National Container Corp.

National Labor Relations Board - Board Decisions

Jul 22, 1944

57 N.L.R.B. 565 (N.L.R.B. 1944)

In the Matter of NATIONAL CONTAINER CORPORATION and UNITED
WHOLESALE & WAREHOUSE EMPLOYEES OF NEW YORK , LOCAL 65,
C. I. O. ' and INTERNATIONAL BROTHERHOOD OF PULP , SULPHITE &
PAPER MILL WORKERS, U. S. CORRUGATED WORKERS UNION, LOCAL'
444, AFFILIATED WITH THE A. F. of L., PARTY TO THE CONTRACT
Case No. 2-C-3406.-Decided July 22, 1944
Messrs. James C. Paradise and William R. Little, for the Board.
Messrs. Saul and Marshall M. Bernstein,, and Mr. Christopher W.
'Hoey, of New York City, and Mr. Milton M. Eisenberg, of Brooklyn,
N. Y., for the respondent.
Messrs. Joseph Padway and Robert A. Wilson, of Washington,•D. C.,
for the A. F. L. ,
Messrs. William?. Karlin, and Leo Greeinfaeld, of New York City, for
Local 444. .
Mr. Eugene Cotton, of Washington, D. C., for the C.-I. O.
Messrs. David Livingston and Robert Burke, of New York'City,
for Local 65.
Messrs. Louis Lib bin and Leon Novak, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE,CASE
Upon charges and amended charges duly filed on' January 9, 19471,
and on various dates thereafter, by United Wholesale & Warehouse
Employees of New-York, Local 65, C. I. 0., herein called Local 65,
the National Labor Relations Board, herein called the Board, by its
Regional Director for the Second Region (New York City), issued
its complaint dated October 26, 1942, against National Container
Corporation, 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 and notice of
hearing thereon were duly served upon the respondent, Local 65,
57 N. L. R. B., No. 102.
565
566 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corrugated & Fibre Workers Union, Local 411, International Brother-
hood of Pulp, Sulphite' & Paper Mill Workers, A. F. of L., herein
called Local 411, and International Brotherhood of Pulp, Sulphite &
Paper Mill Workers, 'U. S. Corrugated -Workers Union, Local 444,
,affiliated with the A. F. Nof. L., party to the contract, herein called'
Local 444.
With respect, to the unfair labor practices, the complaint, as
amended, alleged in substance : (1) that on or about January 24, 1941,
and at all times thereafter, a majority of the employees in an appro-
priate unit had designated Local 65 as their bargaining representative,
and that on or about that date and at all times thereafter, respondent
refused and continues to refuse to bargain collectively with Local 65
as the representative of said employees; (2) that the respondent dis-
criminated in the hire, tenure, and conditions of employment of a
number of its employees by discharging Ira Sugarman on or about
January 8, 1941, and Melvin Schwartz on or'about January 31, 1941;
by discharging, locking out, and refusing to employ 5 named em-
ployees on or about March 13, 1941, 47 named employees on or about
March 14, 1941, and 21 named employees on or about March 20, 1941;
by discharging and refusing to reinstate 3 named employees on or
about March 14, 1941; and by demoting Harry Davis to an inferior
position on or about March 10, 1941; (3) that on or about February 1
and March 13 and 20,-1941, the employees at the respondent's Long
island City plant ceased work concertedly and went on strike, and that
the said strikes were caused and prolonged by the unfair labor prac-
tices of the respondent; (4) that thereafter the respondent refused to
reinstate 5 named employees to their former or substantially equivalent
positions upon application, for the reason that they had assisted or
become members of Local 65, had participated in the strikes above set
forth, and had refused to work during said strikes or had refused to
join or assist Local 411; (5) that the respondent from on or about
January 1, 1941, vilified, disparaged, expressed disapproval of -and
ridiculed 'Local 65, its members, 'officers, purposes, and activities;
'interrogated its employees concerning union affiliation and activities;
urged, persuaded, threatened, and warned its employees to refrain
from assisting, becoming members of, or remaining members of Local
65; and that by the above and various other enumerated acts engaged
in a -planned and continuous course of conduct designed to interfere
with the rights of the employees to -self-organization and collective
bargaining; and (6) that on or about September 24, 1941, the respond-
ent entered into a collective bargaining agreement with Local 444
relating to terms and conditions of employment and requiring mem-
bership in Local 444 as a condition of employment; that Local 444 was
sponsored, maintained, assisted, or supported by the unfair labor
NATIONAL CONTAINER CORPORATION a , 567
practices of the respondent and was not then the representative of an
uncoerced majority of the employees in the collective bargaining unit,
covered by such agreement , by reason whereof the agreement or any
renewal thereof is invalid.
Under date of November 21, 1942, the respondent filed an answer,
admitting certain allegations as to its 'business and denying that it had
engaged in the unfair labor practices alleged. Further answering, the
respondent averred affirmatively that its contract with Local 444 was
a valid and existing obligation; that prior to April 4, 1941, all con-
troversies or disputes existing on that date between the respondent
and Local 65 were settled ; and that by reason of the said settlement
the instant proceeding is barred . Under date of November 19, 1942,
Local 444 filed an answer denying the commission of unfair labor prac-
tices by the respondent and averring affirmatively that prior to Sep-
tember 24, 1941 , the employees in the appropriate unit in the respond-
ent's plant renounced and terminated 'any right, power, or, authority
of Local 65 to act as, their exclusive representative for the purposes of
collective bargaining and designated Local, 444 as such representative;
and that on or about September 24, 1941 , Local 444 and the respondent
entered into a valid, 'subsisting , and lawful collective agreement which
is in full force and effect.
Pursuant to notice, a hearing was held at New York City, from
January 14 to April 15, 1943, before Gustaf B. Erickson, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, and Local 444 were represented by counsel and Local
65 by a representative. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues. At the beginning of the hearing,
counsel for the Board. moved to amend paragraph 4 of the complaint
so as to allege that Corrugated & Fibre Workers Union, Local .411,
International Brotherhood of Pulp, Sulphite & Paper Mill Workers,
A. F. of L., is a labor organization within the meaning of Section 2
(5) of the Act; to include in paragraph 20 of the complaint the names
of Joseph M. Valentine and Stephen Arvay; and to correct the spell-
ing of names of employees listed in the complaint. The Trial Exam-
iner granted the, motion without objection by any of the parties.
During the course of the hearing and at the, close of the Board's case,
counsel for the respondent and counsel for Local 444 made various
motions to dismiss certain allegations in the complaint , to strike
certain testimony and exhibits , and to dismiss the entire complaint.
The Trial Examiner denied these motions. At the close of the hearing
these motions were renewed. - The Trial Examiner deferred ruling
upon the renewed motions and thereafter denied them in his Inter-
' Local 411 did not appear.
568, ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
mediate Report. At the close of the hearing, counsel for the Board
moved to conform the pleadings to the proof as to informal matters.
The motion was granted by the Trial Examiner. During the course
of the hearing, the respondent and Local ' 444 moved to consolidate
this proceeding with another proceeding,2 which had 'been instituted
by the respondent on December 4, 1942, by the filing with the Board's,
Regional Office at New York, of a Petition for Investigation and Cer-
tification of Representatives pursuant to, Section 9 (c) of the Acts
The Trial Examiner reserved for the Board's determination a'ruling
upon the said motion. ' The motion is hereby denied.
During the course of the hearing, the Trial Examiner made rulings
on other motions and on objections to the admission of evidence. The
Board has reviewed all of the rulings of the Trial Examiner and finds
that no prejudicial , error was committed. The rulings are hereby
affirmed . After the hearing, the respondent, Local{ 444; and counsel
for the Board filed briefs with the Trial Examiner.
On July 30, 1943, the Trial Examiner issued his Intermediate Re-
port; copies of which were duly served on all the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1), (3), and
(5) and Section 2 (6) and (7) of the Act, and recommended that the
respondent cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act. 'Thereafter, the respond-
ent and Local 444 filed exceptions to the Intermediate Report and
briefs in support of their exceptions . Pursuant to notice, a hearing
for the purpose of oral argument was held before the Board in Wash-
ington, D.- C., on January 18, 1944. The Board has considered the
exceptions and briefs filed by the respondent and Local 444 and finds
that the exceptions are without merit insofar as they are inconsistent
with the findings, conclusions, and order hereinafter set forth.
In their exceptions and supporting briefs, the respondent and Local
444 contend that the complaint should be dismissed in its entirety
because\of the limitation imposed upon the Board's use of its funds.4
The Comptroller General of the United States has' ruled in a' series
of opinions 5 construing the 1944 limitation, that the appropriation
of the Board was not available for use in connection with a complaint
2 2-RE-50
8 The petition was thereafter dismissed by the Regional Office on February 26, 1943.
4 See The Act making appropriations for the Department of,Labor , the Federal Security
Agency, and related Independent Agencies for the fiscal years 1944 and 1945, Public Law
135, 78th Cong., 1st Sess . ; Public Law 373, 78th Cong ., 2nd Sess.
The pertinent provision in the current Appropriations Act states :
No part of the funds appropriated in this title shall be used in any way in connection
with a complaint case arising over an agreement , or a renewal thereof , between man-
agement and labor which has been in - existence for three months or, longer without
complaint being filed . . .
See 13 L . R. R 236 and 14 L R R. 251-6.
NATIONAL CONTAINER CORPORATION 569
case charging assistance to a union in,violation of Section 8 (1) of the
Act and a refusal to bargain in violation of Section 8 (5) where there
was involved an agreement between management and labor which
had been in existence for 3 months or longer without charges being
filed with the Board.
In' our view of the above interpretations of the 1944 Appropriations
Act,.which are also applicable to the cur"rent limitation as here-involved,
the contention of the respondent and Local 444 to the effect that the
complaint herein be dismissed in its,entirety is without merit. The,
complaint alleges violations by the respondent of Section 8 (1), (3)
and (5) of the Act. Those'allegations which charge the respondent
with rendering assistance to Local 444 within the meaning of Section
8 (1) of the Act and with refusing to. bargain with Local 65 within
the meaning of Section 8 (5), clearly appear to involve and affect
an existing agreement' between the respondent and Local' 444, which
was entered into 3 months or more prior to the filing of charges with
the Board. Under the circumstances herein, and without passing
on their merits, we shall dismiss those allegations of the complaint.
We reach a different conclusion, however, with respect to the re-
maining_ allegations of the complaint. The.findings hereinafter made
that the respondent violated Section 8 (1) of the Act are based upon
the activities of officials and supervisory employees of the respondent
in disparaging and expressing hostility toward and disapproval of
Local 65 and in rendering assistance to Local 411, an organization with
which the respondent had no contractual relations. This is the type
of activity upon which we customarily predicate an independent find-
ing of violation of Section 8 (1). Similarly, the respondent's viola-
tions of Section 8 (3), found below, consist of the discharge; demotion,
lock-out and failure of reinstatement of various employees because
of their union membership and activities. This is the usual type of '
discrimination upon which we base findings of violation of Section
8 (3). We find that the respondent's violations of Section 8 (1) and
(3), as outlined above, are not dependent upon or"affected by, and are
distinct and severable from the alleged unfair labor practices under
Section-8 (1), dealing with assistance to Local 444, and Section 8 (5)
of the Act, and are in nowise related to, the contract between the re-
spondent and. Local 444. Plainly, therefore, insofar, as the case
,embraces unfair labor practices within the meaning of Section 8 (1)
and (3)'of,the Act, which do not involve an agreement as aforesaid,
it is not "a complaint case arising over an agreement between manage-
ment and labor," and we consequently see no reason why we should not
proceed with these portions of the complaint."
See Matter of Greenville Steel Car Company , 54 N. L. R. B. 608.
570 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
,Upon the entire,record in,the case, the Board. makes, the following':
FINDINGS OF FACT
F; I
" T. THE BUSINESS OF TIIE RESPONDENT
National Container Corporation, incorporated in.Delaware in 1928,
has its main office,and the plant involved in this proceeding at 30-01.
Review ,Avenue, Long Island City, New, York. It is engaged , there
in the manufacture of craft pulp, and' paper and corrugated boxes.,
It is affiliated with , the Anchor. ,Container Corporation and the Air.
