in
working conditions. The manufacturers desired a reduction in the
736 NATIONAL LABOR RELATIONS BOARD
number of certain types of helpers working in each plant, a change
which the Union opposed. The draft agreement proposed by the
manufacturers had been prepared in part by Stroman. The meeting
lasted nine hours but ended without an agreement being reached.
However, since similar conferences in the past had also ended in such
a fashion, both sides expected to arrive at an agreement in the near
future. Stroman left the meeting with the expectation that there
would be further negotiations. I
On August 17 the Executive Committee of the Union decided that
unless an agreement was concluded by August 31, the date on which
the current agreement expired, the men should cease work. The
Committee also authorized Billet to act as the sole negotiator for the
Union. Billet then arranged a meeting with Palmer which took
place on August 23 at York, Pennsylvania. At this meeting Billet
informed Palmer of the above action of the Executive Committee
and in turn was advised by Palmer that he represented all but one of
the union firms. The two spokesmen in their negotiations succeeded
in reaching an understanding on all issues except that concerning
wages. Palmer then communicated with the various manufacturers
to obtain their views on the understanding that had been reached at
this conference. The respondent telegraphed in reply that "working
conditions as outlined agreeable but absolutely will not agree to any
increase in wages." Palmer then left for Maine on a vacation after
having informed Billet that Eisenhart, production manager for the
United Wall Paper Company of which Palmer was the President,
would represent him in further negotiations involving the'-mew
contract.
On August 26 Billet advised each Local of the Union that it should
present its demand for a $3 weekly increase and inform the respec-
tive employer that unless such an increase was granted by August
31, it would strike and thereafter continue the strike until a $5 in-
crease was given to the men. The next day Collins, President of the
Union and an employee of the respondent, informed Stroman of the
above proposal. Stroman, on August 30, met with Collins and the
shop committee of the local organization, the meeting apparently
resulting from a mutual desire to discuss the approaching strike.
Collins informed Stroman that the scheduled strike could be avoided
at the respondent's plant if it would agree to a temporary increase
of $3, the arrangement to terminate upon the execution of a general
contract between the manufacturers and the Union which would
thereafter govern the wages to be paid. If the general, contract, did
not provide for a wage increase, the Union would refund to the re-
spondent the wages paid in excess of the wages finally agreed upon
and applied retroactively. Stroman replied that the men should
continue under the 1934 contract without an increase until the gen-
- DECISIONS AND ORDERS 737
eral agreement was signed. Then, if it provided for an increase, the
respondent would apply it retroactively to September 1 and pay the
increase for the intervening period. Collins informed Stroman that
he and the Locals were authorized only to present the proposal he
first made and to accept it if agreed upon, so that he could not agree
to Stroman's proposal. As a result, no agreement was reached.
On September 1 a general strike of the machine printers, color
mixers and print cutters was called by the Union. All of such em-
ployees at the respondent's plant participated in the strike. Septem-
ber 1 was a Sunday and September 2 was Labor Day, so that the
respondent's plant would normally have been inactive on those two
days. On September 3 Stroman called Collins and informed him
that unless the employees returned to work by September 5, a Thurs-
day, he would obtain new employees in their places and resume oper-
ations. He claimed that the large number of orders on hand required
immediate operation of the plant. In addition, Stroman visited and
telephoned several of the employees at their homes and informed
them of his plans to open the plant with new men unless they returned
by Thursday. The Union members did not return on Thursday. On
September 6, Friday, Stroman told the Factory Superintendent,
Hannan, to recruit new employees. He was instructed to offer them
the wage fixed in the last Union contract and, if it became necessary,
a guarantee of a year's employment provided their work was satis-
factory. Hannan that week-end went to Hackensack, New Jersey,
and Glens Falls, New York, and obtained three machine printers
and .one color mixer. He offered them the Union wage, although they
all had been earning about half that sum at the positions they then
occupied, and to three he gave a verbal promise of a year's employ-
ment. With these new employees and with the assistance of former
employees who had previously acted in other capacities but who were
now temporarily transferred to the tasks of color mixing and ma-
chine operating, the plant opened on September 9, a Monday. A
week or two weeks later, Hannan went to Joliet, Illinois, to secure
additional skilled men but did not succeed in obtaining any. By Sep-
tember 16, the respondent had employed only the four new men
mentioned above. However, about two weeks thereafter several per-
sons made application to the respondent and were employed by it,
only one of them being given a verbal promise of a year's employ-
ment. By the beginning of October the plant had reached normal
production.
