Martin Brothers Box Co.

National Labor Relations Board - Board Decisions

Sep 5, 1941

35 N.L.R.B. 217 (N.L.R.B. 1941)

In the Matter of MARTIN BROTHERS Box COMPANY and AURORA COR-
RUGATED Box WORKERs' UNION No. 435, AFFILIATED WITH THE
A. F. OF L.
Case No. C-1778.Decided September 5, 1941
Jurisdiction : corrugated cardboard container manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: calling a meeting of the employees while
union bargaining committee was in midst of negotiations with respondent, at
which respondent's president criticized the committee and union president
and presented respondent's proposed contract directly to the employees, urging
them to vote favorably on it at once; calling a second meeting of the employees,
at which respondent's president criticized and ridiculed the legitimate union
activities of union president, demanded that employees elect a new president
on pain of being locked out, and forbade the union's president to enter the
plant.
Discrimination: discharge of union president because of his union activities, rather
than because of a fancied threat to destroy respondent's president and plant;
discharge of another employee because respondent identified him as a friend
of union president. ,
Collective Bargaining: majority established by membership in union-refusal to
meet and negotiate: failure of respondent's president within a reasonable
time either to meet and bargain with union committee himself or appoint a
representative fully authorized to do so ; unreasonable failure of respondent's
president to keep an appointment with union committee; statement by re-
spondent's president that he would not sign a contract with the union, and
refusal to sign such a contract after terms agreeable to both parties had been
accepted by the union.
Remedial Orders : respondent ordered to reinstate with back pay employees dis-
criminatorily discharged ; to bargain with the union ; and upon request to
embody any agreement reached in a signed contract.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees excluding clerical and supervisory employees ; no controversy as to.
Mr. Arthur R. Donovan and Mr. Robert D. Malarney, for the Board.
Boggs and Winchester, by Mr. Howard W. Boggs and Mr. Bruce
Winchester, of Toledo, Ohio, for the respondent.
Mr. Robert Autterson, of Lawrenceburg, Ind., Mr. G. E. Ten Eyck,
of Indianapolis, Ind., and Mr. Charles V. Ernest, of Washington,
D. C., for the Union.
Miss Mary E. Perkins, of counsel to the Board.
35 N. L. R. B., No. 48.
217
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges 1 duly filed by Aurora Cor-
rugated Box Workers' Union No. 435, affiliated with the A. F. of L.,
herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Eleventh Region
(Indianapolis, Indiana), issued its complaint dated September 23, 1940,
against Martin Brothers Box Company, Aurora, Indiana, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by notices of hearing,
were duly served upon the Union' and the respondent.
As to the unfair labor practices, the complaint alleged in substance
that the respondent, at its Aurora plant : (1) from on or about July
1, 1938, had engaged in a preconceived and continuous course of
action for the purpose of interfering with the self-organization of its
employees by, inter alia: (a) publicly criticizing officers and members
of the Union for their activities on behalf of the Union, (b) stating
that it would close its plant if the Union insisted on presenting a pro-
posed contract, (c) presenting, at a meeting of the employees, a con-
tract drawn up by the respondent and insisting that a public vote be
taken thereon, (d) questioning employees regarding their membership
in the Union and advising them to leave the Union, (e) telling its
employees that the Union had a poor president and should elect a
new one, and (f) declaring that the respondent would not sign another
agreement with the Union; (2) discouraged membership in the Union
by discharging Alvin McDaniel on August 30, and Charles Clifford
Huff on September 2, 1939, and thereafter refusing to reinstate them,
for the reason that they engaged in concerted activities with other
employees for the purpose of collective bargaining and other mutual
aid and protection; (3) since October 15, 1939,2 has'refused to bargain
collectively with the Union, which has at all times since November 1938
been the exclusive representative of the employees within a unit ap-
3 The original charge was filed on September 22, 1939, and amended charges were there-
after filed on October 30, 1939, June 24, 1940, and September 21, 1940.
2 The complaint as issued set the date as November 15, 1939, but the date was changed
to October 15, 1939, by amendment 'at the hearing.
MARTIN BROTHERS BOX COMPANY 219
propriate for collective bargaining; 8 and (4) by the foregoing and
other acts, has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed its answer dated October 7, 1940, in which
it admitted some of the allegations of the complaint, but denied that
the Union was a labor organization within the meaning of the Act
or was affiliated with the American Federation of Labor, herein called
the A. F. of L., and denied that the respondent had engaged in any
unfair labor practices. It alleged affirmatively that Huff left the
employ of the respondent of his own accord.
Pursuant to notice a hearing was held on October 10, 11, 14, and
15, 1940, at Lawrenceburg, Indiana, before Horace A. Ruckel, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel and the Union
by its representatives; all participated in the hearing. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues.
At the conclusion of the Board's case, counsel for the respondent
moved to dismiss the complaint. The motion was denied. At the
conclusion of the hearing, counsel for the respondent renewed this
motion. The Trial Examiner reserved his ruling on the motion at
that time, but denied it in his Intermediate Report. At the con-
clusion of the hearing, the Trial Examiner granted a motion by
counsel for the Board to conform the pleadings to the proof in
formal matters. During the hearing the Trial Examiner made rul-
ings on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Thereafter the Trial Examiner filed his Intermediate Report, dated
January 6; 1941, copies of which were duly served upon the respond-
ent and the Union. The Trial Examiner found that the respondent
had engaged and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the Act. He recommended that the re-
spondent cease and desist from such practices, that upon request it
bargain collectively with the Union, that it offer reinstatement with
back pay to Alvin McDaniel and Charles Clifford Huff, and that it
take certain other remedial action.
On January 28, 1941, the respondent filed exceptions to the Inter-
mediate Report, and thereafter filed a brief in support of its
exceptions. At the request of the respondent, and pursuant to notice
8 The complaint alleged that this unit consisted of all production and maintenance
employees at the Aurora plant, excluding clerical and supervisory employees
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duly served on all parties, a hearing for the purpose of oral argument
was held before the Board in Washington, D. C., on June 5, 1941.
The respondent was represented by counsel and the Union by counsel
and a representative; all participated in the hearing. The Board
has considered the respondent's exceptions and its brief in support
thereof and, in so far as the exceptions are inconsistent with the
findings of fact, conclusions of law, and order set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT i
I. THE BUSINESS OF THE RESPONDENT 4
Martin Brothers Box Company is an Ohio corporation with its
principal office and place of business in Toledo, Ohio. It owns and
operates a factory at Aurora, Indiana, herein called the Aurora
plant, which is the only plant involved in this proceeding. At its
Aurora plant the respondent manufactures and distributes corrugated
containers. Approximately 75 per cent of the raw materials used
at the Aurora plant are shipped to it from sources outside the State
of Indiana and approximately 75 per cent of the finished products
of the Aurora plant are sold and shipped to customers outside the
State of Indiana. During the year 1939 the sales of the respondent
amounted to between $500,000 and $750,000. During the same period
approximately 100 persons were employed at the Aurora plant. At
the hearing the respondent's counsel conceded that the respondent
was engaged in interstate commerce.