Depot Realty Corporation, both of New, York ;City, with Corru sated
Craft Containers, Inc., of California, and National Turpentine & Pulp
Wood Products Corporation of Florida. The' principal materials
purchased by the corporation are wood,,paper, tape, and starch: Dur-
ing each of the years 1941 and 1942 such materials, valued in excess
of $100,000, were purchased; by the Long, Island City plant, about 90
-percent of which was shipped to said plant from points outside the
State of New York. During each of said years the respondent shipped
from the Long Island City plant finished products,, valued in excess
of $100,000, of which about 75 percent was shipped to points outside
'the State of New York.
The respondent admits that it' is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
United; Wholesale & Warehouse Employees of New York, Local 65,
C. I. 0., and International Brotherhood of Pulp, Sulphite & Paper
Mill Workers, U. S. Corrugated and Fibre Workers Union, Local 444,
affiliated with the A. F. L., and Corrugated and Fibre Workers Union,
Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill
Workers, A. F. of L., are labor organizations admitting to member-
ship, employees of the respondent, at its Long Island City plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The respondent's opposition to Local 65 and,assistance , in the
formation of Local, 411
In the summer of 1940, Local 65 started its organizing activities
among the respondent's employees. Its first recruit was employee Ira
Sugarman, who joined on July 10, 1940, and immediately became an
active campaigner. Through his efforts Harry Davis joined on
August 26, Sam Kinstler on September-25, and a handful of others,
including Barney Landsberg, by the end of 1940. Solicitation of
NATIONAL CONTAINER CORPORATION 571
members proceeded quietly,and secretively throughout this period and
during the first,week,or two of 1941. ' ' 1
Sugarman testified that early in January 19417 Joseph Gruneisel,
the resppndent's superintendent, had a conversation with employee
Frank Yandoli' in the factory office of the plant in,the presence and,
hearing of Sugarman, wherein Gruneisel told Yandoli that he believed,
that if "the union came into the shop it would affect the speed of the
workers and the lay-off in the shop ... that he would not tolerate any
union activities on Frank's part in the shop and that any activity
of that nature would be good cause for dismissal." He further testi-
fied that at about the same time Gruneisel told employees Isaac Car-
dona, Joe Umberto, and Barney Landsberg that there was a lot of
discussion about the "Union" going on among the employees, that he
did not want them to take part in it; and that continued union activity
by them would-result in their discharge.8
On the'morning of January 6, Local 65 distributed to the employees
leaflets disclosing these conversations. That same morning Gruneisel
summoned Landsberg to the factory office where he told him, accord-
ing to Sugarman who worked in the office, that he knew that Landsberg,
had attended a meeting of Local- 65; that he (Gruneisel) had been
kept informed of, everything that had taken place at the meeting; that
he knew Landsberg was responsible for the distribution of the leaflets;
and that "if the LTnion got into the shop the workers would be laid
off and there would be a speed up." 9
Daniel Calabrese, then business agent of Local 411, testified- that
about the middle of January, he' and Tonelli, an international repre-
sentative of Local 411, were called to the offices of the respondent by
Ginsberg, its vice president. There, in the presence of Goldberg, the
respondent's general manager, Ginsberg told them "that Local 65 had
a drive on at National Container; that he wanted the good old A. F. L.
to have the shop but things were not so hot at that time, but as soon
as things got a little tougher he would get'in touch with us [Tonelli
and Calabrese] and he was confident he could deliver' the shop."
According to Calabrese, Ginsberg again called Tonelli and Cala-
brese to his office on January 24 and'told them that Local 65 seemed
to be a little stronger than he had anticipated "and we [Calabrese and
Tonelli] should get to work right away; he wanted to know the best
way that we should go about organizing his plant." Tonelli and
Calabrese thereupon suggested to Ginsberg and Goldberg that they
send three or four employees to the office of Local 411 where they
Hereinafter all dates refer to 1941 unless otherwise indicated
$ It is not clear from the record whether, at this time, the respondent had promulgated a
rule prohibiting such discussions among its employees on company time or property
Gruneisel denied having had any conversations with Cardona, Umberto, and Landsberg.
He admitted, however, having threatened to discharge Yandoli if he engaged in union activi-
ties on company time. Upon the entire record we, like the Trial Examiner,' do not credit
his denials
572 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
would be advised about organizing the plant. Ginsberg agreed to
this arrangement and added that-the men selected would get plenty of
advice and help from Goldberg and Gruneisel, the respondent' s super-
intendent . Ginsberg also promised that'he would mail to Local 411
a list of names - and addresses of employees who, he thought, were
" favorable" to the respondent.
Calabrese further testified that on January 25 employees John Sa-
brian, Peter Davidyock, and Eddie Betcher 1e came to the office of
Local 411; that he and Tonelli gave them Local 4-11 application cards,
urging them to get them signed "as far as possible; that the company
would influence a lot of people to sign with them." He further testi-
fied that on January 27 Local 411 received the list of prospective
employee members which Ginsberg had previously promised.
Calabrese also testified that at about this time he'and Tonelli.visited
the offices of Bernstein, one of the respondent's attorneys, who stated
that he wanted to see whether,Local 411, was strong enough to organ-
ize the plant; that they also' visited the offices of Blumberg, another
attorney for the respondent, who offered to give all the help possible
short of "showing our hand"; and that they met some of the respond-
ent's officials in restaurants where they discussed the progress of Local
411's campaign to organize, the employees."
Sabrian and Betcher did not testify. Davidyock, however,-a wit-
ness for the respondent, testified that sometime in December 1940 he
and some other employees, whom he 'could not identify, were leaving
the plant when Tonelli and Calabrese stopped them, asked them to
join "the A. F. of L.," and gave Davidyock some Local 411 application
cards which he used in soliciting employees in the plant and one of
which he signed. On cross-examination he testified that that was the
first time he had met Tonelli and Calabrese; that thereafter he,
Betcher, and one other employee, whom he could not name ; went to the
office of Local, 411 at the invitation of Tonelli and Calabrese; and
that they were given Local 411 cards and told to-get them signed.'
Davidyock further testified that he knew of no other worker who
was soliciting for Local 411 before he commenced- his activities, and
that his,interest in Local 411 started after Local 411 began the dis-
tribution of self-addressed-post cards in the nature of application
blanks.
Ginsberg and Goldberg testified that they, met with Tonelli on
January 9, and Tonelli and Calabrese on*or about January 24 in the
10 Betcher , Davidyock , and Sabrian vere employed in the corrugating department where
basic operations are performed Employees therein are considered the key employees of
the industry.
11 Neither Bernstein , who was present at the hearing when this testimony was adduced,
nor Blumberg was called as a witness. Ginsberg , who admitted meeting Tonelli and Cala-
brese in a restaurant , testified vaguely as to the subject of the conversation had there.
Goldberg , in turn, stated that he met Calabrese in Blumberg ' s office but that he ( Goldberg)
did not participate in the discussion except - to say "hello."
,NATIONAL CONTAINER CORPORATION 573
offices of the respondent. Ginsberg testified that the meetings were
held at the request of Toneelli and denied that the conversations oc-
cured as testified to by Calabrese. Both Ginsberg and Goldberg tes-
tified that the meetings which were held concerned demands made by
Tonelli that the, respondent recognize and deal with Local,411 ,as the
--bargaining agent of the employees, and that they refused to discuss
the demands with him "because we had some charges pending with the
Labor Board."
As is hereinafter found, Local 411 did not make its appearance in
the plant as a rival organization to Local 65 until January 25.12 Nor
at that time were there any pending charges which might have affected
the respondent's dealings with Local 411, such as a charge that the
respondent had unlawfully assisted Local 411 or had unlawfully re-
fused to bargain with Local 65.13 Moreover, the events which fol-
lowed, as hereinafter found, so completely corroborate Calabrese's
testimony, which we,, like the Trial Examiner, credit, as to make
Ginsberg's and Goldberg's versions of these meetings implausible.
From all of the above evidence 'and upon the entire record we find
that Calabrese gave a substantially accurate account of what occurred
at the meetings; that he and Tonelli were called by Ginsberg; and that
the meetings took place about the middle of January and January 24,
respectively.
Except for Davidyock's testimony there is no direct evidence that
Local 411• Was active in the organization of the respondent's employees
prior to January 25 other than the testimony of witnesses for the
respondent and Local 444 that they saw Local 411 leaflets being dis-'
tributed' in front of the plant in December 1940 and January 1941.-
Witnesses for the Board uniformly testified that Local 411 leaflets
were first distributed during the last week in January. Robert Burke,
an organizer for Local 65; testified without contradiction that..a Local
•411 leaflet (which is in evidence as,an exhibit), attached t9. which was
a self -,addressed post card application blank, was the' first leaflet
issued by Local 411 and that it was distributed on January 27. No
leaflet was produced which was shown to have been distributed at an
earlier date. Davidyock's application card bore the date "January
27." 14 Moreover, of, 120 Local 411• application 'cards` introduced in
" The earliest dated application card signed for Local 411 by the employees of the
respondent hears the date of January 26, 1941
/" Local 65 filed a charge on January 13, 1941, alleging that the respondent had discrimi-
natorily discharged employee Ira Sugarman on January 8,,1941. His case is more fully
discussed -hereinafter.
'4 At the request of counsel•for the Board , counsel for Local 444'were'asked to produce
Davidyock 's Local 411 v application card- That-card bore the date of January 27. Con-
fronted with the card - Davidyock stated that lie, had signed two or three cards and , that"the
card that was produced may not have been the first one he signed. No other card wa`s pre-
sented nor was any reasonable explanation given for the absence of an earlier card Like
the Trial Examiner, we find that the January 27 card is the card that Davidyock signed as
his application for membership in Local 411;
I
'574 DECISIONS ` OF NATIONAL LABOR RELATIONS BOARD
evidence, only 1 is dated prior to January 27 arid'that is dated January
26. Some of the cards bear no date , and'no 'testimony was adduced to
show when the non-dated cards were signed. On January 28, Local
65 distributed a leaflet which denounced the activities of Davidyock
and the attempts of the management to foist Local 411 on its employee.
No mention of.these activities is to,be 'found in' the earlier leaflets of
Local 65. ' -Moreover, Calabrese 'testified that the, list of employees'
names and addresses, which he received on January 27 from the
respondent to facilitate organization by-Local 411 ', was included
among papers which he turned over to, Leon, the, international repre-
sentative of Local 444, in December '1942. This was not -denied, by
Leon who was available' to. testify throughout the hearing. In 'view
of all.the above testimony we find; as, did the Trial Examiner, 'that
the organizational activities of Local-41 1 did not commence at the
respondent 's plant until January 25; that Davidyock , Betcher, and
,Sabrian visited the offices. of Local 411 on that day and there met
Tdnelli and Calabrese; and that their visit and subsequent activities
on, .behalf of Local 411 stemmed from, and were a direct consequence
of, the conference between Ginsberg, Goldberg, Tonelli, and Calabrese'
on,the-previous day. ' • ' ' -
Superintendent Gruneisel 's desk is located in 'the'factory office as
distinguished from the main office of the respondent. Facing his desk
was the - desk of David Baff , the respondent 's maintenance siiperintend-
'ent.e,, About 10 feet from Gruneisel's desk was the desk of Gerald
'Davis, a factory office employee . The office,' as a whole, ' is approxi'-
mately,20 feet by 30 feet, enclosed by a glass partition from *,hich'one
9can,Jook into a reception room. Davis , a credible witness ; testified'ihat
.about'a week prior to February 1 he was present in the factory office
and; overheard a. conversation between :Gruneisel - and' Foreman Joe
Lombardo. Gruneisel, told Lombardo that he- -understood there Was
to be. a union in the plant and that there was quite a bit 'of talk about
it,; that if-there was to be a ' union in' the plant, lie and the respondent
were in favor of the A. F. of L. • organization ; aid that he wanted
Lombardo to tell the employees that "we believe tlie'A.=F. of L. orgarii'-
zation is better for them than ' this C.,'I '. O. 'organization , better ad-
vantages, and more benefits, and so forth , and to pass the word on to
the men in the factory in his department ."- Davis further testified
that he also overheard substantially the same- conversation pass be-
tween Gruneisel and about 10 to' 15, foremen, including Foremen
Harry ` Morantz, H. Kipnis, and W. Richter.' He also testified that
he heard substantiallythe, same conversation pas's' between"Gruneisel
an d Davidyock , and Gruneisel and other , employees , who worked in
the various ' departm 'ents ' of the plant but whose; names he could not
recall.
/'
NATIONAL CONTAINER 'CORPORATION' ;575
Davis' also testified that during the last week ' in January two n'o`r
three men entered, the 'plant reception room and that in the perform-
ance of his duty he went out to ask their business.' They told him that
they were A. F. of L. organizers and would like to speak to Davidyock.