On the entire record it appears that on both September 16 and
September 23 the respondent had employed only the four mentioned
above-the three machine printers and the one color mixer-and to
three of them it had given verbal assurances of a year's employment
if their work proved satisfactory. It had made no attempts either
738 NATIONAL LABOR RELATIONS BOARD
to persuade the print cutters to return to work or to recruit new
print cutters, since employees of that type were not needed until a
later period.
In the meantime Billet had been continuing • negotiations with
Eisenhart. As both lived in York, Pennsylvania, they were in fre-
quent communication with each other. Eisenhart during that' period
telephoned several times to Stroman and in some of these calls the
current contract difficulties were discussed. On September 7 or 8
Eisenhart informed Billet that he was afraid the Union was going
to "lose Birge, because I understand that they are going to send
Hannan out tomorrow to get men to fill up the place." On Septem-
ber 12 Palmer and Billet resumed negotiations. At this meeting
Palmer presented Billet with financial statements prepared by ten
of the twelve firms and informed him that he no longer represented
the respondent as it was now running "an open. shop." As a result
of his study of these statements Billet agreed with Palmer that the
industry could not stand a wage increase at that time and stated
that he would so inform the Union. A general conference was
scheduled for September 17 at York, Pennsylvania. Billet called
Stroman and asked whether he would attend the conference. Stro-
man replied, "I have 16 men, or 11 men working, what is the use of
my coming down there." At the conference on September 17 an
agreement similar to the =1;934 contract was agreed upon and later
signed by ten of the twelve firms. The general strike was then
.ended.
On September 19 Collins and the shop committee, accompanied
by a Federal Conciliator, met with Stroman and requested that the
Union employees be reinstated in a group and the general agree-
ment signed. Stroman refused, stating that since he had made a
commitment of a year's employment to the new men, he could not
reinstate the Union employees as a group. However, he offered to
fill all existing vacancies with Union men and to place the remain-
der on a preference list. He said that a "few vacancies" existed-
about five or six.' The Union insisted that all of the Union em-
ployees be reinstated in a body. In reply to a proposal presented
by the Conciliator, Stroman declared it was impossible to transfer
the new employees to other positions in the. plant as those positions
did not pay the rate they were then receiving. Moreover, Stroman
refused to sign the general agreement in view of the fact he had
employed non-Union men for a year's term. On September 23 Billet
and Collins met with Stroman. At this conference the same pro-
posals were made as at the preceding meeting and with the same
result. The September 19 and September 23 meetings primarily con-
cerned the machine printers and the color mixers. No other confer-
ences regarding these employees were held.
-.DECISIONS' AND' ORDERS 739
On October 11 the eight print cutters petitioned the Union for
permission to return to work. This request followed upon a confer-
ence with the respondent at which it offered to reinstate all of them
and stated that unless they returned to work the print cutting would
be "farmed out" in the future. This permission to return to work
was denied by the, Union. Nevertheless, on November 6 the eight
print cutters returned to work pursuant to a written agreement'
with the respondent, signed by each and embodying essentially the
terms of the 1934 contract with the exception of fifty hours instead
of forty. The Union thereupon withdrew the charter of the print
cutters. Prior to the date of the hearing two of the machine printers
and color mixers left the Union and returned to work. Their cases,
and those of the eight print cutters, were not pressed by the Union,
at the hearing. Consequently, we are here concerned only with the
fifteen machine printers and color mixers formerly employed by the
respondent but who have not as yet been reinstated by it.
The conduct of the respondent described above is alleged to be
contrary to Section 8, subdivisions (1), (3) and (5) of the Act in
that the respondent refused to reinstate the above-mentioned fifteen
employees-because of their union activity and failed to bargain col-
lectively with the Union. The question of whether an employer
has failed in his affirmative duty to bargain collectively with the
representatives of his employees has meaning only when considered
in connection with the facts of a particular case. The history of the
relationships between the particular employer and its.employees, the
practice of the industry, the circumstances of the immediate issue
between the employer and its employees are all relevant factors that
must be given weight. Consequently, a proper evaluation of the
respondent's conduct requires a consideration of the labor relations
background of the industry and the actions of the other union manu-
facturers in the period under examination. As pointed out above,
the. Union and those manufacturers with whom it had contracts
through years of experience had achieved a genuine and intelligent
method of collective bargaining. The Union was regarded by the
manufacturers as an established factor in the wallpaper business.