II. THE ORGANIZATION INVOLVED
Aurora Corrugated Box Workers' Union No. 435 is a labor organi-
zation admitting to membership employees of the respondent at its
Aurora plant. It is affiliated with and chartered by International
Printing Pressmen and Assistants' Union of North America, herein
called the International, which is in turn affiliated with the American
Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Background; interference, restraint, and coercion
During the fall of 1937, the Union began an attempt to, organize
the respondent's employees, and the question of the formation of a
4 The facts set forth In this section are taken from allegations in the complaint admitted
by the respondent 's answer and from stipulations entered Into at the hearing by counsel
for the Board and for the respondent.
MARTIN BROTHERS BOX COMPANY 221
labor organization became a subject of general conversation in the
respondent's Aurora plant. Shortly after these matters came to the
attention of the respondent, the respondent called a mass meeting
of the employees at the Aurora plant, which was conducted by K. L.
Mollman, then the respondent's general manager, and attended by
several other supervisory officials. Mollman stated that the respond-
ent was aware that organizational activities were being carried on
by the Union and that the respondent had no objections to the Union.
Ballots prepared by the respondent were then passed out, and under
the direction of Mollman a vote taken to determine whether a
majority of the employees wanted a union. After the balloting, the
ballot box was taken by Mollman. The results of the election were
never released. Thereafter interest in self-organization waned until
the spring of 1938, when it revived. An organizational meeting was
held in June 1938 at which 28 or 30 applications for membership in
the Union were received. Temporary officers were elected, including
Alvin McDaniel, who was chosen as president. The June meeting
was followed by other meetings at which the temporary officers were
made permanent and additional employees joined the Union. A
charter was received in July 1938.
Fred J. Martin, Jr., the respondent's president, testified that he
first learned of the organizational desires of the employees in the late
fall of 1937 or the first part of 1938, and that upon finding out that
the employees wanted a union and were concerned as to "what the
management would say or think about it," he "called them all to-
gether and made it clear in their minds that as far as we were con-
cerned that was perfectly all right and if they had a union we hoped
they would have a union 100 percent, so that was a meeting to clarify
it." On July 22, 1938, the respondent posted on the bulletin board
at the Aurora plant a notice addressed "To all employees and signed
by President Martin. The notice reads as follows:-
It is our understanding that the employees at the Aurora
plant have been approached by Union organizers with a view
toward organizing the plant.
Under the Wagner Act, the employees have the right to organ-
ize and bargain collectively with the Employer. The Manage-
ment of this Company has no objection to the employees
organizing, nor can the Management either approve or disapprove
their doing so. A neutral course must be pursued, and we do
not intend either to hinder or encourage your actions, whatever
they may be.
Our only suggestion is that if you should decide to organize,
that it should be as near 100% as possible. The old saying is
that "united we stand, divided we fall," and it certainly would
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be desirable that the matter be considered with an open mind
by all employees, and the decision be one that will reflect the
views of the majority.
The most disheartening thing that has occurred in conjunction
with organizations in plants throughout the nation has been
the splitting of employees into individual factions, with resultant
strife, to the detriment of both Employer and Employees.
If a minority of employees should organize, they could hardly
be recognized as the sole collective bargaining agency for the
employees. In such cases there are always controversies, through
no fault of the employer. Therefore, consider the matter fairly,
and choose what you think is the proper course. We will in
no way interfere. We do not mind saying that if we have a
labor organization at Aurora, we would like to see it 100%.
Within a week after the posting of the above notice, most of the
respondent's employees joined the Union. A committee was ap-
pointed which drew up a proposed contract and on August 25, 1938,
the Union addressed a letter to Martin informing him that the
Union, "which is now 100% in your Aurora plant," desired to meet
with representatives of the respondent. On September 6, the re-
spondent replied, stating that "It is pleasing to note that the em-
ployees have joined 100%, which means that the union is truly
representative" and that "Since all of the employees have organized,
we would naturally assume that you will submit a tentative agreement,
and if you have already drawn up one, we would be pleased to have
you forward us a copy for our perusal."
In reply to another letter from the Union, dated September 13,
requesting a meeting, the respondent, on September 14, stated that
Martin was ill but that just as soon as he was able to do so he would
meet with representatives of the Union. On September 27 the Union,
over the signature of McDaniel, its president, wrote to the respondent
suggesting that, in view of Martin's illness, the respondent's plant
manager and plant superintendent be authorized to begin negotia-
tions with the Union "in order to quiet the rumors and unrest that
exists among your employees and members of the Union." A meeting
between representatives of the Union and the respondent took place
during the first week of October. At this meeting both parties sub-
mitted proposed contracts and a discussion took place which lasted
for approximately 6 hours. No agreement was reached and the meet-
ing broke up without setting a date for a future meeting. On Octo-
ber 27, McDaniel wrote the respondent requesting a resumption of
negotiations, stating that he had been authorized by the Union to
conduct negotiations on its behalf. The letter concluded by saying
MARTIN BROTHERS BOX COMPANY 223
that if a meeting could not be arranged the Union might have "to
resort to -a recourse that neither you nor I will want to be taken." 5
The next meeting of representatives of the respondent and of
the Union was held in Cincinnati during the latter part of October or
the first part of November. Again no agreement was reached, and
the meeting adjourned sine die. On November 11, however, Martin
arrived in Aurora and a meeting took place between representatives of
the two parties. Martin had with him a proposed contract which he
submitted and described as beneficial to the Union, and which he
urged McDaniel and the other union representatives to signs No
agreement was consummated and the meeting adjourned until the
following day, when Martin again urged the union representatives to
sign the contract which he proffered, but without success.
On November 18, 1938, 6 days after his last unsuccessful attempt
to persuade the union representatives to accept his proposals for
a contract, Martin convened and presided over a mass meeting of
the employees, which included the members of the Union's negoti-
ating committee. Concerning this meeting, Martin testified that he
explained to the employees that the only "bone of contention" which
led the union representatives not to recommend his proposed contract,
Was its failure to provide for a wage increase, that a wage increase
at that time was impossible, and that the union representatives did
not understand the situation. According to Martin, the union repre-
sentatives then took over the mass meeting themselves, after asking
supervisory and non-union employees to leave, and later that day
the Union and the respondent signed the contract recommended by
Martin. But according to the testimony of McDaniel, and Huff, a
union member who was present, there was more to the meeting than
Martin stated. McDaniel testified that Martin urged him to sign
the agreement before the assembled employees, and that when he re-
fused, Martin criticized McDaniel, stating that the Union "had a
*The body of this letter read as follows :
We had hoped to resume negotiations with you this week, but in finding you could
not meet us I take this opportunity to write the following.
I have been authorized to carry on all negotiations with you in the future concern-
ing.our agreement, and stand ready to meet you any time or place on or before the
fourth day of November 1938
In the event we fail to meet I am afraid that I will be instructed to resort to a
recourse that neither you nor I will want to be taken.
Hoping for an immediate meeting I remain
Yours very truly,
ALVIN MCDANIIDL,
435 President.
Our international representatives to be included at any meeting.
McDaniel referred to the meeting of November 11 as a mass meeting of the employees.
Martin, however , contended that it was a meeting between union representatives and
representatives of the respondent . It seems clear that McDaniel confused , while testify
ing, the meeting of November 11 with a meeting on November 18 hereinafter described,
We find Martin's characterization of the meeting of November 11 to be correct.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
damn poor president and they ought to elect a new one." ", Both
McDaniel and Huff testified that Martin himself made a motion that
the employees accept the contract, but that McDaniel protested that
the meeting was not an official union meeting and finally offered to
convene a union meeting then and there, and to accept the employees'
vote on the matter. We credit the testimony of McDaniel and Huff,
as did the Trial Examiner, and we find that Martin made the remarks
attributed to him by McDaniel and Huff. McDaniel did call a union
meeting. The majority of the Union, with McDaniel, Huff, and
several others still dissenting, voted to accept the contract'."