Davis told them that they could not speak to a working employee until
he had finished his shift.-'At that point Baff entered the reception
room, whereupon Davis told Baff that'the gentlemen were A. F. of L.
organizers' wlio wanted to 'sp'eak to Davidyock.' Baff, told Davis'to
ask Gruneisel if it was • all right' for them to, speak to Davidyock.
Davis did so and' was told by Gruneisel to get Davidyock "quietly:"
Davidyock came to the reception room and conversed with the organ-
izers. Baff testified evasively as to this incident, stating that he could
not relilembered what had occurred with relation thereto.
At'about this time, the respondent's officials and supervisors' made
various statements' to'its employees! ,and engaged) in conduct-at', ,the
plant intended to undermine Local 65 and to favor Local 411. 'Thus,
employee Landsberg testified that on January 27 "'Joe Gruneisel'-was
running all over the plant shouting the company will never sign with
the C. 'I. O: The company, would go'out' of business. • They did not
care•if'we went oil strike." ' He'further testified that oii the same day
Harry Rounds, his foreman, told him, that "The company would rather
go out of-business. They would never sign with the C. I.'O. 'They
did' not care if we'went on 'strike"; that representatives of Local 411
were handing out leaflets in' the restaurant; 1,1 and that the leiflets had
been placed on `chairs and tables 'of the restaurant befor'e' he had
entered. Employee Harry Brown and Sam Kinstler' also testified that
d'uriirg,the last-week of January they saw'two men distributing Local
411 leaflets in the restaurant.
Employee Lionel Medina„ a& Puerto''Rican,'testified that on Janu-
ary 28' Foreman Dave Scher came to' him at his place of wbrk and
told him to'get'25 of the Spanish speaking people l6 in the pl`a`nt to
sigh application cards for Local'411;'tliat other plants of the respond=
ent' had'contracts with 'the American Federation 'of 'Labor' a'nd' "it
,was justified- that'the 'National Container Corporati'on' should' have
a majority 'of votes',]rieinb6rship cards too, and we'have"a 'contract
for the American Federation of Labor."' 'He also told'Medina'that'
Local 411 cards could be obtained from employee Bill Shupa and
Foreman Frank Wilson. ''Medina' further testified that on the same
evening Joseph Comacho; his, foreman,,told;him that "the„ best.,way
'^ Thef restaurant is located on' the plant 'pre`mises and•is for ' the convenience of employees
,and also the .public. Although it is, operated , independently .of,the respondent, the re-
spondent maintains control of , activities other than purely restaurant function Samuel
Kipriis, ,president of-the respondent , testified that the distribution ' of union'leufiets is for-
bidden • in,the restaurant , because "they-would be creating a, disturbance nn the place and
probably create a fight between one faction or another."
At that time the respondent employed„abqut 40 individuals of Spanish descent.
t 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for all the employees of National Container was to sign their cards
and join the American Federation of Labor because we were going
to be better off, there would be no strikes and a lot of time be wasted
and money"; and that at about the same tiine he saw Foreman Wilson
and employees Shupa and Davidyock soliciting Local 411 memberships
in the plant in the presence of Foreman Scher.
Employee Frank Wear, whose conduct the Trial Examiner char-
acterized as hostile to Local 65 and favorable to Local 444, testified
under subpoena that on January 27 Foreman Wilson gave him 25 or
30 Local 411' membership cards and told him to pass them out and
try to have them signed;, that thereafter Foreman Scher asked him
how many signed cards he had; that Scher told him to turn in the
signed cards to the factory office; that at intervals of a half-hour
during the day Scher asked him if he had succeeded in signing up more
employees; and that he succeeded in having 2 application cards signed
and delivered them to the factory office. He further testified that on
January 29 he saw Local 411 leaflets being 'distributed in the respond-
ent's plant.
Gruneisel, Lombardo, Morantz, Rounds, Scher, Wilson, and
Comacho denied the statements' and acts above attributed to them by
Board witnesses. Foremen Kipnis 17 and Richter did not testify.
The Trial Examiner, who saw and heard the witnesses, discredited
their denials in part upon his observation of them. We concur with
the Trial Examiner in crediting the testimony of the Board's witnesses
and find that the respondent, by the'abo ie set forth acts of its officials
and foremen, engaged in a coercive course of conduct designed to
thwart Local 65's organizational efforts and to foist Local 411 upon
the employees.
On' January 29 Local 411 held its first meeting. The respondent
had previously advertised that a meeting of Natcon; a credit union
of the respondent's employees of which Gruneisel was president;.was
to be held on that day. The meeting was postponed, however, because,
according to Gruneisel, the employees "had to go some place and we
wouldn't have any attendance." . We find, as did the Trial Examiner,
that the meeting was postponed to accommodate Tonelli_ and Cala-
brese in their efforts to organize Local.411. 1,
- 2. The strike of February 1941
On January 31 Local 65 held a meeting which was attended by more
than a majority of the respondent's employees. , At this meeting
there was a general discussion, among other matters with respect, to
the respondent's efforts to help Local 411 and to "break up" Local :65.
Employee Hammack, reported that the respondent was moving dies
Hereafter the name of Kipnis refers to Samuel Kipnis, the respondent's president. No
further mention of Foreman Kipnis is made.
NATIONAL CONTAINER CORPORATION 577
of important customers from the plant, and stated that this was
evidence of the respondent's intention to close the plant rather than
to deal with Local 65. Some of the employees who spoke, including
Hammack, Vitello, Kinstler, and Kersais, suggested that a strike
be called "in order to compel the company to stop their shenanigans
with'tlie. A. F; L, and-to deal wi'tlr the, C. I. O.'*hich represented the
workers." Livingston, vice president and organizational director of .
Local 65, suggested that, instead of a strike, the employees call a
"holiday" or stoppage of work, but that there be no picket line and no
effort to influence other employees not to go to work. This suggestion
was adopted unanimously.
The holiday commenced on Saturday, February 1. The pay-roll
records of the respondent reveal that about 9O percent of the em-
ployees remained away from work on that day. At another meeting
of Local 65 held that afternoon at Gets Hall,18 it was decided that, if
the respondent attempted to operate its plant with strike breakers,
'the holiday would become a strike.
Calabrese testified that on the morning of February 1 he received
two or three telephone calls from Goldberg and Ginsberg. They told
Calabrese that the plant was out and that he and Tonelli should visit
each employee at his home for the purpose of inducing,them to go
back toy work. Calabrese asked Goldberg to furnish him with' a list of
names and addresses of all the employees; the list was delivered to
him by Goldberg later that day 19 Calabrese further testified that
on the morning of February 2, he and Tonelli met with Ginsberg and
Goldberg in the respondent's plant; that Ginsberg and Goldberg
"stressed on me and Mr. Tonelli that if we would get a number of
people from the' outside to go into work the next day, no matter how'
we got them in, there; that it would break the morale of the strikers,
and -they would -follow suit." He further testified that^in response
to the request of Ginsberg and Goldberg, he, Tonelli and Ben Cianculli
"toured half of Brooklyn that day" by going to restaurants and other
public,places.20 , - • -
18 Employees Smith and Richter testified that they were at the union hall all afternoon
and that no meeting'of Local 65 was held there There was no testimony that a meeting
was held at the union hall as distinguished from Gus Hall , the latter being strike head-
quarters
19 Goldberg and Ginsberg denied conversations with Calabrese and Tonelli . As with
,the employee list of January 27, Calabrese testified that he also turned over to Leon the list
of February 1. Leon was available in the court room but was not called to deny the fact.
Nor was Tonelli, the one man who could have decisively contradicted Calabrese 's testimony,
,called as a witness. We agree with the finding of the Trial Examiner , crediting Calabrese's
testimony and discrediting the denials, of Ginsberg , and Goldberg. -
20 Ginsberg and Goldberg denied the testimony of Calabrese . However , Smith testified,
and we find , that on the following morning, February 3, Calabrese appeared at the plant
,a ith a truckload of "poolroom bums " intended as strike, breakers . It is most unlikely that
Calabrese would have done this without the approval ' of the respondent.' We find, ad did
the Triai'Examiner ,, that Calabrese and Tonelli recruited strike breakers at the request of
'the respondent. .
I
'
601248-45-vol.-57-38
i
I
578 DECISIONS 'OF' NATIONAL LABOR RELATIONS BOARD
On February •2, the respondent sent to each of ,its employees 'a copy
of the- following telegram
OUR PLANT ' WILL OPERATE MONDAY AS USUAL,
WE ARE INFORMED THAT'MANY OF OUR' WORKERS
ARE BEING INTIMIDATED AND' THREATENED' IF
THEY RETURN TO WORK. WE WISH TO ASSURE YOU
OF EVERY PROTECTION PERMITTED BY LAW WHILE
GOING TO' AND FROM THE' PLANT AND WHILE WORIK-
ING: WE ' HOPE YOU WILL REPORT' TO WORK TO-
MORROW MORNING. IF YOU ARE ' BEING THREAT-
ENED OR PREVENTED FROM COMING TO WORK-CALL
US AT IRONSIDES 6-8000'E'ARLY MONDAY MORNING.
NATIONAL CONTAINER CORP.
There is, no evidence that on- February, 4, ' members or. officials of
Local 65•or-anyone else' committed 'any -acts of-violence or intimidation-
to compel participation-in the strike, as, is intimated in the -telegram.
Neither the -respondent nor Local,,444tprbduced; a• single witness-to
testify :that he was-intimidated orcoerced- into relria,ining away from
work on 'that 1day.21 Richter, testified,.that,, at! the request of Burke,
he arrived at the plant,at 4 a. in. oli. February' 1 because ";.lot of the
people'might want to-sneak in before six 'o'clock?'; that'he tried,to
dissuade' Henry Ghighotti from going'Wapork but did, ,notsucceed;
a,nd that-he, persuaded,, employees Mary, and John Litchko.to,go:home
after they,had 'expressed` a desire to, work., Smith testified that on
-that' morning. he stopped employees Lester, Beacher, Benny Sito; and
George Worchell,: told, them -of the meeting the preceding night,,-and
that 'they'decided. to: stay gout; that he,spoke,to Susan,DeMatteo,;who
stated ,that_ she would not strike with. Local; 65'and' went to,wbrk ; that
he-stopped' Benny. Frankel, and keptIlilih out of,the plant despite'"his
wish'to go to work!, The, pay-roll records,do,not, reveal,that Frankel
was an employee i of the. respondent at, that -time.: i Thus,, from „the
testimony of Smith and Richter it does not appear. that _violence', was
employed to prevent the respondent's employees from reporting to
work on February `1, 'although t nuniber of diem who-appeared to
go to work on February-1 were dissuaded from, doing so. The holiday
Alexander ' C. Herman, one of the respondent 's' directors and vice presidents , testified
'that on the evening of Ma'rch 5 he and Goldberg attended a meeting of 12 or 13 employees
iri the back room of 'a saloon in the Brona 7 that employee Joseph Meaux ' was the spokesman
'for the employees who were for the most part of Spanish origin ; that Meaux said 'that there
were ' some 40 emiiloyees who would like to return to work ) but that tliey were "scared";'and
that Meaux recited some instances of violence and, intimidation . Meaux identified no indl-
bidualsas responsible'for the acts and1could not remember that he had made the statements
attributed to him by Heiman . He denied , moreover, that he had ' been' intimidated.' No other
employee, who attended the meeting , was called as a witness: We'agree with the finding of
'the Trial Examiner that the Hearsay character iof Herman' s evidence is'insufficient to
warrant a ' fin'ding that anyone connected wlth-'Local 65'par'ticipated in' the' alleged acts,
even if they did occur.
NATIONAL CONTAINER CORPORATION 579
continued on February 3. The respondent adduced testimony for the
purpose of establishing that Local 65, on that day also, engaged in
violence in order to prevent the employees from returning to work.
Such testimony is not convincing. We find that the evidence fails
to establish the respondent's contention that the strike was forced
upon the employees by the officials of Local 65 and that participation
therein by the employees was not voluntary. We further find, as did
the Trial Examiner, that the telegram of February 2 was an individual
appeal to each of the respondent's employees to return to work and
thus repudiate adherence to Local 65, 'and that by .this course of con-
duct the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
Our finding in this respect is based upon our determinations, herein-
after set forth, that the strike was caused, at least in part, by the
respondent's unfair labor practices.