Negotiations and agreements with it were viewed as an ordinary
phase of the routine conduct of the industry, differing in no signifi-
cant way from the hundreds of other activities that were conducted
and regularized in accordance with accepted business practices. The
annual meeting with the Union, the negotiations that ensued and the
final agreement in which they invariably concluded were ingrained in
the industry.
The 1935 negotiations followed the customary pattern. Both
groups met on August 16, made certain proposals and discussed these
proposals at great length. When the conference ended, although no
740 NATIONAL LABOR RELATIONS BOARD
agreement had been reached, the issues had been clarified and the
way prepared for further dealing between the spokesmen for the two
groups. While it is clear Palmer had no authority to bind any, of
the manufacturers, it is equally clear that he was their accredited
spokesman and negotiator. Hence Palmer met with Billet and the
two reached an understanding on all issues but the one concerning
the wage increase. Palmer communicated to the other manufactur-
ers the progress made in these negotiations and they supported his
stand. The Union then proceeded with plans for a general strike,
feeling that such action would be, necessary to obtain the wage in-
crease. While strike -action was unusual, a similar step had been
taken in 1921. And when the strike commenced, both the manufac-
turers and the Union understood that negotiations were still being
carried on, in that period between Eisenhart as Palmer's agent and
Billet, and that an agreement would be forthcoming in a short time.
Consequently, the respondent excepted, no union manufacturer at-
tempted to open its plant with new employees during the strike.
or did they interfere with the negotiations between Eisenhart and
Billet by attempting to deal with the Locals of the Union in the vari-
ous plants or with its officers where they happened to be employees.
As was expected, Palmer met again with Billet to discuss the wage
increase., Palmer relied mainly upon financial statements indicating.
that-the industry could not afford an increase at that time. There
was none of the hysteria or antagonism that often pervades strike
negotiations. After a study of these statements Billet agreed that
the Union should withdraw its demands and this understanding be-
tween the two spokesmen naturally culminated in the final general
-conference of September 17 at which the contract for the ensuing
year was adopted. Such was the "collective bargaining" that oc-
curred between the Union and the group of manufacturers during the
period in question.
But obviously that was not the conduct of the respondent in the
same period. At the beginning, it is true, the respondent acted as it
had in the past. Stroman, its Vice-President, attended the August 16
-conference and thereafter on August 24 advised Palmer of the re-
spondent's views. And on August 30 in answer to the Locals' pro-
posal, the same proposal which was being presented at other plants
by other Locals, it offered a counter-proposal. But it was under-
stood by both the respondent and the local organization that the
latter had no authority to bargain on the issues involved but was
merely a deputy for the representative of the Union, Billet. It could
present the proposal, receive the respondent's answer and transmit
that answer to the Union-but it could do no more. Its present
instructions and the past history of relationships were clearly to the
DECISIONS AND ORDERS 741
effect that the bargaining had to be upon an industry-wide scale, a
condition of which the respondent was fully aware.