After the adoption of the contract, and until the late summer of
1939, the Union presented numerous grievances to the respondent
through means of the machinery provided for in the contract. Dur-
ing this time, McDaniel continued as president, of the -Union and as
chairman of its grievance committee.
The respondent's first reaction to the attempt of its employees to
organize in June and July 1938 was, on its face, a favorable one.
The record is clear that the respondent's notice of July 22 had the
effect of encouraging rather than discouraging membership in the
Union. The events that followed, however, show that, in spite of
its seeming benevolence toward the Union, the respondent was intent
upon dominating the relations between it and its employees just as it
had before the Union was established. Martin's attitude toward
the Union is revealed in its true nature by the events of the November
18 mass meeting. Despite the fact that the union negotiating com-
mittee was in the midst of conferences with him, and was scheduled
to meet with him again in a day or so, Martin, impatient because
he could not secure the'committee's approval of the wage scale, thrust
aside the orderly process of bargaining with the representatives
selected by the employees, and sought 'to deal with'the employees as
7 Martin testified that be did not recall making any statements about McDaniel , speci-
fically, at this meeting ; and he denied that he personally asked the employees to vote
on the contract . In view of all the circumstances , however, and Martin's whole testimony
about the November 18 meeting, we are of the opinion, and find, that these events took
place substantially as testified by McDaniel and Huff.
'The contract bore the date of November 18, 1938, and was to run from October 15,
1938, to October 15, 1939. It provided for a closed shop, a work week of forty ( 40) hours,
and double wages for work performed on Sundays and holidays The respondent agreed
not to lock out the Union during the term of the contract and the Union agreed not to
call any strikes . A method of handling grievances was provided by which grievances
should first be submitted to the "chapel chairman " of the Union for the particular depart-
ment in which the complaint arose, who would in turn present the complaint to the
foreman. If the grievance remained unadjusted , it was to be referred to a Joint Stand-
ing Committee consisting of two representatives from the Union and two of the manage-
ment. If the committee should become deadlocked, the four members were to choose a
fifth member who should be chairman . If the committee members were unable to agree
within 2 days upon the selection of a chairman , the United State 's Department of Labor
was to be requested to appoint an arbitrator . The acceptance of the arbitrator 's ruling
was not provided for, nor any other method of finally resolving a conflict
MARTIN BROTHERS BOX COMPANY 225
though the Union did not exist. Martin's remarks on that occasion
were calculated to undermine the position taken by the committee
during the bargaining conferences, ancj to destroy its prestige with
the employees. The Union, having duly appointed its representatives
to meet with those of the respondent, entrusted them with the con-
duct of the negotiations. It was the respondent's duty to negotiate
with these representatives only. However unreasonable their de-
lnands with respect to a wage increase might have 'seemed to the
respondent, it was the respondent's duty to thresh them out with
the Union's committee rather than to appeal, over its head, to the
membership as a whole. Martin further undercut the Union by
openly criticizing McDaniel, who was not only the principal negoti-
ator for the Union, but its president. It is evident that it was prin-
cipally McDaniel who stood between the respondent and the consum-
]nation of a contract satisfactory to the respondent. The respondent
sought to persuade its employees to displace McDaniel, and to substi-
tute for him one who was more amenable to the respondent's desires.
The whole intent of the respondent's declarations was to cause the
,Union to execute a contract which its duly qualified representatives
had refused to sign. In this it was successful.
We find, as did the Trial Examiner, that by calling the mass
meeting of November 18 at which it criticized the activities of the
Union's bargaining committee and the Union's president before
its employees; by suggesting that the Union should elect another
president; and by urging its employees to vote favorably upon a
contract submitted to them by the respondent, while failing to deal
with the representatives, chosen by the employees, the respondent
has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.9
B. The discriminatory discharges
(1) Alvin McDaniel
McDaniel came to work for the respondent in 1932 as a band-saw
operator at a wage of 40 cents an hour. He was earning 65 cents an
hour at- the time of his discharge on August 30, 1939. There is no
contention that his work was unsatisfactory at any time. - McDaniel
was president of the,Union, chairman of the grievance committee, a
member of the negotiating or scale committee, and an ex-officio mem-
ber of most of the rest of the committees of the Union.
9 The complaint does not allege that the respondent refused to bargain collectively with
the Union by any acts occurring before October 15, 1939, the expiration date of the con-
tract consummated as a consequence of the acts of the respondent on November 18, 1938,
set forth above. Such of these acts as occurred on and after July 1, 1938 , are, however,
alleged as unfair labor practices within the meaning of Section 8 (1) of the Act.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the execution of the contract between the respondent and the
Union on November 18, 1938, numerous grievances were presented
by the Union to the respondent. As chairman of the grievance com-
mittee McDaniel presented most of these grievances. During the
summer of 1939, the respondent initiated a system of setting up dies,
under which an employee setting up a die was allowed 18 minutes in
which to do so. Previously, the length of time allowed for setting
up varied according to the size and nature of the die. On August 2,
the die makers filed a formal grievance claiming that the length of
time allowed for setting up dies under the respondent's new system
was insufficient and worked to the employees' detriment with respect
to their wages. This grievance remained a matter of controversy
throughout the month of August 1938. When Martin was in Aurora,
he decided to discuss the matter himself with the grievance committee
and he testified that he explained it and settled it to the satisfaction
of all the members of the grievance committee except McDaniel. The
record shows, however, that the matter was in fact left open until
August 25, 1939,'upon which date the grievance committee was notified
by Stark that Martin had instructed him to "cut it and have it over."
The committee, according to McDaniel, stated that it could not accept
this decision, as it was a violation of the contract, and would have
to resort to arbitration. On the same day McDaniel addressed the
following letter to William Selz, representative of the International
at Cincinnati :
DEAR BILL : It has happened', The complaint that I mentioned
in my letter of yesterday,
The standing committees were called into a meeting today and
official notified that the matter was taken out of the hands of
the officials at the plant by Martin.
His order is that henceforth and hereafter all setups on the
die press shall be three tenths of an hour, his contention is that
the standards are loose enough to permit the operators to make
up for the lost setup time.
Some setups have a time of two hours down to six tenths.
This order is a direct violation of his contract and will be
treated as such.
But you have my authority to proceed as per the contract.
I am sending attached the record that we have on this, please
return at the meeting we will have next Wednesday, I will try
to get a record from Mr. Stork [sic] of todays meeting to. make
the entire record complete.
Before you go into arbitration see the committee for more
complete details.
MARTIN BROTHERS BOX COMPANY 227
I expect to have more information from the research bureau
covering this subject.
The entire, membership say that it is time to do to Martin what
England and France are going to do to Hitler, only with more
speed.
So until I see you
I remain Sincerely and Fraternally,
After writing this letter, McDaniel gave a copy to Stark, one of
the respondent's supervisory officials, as was his custom with letters
to the International on grievances; and Stark forwarded it to Martin
in Toledo. Subsequently Martin was shown a copy of McDaniel's
letter in the offices of the International in Cincinnati. Thereafter
Martin proceeded to drive to Aurora, to call another mass meeting of
the employees of the Aurora plant during working hours on August 30,
and to discharge McDaniel before the assembled employees.