Richter, Smith, and witnesses for the Board testified without con-
tradiction that about 10 a. m. on February 3, there pulled up at the
gates of the respondent's plant, a truck loaded with what Smith and
Richter described as "about 50 or 60 young fellows in it, regular .. .
poolroom bums, shabby looking," intent on replacing the strikers in
their jobs. Behind the truck was a cab in which were seated Calabrese
and one other unidentified man. When these men learned from the
strikers that they were intended as strike breakers, all but 3 left the
plant. Thereafter picket signs were carried by the strikers. On the
afternoon of February 3 Local 65 held another meeting in Gus Hall,
attended by approximately 175 employees who voted unanimously to
declare a strike following a report made to the employees that strike-
breakers had been brought to the plant.
At about this time also, Kipnis admitted visiting headquarters of
Local 65 for the purpose of saying "hello" to the strikers, and because
he felt that the respondent's employees, many of whom had worked
for the Company for 20 years, were "not in sympathy with the strike."
According to employee Sugarman, whose testimony we credit, Kipnis
reproached employee Goldstein for having gone out on strike and
accused Sugarman of having instigated the strike 22
On February 17, the respondent sent each of its employees the
following letter, signed by Goldberg :
To MY FELLOW-WORKERS :
As your new General Manager, I feel it my personal duty to
send these few words to you. I want you to know that I feel for
you-that in my opinion a strike accomplishes nothing-that any-
thing that is to be done can be done while you are working and
getting paid.
I Kipnis denied making the statements attributed to him by Sugarman . Upon the entire
record , we do not credit his denial.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An election is the only solution to, the present situation and
unfortunately the decision to have one ' does not rest with the
National Container Corporation. There is no question as to any
contract pending at this time-there could not be one as I under-
stand National Container has no right to deal with either Union
until an el'ection'is held and the results obtained. , ,'
This, without the consent of the C. I. 0., cannot be held for
quite some time. In the meantime , you are the losers for you are
not being paid and nothing is hastened.
I appeal to your common sense-return to work at once-avoid
further losses-avoid a complete shut-down-avoid a possible
further disentegration of National 's business with its future loss
to you as well as the company.
I present these to you from the heart-I desire to keep our past
business in tack as much as, possible although considerable, has
been lost caused by'those ' who are directing some of you.
Return to work at once and keep your responsibility to, your
families and yourselves.
Most Sincerely
/s/ LIONEL GOLDBERG
Lionel Goldberg
Calabrese testified that on March 2 Kipnis visited the office of Local
411, where a group of key'workers had-been gathered by Tonelli.and
Calabrese. Kipnis addressed the workers and told them that they
were his key men; that he would like to see them all go back'to work
and "string along with the A. F. of L."; that that was the only union
he wanted; and that rather than have Local 65'in the plant, which-he
branded as a union controlled by a "bunch of young communists," he
would close the plant. Kipnis denied that he was present at the meet-
ing. Calabrese testified very definitely as to the date of this-meeting.
The pay-roll recor'ds show 'that'Woicenowicz, Davidyo'ck, Sabrian,
Betcher, and Teddy Peltz, who were named by Calabrese as among
those present at the meeting, returned to work on March 3. Kipnis
contradicted his testimony on several occasions. On the other hand,
Calabrese's testimony was in most instances corroborated by other
witnesses or circumstances23. We; like 'the Trial Examiner, do 'not
credit Kipnis' denial and find that he attended the meeting and made
the statements above set forth.
" In its brief before the Board, the respondent objects to the fact that the Trial Examiner
credited 'Calabrese's testimony, contending that Calabrese, having been discharged from his
position as oi-ganizer'liy Local 411 and having admittedly forged--the signatures•of em-
ployees to application cards, was a person whose testimony should not be believed. We
have carefully reviewed Calabrese's testimony and agree with the Trial Examiner's resolu-
tion as to his credibility, particularly since his testimony is corroborated in all material
respects by the testimony of the respondent's officials and by other facts and circumstances.
1
NATIONAL CONTAINER, CORPORATION 581
We find that the strike was caused, at least in part, and was pro-
longed by the respondent's unfair labor practices. On March 6 the
respondent, Local 65,, and Local 411 entered into a consent election
agreement, which provided for a "cooling off" period of 3 weeks, a
_provision inserted at the insistence of the respondent. Calabrese tes-,
tified without denial and we find, as did the Trial Examiner, that Lo-
cal 411'joined,in the-demand for this "cooling off" period at the in-
struction of the respondent, and that its attorney, Blumberg, told
him that "in the time-the employees would be back to work and the
company would have plenty of time to work on them." Other than
the reason given by Blumberg, none was offered to explain -Why there
should be a "cooling off" period before the employees might be per-
initted to vote by secret ballot. This agreement settled the strike 24
In addition to the provision for an election the agreement provided,
among other things, for the reinstatement of all- employees, includ-
ing Sugarman.
3. The incident concerning the steward buttons and the `work stoppage -
of March 13
On March 10 about 200 of the strikers marched back to work in a
body singing Local 65 songs. About 30 of these employees wore
steward buttons, in addition to their union buttons, which identified
them as leaders among the workers. Many others wore union buttons.
On March 13 Gruneisel, Assistant' Superintendent Spengler, and
Kipnis, according to their own testimony, instructed the stewards in-
dividually to remove their steward buttons. Those who refused were
discharged ; whereupon a work stoppage took place. The respondent
contends that the work stoppage was brought about by the conduct
of.the stewards during the period from March 10 to 13 in counselling
employees to impede production and to disobey the orders of the fore-
men. The Trial Examiner found that the stewards did not engage
in activities intended to slow down production iii the plant nor attempt
to countermand orders given to employees.by the foremen.
In support of the respondent's contention, Gruneisel testified that
between March 10 and 13 he received complaints from the foremen that,
employees were leaving their machines and places of work and going
to other parts of the plant instead of'staying in their own depart-
ments; that on the afternoon of March 13 he spoke to machine operator
Williams, who had left his machine for a period of 10 minutes; that
he askedWilliams what he was doing away from the machine and was
24 The record fails to support the respondent ' s contention that the strike was attended by
violence We do not credit the testimony of employees Smith and Richter to the effect that
they engaged in such violence . The record shows , and we find , that the activities of the
str,kers , engaged in by "flying squads ," consisted of meeting employees at the subway
stations to attempt to persuade-them not to, report to work ; of following idelivery trucks
to their destination, where the strikers appealed to customers not to accept delivery ; and
of seeking to organize other plants.
582 DECISIONS) OF. NATIONAL LABOR RELATIONS BOARD
told by Williams that he, had been appointed' a steward by'' Locah,65,
that .it wa-s,one'of his duties to, see that,the'foreman did not give too
many orders to their, men, and that orders should' be given by the
foremen through the, stewards: , Gruneisel. further testified that after.
some discussion with -Williams "he seen- my way of thinking and he
went to work and took off his 'steward button..?' Kipnis testified that
between March 10 and 13' foremen complained that employees - were-
disobeying, orders after consulting with stewards, and that he I in-
structed Gruneisel and Spengler to ask the men to behave,themselves.
The testimony of the foremen does not support Gruneisel's' and
Kipnis' version of what occurred between March.10 and. 13. Thus,
Spengler. testified that he received reports from -foremen between
March 10 and 13 to the effect that stewards were speaking to em-
ployees after the latter had received orders -from the foremen. He
testified, variously, that the only foreman from whom he received
such reports was Rounds of the printing department, later added the
name of Marantz, had previously named Comacho, and finally re-
solved on Marantz and, Rounds. - ' He first testified that prior to March
13 he had received reports that "people left their machines running
and were running around the floor talking to another employee";
later he stated that this occurred only after he had asked the employees
to' remove their steward buttons. He testified to no instance of a
worker disobeying the instructions of'the foreman and admitted that
he did not know what conversations passed between stewards and the
workers. He further testified that when he asked the stewards to
remove their buttons, "all those that I went around to took it very
nicely and removed their buttons," except employee Joseph Valentine.
Harry Rounds, printing department foreman and the individual
who should have had first-hand knowledge of the activities of the
stewards in his department, including Richter and Landsberg, was
riot asked nor did he testify to any improper conduct on their part
either in connection with the wearing of steward buttons or otherwise
between March 10 and 13. Moreover, his account of the stoppage on
March 13 was to ,the effect that the men stopped working and did not
leave any machine running. '
Harry Marantz, the foreman in the slitting department, testified
that he told Valentine to take off his steward button because "the notice
was on the bulletin board, that we don't want any unions, and we don't
require or have anything to do with union places or shops." He testi-
fied that Valentine had worn his steward button for 2 weeks. Al-
though there is no question but that steward buttons were "worn in
the plant no longer than 3 days, Marailtz could not recall whether
the activities of Valentine .took place before the first strike, after the
second strike, or between the two strikes. He testified to no unusual
circumstances concerning the March 13 stoppage and could not re-
NATIONAL CONTAINER CORPORATION , 583,
member ,vhetheri any, machines were 'left running in his department
after the,stoppage commenced. .
, Joseph Lombardo, the foreman of the fibre department,; in, which,
according to.,the; ,testimony, of, Smith. and, ,Richter, there , were some
8,toy; 40, stewards, testified, that. he reported,to Spengler one incident
involving an unidentified worker, and an unidentified steward who, had
a, conversation after the foreman had given the-worker,an or,der,,fol,
lowing,-%hich the, order was carried•out., As.noted above, Spengler tes-
tified that he had received no reports from Lombardo, but,only from
Marantz and Rounds. There is nothing in Lombardo's testimony
to indicate that the alleged misconduct of the stewards in his depart-
ment was more than trivial. - ,
.Harry Sobel, shipping department foreman, Dave Scher, foreman
of the taping department, and Joseph Comacho, foreman of the nest-
ing department, testified, to no unusual incidents or improper conduct
on the part of stewards during the period between March 10 and 13.
'Emigdio Montalvo, assistant foreman iii the printing department,
testified that some workers spoke to stewards before obeying orders
but that the orders were in every instance obeyed. He, too, contrary
to the testimony of Spengler, testified that he reported this to Spengler.
Gruneisel, Spengler, Smith, and Richter also testified that the
stewards slowed down production in the plant, and Richter testified
that he counselled employees to do so. Beyond their' bare assertions
there is no evidence of any actual slow-down. According to Spengler,
the respondent keeps daily production records of the amount of cor-
rugated board manufactured and the tonnage of paper processed in
the machines. Counsel for the Board pointed to the existence of these
records and challenged the respondent to produce them. They were
not produced. Since the production records, would show conclusively
whether the respondent's claim of a production slow-down had sub-
stance, we find, like the Trial Examiner, that the failure to produce
the records negatives the respondent's contention and that in fact no
slow-down in production occurred.
It is, therefore, clear that no substantial evidence was adduced by
the respondent to support, its claim concerning the activities of the
stewards between March 10 and 13. We find, on the contrary, as did
the Trial Examiner, that the testimony disproves the claim that
orders were countermanded, or that -the stewards. created any dis-
turbance in the plant. Upon the basis of the entire record and in
view of the fact that the orders were complied with, we further find
that the stewards did .not countermand any orders.25 ,
26 Some evidence was offered by the respondent , through the testimony of Smith and
Richter, that officers of Local 65 instructed the stewards to countermand orders given by
foremen to employees . ' The evidence thus offered , however , is unconvincing. On cross-
examination Smith , who had previously testified with some particularity as to such instruc-
tions given by Livingston , was unable to recall that the instructions hid actually been given.
h
584, DECISIONS' OF NATIONAL, LABOR RELATIONS BOARD
As above indicated, Gruneisel and Spengler, on the afternoon of
March 13, separately visited the departments of the plant and ordered
the stewards'to remove their steward buttons. Spengler testified that
"all those that I went around to took it very nicely and removed their
buttons," except Valentine. He reported Valentine's refusal to
Gruneisel, and the two of them went to the slitting department where'
Valentine worked. Valentine, a credible witness, 'testified that' he
wore a couple of small union buttons and a steward button; that he
was told by Marantz and Spengler to take off all but one of his buttons
"or else"; that he refused; and that at about 3 p. in. on March 13
Gruneisel told him that if he would not remove his buttons, he should
punch out. Valentine left as instructed, and went to the locker room
where he was joined by employee Paul Cianci. After he left the locker
room, a work stoppage began in the plant. As Valentine was leaving
the plant, he met Kipnis who called him a communist.