However, on September 3 the attitude of the respondent so clearly
altered that its conduct stands out in sharp contrast to that of the
other manufacturers. It at once threatened its employees with loss
of their jobs unless they immediately returned to work. Upon their
refusal, which could not have been unexpected for the traditions, of
the Union went, back far into the past, it at once sought strikebreak-
ers to fill their. places. , The pressure of orders on hand was urged as
the excuse for the respondent's conduct. But no other manufacturer
took such drastic, action and yet there is nothing in the record, to
contradict the normal assumption that they too had orders on hand
which they desired to fill. Nor does the record support the respond-
ent's claim that the state of its orders was such as to compel that
course of conduct. The respondent did not even instruct its sales-
men that it might have difficulty in making delivery on orders and
they continued to obtain new orders. At no time did the respondent
make any effort to confer with Billet who was the representative
of the Union, to advise him of the need for reopening its plant,
assuming that need. existed, to attempt an orderly and sane solution
of the difficulty. Nor did it inquire of the other union manufactur-
ers about, conditions elsewhere, the probable duration of the strike
and the course of action that should be adopted. Instead, only an
ultimatum whose drastic terms were almost immediately made ef-
fective. At the hearings and on the oral argument the respondent
claimed that since the "ultimatum" was given to Collins, the Presi-
dent of the Union and an employee engaged at its plant, the respond-
ent "bargained" with the Union. But Collins was not the representa-
tive of the Union in the negotiations with the manufacturers and
he had no authority to bargain on such matters. His authority was
not that customarily possessed by union presidents; it extended en-
tirely to the intermil affairs of the Union. In presenting its demands
to Collins the respondent was doing no more than presenting a mes-
sage to an agent of the Union whose only power in respect to that
message was to transmit it to the Union. It must be remembered
that in the history of its dealings with the Union the respondent had
never bargained with the Union through Collins as the Union's rep-
resentative despite his presence in the plant as an employee and his
position as President of the Union.2
Continuing in its altered conduct, the respondent flatly refused to
attend the general conference on September 17 at York, Pennsyl-
vania. It claimed that conditions at its plant rendered useless its
attendance at that conference. But an appraisal of those conditions
2 Collins, although present at the annual conferences, did not directly participate in the
negotiations with the manufacturers, but instead confined himselt to the consultations
among the Union representatives.
742 NATIONAL LABOR RELATIONS BOARD
induces us to believe that its refusal to attend sprang from this new
antagonism toward the Union. The respondent's employees were
still on strike and its plant was operating on a production basis far
below normal. It had secured only four new employees-one color
mixer and three machine printers-with sufficient skill to, replace
the men on strike. It was experiencing much difficulty in securing
new employees and hence could not be certain when it would be able
to operate at full capacity. Moreover, the eight print cutters were
also on strike and the respondent had made no arrangements respect-
ing their branch of the work. Under such conditions, the respond-
ent's refusal to meet with the • Union on September 17• and its state-
ment that such a meeting would be useless present a strange contrast
to the preceding years of harmonious relationships with the Union.
Such a break with the past is not to be explained by the presence of
minor difficulties or irritants; it indicates deeper and fundamental
causes. We are persuaded by the record before us that the respond-
ent at some time in this period, or perhaps earlier, determined to
sever'its relationships with the Union.. The strike provided a con-
venient setting for effecting that determination and the respondent
did not hesitate to avail itself of the opportunity.
Some of our prior decisions deal with situations analogous to the
one presented in this case. In In the Matter of Columbian Enamel-
ing & Stamping Company, decided February 14, 1936, we said :
"The Act requires the employer to bargain collectively with
its employees. Employees do not cease to be such because they
have struck. Collective bargaining is an instrument of indus-
trial peace. The need for its use is as imperative during a strike
as before a strike. By means of it, a settlement of the strike
may be secured.
"It is our opinion that the respondent's refusal to meet with
the Committee after it promised to do so, resulted from its reali-
zation that it could in any case open its plant and that to do so
without dealing at all with the union would discourage active
support of the union and render it useless." ,
Again, in In the Matter of Jeffery-DelVitt Insulator Company,
decided April 24, 1936, we stated :
"It seems apparent from the record that respondent did engage
in collective bargaining with Local No. 455 on and prior to
June 20, 1935, even though no agreement had been reached by
the parties. Despite the fact mentioned previously that the
respondent's good faith in some of its earlier dealings with Local
No. 455 is questionable, the fact that the respondent offered to
enter into an agreement with Local No. 455 on June 1, accepting
some of its demands, and met frequently with Local No. 455 in
DECISIONS AND ' ORDERS 743
the period from June 1 to 20, 1935, to discuss the proposals and
counter-proposals, leads us to believe that the bargaining by the
respondent at that time was done in good faith. It is un-
doubtedly true that an impasse had been reached by the parties
on June 20, 1935, on the three substantive issues of seniority,
union shop and check-off, Local No. 455 being unyielding in its
demands concerning these issues, the respondent equally firm in
its refusal to recede from its position. As long as this impasse
continued the respondent might have been justified in refusing
to meet with the-Committee on the basis that no agreement was
possible.