Martin, on direct examination, testified as follows as to his reasons
for discharging McDaniel:
Q. Now just continue and state about your receiving that letter
and the meeting and what transpired, Mr. Martin.
A. Well, after receiving the threatening letter and noting in
his letter that all of the employees were not (sic) of the same
opinion as the president was, I thought I had better come down
and see what this was all about; so I called them all together,
and I started reading the letter. I censured Mr. McDaniel for
writing that kind of a letter to them.
As the meeting' progressed, why, I finally asked the employees
for all those that knew anything about it to raise up their hands,
and there wasn't one of them that raised up their hand, but
there was several of them said afterward, said it was never
brought up at a meeting and they knew nothing about the letter.
So then I decided to discharge Mr. McDaniel because I just
figured he was getting both the employees and ourselves in rather
a friction there which might be hard to work out sooner or later.
Q. Mr.*Martin, what portion of that letter did you consider a
threat?
A. I consider the whole letter.
Q. And you personally discharged Mr. McDaniel, did you not?
A. Yes, sir.
Q. I will ask you what was your reason for discharging Mr.
McDaniel?
A. For sending the threatening letter, that threatening or
intimidating letter. . . .
451270-42-vol. 35-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination, Martin qualified his reasons somewhat :
Q. I believe you testified in substance that he caused friction
among the employees.
A. Oh, no, no; no, sir.
Q. As I recall, you` said something in your direct testimony
about McDaniel's action causing friction among the employees
at your plant?
A. Well, no. I didn't mean it that way. I meant that by him
writing that kind of letter that he wrote that the employees
were more or less perturbed about him writing the letter and
using the words in there that he spoke for all employees when
they knew nothing about it. I wouldn't say that was any-if
there was any friction to any extent. I don't know anything
about it, only their dislike, which I noticed at that meeting.
Q. Those employees knew nothing about this letter until you
called it to their attention?
A. That is right.
On cross-examination Martin further testified :
Q. Now calling your attention to the August 30, 1939 meeting
in which you adressed your employees, do you recall telling
your employees that Alvin McDaniel was promoting McDan-
ielism in the plant or words to that effect?
A. Yes. I would like to put it in my own' words.
Q. Surely.- You go right ahead, and explain.
A. All right. I did accuse Mr. McDaniel before the group
and by stating that anyone that could be the president of the
local of the union and write a letter like that, all I could say
is that he is reading a lot of atheistic and Communistic and Nazi
literature and that I hoped he would not be trying to start any
McDanielism there. I admit saying that.
Q. Did you say that he is or that he was "a damn poor
president"?
A. I won't say no. I did say that you have a poor president
and I said, "You ought to get a new president."
Martin further testified that he told McDaniel and the assembled
employees that McDaniel's union activities had more or less gone to
his head. According to the uncontradicted testimony of McDaniel
and Huff, which we credit, as did the Trial Examiner, Martin told
the assembled employees that if they did not demand and accept
the resignation of McDaniel at the union meeting scheduled that
night, they would be locked out of the plant the next morning. At
the close of the meeting, McDaniel was escorted to the door by Stark,
MARTIN BROTHERS BOX COMPANY 229
a supervisory employee, and he then gathered up his tools. Before
leaving the plant, McDaniel met Martin and shook hands with him.
Martin testified that he then told McDaniel that He would not turn
the letter over to the postal authorities because of McDaniel's wife
and four children, that he wanted to be friendly thereafter to Mc-
Daniel, but that he did not want McDaniel to come near the plant
premises. During the same afternoon on which McDaniel was dis-
charged, the respondent directed a letter to him forbidding him to
"trespass or enter upon any of the premises or property" of the re-
spondent. The letter was countersigned and served upon McDaniel
by an officer of the peace. Martin testified that he felt that the last
paragraph of McDaniel's letter to Selz was particularly threatening
both to his (Martin's) life and to the respondent's property. Mc-
Daniel testified that he meant to threaten a strike, by this
paragraph.
Martin admitted that McDaniel had not, before August 25, 1939,
used words which Martin considered threatening, or ever adopted a
threatening attitude toward him. In his last words to McDaniel
after the mass meeting on August 30, Martin called McDaniel "Mac"
and some of the correspondence between McDaniel and Martin con-
tains such salutations as "Dear Mac" or "Dear Boots" (McDaniel's
nickname in the plant), and "Dear Fred."
We find the reason advanced by the respondent for McDaniel's dis-
charge to be wholly incredible. The last paragraph of the letter,
upon which the respondent mainly relied, can at most be taken, when
considered in its context, as a threat to call a strike of the,respond-
ent's employees if the existing controversy, concerning the allocation
of time for setting the dies was not satisfactorily settled.'° Mc-
Daniel himself testified that this was the meaning of the paragraph,
and in view of the surrounding circumstances we conclude and find,
as did the Trial Examiner, that Martin could not have believed
otherwise. Aside from these circumstances, there was admittedly
nothing in the past relationship between Martin and McDaniel which
could indicate to the former that McDaniel was a man of violent
disposition. The two men had dealt with each other concerning
grievances and the execution 'of a contract over a period of approxi-
mately 1 year. On occasion they addressed each other by their
given names. One need scarcely- go further than Martin's own ad-
mission that he discharged McDaniel because of the "friction" he
was creating between the employees and the respondent, to find the
10 A similar instance of circumlocution on McDaniel 's part is displayed in the last pars
graph of his letter of October 27, 1938, set forth in footnote 5, above
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
real reason for McDaniel's discharge.' It is obvious that Martin
was irked by McDaniel's continued active interest in the grievance
of the die setters and that he decided that McDaniel was an intoler-
able obstacle to the respondent's active domination of labor relations
at the Aurora plant. To remove McDaniel from the scene and
dramatically to display the economic power of the respondent over
the employees, Martin called a mass meeting, attempted to hold Mc-
Daniel up to the contempt of the employees, and urged them to de-
mand McDaniel's resignation as president of the Union. We find, as
did the Trial Examiner, that the respondent discharged McDaniel,
not because of any fancied threat of death, but because the respond-
ent objected to his action in protesting Martin's decision on the die
press grievance; and that thereby the respondent discriminated in
regard to McDaniel's hire and tenure of employment, and discouraged
membership in the Union. We further find that thereby, and by
Martin's action in publicly criticizing the legitimate union activities
of McDaniel, and holding him up to the ridicule of the assembled
employees; in demanding that the employees elect a new president
on pain of being locked out; and in forbidding McDaniel to enter the
plant again; the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
(2) Charles Clifford Huff
Huff first came to work for the respondent on February 18, 1936,
as a laborer in. the roll-stock gang. From about April 1936 to the
time of his discharge on September 2, 1939, he was employed as a,
boiler fireman and watchman on the day shift. His principal duties
were to maintain steam for the corrugator and to keep a check on the
boiler pump, which duties he shared with two other firemen, each
fireman working one of the three shifts.
Huff applied for union membership at the first meeting of the Union
and became a charter member. He was thereafter appointed to the
Union's shop safety committee. The record does not disclose any
further active or unusual participation in union activities on Huff's
part.