Landsberg testified that on March 13 he received a report that Valen-
tine and Cianci had been discharged; whereupon he and Kinstler
spoke with Gruneisel, Spengler, and Goldberg and discussed the dis-
charges of Valentine and Cianci. According to Kinstler, the respond-
ent's officials stated that the men could not work as long as they wore
steward buttons because it was not a union shop. When Kinstler and
Landsberg pointed out that they, too, were wearing steward buttons,
• they were told that they could not work unless they removed their
steward buttons and, according to Landsberg, they were finally told
that they were discharged. • Landsberg then told the employees what
had happened, and a work stoppage occurred. Kinstler returned to
his department where he met Kipnis and asked him if "we were fired."
Kipnis said "no," whereupon Kinstler said "Well, then, we will go
back `to work." -Kipnis retorted, "You can't go back to work as long
as you wear the steward button."
In view of all the evidence, we, like the Trial Examiner, do not credit
the testimony of Kipnis and Gruneisel. We find that the respondent
opposed the wearing of Local 65 steward buttons in the plant and
ordered all stewards,to remove those buttons, thereby interfering with,
restraining, and coercing the employees in the exercise of the rights
guaranteed in Section 7 of the Act.26 The alternative for any steward-
who refused to 'comply with that order was discharge. Valentine,
Cianci, Landsberg, and Kinstler disobeyed the order and were dis-
charged in violation of Section 8 (3) of the Act, as hereinafter found.
When the employees, an overwhelming majority of whom were ad-
herents of Local 65; were informed of the respondent's action against
Valentine, Cianci, Landsberg, and Kinstler, they concertedly protested
26 See Matter of Republic Aviation Corporation, 51 N. L. R: B. 1186, enforced in 142 F.
i2d) 193 (C. C. A. 2). •
NATIONAL CONTAINER CORPORATION - 585
the respondent's order to remove the' steward buttons and the dis-
charges, by refusing to work, thus causing the stoppage.27
The respondent contends that the stoppage was attended by confu-
sion and disorder. In support thereof Gruneisel testified that after
the alleged threats-'of Valentine, Kinstler, and Landsberg to stop pro-
duction, "the plant was shut down . . . the big corrugated machines,
they run until they are blocked up with paper . . . all the machines
were left running. Other machines were with the paper half way,
through, and stopped off, and a lot of motors you could hear running
around the plant. People left their places of work and congregated
in the middle of the floor, and some just sat down alongside of the
machines." Richter testified,that employee Henry Ghighiotty refused
to shut off his machine (but did not testify that Ghighiotty left it
unattended) and that he knew the corrugating machines were shut off
because when they are "the place is as still as a cemetery." ,
It is clear that if the stoppage were attended by chaos and disorder,
all the foremen would have observed the situation and would have have
testified with particularity as to the events. Yet their testimony does
not indicate that there was any disorder. We find, as did the Trial
Examiner, that the claim that the stoppage of March 13 was disorderly
is not supported by the evidence.
The respondent and Local 444 further sought to establish that the
stoppage of March 13 was a "sit-down" strike. There is no evidence
that the employees took possession of the plant, withheld it against
the wishes of the respondent, or had to be forcibly ejected. On the
contrary, there is the testimony of Kipnis that he pleaded with the
employees "for about an hour.to return to work'until finally, through
some miracle'I don't know what happened, they all walked out"; the
testimony of Goldberg that "I talked to some of them . .. and asked.
them why they Were leaving ..."; the testimony of Gruneisel that
he was not trying to get the employees out of the plant but to get them
back to work; and the testimony of Smith that after a talk with Kipnis
there was a cry of "Everybody out" and "we went to the exit of the
plant, and we punched our cards at the entrance or exit." The evi-
dence discloses and we find, as did the Trial Examiner, that the em-
ployees remained in the plant from 3 to 4: 30 p. in., and left when,
Gruneisel, at the request of the employees, had the time, clock turned
back to 3 p. M.28 We find, therefore, that the claim of a "sit-down"
strike is without merit.29
27 Gruneisel testified that "the steward's button started the stoppage."
28 The record is not clear as to why the employees made this request.
21 Cf. N. L. R. B V. American Mfg. Co ,.106 F. '(2d) 61 ( C. C. A. 2 ), aff d as modified in
other respects , 309 U. S 629.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The lock-out and discriminatory discharges of March 14
On the evening of March 13 Local 65 held a meeting at which Liv-
ingston advised , and the workers agreed, to remove their steward
buttons: , Before the meeting Livingston had called Kipnis on the
telephone and had asked him whether workers had been discharged
for, wearing steward buttons , to which Kipnis replied in the affirma-
tive. Livingston stated to Kipnis that if the stewards were mix.7
behaving, that could be remedied,; but Kipnis ' answer, was to challenge
Livingston to call a strike. Kipnis stated that he would not reinstate
the discharged employees and that "nobody in the plant would wear
steward buttons." Livingston stated that all workers would . report
for work the next morning.3°
The employees returned to the plant on the morning of the 14th at
S a. in., their starting time, ready to work. , Kipnis, Gruneisel, and
Goldberg told 46 of them to remain behind after the others went to
work. , As hereinafter found, 'the respondent locked out the 46 em-
ployees because , of their union membership and, activities.,
After the workers were•asked to step aside, they, went to strike head-
quarters and designated a committee to see Kipnis ; The committee
went to the plant with Burke, a representative of Local , 65. Kipnis,
however, refused to see them with Burke, stating that there .was no
union in the plant and that he would not speak to any representatives
of Local 65. The committee then met with Kipnis , without Burke.
They told Kipnis that if the steward buttons annoyed him, they would
be removed in the interest of pence and harmony. They asked hiln to'
permit the workers to return to, work ; he, agreed, but ,stated, according
to-Kinstler , that he would not reinstate'office employees Harry Davis,
Gerald Davis, and Melvin Schwartz , who, as hereinafter , found, had
been discriminatorily discharged that day. The remaining employees
returned to work shortly before 11 a. in., without their steward buttons.
5. The overtime order of March 19, and the lock-out of March 20
Between March 14 and 19 the plant operated without disturbance.
On March 19 Local 65 had scheduled a meeting for' 5 p. in., the quitting
time then being 4: 30 p. in. This meeting had been arranged some
days earlier 31 for the purpose of reporting to the workers the status
30 Kipnis denied the conversation as related by Livingston . Upon the entire record, and
as found by the Trial Examiner, we do not credit his denial. In crediting Livingston's
testniony as to Kipnis ' statements with regard to the respondent 's older for the removal of
steward buttons , w e are mindful of the admission made by the respondent ' s witnesses that
such an order was actually given and, also of the position, taken by the respondent's
attorneys at the hearing to the effect that until a union had been designated as a bargaining
agent, the employees would not be permitted to wear steward buttons.
31 It is clear , and we find , from the testimony of Burke and Landsberg , who were present
at a meeting of the Union several days before the 19th, that the meeting for the 19th was
scheduled at that time.
NATIONAL CONTAINER CORPORATION 587
of the election agreement. On the 18th the respondent posted in the
plant a' blackboard notice, stating' that the entire plait would. work
until 6: 45 p. m. on the 19th.
Landsberg testified that on the morning of the 19th he went,to see
Gruneisel and told him that Local 65 wanted to have the workers
released by 5 p. m. so that they could attend the meeting. Gruneisel
said that;he would let Landsberg know whether-that-could. be done.
At about 2: 30 that afternoon Landsberg and a committee of workers
conferred with Kipnis and Gruneisel: Landsberg testified that they
told Kipnis of the request that all of the workers be released by 5
p. in. to permit, them to attend the previously scheduled meeting;
to which Kipnis replied, "who is running this place, me or the union?"
After some discussion, according to Landsberg, the committee agreed
that the combiners would work until 6, p. m., and the other depart-
ments would work as long as there was work to be done but not later
than 6 o'clock. Landsberg testified further that, the committee' ad-
vised Kipnis that it did not represent the union. members and would
not take the responsibility of binding the workers to the agreement
which it had made.
' Gruneisel''§ testimony regarding the incident of March 19 was as
follows : At 1:30 p. iii. Landsberg told him, "none- of the help are
working tonight." He reproved Landsberg for speaking for anyone
but himself and told him, "If you want off, go to your foreman and he
will leave you off." ' Gruneisel then reported the matter to Kipnis
who told him to ". .. have Scottie Smith get a committee together
to come in and see me." Gruneisel then spoke to Smith "who picked
out three other 'people." The committee then conferred with Gru-
neisel, Goldberg, and Kipnis. Kipnis -stated, "I will leave it up to
yourselves. Tell me what time you want to work to," following
which the committee agreed to work until 5:45 p. -m. On cross-
examination Gruneisel changed his testimony. He stated that Kipnis
did not tell him to have Scottie Smith get a committee together but
merely "have a committee come into the office," and that he asked
Smith to pick- the committee because .he happened to run- into Smith
first. Gruneisel, however, reverted to his original position when
confronted, with his direct testimony. He could not account for
Kipnis' selecting Smith to get the committee together. He further
modified his direct testimony by testifying that the committee agreed
that "the majority of the plant" would work until 5:45, and again
"that most of the plant, nearly all" of it would work until that time
and again, "that the complete plant except the hand taping depart-
ment" would work until that time.' He further testified that follow-
iiig the meeting he notified Spengler and "some" of the foremen of
the change in the overtime hour.
1
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kipnis testified that the committee agreed that the entire, plant
would work until 6 o'clock after he had put the matter up to them
to decide, and that he then told them to go out into the plant to tell
the workers of the decision. Regarding the latter point, he testified
that "the natural thing for them to do 'was to go out and notify the
people." He had previously testified'that the committee had no busi-
ness speaking to.the workers after the meeting. Goldberg testified
that he expected the foremen to advise the workers of the decision,
and that "I always like to feel the -foremen give instructions to the
employees."
Smith, a member of the committee, testified,that during the confer-
ence he left the committee and telephoned the office of Local 65. This
was denied by Landsberg. Kipnis testified categorically that the com-
mittee did not leave the office during the conference. Smith also testi-
fled that when he returned, he consulted the committee, as a result of
which the committee told Kipnis that the plant" would work 'until
5:45 p. m. and that the committee would so notify the workers.
In view of the several contradictions in the testimony of Kipnis,
Gruneisel, Goldberg, and Smith, we, like the. Trial Examiner who
heard and .observed the demeanor of the witnesses, reject their testi-
mony and find that Landsberg, a credible witness, gave a substantially
true account of the agreement reached between the committee and offi-
cials of the respondent on the afternoon of March 19.
The Board's witnesses, including Kinstler and Landsberg, testified
that it-was the customary practice in the plant for the foreman to ad-
vise the employees of required overtime work. - No foreman was able
to point, with any semblance of definiteness, to a time when the entire
plant worked to a uniform quitting time either upon instructions from
the foremen or by reason of a notice posted on the bulletin board.
Analysis of the time cards for the period, from March 10 to 20 shows
that on none of those days did the entire plant work overtime or until
a uniform quitting time.32 Board's counsel challenged the respondent
to cite the records for any day prior to March 19 when the entire plant
had worked until 6 or 7 p. in., or until any uniform' quitting time,
but no such,records were produced. Montalvo, assistant foreman of
the printing department, testified, that never had his whole department
worked overtime when an overlapping night shift was scheduled.
However it is clear that such was the case on March 19. No credible
or reasonable explanation was offered-for ordering the whole printing
department to work until 7 p. m., when the night shift was due to
report, at 4:30 p. m.
82 The time cards contradict the testimony of Foreman Lombardo NN ho stated that during
this peiiod the entire plant had been required to work overtime , Furthermore, although
Foreman Rounds testified, generally, that such overtime work had been scheduled on many
occasions , no proof thereof was offered by the respondent
NATIONAL CONTAINER CORPORATION • 589
Gruneisel testified that the respondent feared to order overtime'work
between March 10 and 19 because of the attitude of the stewards. The
time cards, however, cast serious doubt upon his testimony since they
show 'that on various days during this period different departments,
including the slfct'ing department, a union stronghold, worked, over-
time as required. f
The Trial Examiner found that the purpose of the respondent in
scheduling overtime for the entire plant on March 19 was to prevent
the employees from attending•the union meeting previously arranged
for that day by Local 65. We agree with his conclusion and find, fur-
ther, that the respondent had knowledge of the proposed union-meet-
ing,prior to the time when it issued its overtime order. We base this
conclusion not only on the fact that the respondent, when ordering
overtime for the entirerplant for that day, was taking an unprecedented
measure, but also on the fact that the union meeting had been decided
upon several days before the 19th; that the respondent had previously
engaged in surveillance of a'meeting of Local 65; and that, from the
outset, the respondent had consistently opposed and discriminated
against L'oca1,65 and its' adherents while it openly promoted Local 411.