"However, the situation existing on July 16, 17 and 18 and
about August 1, had changed materially. A strike had been in
progress for more than a month. Because of this situation, dis-
interested third persons, representatives of Federal and State
agencies, had offered their -services to secure, if possible, some
break in the deadlock. They offered employer and employees
alike an opportunity to reexplore the situation and to determine
the possibility of an agreement which would be acceptable to
both parties in the light of the then existing circumstances. If
the respondent had been sincerely interested in using the pro-
cedure of collective bargaining as a means of promoting indus-
trial peace it would have seized this as a most auspicious time
to have met with Local No. 455 ..... 8
"The record convinces us that after the strike began, the re-
spondent did not desire to reach an agreement with its striking
employees . ... the respondent no longer desired, or considered
itself required, to use the procedure of collective bargaining as a
means of reaching an agreement; and that the respondent had
finally determined to seize the strike as a means of eliminating
Local No. 455 as the bargaining agent of its employees."
The reasoning of such decisions is specially applicable here in view
of the status of the Union in the industry and the prior dealings
of the union manufacturers, including the respondent, with it. The
respondent's refusal to meet with the Union on September 17 was a
definite break with the method of conducting labor relations that for
long had been firmly established in the industry, and which the re-
spondent itself had consistently pursued over a long period of years.
When considered in relation to that method, the refusal and the events
3 Cf. In the Matter of the Sands Manufacturing Company, decided Apiil 17, 1936, in
which it was held that, even though previous negotiations had reached an impasse, the
employer violated his duty to bargain collectively when he altered the conditions of
employment without bargaining with the representatives of his employees concerning
that change
97571-36-vol i-48
744 NATIONAL LABOR RELATIONS BOARD
preceding the definite step constitute a refusal to bargain collectively
within the meaning of Section 8, subdivision (5) of the Act.
Nor do the later meetings on September 19 and September' 23 atone
for that refusal, for on both these occasions the respondent indicated
that it had no genuine desire to bargain with the Union and to utilize
the process of negotiation to settle the dispute. At each meeting the
respondent deliberately presented to the Union representatives a false
picture of the situation by stating that only 'five or six vacancies
existed for the seventeen Union color mixers and machine printers
and that. the new employees could not be discharged because of a
contract for a year's employment. The obvious inference is that the
respondent had employed at least eleven new persons on such terms.
In fact, only four had been employed at that time and only three
on the basis of a year's guaranteed employment. Such distortion of
the situation obviously transcends the exaggerations that often ac-
company negotiations in this field ; it reveals a determination to
thwart the process of collective bargaining, to render it wholly in-
effective. Consequently, the respondent can secure no comfort from
those two conferences .4
On the whole record we find that the conduct of the respondent
in the period between September 3 and September 23 constituted
an interference with the exercise by its employees of the rights guar-
anteed in Section 7 and a refusal to bargain collectively with the
representatives of its employees. We are not unmindful of the fact
that employees who strike must be prepared in many cases to suffer
the economic consequences of their action and that the employer is
not required by the Act to refrain from protecting his economic
interests. But even in regard to such periods in labor relations,
Congress in the National Labor Relations Act has placed restrictions
upon the employer's conduct in an endeavor to achieve an equality
in bargaining power. As pointed out above, in the light of the
* Some of the other circumstances of the case, not fully developed on the record, might
if completely explored reveal still further the real purpose of the respondent In June,
1935, the respondent employed William J . Hannan as Factory Superintendent . Stroman
testified it desired to relieve the person who had before acted in that capacity of many
of his duties because of his age In choosing the new Superintendent , the respondent
thought it necessary to go outside of its plant inasunich as none of its employees was
deemed qualified . It considered no applicants except Hannan , who had previously applied
by letter although he did not know whether or not the respondent needed a Superintendent
The curious fact in Hannan's selection is his past record . He had previously been em-
ployed In executive capacities , but only in non-union shops and there is evidence in the
record Indicating that he had an anti -union reputation in the industry The respondent
could not have been unaware of these facts , and yet Stionian testified lie did not believe
the appointment of such a nian as Superintendent in a union plant would create friction.
Moreover, the three persons to whom Hannan offered employment when he visited Hacken-
sack, N. J , and who accepted his offer were individuals who apparently had once supplied
Hannan with information about the union activities of a fellow employee under his
supervision when lie was in a supervisory capacity in a wallpaper plant in that city
While Hannan ' s selection and subsequent conduct are thus highly suggestive, we have
refrained from giving much weight to these facts in reaching our conclusion in this case
inasmuch as we feel the record iegarding them was not sufficiently developed to sustain
the inferences suggested.