On August 31, 1939, the day after McDaniel was discharged at the
mass meeting, Assistant Superintendent Dodge approached Huff and
told him, according to Huff's uncontradicted testimony, "Red, you
have been a pretty good friend of mine. I think a whole lot of you
11 Martin , on cross -examination , attempted to qualify this admission by stating that
the "friction" to which he referred was one occasioned by McDaniel's having written the
respondent a letter which was not representative of the viewpoint of the other employees.
It will be observed , however, and indeed Martin admitted , that the employees had no
knowledge of the existence of this letter until he himself revealed it to them.
MARTIN BROTHERS- BOX COMPANY 231
and like your work, but you have been an awfully good friend of
McDaniel's and I am going to give you a little tip ; kind of look
around for another job." On the following day, September 1, Huff,
in a conversation with Dodge in the boiler room, asked him for a
recommendation which Dodge refused to give stating, "I can't do it,
Red, I won't do it. You are a good man, a good man on the job and
I don't want to lose you." The next day, September 2, Huff spoke
to Dodge again about the possibility of getting a favorable recom-
mendation. On this occasion, Dodge referred Huff to Stark. Later
that day, Stark requested Huff to come to his office. According to
Huff's uncontradicted testimony, Stark then told Huff that he believed
Huff was supposed to testify in McDaniel's compensation hearing 11
and asked Huff what he was going to say. Huff's testimony continues
as follows :
I said, "I am going to tell the truth and nothing but the truth."
And Mr. Stark said, "Well, from the way you look at things I
am going to have to let you have off a couple of weeks." I said,
"What is the reason for that?" He said, "Well, those are Fred
Martin's orders." He said, "I hate to do it, but I think I can
get your job back for you." I says, "Mr. Stark, how about a
recommendation?" He says, "I will get it for you. I will write
you one."
Huff testified further that when Stark brought up the question of
McDaniel's discharge "he wanted to know how I felt about Mc-
Daniel . . . how I stood on the question, and I replied that if he
was referring to this grievance on the die presses, I figured that
McDaniel was only doing his duty as president of the local; and if he
referred to the letter that McDaniel had written, I knew nothing
whatsoever about it." Stark told Huff to come back at the end of the
day to get his recommendation. Huff did so, and had another con-
versation with Stark. According to Huff, Stark replied to Huff's re-
quest for an explanation of his discharge by saying that he was laying
Huff off on Martin's orders, and continued, Now, you can take this
thing laying down or you can fight back through the Union. It is up
to you." Stark gave Huff a letter of recommendation in which Huff's
services for the respondent were declared to have been "very satis-
factory." Stark then asked Huff if he knew of some competent
person to take his place and Huff recommended one Rogers, who was
subsequently employed in Huff's place. Twice in the succeeding 2
weeks Huff went to see Stark at the latter's home and asked for his
job back, but was told each time that Stark would have to have orders
from Martin.13
' This has reference to a hearing under the Indiana Unemployment Compensation Law.
13 Martin's office is in Toledo.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McIntyre, plant manager of the Aurora plant, testified that he
recommended that Stark 14 discharge Huff after both Stark and Dodge
had told him that Huff had asked for recommendations for another.
job on a number of occasions during August. McIntyre further testi-
fied that he directed this discharge because the respondent decided that
Huff might leave the respondent's employment without notice and thus
leave unattended the boilers entrusted to his care.
Huff testified that previous to the conversation in which Dodge
suggested that he might be discharged, he had not looked for other
work or asked the respondent for a letter of recommendation. Neither
Dodge nor Stark was called as a witness and Huff's testimony as to
his conversations with them stands uncontradicted in the record.
On a Separation Report slip forwarded to the Unemployment Com=
pensation Division of the State of Indiana, and dated September 2,
the respondent stated as the reason for Huff's discharge : "Because no
work was available." In its answer to the complaint the respondent
averred that Huff "left the employ of the respondent upon the request
of said Charles C. Huff." -
McIntyre's statement that Huff was discharged, because the re-
spondent feared he might leave, is at odds with the verified statement
in the respondent's answer, that Huff quit of his own volition; and
both statements are directly contradicted by the reason given on the
Separation Report in September, that "no work was available." We
find none of the reasons given by the respondent for Huff's discharge
convincing. Huff had worked for the respondent for over 31/2 years
and his work was considered "very satisfactory." Yet, according to
the position adopted by the respondent at the hearing, he was sum-
marily discharged because a report reached McIntyre that Huff had
asked for a recommendation and might leave without notice. There
was no evidence that Huff was ever questioned as to his intentions, nor
were the supervisors directly involved, Dodge and Stark, called to
testify as to the circumstances of Huff's discharge or to deny his
account of what happened. In view of the failure of the respondent
either to produce direct evidence in support of its contentions or to
attempt to controvert Huff's testimony, we are of the opinion and find,
as did the Trial Examiner, that Dodge and Stark made substantially
the statements attributed to them by Huff, and that Huff did not ask
for a recommendation until after Dodge suggested that he seek other
employment.
It is apparent that Huff's discharge took place because the respond-
ent thought him to be a good friend of McDaniel and one likely to
keep alive sympathy among the employees for McDaniel's attitude
14 McIntyre testified that Stark did discharge Huff and that Stark ordinarily handles most
of the discharges made at the Aurora plant.
MARTIN BROTHERS BOX COMPANY 233
of opposition to the respondent on the die press and other grievances.
The day after McDaniel's discharge Huff was given the "little tip",
by Dodge that since he was McDaniel's friend he had better look
around for another job; subsequently he was called into Stark's office
and questioned by the latter as to what testimony he intended to give
concerning McDaniel before the Compensation Board, and as to how he
felt about McDaniel. Upon receiving answers which showed that
Huff's attitude was sympathetic to McDaniel, Stark told Huff, "Well,
from the way you look at things, I am going to let you have off a
couple of weeks."
Upon consideration of'the devious position taken by the respond-
ent concerning Huff's discharge and of the statements made by
Dodge and Stark, we find, as did the Trial Examiner, that Huff was
discharged because he was a union member identified by the respond
ent with McDaniel and because he maintained a sympathetic attitude
to McDaniel after the latter's discharge; and that thereby the re-
spondent discriminated in regard to Huff's hire and tenure of em-
ployment, discouraging membership in the Union and interfering
with, restraining, and coercing its employees in their exercise' of the
rights guaranteed in Section 7 of the Act.
C. The refusal to bargain collectively
The complaint alleges that the respondent, from October 15, 1939,
to the date of issuance of the complaint, has refused to bargain with
the Union as the representative of its employees within an appro-
priate unit.
1. The appropriate unit
The Union admits to membership all maintenance and production
workers employed by the respondent, with the exception of clerical
and supervisory employees. It contends that these employees con-
stitute a unit appropriate for the purposes of collective bargaining.
The respondent has raised no contention that this unit is not appro-
priate. We find that the production and maintenance employees at
the respondent's Aurora plant, excluding clerical and supervisory
employees, have at all times material herein constituted, and that
they now constitute, a unit appropriate for the purposes of collective
bargaining, and that said unit insures to employees of the respondent
the full benefit of their right to self-organization and to collective'
bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
In November 1938, as set forth above, the respondent and the Union
entered into a closed-shop contract with dues check-off, and this
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract appears to have been complied with up to the date of the
strike, hereinafter described, which began on about December 1, 1939.