We-further find that, even if the respondent had no knowledge of the
union meeting until informed thereof on March 19 by members of
Local 65, its failure to withdraw the overtime order for that day was
for the purpose of preventing its employees from attending the union
meeting that afternoon.
Shortly after 4: 30 p. m. on the 19th, about 80 of the respondent's
29' ' employees left the plant to attend the meeting. , Thereafter, and
until shortly, after 6 p., in,. the rest, of the employees left.33 The com-
biners worked until 6 p. in. - As the workers left the plant, the time
cards of many of them were taken from the rack by Gruneisel. This
was reported to Livingston who spoke to Gruneisel outside the plant
that,evening and received assurance from him that no one would be
discharged.
When the men reported for work the following morning, March 20,
a number of them were picked-out of line by the respondent and pre-
vented' from working. Burke testified that he was present when the
workers were picked off the line on the 20th; that they were told to go
to the office of Local 65; and that he asked Kipnis the reason for this,
but Kipnis paid no attention to him: • He, testified, further, that he
returned to the plant at about 8: 30 a. in. and' asked to see Kipnis
only -to be told by Goldberg `that Kipnis' d not ,available;: that he
Gruneisel testified that when the employees left, he'observed that "some operators left
their machines running; , 'other machines, the helpers walked off , and other people running
around the plant telling people, 'No overtime , stop your machine' " ,; that damage was caused ;
and that the foremen were on duty when this was going on However, in view , of the con-
tradictory testimony of the respondent 's foremen , we do not credit Gruneisel.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked,Goldberg if the men were: discharged;, that he asked the same
question of Kipnis, who appeared at this point; that Kipnis refused
to discuss the matter with him, saying, "I don't have anything to do
with Local 65"; that Goldberg told the men to come back for their
pay at'10 o'clock, and that they were fired; that he returned to the plant
with the employees at 10 o'clock, when Goldberg told them that their
pay was, not ready; and,that Goldberg denied them the privilege of
getting their clothes, whereupon the second strike ,started. Burke's
testimony was substantially corroborated by the credible testimony of
employees Landsberg, IKinstler,'and Herr. We, like the Trial Exam--
iner, accept their testimony as substantially reflecting the events which
followed after the workers were denied, access to thetplant.
,, As hereinafter found, the employees who were refused entry to the
plant on the morning of March 20 were, discriminatorily discharged,
locked out, and thereafter ,refused employment.
6. The second strike and the settlement thereof
Asa result of the lock-out, Burke and'a group of employees entered
the plant through' the shipping department and called the workers
out 'oh strike. "'Much testimony was add'uced' regarding `alleged 'vio-
lence by Burke and others on this occasion: Although the respondent
-and Local 444' sought'td create' the 'general' impression that 'Burke
brhtelly'. assaulted; employee.'Bergstrom,-iio'evid'ence of t'hi's' w,as prof
duced and employee Richter testified that a nu'm'ber of people'includ-
ilig himself' were' respohsilile 'for i BeEgsttoni's condition,"' There "was
testimony'that'some'of-the strikers'expectorated at other workers aria
called, them scabs. ',Th'ere' is no proof; however; that' anyone was in-
timidated into'joihin', the strike, or:thitt any violence occurred.- I We'
find that"th`e' strike' was''caused` by the', respolident's . unfair labor
practices. ' ' , i., : , - , . ,. - l ., . ,i , ,
`i''OrilApril'4 a'proposal'for'the settlerhelit of the'strike was'made'by
William C. Liller, a commissioner of the conciliation service `df• the
Despite pressure allegedly applied to ',them, the girls in the 1 hand taping department
renuiined on the job,' a's did the employees " in the Hauling and storage *department and the
machine • shop ' 4 Gruneisel andhSmithitestified vaguely as to assaults on,some employees by
the strikers but did not identify • the,assailants . Goldberg testified at length to a number
of ^ i'nstanees 'whe're employees were ' molested He' did ' nof' name, the 'persons ii h'o Ni ere
allegedly 'annoyed , ;nor did ' any, of them testify . ,, The respondent ' s attorney •stated at; the
hearing that Goldberg ' s testimony was not offered , as proof of violence, but rather to sub-
Rtanii'ate'th'e respon`dent's ciaiui ' tliat , by ' refr'aiiiing 'feom making further iiicestigà tion"als
to 'the damage allegedly . caused by Local 65,'.the resporident . had'furnished consideration on
its part for the settlement agreement of April 4 , hereinafter discussed The record indi-
cgtes ' ttie (follo^^ing^in this'iespect': '
Trial Examiner ERICxsoN . As I understand it, what you are doing is sfiowing in
"tire record 'that there wereall'eged charges thnt ' were 'a consideration in the making
'this"agreement .
,fr. ,
n . . ,r .. ,^ ., ...,y•.,.u^
hi S E xBERd
>
G . That's rig ht .'
Trial Esaimnee Esicxs 'ox And `sou are not attempting to'prove ' the truth 'of'th'em:'
Dir. EISE N* BERC. Oh, ' no!" 'I 'cannot ' pi ove'that 'this 'way, I will concede that. " , I
NATIONAL CONTAINER CORPORATION 591
United States Department of Labor. The proposal of the Commis-
sioner was as follows :
In the interest of National Defense and to promote peace and har-
mony at the National Container Corporation plant in Long Island
City, New York, I recommend and request that both sides agree to
the following:
1. The Union immediately call off the strike and all strike activities.
2. The Company immediately discharge all new workers employed
by it since March 20, 1941 in its maintenance and production depart-
ments.
3. The Company proceed to rehire the workers who struck on March
20, 1941.
4. The Company employ no new employees in its maintenance and
production departments until all available striking workers have been
rehired.
5. The Union immediately withdraw all complaints and charges
now pending with the Labor Board and the Company immediately
withdraw its charges against any of the strikers.
From my knowledge of the situation I have reason to feel that with
the acceptance of this recommendation it should be possible to over-
come all obstacles and bring about industry-wide collective bargain-
ing which must inevitably inure to the benefit of the workers and all
those interested in the industry.
On April 4 the respondent accepted in writing the proposals of the
Commissioner. On April 4 and 5, Local 65 held. meetings at which
the Commissioner's proposals were accepted. On April 7 the em-
ployees returned to work.
7. Conclusions as to interference, restraint, and coercion.
A study of the record in this case indicates, and we find, that from
early in January 1941 through the period which followed shortly after
the settlement agreement of April 4, 1941, the respondent engaged
in a coercive course of conduct to undermine Local 65 and to assist
Local 411 in its organizational campaign. After discharging Sugar-
man, Local 65's first proponent, the respondent took affirmative steps
to frustrate the campaign of Local 65, and called in the representatives
of Local 411 to assist in its campaign to destroy Local 65. There-
after, the respondent furnished Local 411 with the names and addresses
of its employees; sent a number of its employees to the headquarters
of Local 411 to aid in the organizational campaign.; -permitted its
foremen and supervisors to solicit memberships in behalf of Local
411 in the plant; vilified, disparaged, and ridiculed Local 65 and its
representatives, thereby intimidating and coercing the employees
against joining that organization; interrogated its employees concern-
ing union affiliation and activities ; kept under surveillance the meet-
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing places, meetings and activities of Local 65; threatened to close its
Long Island City plant in the event Local-65 should successfully organ-
ize said plant; required, as a condition of employment, that employees
should not display the insignia of Local 65; and advised and urged its
employees to form Local 411 as a rival labor organization. We find
that by these acts the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
As a result of these unfair labor practices the employees called a
"holiday" on February 1, which they characterized as a strike on
February 3. As we have heretofore found, the strike was caused, at
least in part, by the unfair labor practices of the respondent. During
the course of the strike, the respondent made repeated efforts to induce
its employees individually to return to work and thereby to repudiate
Local 65 as their representative, continued to demonstrate its opposi-
tion to Local 65, and further supported Local 411. We find that by
such conduct the respondent interfered with; restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, and thereby prolonged the strike.
On March 6 the strike was settled by the execution of a consent
election agreement by the parties. Shortly thereafter the respondent,
in violation of the Act, as hereinbefore found, demanded that certain
of its employees, who were wearing Local 65 steward buttons, remove
such buttons. Upon the refusal of certain of the employees to do so,
the respondent, as, hereinafter found, discriminatorily discharged 4
of its employees. This discriminatory conduct caused a stoppage
of work on March 13 for a period of about 11/2 hours. As hereinabove
found, the stoppage was caused by the respondent's unfair labor prac-
tices. When the employees returned to work the following morning,
the respondent, as hereinafter found, discriminatorily locked out 46
employees for a period of about 3 hours.
When Local 65 scheduled a meeting for the evening of March 19, the
respondent, departing from its usual practice and for the purpose of
preventing its employees from attending such meeting, scheduled
overtime for its entire plant for that day. When Local 65 complained
about the respondent's action in scheduling overtime, the respondent
agreed to permit its employees, for the most part, to leave when their
work was finished. This, the employees did. Nevertheless, on the
following morning the respondent, as hereinafter found, again dis-
criminatorily locked out 18 employees. This discriminatory conduct
caused Local 65 to call the second strike on March 20. This strike
was also caused by the unfair labor practices of the respondent, as
hereinabove found.
The strike was settled on April 4. However, -the unfair labor prac-
tices of the respondent did not cease. As hereinafter found, the re-
NATIONAL CONTAINER CORPORATION 593
spondent thereafter discriminatorily refused to reinstate certain- of
its' employees in violation of its settlement agreement. • Under, these
circumstances its contention that the settlement agreement of April 4
is a bar to this proceeding, is without merit.
B. Discrimination in hire, tenure, and conditions of employment;
-- further interference, restraint, and coercion
1. Ira Sugarman
The complaint alleges that the respondent discharged Ira Sugarman
on or about January 8, 1941, because of his union membership and
activity. • -
As above found, Sugarman-was Local 65's first proponent in the
respondent's plan. 1 He joined Local 65 on July, 10, 1940, and there-
after actively promoted the Union by holding meetings, soliciting
members, and advocating unionism to his fellow employees. During
the Union's early organizational stage he signed up some of the 'most
active Local 65 leaders, such as 'Kinstler and Landsberg. In sum,
Sugarman was an active union protagonist.
Sugarman testified that he was employed by the respondent in April
1940 as a clerk in the factory office at $16 per week. , His duties con-
sisted of timekeeping, weighing'trucks, administering first aid, acting
as stock clerk, driving the company station wagon, and other mis-
ce]laneous jobs. He testified that his first pay check was in the amount
of $18, and that when he asked his supervisor, David Baff, the reason
for the additional amount, Baff told. him, "Well, we think you deserve,
it"; that about 2 weeks before his discharge, Baff encouraged him to
get acquainted with the duties of a second clerk in the office so- that
he could assume Baff's duties on occasion, particularly if Baff went on
vacation ; that about a week before his discharge, Baff told him that
Baff was slated for a promotion and that Sugarman was the logical
man to fill his job; that at that time he had asked for a raise in salary
and was told by Baff to wait until he had finished some cost record work
in which he was then engaged. He further testified that at the close'
of the work day of January 8, 1941, Baff invited him to the upstairs
stockroom where they could converse without being overheard; and
that Baff told him there, that he was' not displaying sufficient interest
in his work. Sugarman testified that he protested the statement,
whereupon Baff replied that the respondent felt there was no further,
,need for him and that.he should get his pay that evening. Sugar-
man then asserted that he was being discharged for his union activ-'
ities, to which Baff answered, "Well, if you had not," and the
conversation ended.
601248-45-vol 57-39
594 , DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
, ' Baff testified that he had been very "disappointed' in Sugarman's
work and had complained about it for several months prior to Sugar-
man's discharge. ' In a written report to Goldberg, dated January'10,
1941, Bad gave as "all" of his reasons for discharging Sugarman the
'following : .
Lack of•Ambition:'When hired he was given to understand that I
needed an assistant capable of assuming some of my duties. All
along he seemed satisfied to perform his clerical duties,and showed
no desire to improve. I spoke to him several times about this but
it didn't seem to impress him. When he asked for a raise before
Christmas, I refused to give it to him expressing my disappoint-
ment over his lack of ambition and told him that unless he showed
signs of improvement, I would get someone else.