DECISIONS AND ORDERS 745
prior relationships between the union manufacturers, of which the
respondent was one, and the Union, we feel that in view of those
restrictions the respondent's conduct was contrary to the standards
established by Congress. Consequently, under the circumstances of
this case, the respondent may not take refuge in the contention that
the situation which it brought about by such conduct must be ac-
cepted by the Union as being merely the economic consequence of
the strike called by it.
These acts of the respondent in the period between September 3
and September 23 have led and tend to lead to labor disputes bur-
dening and ,obstructing commerce and the free flow thereof.
Our previous decisions indicate the remedy that in this case will
effectuate the policies of the Act. In a somewhat similar situation
in In the Matter of Rabhor Company, Inc., decided April 7, 1936,
we said :
"'It (quoting from the Cobumabiaiz case, referred to supra)
would be futile simply to order the respondent to bargain with
the union since the plant now has its full quota of men and the
process of collective bargaining would yield little comfort to
those who are not employed . . . Under these circumstances
we must restore, as far as possible, the situation existing prior
to the violation of the Act, in order that the process of collec-
tive bargaining, which was interrupted, may be continued.'
"If the respondent had met with the representatives of its em-
ployees, an agreement might have been reached; the employees
might have returned to work. Again quoting from the Cobum-
bian case : `It does not lie iri the mouth of the respondent to say
that this result would not necessarily have followed. The law
imposed a duty to bargain under these circumstances because
that result might have followed. It is respondent's conduct
which has precluded the possibility."
Such is the situation before us. Had the respondent after Sep-
tember 3 sincerely utilized the long-established practice of dealing
with the Union when faced with labor problems that required solu-
tion, had it attended the general conference on September 17, or
even had it acted in good faith when it met with the Union on Sep-
tember 19 and September 23, a solution of the difficulty might have
been evolved and the Union employees reinstated. We shall there-
fore order the respondent to offer employment to the fifteen color
mixers and machine printers named in the Order, dismissing, if
necessary, any new employees hired after September 3, 1935. It is
clear that the verbal agreements which the respondent claims to
have with four of those employees cannot be urged by it as a ground
for refusing reinstatement to a corresponding number in the group
of Union employees, for the making of such agreements is part of
746 NATIONAL. LABOR RELATIONS BOARD
the conduct which we found above constituted a violation of the
Act. Under the circumstances we need not consider whether the
respondent's conduct also constitutes an unfair labor practice within,
the meaning of Section 8, subdivision (3).
CONCLUSIONS OF LAW
Upon the foregoing findings of fact, the following conclusions of
law are made :
1.. The color mixers, machine printers and print cutters employed
by the respondent constituted in August and September, 1935, a
unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
2. The United Wall Paper Crafts of North America (the Union)
is a labor organization, within the meaning of Section 2, subdivision
(5) of the Act.
3. By virtue of Section 9 (a) of the Act, the Union, having been
designated as their representative by all the employees in the unit
described in paragraph 1 above, was in August and September, 1935,
the exclusive representative of all the employees in such unit for
the purposes of collective bargaining.
4. In the period between September 3 and September 23, 1935, the
respondent refused to bargain collectively with the Union as the rep-
resentative of its color mixers, machine printers and print cutters,
and by reason of such refusal has engaged in and is engaging in
unfair labor practices within the meaning of Section 8, subdivi-
sion (5).