The record shows that in October 1939 the respondent employed 120
persons in the appropriate unit. Of these, 87 paid dues to the Union
in September 1939; 83 in October; and 96 in November. The re-
spondent admits in its brief that until the end of the strike around
the first of January, 1940, the Union represented a majority of the
employees in the appropriate unit. When McIntyre, plant manager,
was asked whether President Martin had ever said that he was not
recognizing the Union because it did not represent a majority of'the
employees, he testified :
No, we have always recognized the union because a majority of
the employees have always belonged to it.
We find that in November 1938 and at all subsequent times material
herein the Union was the duly designated representative of a ma-
jority of the employees in the appropriate unit, and that it, by virtue
of Section 9 (a) of the Act, was the exclusive representative of all
the employees in that unit for the purposes of collective bargaining
with the respondent in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
3. The refusal to bargain
The contract signed by the respondent and the Union on November
18) 1938, provided that :
This agreement shall remain in full force and effect from
October 15, 1938 to October. 15, 1939, and thereafter from year
to year until either party hereto gives to the other party thirty
(30) days written notice of its desire to enter ino a new agree-
ment or change certain- sections of this agreement. It is agreed
that immediately upon the proper notice for the negotiations of
a new agreement, conferences will be scheduled to work out same.
The Union decided, sometime in August 1939, that it wished to
negotiate a new contract, and on September 6, 1939, notified Martin
of this by letter, and requested that he meet with them at his earliest
convenience. On September 14 Martin replied that he, too, thought
it would be a good time to negotiate for a new contract, but that it
was impossible to give an exact date ; he stated that he expected to be
in Aurora "sometime next week" and would then "see about working
out a date for a meeting." Martin, however, did not appear in
Aurora, and no date was set. Robert Autterson, international repre-
sentative of the A. F. of L., had been assigned about September 1
to assist the Union in securing the reinstatement of McDaniel and
Huff, and in negotiating the new agreement. According to Autter-
MARTIN BROTHERS BOX COMPANY 235
son's testimony, he met during the early part of September with
Stark, the local superintendent, and McIntyre, the plant manager, to
discuss the discharges, and was told that the discharges, like the
contract, could be acted upon only by Martin. Autterson requested
both Stark and McIntyre to arrange a meeting,with Martin, and
toward the end of September, when no meeting was arranged, re-
newed his request to McIntyre, telling him that the employees were
demanding some action.
About October 13, a day or so before the contract was to expire,
and after a further demand by the Union that some action be taken,
Autterson telephoned to Martin in Toledo and told him the em-
ployees were restless and that there was a possibility of a strike if
a meeting was not arranged. According to Autterson, "Martin in-
formed me that was the same line that organizers handed out and
that he had noticed that there wasn't any agitation in the plant until
I appeared on the scene." No meeting was arranged.
On October 14, Autterson and the union negotiating committee met
with McIntyre, "to at least go over the working conditions and the
principles of the agreement which he could and would be willing to
sanction before Martin had time to come to the plant." Notations
were made on the Union's proposed agreement indicating what
McIntyre felt he should recommend to Martin as to various pro-
visions. It does not appear, and no contention is made by the re-
spondent, that this meeting was proposed by Martin to the Union
as a substitute for- his own presence; nor was it accepted by the
Union as such. Autterson testified that he asked McIntyre for this
meeting "because I had to have something to take back to those em-
ployees to cut down their demands for action."
At the close of this conference Auttersoi again urgently requested
McIntyre and Stark to do their best to have Martin arrange a meet-
ing. No meeting was arranged, however. It appears that several
conferences on the contract were held after this between McIntyre
and Autterson.15 '
The Union was dissatisfied with the situation, however, and con-
tinued to press Martin to meet with them. On November 17, Aut-
terson wrote to Martin, saying that there was some talk of a stoppage
and requesting that Martin meet with the Union not later than No-
vember 21; he also stated that if no meeting was arranged it would
be taken for granted that the wage scale as set out in the Union's
proposed agreement was satisfactory and needed no further discus-
15 It was stipulated at the hearing that Martin had at this time delegated to McIntyre
authority to discuss all aspects of the contract except those relating to wages; all parts
of the contract , however, being subject to Martin's final approval or disapproval. The
wage provisions constituted the most important issue between the respondent and the
Union.
236 DECISIONS OF NATIONAL LABOR iRELATIONS BOARD
sion. To this Martin replied the next day that a -meeting on Novem-
ber 21 would be impossible; that requested wage scale was unsatis-
factory and Martin could not give his approval to "any part-of the
agreement" ; and that while Martin did not know when he could be
in Aurora, "whatever is eventually agreed upon will be retroactive as
of the expiration date of the old contract." By letter of November 22
Autterson notified Martin that the Union upon receiving Martin's
reply had voted to appeal to the International for strike sanction
and that the only thing that could stop a strike would be Martin's
appearance in Aurora to start negotiations. A wire to Martin on
the same date from the Regional Office of the Board, urging him in
view of the strike threat to set a date for a meeting at once, elicited
the reply from Toledo that Martin was out of town and would not
be back until after the week end, or about November 27.
During. the succeeding week, Littel and Zernack, two of the four
members of the union negotiating committee. were discharged. Hav-
ing failed to secure their reinstatement from McIntyre, Autterson
called Martin on the telephone to request that a date for a conference
be set at once, stating that a walk-out was imminent. Martin agreed
to meet with the union representatives on December 7. In a second
telephone conversation a day or later the date, was set forward to
December 5. Autterson posted a notice to this effect in the plant
on November 29; but the Union nevertheless, after a second fruitless
conference with McIntyre concerning the reinstatement of Zernack
and Littel, voted on November 30 to strike.
The strike became effective on December 1. -On that day, Martin
wrote to Autterson, saying that he considered the strike to be in
violation of the 1938 contract, and concluding his letter with the
statement that "since the employees have become so hostile as to
take the action that they did and taking into consideration the threat-
ening letter that I received, I don't feel I would be doing justice to
myself, my family or the employees of our Toledo plant, to risk
my life by meeting you and your committee at Aurora. Therefore,
I would suggest that we hold the meeting at the Netherland Plaza
Hotel, Cincinnati, Ohio. Awaiting your early reply ..."
The latter part of Martin's letter is inexplicable. Martin testified
in detail upon direct examination as to the arrangements reached
'With Autterson, in their earlier telephone conversations, for the De-
cember 5 meeting. According to Martin's own testimony, the
December 5 meeting was to be held' in Cincinnati; Martin planned
to arrive early in the morning, and when Autterson arrived in that
city he was to notify Martin at the hotel that the committee was
-there and at that time arrange a specific time for the meeting. Aut-
terson testified that he did not reply to Martin's letter of December
MARTIN BROTHERS BOX COMPANY 237
1 because he was out of the city from December 1 until December 4;
but that upon his return he called Martin's office in Toledo, was
informed that the latter could not be reached by telephone, and
cancelled the call. On December 5, the union representittives arrived
in Cincinnati and called the hotel -as agreed. Upon learning that
Martin was not registered at the hotel, they left. Martin took the
position that because Autterson did not get in touch with him to
reply to the December 1 letter, he concluded the Union did not wish to
hold a meeting.