Infraction of Rules : It was brought to my attention that he
authorized the payment of wages to employees who forgot their
badges. When confronted with this, he admitted getting no
authority but explained that he "thought it was alright for him
to do so." On another occasion he went home, and left the office
unattended without saying anything to me'eveh though he knew
that the other man went home sick earlier in the day.
On the few days preceding his discharge repeated attempts on
my part to induce him to get on with his work a little faster
seemed to fall on deaf ears. 'The inventory work he was doing
was dragging and far from completion.
Baff testified that "about a month or a month and a half" prior to
Sugarman's discharge he discussed the ' matter with Goldberg; who
concurred with him in his decision to make the discharge for reasons
stated in' the report; that after the' discharge he received no request
from Goldberg for a report; and that on January 10 he sent the above
report to Goldberg as a' matter of course. On the other hand, Gold-
berg testified that when Burke, the representative of Local 65, visited
him on January 9 with regard to Sugarman's discharge, he told Burke
that he knew nothing about Sugarman's discharge and thereafter sent
Baff a note,requesting a report.
Baff also testified that the alleged infraction of rules, relating to
Sugarman's leaving the office unattended, occurred several months
prior to his discharge. Baff's testimony, relating to Sugarman's al-
leged infraction of rules by the unauthorized payment of wages
to employees who forgot their badges, is as follows : "During the sev-
eral years that he [Baff 1 worked for the respondent, pay envelopes were
distributed by a .bonded agency which was forbidden to pay an em-
ployee who, did not present his badge, unless authorized by Goldberg,
Gruneisel, Spengler, or Baff." "Four, five or six weeks" prior to
Sugarman's discharge, Gruneisel reported to Baff that Sugarman had
NATIONAL CONTAINER CORPORATION 595
authorized the agency to pay an employee who did not have his-badge
with him at the time. Baff was confronted with seven time cards
which showed many instances of infractions of the same rule by em-
ployee, Joe Pointes, who succeeded 'to Sugarman's job. Pointes,
otherwise, was a competent employee; however, Baff testified that if
Pointes' infractions of the rule had come to Baff's attention, he would
have' discharged Pointes.
Pointes was hired by Baff at the rate of $16 per week, as were factory
office clerks who had preceded Sugarman and had' been 'promoted.
Baff testified that when Sugarman was'hired, he was put on probation
for several months at $18 per week.
Baff further testified that several weeks prior to, January 8 he had
made up his mind to discharge Sugarman as soon as he- could find
someone to replace him. However, after, he discharged Sugarman,
he did not replace him until 3 or 4 weeks later. Baff made no attempt
to explain the sudden decision to discharge him on January 8. As
hereinafter found in connection with the case of Gerald Davis,-Baff
told Gerald Davis on January 9 that Sugarman's discharge ". . . was
something about unions."
The contradictions in the testimony of Goldberg and Baff, the
remoteness of the alleged infractions of rules, the fact that Sugarman
was hired as a probationary employee at the rate of $18 per week,
whereas his predecessors and his successor were hired at $16 per
week, the sudden decision to discharge him 3 or 4 weeks before a re-
placement was made, and Baff's statement to Gerald Davis on January
9, all combine to indicate that Baff's charges against Sugarman -Vpere
unwarranted and merely pretexts. We, as did the Trial. Examiner,
reject Baff's testimony. We find that the respondent on January 8,
1941, discharged Ira Sugarman because of his union membership and
activities, thereby 'discouraging membership in Local 65 and inter-
fering with, restraining, and coercing its employees, in the exercise
of the rights guaranteed-in Section 7 of the Act.
Following his discharge, Sugarman continued his activities on
behalf of Local 65. About January 20 while having lunch with some
of his friends in the plant restaurant, which caters to the public also;
he was ordered to leave by Ginsberg on the threat of calling the police.
'Ginsberg denied the incident. In view of the severe action which the
respondent took to rid itself of Sugarman's influence among its em-
ployees, it is not unreasonable to believe that it would order him out
of the plant restaurant. We discredit Ginsberg's denial and find that
about January 20, 1941, he ordered Sugarman out of the plant restau-
rant on the threat of calling the police.
While picketing -during the first strike, Sugarman joined a group
of other pickets in singing a song called "Sixty-Five is our Union."
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kipnis heard the singing and broke in with the remark, "I will bargain
with 64 or-bargain with 66 but not with 66. Why d'on't you change
the number of your union." We credit Sugarman's testimony and
find that the. incident occurred as testified by him, despite Kipiiis'
denial.
During the first'strike Sugarman observed Goldberg and Kipnis in,
the vicinity of strike headquarters speaking to some of the workers.
Sugarman went to them and asked Goldberg what they were "doing
here speaking to'the workers.". Goldberg then shouted to Sugarman,
"You' are a spy, you are a spy for the Union." - Kipnis joined in with
the charge "You are a traitor to the Company." Kipnis and Goldberg
denied the testimony of Sugarman. In view of all the evidence and
the fact that counsel for the respondent intimated during the hearing
that Sugarman had been planted by Local 65 to stir up trouble in the
plant, we conclude that Goldberg and Kipnis interpreted Sugarman's
activities in behalf of Local 65 as traitorous to the respondent. We,
like the Trial Examiner, therefore, discredit the denials of Goldberg
and Kipnis and, accept as true the testimony of Sugarman with respect
to the above incident.
On March 10 Sugarman, in accordance with 'the provisions of the,
consent election agreement of March 6, returned to work with the
other employees. Baff told him to wait in the lobby of the factory
office. When everybody else had gone to work, Baff called him into
the factory office -and told him that he was not to resume his former
duties but was to "stay out in the scale house all day long." Sugarman
protested the new assignment and was told by Baff, "if you don't like
it you know what you can do about it." His former job was filled by
Pointes at that time.. Prior to his discharge; his 'weighing duties
required less than 1 hour of his time per day. Moreover, his starting
hour was changed from 8 a. in. to 7: 30 a. in. Prior to his discharge
trucks, which required weighing before 8 a. in., were weighed by the
night watchman. Sugarman assumed his duties as requested. He
was kept. busy less than 1 hour per day. During the first few, days
on 'his new job; Sugarman kept the door of the scale house open and
greeted his friends as they passed by. However, Baff prevented-this
by ordering Sugarman to keep the door closed on penalty of discharge.
Sugarman remained with the respondent in his new duties until the
second 'strike started on! March 20. Thereafter, he did `not return;
nor has he been offered reinstatement to the job from which he was
discriminatorily discharged on January 8, 1941, despite the respond-
ent's promise to recall all striking employees pursuant to the settle-
ment agreement of April 4, 1941.
Baff testified that it was necessary to keep Sugarman in, the scale
house because the traffic in, trucks' bringing in and taking out mer-
chandise was tremendously increased when operations were resumed
I
NATIONAL CONTAINER CORPORATION 597
after the first strike,"and that Pointes, who had succeeded to Sugar=
man's job, was unfamiliar with weighing. This defense is without,
substance. We find that Sugarman was entitled to his old job, even
though the respondent was compelled to discharge Pointes.
We, find that the respondent, by assigning Sugarman to the scale
house on March 10,1941, discriminated with respect to his hire and
tenure of employment because of his union membership and activities,
thereby discouraging membership in Local 65, encouraging member-
ship in Local 411, and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act. We further find ' that the respondent, by excluding Sugarman
from the restaurant and by Kipnis' statements to -Sugarman, accusing
him of being a spy and a traitor, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. Finally, we find that since January 8,'041, Sugar-
man has not been offered nor has he received from the respondent
reinstatement to his former or substantially equivalent employment.
2. Joseph Valentine, Paul Cianci, Sam Kinstler and Barney Landsberg
The complaint alleges that the respondent on or about March 13,
1941, discharged,,locked out, and refused to employ Joseph Valentine,
Paul Cianci, Sam Kinstler, and Barney Landsberg 35 because of their
membership in and activities on behalf of Local 65.
We have, previously found that Valentine and Cianci were dis-
charged by the respondent on March 13, 1941, because they refused to
comply with their superiors' orders to -remove the Local 65 steward
buttons which 'they were wearing; and that when Kinstler and Lands-
berg protested the discharges to Goldberg, Spengler, and Gruneisel,
they too were told that they could not work unless they removed their
steward buttons, which they refused to do. Burke testified without
contradiction that on March 13 Paskes; attorney for the respondent,
told him that he understood the men had been discharged for wearing
steward 'buttons.
The respondent contends that the status quo provision of the March
6 consent election agreement was violated by Local 65 in designating
stewards. That paragraph of the .agreement follows the paragraph
which provides that the respondent will reinstate all employees who
were on the respondent's pay roll on January 28, 1941, without discrim-
ination, including Ira Sugarman; the provision in question reads as
follows : '
The status quo existing during the period prior to the strike shall
be restored as rapidly as the circumstances permit. Work shall be,
distributed without prejudice or discrimination.
0 The complaint also named Joaquin Candanedo . As to him we shall dismiss the com-
plaint since admittedly, he was not discharged.
598 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
We agree with the Trial Examiner, and find that the status quo provi-
sion clearly refers to the restoration of the strikers to their jobs and
does not place any restriction on the legitimate activities of the Union
or the employees. I
The respondent also contends that stewards had no right to wear
their buttons until Local'65 "hasibeen determined as the bargaining
agent." That contention is without merit. The steward button indi-
cates the rank and function of the'wearer in Local 65, regardless of
whether the organization represents a minority or a• majority 'of the
employees. As hereinabove found, to order the removal of the stew-
ard's button constituted an interference with the rights guaranteed in
Section 7 of the Act. We find that Valentine, Cianci, Kinstler, and
Landsberg were justified in refusing-to obey such orders and that the
respondent's. act in discharging them upon such refusal constituted a
discrimination against them within the meaning of Section 8 (1) and
(3) of the Act.
We find that the respondent on-March 13, 1941, discriminatorily
disclharged Joseph Valentine, Paul' Cianci, Sam Kinstler, and Barney
Landsberg for the reason that they refused to remove their steward
buttons when ordered to do so by the respondent,'thereby discouraging
membership in Local 65, encouraging membership in Local 411, and
interfering with, restraining, and coercing its employees in the rights
'guaranteed in Section 7 of the Act.36
3. The lock-out of. March 14, 1941
The complaint alleges that the respondent on or about March 14,
1941; discharged, locked out, and refused to employ 47 named employ-
ees because of their union membership and activities.
We have found above that as the workers came to the plant on the
morning of March 14 ready to go to work, many of them were asked
to step aside by the respondent's officials and were, refused access to
the plant. A stoppage had occurred on the previous afternoon because
of the respondent's discriminatory order directing 66 stewards to re-
move their steward buttons- and because of ',the discriminatory dis-
charges of Cianci, Valentine, Kinstler, and Landsberg when they
refused to obey the order.
The respondent contends that, those employees were told to wait
around so that Kipnis could speak to them after the other employees
had gone to work and that instead of waiting they went to_ union head-
quarters. Board witnesses Landsberg, Kinstler, and Burke testi,
'fled that when the workers came to the plant, Gruneisel refused to
permit them to work and told 'them to go to union headquarters
"Armour & Company, et at., 8 N. L. R. B. 1100 ; Republic Azaation Corporation, 51
N L. R B 1186 , enforced in 142 F . ( 2d) 193 ( C. C. A 2).
NATIONAL CONTAINER CORPORATION 599
instead. Burke asked•Kipnis the reason for this, but Kipnis refused
to discuss the matter with him. Kipnis testified that he had never
spoken to a representative of Local, 65. We credit the testimony
of Burke; Kinstler, and Landsberg and find that the employees, who
were, refused access to the plant on the morning of March, 14, were
told by the respondent to go to union headquarters. As above found,
they were allowed to go to work at about 11 a. in. after a committee
had conferred with Kipnis.
The 46 employees who were kept out of the plant on the morning
of March 14 are listed in Schedule A, attached hereto and made a
part hereof. Except for Nick Varriale, Vitello, and Landsberg, they
were all identified by Gruneisel as the employees who were not "per-
mitted to work until about 11 o'clock." That the latter two employees
were among those excluded from the plant that morning is evident
fron7 the fact they were on the committee which, met with Kipnis that
morning. We so find.' That Varriale was excluded was not definitely
proven: Absent from the list are the names of W. Koprowski and R.
Willey. They are employees of a subsidiary of the respondent not
involved in this proceeding. We will hereinafter dismiss the, cases of
Varriale, Koprowski, and Willey.