5. In the period between September 3 and September 23, 1935, the
respondent interfered with and restrained its employees in the exer-
cise of their right to self-organization and to engage in concerted
activities for the purpose of collective bargaining and other mutual
aid and protection, as guaranteed in Section 7 of the Act, and by
reason of such conduct has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8, subdivision (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER,
Upon the basis of the findings of fact and conclusions of law
and pursuant to Section 10, subdivision (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondent, M. H. Birge & Sons Company, and its officers
and agents, shall:
(1) Cease and desist from in any manner interfering with,
restraining or coercing its employees in the exercise of their right
DECISIONS AND ORDERS 747
to self-organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the National Labor Relations Act;
(2) Cease and desist from refusing to bargain collectively with
the United Wall Paper Crafts of North America as the exclusive
representative of the color mixers, machine printers and print cutters
employed by it in respect to-rates of pay, wages, hours of employ-
ment and other conditions of employment;
(3) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer employment to Albert Jordan, Eugene Miller, Louis
Lohman, Jacob Schweiger, Phillip Vetter, George Herman, William
McInerney, Arthur. Roberts, James Brennan, Elmo Brooks, William
Collins, Thomas Ahearn,. Chauncey Landis, Ross Burton and Her-
bert Sherry, with all the- respective rights and privileges previously
enjoyed, where the positions held by such persons are now filled by
persons who were not working in such positions for the respondent
on September 3, 1935, and place the remainder of-the above-named
fifteen individuals on a preferential list to be offered employment as
and when their labor is needed, both the offer and the preferential
list to be based upon seniority in the respective classifications of color
mixers and machine printers;
(b) Upon request, bargain collectively with the United Wall
Paper Crafts of North America as,the exclusive representative of
the color mixers, machine printers and print cutters employed by it
in respect to rates of pay, wages,, hours of employment and other
conditions of employment.
CHAIRMAN MADDEN, dissenting :
I think the evidence in this case does not show that the respondent
committed the unfair labor practices charged in the complaint. It
is conceded that the respondent's conduct was beyond criticism down
to the time of the strike 'on September 1st. The strike was the
Union's ultimatum that, unless the respondent acceded to its terms,
the men would not work. Such an ultimatum was well within the
Union's legal privileges. The respondent countered on September
3d with an ultimatum that unless the men acceded to respondent's
terms, it would fill their jobs with other men. That was the re-
spondent's privilege.
The statute which we administer forbids certain unfair tactics of
employers which when practiced have made the economic contest be-
tween them and their workmen an unequal contest productive of the
resentment which always accompanies a defeat accomplished by un-
fair means. It further requires that the employer bargain collec-
748 NATIONAL LABOR RELATIONS BOARD
tively with his workmen. But, having created this nearer approxi-
mation to equality in bargaining power, it leaves the parties to.
depend upon their economic power. It does not require that either-
side be kind, or even considerate and mindful of former •happier rela-
tions. Good morals might teach such conduct, but the law has not
undertaken to enforce it.
The respondent, then, having in no way interfered with the devel-
opment by the Union of its full organized strength, and having bar-
gained with it in good faith to the time of the strike , secured men
to fill some of the places left vacant by the strikers, by guaranteeing
to three of the men that they should have work for, a year. No
Union man could have taken such a place without forfeiting his
union standing. Non-union men such as did take the jobs were, pru-
dent iii insisting upon a guaranteed period of work, lest they, having
brought upon themselves the odium of becoming strike-breakers,
should also find themselves out of jobs within a short time. The evi-
dence is that the three who insisted upon guaranties left other steady
jobs which did not pay so well, to take the jobs which respondent
offered.
Thereafter the respondent was not free to make an agreement with
the Union for the return of the Union men in a body. It did not
have places for all of them and could not make places for them
except by forfeiting its guaranty of a year's wages to three of the
strike-breakers. The respondent continued to offer to the Union all
that it still had to offer, viz., places for some men and a preference
for: the others in the filling of any vacancies which might occur.
Quite naturally, the Union refused such an offer.
Something is made of the fact that respondent's ultimatum to
the Union was communicated to Collins, the National President of
the Union rather than to Billet, the Secretary and authorized nego-
tiator. There is no evidence that Collins did not immediately com-
municate it to Billet, and it is difficult to imagine that he did not,
when the seriousness of the situation is considered.
I think the decision amounts to a holding that an employer whose
employees have struck, not as a result of any unfair labor practice
on the part of the employer, is legally obliged to close his plant for
an indefinite time while he negotiates with the strikers for their
return to work. I see no such provision in the statute. If it is suc-
cessfully read into the statute it will have the effect of inducing
unions to call strikes without first taking careful stock as to whether
their economic power is sufficient to bring the employer to their
terms. Labor unions will gain no permanent advantage from such a
doctrine. Employers and the public will properly insist that such a
rule is unfair unless it is accompanied by compulsory arbitration.
I think the complaint should be dismissed.