During December 1939, Martin met twice with representatives of
the Union in Cincinnati, at the office of J. E. Addicks, Commissioner
of Conciliation of the United States Department of Labor. At the
first meeting, on December 12, an agreement was reached which was
acceptable to Martin and to the representatives of the Union, and
the latter, according to Ten Eyck, a representative of the Inter-
national who attended the meeting with the union committee, agreed
to take the proposal back and submit it to the Union. Martin,
immediately after the meeting, made preparations for reopening the
plant the next morning. The Union,, however, rejected the terms
offered by the respondent, which included postponement of a new
wage agreement, and the employees did not return to work. Martin
asserted at the hearing that the union representatives agreed to call
off the strike; the union representatives testified, however, that they
took the position at all times that the agreement was subject to ratifi-
cation by the Union, and that there was no agreement to call off the-
strike until the Union should have accepted the contract. Letters
written by Martin at the time indicate that a further meeting was
to be held to conclude the agreement, and that it was at the specific
request of Addicks that preparations to reopen the plant were made.
We find, as did the Trial Examiner, that the Union's representatives
did not at any time agree to call off the strike, and that the Union
had not given them authority to do so, in the absence of ratification
by the membership.
On December 14, Martin wrote, to Ten Eyck, stating that the re-
spondent was preparing a new contract which he would submit at
the next meeting, but that "That is no indication that we will sign
what we ourselves consider a fair and equitable agreement. Under
the Act we are not compelled to do so." The next day, December 15,
Martin wrote Ten Eyck a supplementary letter in which he stated
that he would- attend the next meeting, but that "after giving the
matter further consideration, we have definitely decided not to sign an
agreement, and further will not draft one. In view of this, do not
look forward to receiving a copy of one."
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 28 the second meeting with Commissioner Addicks
took place. Further changes to be made in the contract were agreed
upon by the representatives of both parties. Martin first denied
that he agreed to sign a written contract at this meeting, but later
testified that he told Addicks that he would do so if Addicks could
"get the situation straightened out." McIntyre, the plant manager,
and Ten Eyck also testified that' Martin indicated at this meeting
that he had changed his mind and was willing to sign the contract.
The meeting adjourned with the understanding that a further meet-
ing would be held in Aurora the next day at which McIntyre and
Stark were, authorized by Martin to adjust the grievances arising
over the discharges of Huff, Littel, Zernack, and a fourth employee.
On December 29 McIntyre, Stark, and the Union's representatives
met and discussed these matters, but a wholly satisfactory agreement
was not reached. Later in the day the Union met and voted to post-
pone ratification of the contract until further efforts had been made
to secure the -reinstatement of Huff. Thereafter Martin took the
unequivocal position that the Union had "broken faith," and that the
respondent would enter into no binding agreement with the Union.
On January 2, 1940, the Union again met, and voted uncondi-
tionally to accept the agreement which had been negotiated on De-
cember 28. The employees returned to work on January 3. Martin
testified upon direct examination that when the employees went back
to work on January 3 everything was agreed upon between the repre-
sentatives of the employees and the respondent; but later, when re-
ferred on cross-examination to the Union's acceptance of the proposed
agreement, stated that he did not then or ever thereafter consider
the respondent to be bound by any agreement, written or oral.
Thereafter the respondent refused to enforce the closed-shop pro-
vision of the December 28 agreement.
Further meetings were held between representatives of the Union
and the respondent between January 3 and May 1940. During all
this period, the respondent has refused to enter a written contract.
McIntyre stated at the hearing that if the respondent were asked to
recognize the Union "today," the respondent would do so, except that
it would not sign a written contract.
4. Conclusions
There can be no question but that the acts described constitute
a refusal to bargain on the part of the respondent. It is doubtful
whether it was in fact impossible for Martin personally to meet
with the Union during the, whole period from September to Decem-
MARTIN BROTHERS BOX COMPANY 239
ber;16 but even assuming that he could not give a day of his time
to meet with them between September 6 and December 5, it was
then his duty to appoint a fully authorized representative to negotiate
in his place. McIntyre was not so authorized. It is clear that
Martin had ample notice, as early as the middle of October, of the
importance which the employees quite reasonably attached to the
reaching of a binding agreement, and of their dissatisfaction with
a representative not authorized to do so. Yet for a month there-
after Martin made no effort to comply with the Union's stated re-
quest until, on November 18, faced with the necessity for meeting
the Union's ultimatum as to the wage clauses, he stated that what-
ever was agreed upon would be retroactive to October 15. The
Union, however, replied at once that it desired to meet with Martin
immediately, thus indicating that it was not satisfied with this
arrangement. It was still more than 3 weeks after this, however,
before the Union succeeded in meeting with Martin.
Martin repeatedly referred to the strike as a violation of the
1938 contract which justified subsequent refusals to bargain or sign
a contract on his part. The contract provided that the Union would
not strike during the term of the agreement. The clause set forth
earlier providing for the term of the agreement, can be reasonably
interpreted to mean only that upon the giving of notice by the Union
on September 6 that it desired to negotiate a new contract, the old
contract expired on October 15, 1939. Martin's theory to the con-
trary is most explicitly stated in his letter of December 1, where
he stated :
This strike is a direct violation of our contract dated November
18, 1938, effective October 15, 1938, and expiring October 15,
1939, and our letter to you of November 18, 1939, advising you
that any changes of the old contract would be retroactive as of
the expiring date of the old contract. This was accepted by you
with the full knowledge that the old contract was to remain in
force until a new contract was entered into.
It is clear from the record that the Union did not formally "ac-
cept" or informally agree to Martin's offer that any new agreement
should be retroactive; and the first intimation to the Union that
Martin considered the old contract to be still in force came on De-
cember 1, after the strike had already started. Moreover, the contract
itself provided that -
It is agreed that immediately upon the proper notice for the nego-
tiation of a new agreement, conferences will be scheduled to work
out same .. .
19 Martin testified that pressing business matters, aggravated by the international situ-
ation and a wood pulp shortage which prevailed.at the time , prevented him from arranging
a personal meeting with the union representatives during this period.
240 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
In view of this provision, and Martin's dilatory tactics, he is in no
position to accuse the Union of violating the contract.
We are of the opinion, and find, that Martin's failure within a
reasonable time to meet and bargain with the Union or to appoint a
fully authorized agent to do so, evidences bad faith on his part and
constitutes a refusal to bargain collectively within the meaning of the
Act. Since the complaint alleges no refusal to bargain prior to
October 15, 1939, the expiration date of the old contract, the re-
spondent is not found to' have refused to bargain collectively before
that date.
There are additional factors showing a violation of the require-
ments of collective bargaining. After the strike of December 1,
1939, the union representatives remained the collective bargaining
representatives of the employees'17 and the respondent's obligation
to bargain collectively continued. The respondent's failure to keep
the appointment for negotiations on December 5, 1939, and its vacil-
lating attitude and conduct thereafter, indicates bad faith in negoti-
ating with the Union. Moreover, that the Union refused to ratify
the proposed contract agreeable to the respondent and to union repre-
sentatives on December 12, 1939, cannot excuse the respondent for
taking the position on December 14 and 15 that it would sign no
written agreement even though the parties should arrive at terms
which the respondent considered fair and equitable and which the
Union accepted. The respondent was required to reduce to writing
the terms of any agreement arrived at between the respondent and
the Union ; and by taking the position that, even should agreement
as to terms be reached, the respondent would not sign a written agree-
ment, the respondent refused to bargain collectively."' Nor did the
failure of the Union on December 29, 1939, to ratify the agreement
reached the day before, justify the respondent in refusing to enter
into and sign an agreement after the Union, on January 2, 1940, voted
to accept the agreement unconditionally.
We find, as did the Trial Examiner, that by Martin's failure
within a reasonable time either to meet and bargain with the Union
himself or to appoint a fully authorized agent to do so; by his fail-
ure to keep the appointment scheduled for December 5, 1939, in
Cincinnati ; by his statement on December 14 and 15, 1939, that he
would not sign a written agreement; and by his refusal after January
2, 1940, to enter into and sign any agreement with the Union, the
respondent has failed and refused, since October 15, 1939, to bargain
17 The respondent did not hire other employees to take the places of strikers.
' See H. J. Heinz Company v National Labor Relations Board, decided by the United
States Supreme Court on January 6, 1941, and cases cited therein.' See also Matter of
Westtnghouse Electric and Manufacturing Company, 22 N. L R B 147 , and cases
cited therein.
MARTIN BROTHERS BOX COMPANY 241
collectively with the Union, thereby interfering with, restraining,
and coercing its employees in their exercise of the rights guaranteed
in Section 7 of the Act. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occurring in connection with its operations described in
Section I, above, have a close; intimate, and substantial relation to
trade, traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found 'that the respondent has engaged in unfair labor
practices, we shall order the respondent to cease and desist there-
from, and to take certain affirmative action designed to effectuate
the policies of the Act and to restore, as nearly as possible, the'
situation which existed prior to the commission of the unfair labor
practices.
We have found that the respondent has unlawfully discriminated
in regard to the hire and tenure of employment of Alvin McDaniel
and Charles Clifford Huff. We shall order the respondent to offer
them reinstatement to their former or substantially equivalent posi-
tions and to make them whole for any loss in earnings suffered by
them as a result of the respondent's discrimination against them,
by payment to each of them of a sum of money equal to the amount
which he would normally have earned as wages from the date of
his discharge to the date of offer of reinstatement, less his net earn-
ings 19 during said period.
We have found that the respondent has refused to bargain collec-
tively with the Union, the exclusive representative of the employees
in an appropriate unit. The respondent, while admitting in its
brief that the Union represented a majority of the employees in the
unit up until the employees returned to work early in January
1940, contends that there is no evidence to support a finding that
the Union has continued to represent a majority since that time, and
at the hearing for oral argument requested the Board to conduct an
election among the employees before ordering the respondent to
"By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L.*R B. 440 Monies received for
work performed upon Federal , State, county, municipal or other work -relief projects should
be considered as earnings See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with the Union. We find the respondent's contention to
be without merit. The Union's majority, shown to have existed
throughout the strike and after the employees returned to work, when
the respondent's refusal to bargain was already complete, will be
presumed to have continued, in the absence of strong evidence to
the contrary.20 Beyond a showing in the record that the Interna-'
tional representatives do not know whether union meetings have
been held since March 1940, and that, because "quite a large number"
of employees were delinquent in their dues, the International rep-
resentatives requested the respondent in January and March 1940,
to discharge delinquents, there is no evidence to support the respond-
ent's contention. We do not consider that this evidence shows any
significant dissipation of the union membership'21 sufficient to over-
come the presumption of continuance. Moreover, we find that any
dissipation of the Union's membership which may have come about
since January 1940, must be attributed to the unfair labor practices
of the respondent in consistently refusing to bargain with the Union,
as found above; and the said unfair labor practices cannot operate
to deprive the Union of its rightful status as the exclusive repre-
sentative of the employees in the appropriate unit.22
We shall, therefore, order the respondent, upon request, to bar-
gain collectively with the Union as the exclusive representative of
the employees in the appropriate unit, in respect to rates of pay,
wages, hours of employment, and other conditions of employment;
and, if an agreement is reached on any of these matters, to embody
said agreement in a signed contract with the Union, if requested
by the Union to do so.
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Aurora Corrugated Box Workers' Union No. 435, affiliated with
the 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 employ-
ment of Alvin McDaniel and Charles Clifford Huff, thereby dis-
21 See N. L. R. B. v. National Motor Bearing Company, 105 F. (2d) 652 (C C. A 9).
n Contrast with the respondent 's contention as to continuance of majority McIntyre's
statment at the hearing , that "we have always recognized the Union because a majority
of employees have always belonged to it " ; and his testimony that, if requested, the re-
spondent would recognize the Union " today," except that it would not sign a written
contract.
23 See N. L R. B. v. Bradford Dyeing Association ( U. S. A.), et al., 310 U. S 318, re-
versing and remanding 106 F . ( 2d) 119 (C. C A. 1), vacating in part and failing to enforce
Matter of Bradford Dyeing Association ( U. S. A.) (a corporation ) and Textile Workers' Or-
ganizing Committee of the C. I. 0., 4 N. L. R. B. 604.
MARTIN BROTHERS BOX COMPANY 243
couraging membership in the Aurora Corrugated Box Workers'
Union No. 435, affiliated with the A. F. of L., the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. All the maintenance and production employees at the respond-
ent's Aurora, Indiana, plant, exclusive of clerical and supervisory
employees, constitute a unit appropriate for the purposes of collec-
tive bargaining, within the meaning of Section 9 (b) of the Act.
4. Aurora Corrugated Box Workers' Union No. 435, affiliated with
the A. F. of L., was, in November 1938, and at all times thereafter
has been, the exclusive representative of all employees in such unit
for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
5. By refusing, at all times since October 15, 1939, to bargain
collectively with Aurora Corrugated Box Workers' Union No. 435,
affiliated with the A. F. of L., as the exclusive representative of
the employees in the appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
6. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act,
the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10 (c) of the
National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Martin Brothers Box Company,
its officers, agents, successors, and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Aurora Corrugated Box Workers'
Union No. 435, affiliated with the A. F. of L., or any other labor
organization of its employees, by discriminating in regard to their hire
and tenure of employment or airy term or condition of employment;
(b) Refusing to bargain collectively with Aurora Corrugated Box
Workers' TJnion No. 435, affiliated with the A. F. of L., as the ex-
clusive representative of all maintenance and production employees
at its Aurora, Indiana, plant, excluding clerical and supervisory
employees ;
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
451270-42-vol. 35-17
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form, join, or assist labor organizations, to bargain, collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Alvin McDaniel and Charles Clifford Huff immedi-
ate and full reinstatment to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges;
(b) Make whole Alvin McDaniel and Charles Clifford Huff for any
losses in earnings they may have suffered by reason of the respond-
ent's 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 during the period from the date of his discharge to the
date of the offer of reinstatement, less his net earnings 23 during that
period ;
(c) Upon request bargain collectively with Aurora Corrugated Box
Workers' Union No. 435, affiliated with the A. F. of L., as the exclu-
sive representative of all maintenance and production employees at
its Aurora, Indiana, plant, excluding clerical and supervisory em-
ployees, in respect to rates of pay, wages, hours of employment, and
other conditions of employment; and, if an agreement is reached
on any such matters, embody said agreement in a signed contract with
Aurora Corrugated Box Workers' Union No. 435, affiliated with the
A. F. of L., if requested by that union to do so;
(d) Post immediately in conspicuous places throughout its Aurora,
Indiana, plant and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stat-
ing : (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), and
(c) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c) of this Order; and
(3) that the respondent's employees are free to become or remain
members of Aurora Corrugated Box Workers' Union No. 435, affili-
ated with the A. F. of L., and that the respondent will not dis-
criminate against any employee because of membership in or activity
on behalf of that organization;
(e) Notify the Regional Director for the Eleventh' Region, in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
23 See footnote 19, above