Kipnis testified that the employees were excluded from the plant
on March 14 because they were instrumental in calling or participat-
ing in the stoppage on the previous afternoon. We have found above
that the stoppage was a concerted protest against the respondent's dis-
criminatory order requiring stewards to remove their steward but-
tons and the enforcement of that order by the discharge of four
stewards. Therefore, by Kipnis' own admission, the respondent was
penalizing the employees for engaging in a lawful concerted activity,
protected,by the Act. We are convinced that the fact that some of
the locked-out employees were stewards and wore steward buttons
was an additional reason for the lock-out. We find that the conduct,
of the respondent, in penalizing these employees for such reasons is
clearly violative of the Act.
We find that the respondent on March 14, 1941, locked out the em-
ployees named in Schedule A 37 hereof because of their union member-
ship and activities, thereby discouraging membership in Local • 65,
encouraging membership in Local 411, and interfering with, restrain-
ing, and ' coercing, its employees in the exercise of the rights guaranteed
in Section 7 ,of the Act.
4. Melvin Schwartz, Harry Davis, Gerald Davis
The complaint alleges that the respondent on or about January
31 and March 14, 1941, discharged Melvin Schwartz, and on March 14,'
ax The spelling of names in Schedule A conforms to the corrections made at the hearing.
600 ' DECISIONS OF. NATIONAL LABOR RELATIONS' BOARD
1941, discharged- Harry Davis and Gerald Davis because of ^ their
union " membership and - activities. The record establishes that
Schwartz and the two Davises were the only office employees ofr'the
respondent who engaged in the first strike.38 Reference has already
been made to Kinstler's testimony that on' March 14 Kipnis refused
to reinstate the office employees.
Harry Davis testified as follows regarding his employment- and the
circumstances surrounding his discharge : 'He was employed by the
respondent on September 24, 1939, as an office boy. His starting
salary was $14 per week. Six months later he was promoted to the
job of ditto operator at $16 per week. About November 1940 he was
assigned to assist the checker, whose job it was to check sales depart-
ment cards against customers' orders. He then was given another
raise of $2 per week. Late in January 1941, he was promoted to the
job of checker,
On August 26, 1940, Davis joined Local 65. Thereafter, he was
active in soliciting his fellow employees to join the Union. At noon
on January 30, 1941, he and eight or nine other employees met with
Sugarman in a cafeteria near the plant "to discuss the union's prob-
lems, of joining up with Local 65." Among those present was Melvin
Schwartz, the respondent's office boy, who then joined 'Local 65. On
or about January 31, Schwartz was discharged.
On the morning of February 1, Davis asked Carl Schaeffer, the
respondent's office manager, the reason for' Schwartz's discharge.
Schaeffer refused to' tell him,' accused Davis of being insubordinate,
and ordered him back to his desk. A -few minutes later Davis pinned
a Local 65 button on his coat.39 Shortly thereafter, Goldberg and
Ginsberg came to his desk. Goldberg said to him, "Go away from
that desk and get back to the corner of that little room and stay there.
:. .' From now on you are office boy and you are cleaning everything."
Ginsberg ordered Davis to "Leave this firm immediately." As he was
putting-on his coat and hat to go, Goldberg told him to stay, and that
his-job was office boy. He remained until the close.of the day.
On February 3, Davis joined the strike with the other employees:
He returned to work with the other strikers on March 10 when the
strike ended. At that time Schaeffer assigned him to work in the
upstairs stockroom 40 and told him that from then on, his duties were
to clean the stockroom and 'be stockroom boy. Prior to the strike the
cleaning of the stockroom had been done once a year and was about
1 day's work for those assigned to the job. !The duties of the stock-
I
N
° At that time the respondent employed about 45 office workers
0 Schaeffer testified that he saw Melvin Schwartz and Harry Davis occasionally wear
their union buttons in the office.
40 The stockroom is used for storing company records and supplies, and is a room distinct
from the main office but contiguous to it.
1, 1
NATIONAL CONTAINER CORPORATION 601
room boy had been incidental to the job of the office boy. Davis-pro-
tested the assignment and was told by Schaeffer to take the job or go
home. Davis reported this to Burke who told Davis to do as he was
told, until after the. election, which was to be held in 3 weeks. Davis
;took the job. • I ,
During the day, March 10, he left the stockroom to get a broom..0 1
Goldberg met him and told him to go back to the stockroom, and that
he was not to be seen in the office 'or the plant. Later that day, he
had occasion to' go to the, toilet. Schaeffer met him and told him that
he should not leave the stockroom for that purpose without first getting
permission from the office. When Davis told Schaeffer that he had
finished cleaning the stockroom, Schaeffer told him to stay there.
On March 11, Davis talked to Daniel Broshin, assistant office man-
ager, who told Davis that he should quit his job and that he, did not
have "a chance here any more."
Davis stayed in the stockroom during working hours until the after-
noon of March 12. Then Schaeffer sent him on an errand and told
him to go home after he had finished. The following morning he sent
him on another errand of less than 2 hours duration, and told him to
go home when he had completed it. On the morning of March 14,4'
when -he reported for work, he was met by Schaeffer who said,"-You
can't go back to work this time, .. . it is not your fault this time, but
you are told not to report."
Upon being discharged, 'Davis went to union headquarters where-
he remained during the morning. On the afternoon of the 14th, he,
Gerald Davis, and Melvin Schwartz went to the plant and asked
Goldberg whether they were still working for the respondent 42 Gold-
berg, told them to "Take it as you please." They then asked him,
"What is, our status with the company," and were given the same
answer. Finally, they asked Goldberg if they were fired, and were
told by him, "We will call you again when we feel like it." That
ending the conversation. On the same day Davis had a conversation
with Alexander Herman, one of the respondent's vice presidents.
Herman suggested' that if Davis apologized for his strike and Local
65 activities,'Kipnis would take him back as an employee. Davis
refused to do so. Davis has never been recalled to work.,
Davis' employment history card ,bears the following notation, by
Schaeffer in the box headed "Detailed Statement of reason for termi-
nation"; "3/15%41 (Sat.) - --- Did not return." The employment
history card is a complete record of the employee's status from the
beginning 'of his employment and notes any changes that occur dur-
41 It will be recalled that it was on the morning of March 14 that 46 production workers
were locked out by the respondent.
" At,that time the,46 locked -out employees had returned to work.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the employment period. On July 24, 1941, Kipnis wrote a letter
to the Regional Office of the Board wherein he stated:
' Re :-Harry Davis-he was 'discha'rged for insubordination .. _. ,
as Mr. Goldberg; our general manager, could not tolerate the
manner in which this young man spoke to' him in ' front of • our
office force of about 40 people.
Goldberg testified that he knew that Davis had been discharged "at
one time'for, insubordination"; and that the respondent had no, record
of his discharge, for that cause, which would normally be noted on
Davis' employment history card. The only instance of alleged in-
subordination toward Goldberg that he testified about concerned an'
alleged statement by Davis to Goldberg that Davis was looking for-
ward to the day when Goldberg would be working for Davis. Davis
denied the statement. Goldberg testified that that -statement was
made about March 11 in the upstairs stockroom, which is out of sight
and hearing of the office force. We reject Goldberg's testimony and
credit Davis' denial in this respect.
Schaeffer testified that he was in charge of the office force ; that
Davis was never discharged, but just `did not show up, for work on'
March 15 or thereafter; and that he knew of nobody else who could
have discharged Davis. He testified also that if Kipnis had been
informed that Davis was discharged for insubordination, his informs;
tion was inaccurate. •
In view of the inconsistencies in the testimony of Schaeffer and
Goldberg, Kipnis' letter to the Board, and Davis' employment history
cards, it is apparent, and 'we find, that the respondent had, and gave
,no legitimate reason for discharging Davis.
Schaeffer admitted that Davis was -assigned to the duties at the
times specified by, Davis in his testimony. He denied that he restricted
Davis in the use of the toilet or that i he had the conversation with'
Davis on the morning of March 14 as above set forth. We, like the
Trial Examiner, do not credit the denial and find that the conversa-
tion occurred substantially-as related by Davis. Nor do we credit
Goldberg's denial that he ever met with Harry Davis, Gerald Davis,
and Melvin Schwartz, or that he restricted Davis' activities to the
stockroom.
Herman, a vice president of the respondent, testified that he asked.
Davis to apologize to Goldberg for having told Goldberg to go to hell
and for stating that he hoped that some day•Goldberg would be work-
ing for Davis. This is the first and only time the word "hell" appears
in connection with the alleged insubordination- on the part of Davis.
Davis testified that Herman merely asked him to, apologize for hav-
ing engaged in union activities. • We reject Herman's version of the
ti
NATIONAL CONTAINER CORPORATION 603
conversation , credit Davis' testimony in that regard, and find that
the conversation ' took place substantially as related by Davis.
Broshin did not testify . The Trial Examiner found , and' we agree,
that he advised Davis to find another job because he was aware of the
respondent 's antipathy toward Davis.
We have found above that when the committee of locked -out em-
ployees met with Kipnis on the morning of March 14 , he stated that
all the employees would return to work except the office workers, viz :
Harry Davis, Gerald Davis, and Melvin Schwartz ; also that on that
morning Schaeffer told Davis , "... it is not your fault this time, but
you are told not to report ." The evidence establishes that Davis had
performed his duties satisfactorily and in accordance with instructions
from his superiors , and that he had done nothing to merit discharge
except actively engaged in Local 65 activities , which were distasteful
to the respondent . The fact is evident also from Schaeffer 's state-
ment to Davis, "it is not your fault this time . ..," from Broshin's
advice to him to look for another job, and from Herman's admonition
that he apologize for his Local 65 activities . Nor does the credible
evidence disclose that he merited the punishments inflicted upon him
by the changes of jobs and restrictions on February 1 and March 10.
We find that the respondent on February 1 and March 10, 1941,
discriminated with regard to the hire and tenure of employment of
Harry Davis because of his membership in and activities on behalf
of Local 65, thereby discouraging membership in Local 65, encourag-
ing membership in Local 411, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Sec-
tion,7 of the Act. We further find that the respondent on March 14,
1941 , discharged Harry Davis for the reason that he was a member of
Local 65 and joined in Local 65 activities ,- thereby discouraging mem-
bership in Local 65, encouraging membership in Local 411, and inter-
fering with , restraining , and coercing its employees in the rights
guaranteed in Section 7 of the Act.
Gerald Davis was employed by the respondent in April 1940 as
second assistant to Baff at the rate of $16 per week . About 3 months
later he was promoted to the job of first assistant. In September
1940 he received a` $2 pe 'r week raise `in pay. As Baff's first assistant
he took dictation from him, handled his correspondence, checked and
stored materials ' which came to the office , handled taping and inven-
tory records , weighed trucks and checked men in the factory.
Davis testified that Baff told him on January 9 that S,ugarman's
discharge "... was something about unions ," and asked him how -he
felt about unions. Davis told Ball that he was in hearty accord "with
the union organizing the men in the factory . . ."; to which Baff
answered , "Suppose I take some drastic action on that." 'While Baff
N
604
. J
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied,having made-the statements attributed to him by Davis, we do'
not credit Baff's denials. '
On January 30 Davis joined Local 65. On February 3 he joined
the,strike with, the other employees and continued in that activity,
until the strike was settled.
On March 10, he returned to the plant with the rest of the strikers
to'go to work. , There, according to Davis, Baff told him to go up-
stairs and work in the st6ckroom,43 "and stay up there. Don't come
downstairs and talk to any men or disturb any men in the factory
" Davis reminded Baff that the March 6 agreement provided for
reinstatement without discrimination, to which- Baff replied that
Davis had done stockroom work before the strike-and "Well, you will
do it now." Davis-asked him what duties he was to perform in the
stockroom and was' told, "Well, you take inventory again," 44 and that
he was to hand out such stocks as are asked for. Davis took the new
job. Prior to the strike he had not spent as much as 3 hours per day
'in stockroom duties, nor lhid the respondent employed anyone for
full time stockroom work.' Neither had anyone previously been con-
fined to the stockroom exclusively, or been forbidden to talk to fellow
employees. ,
Davis further testified that -about March 12 Kipnis came to the
stockroom and told him that he could not understand why Davis had
joined Local 65 and had become connected with "this riffraff"; that he
was a bright, ilitelligent boy and could have gone "far"' with the
respondent, but that members of Local 65 do not advance; that Local 65,
.does not "raise you up; they pull you down ; they are riffraff; they
are communists; they are rats; they speak to you with a stick to beat
you over the head to drive their points in." Kipnis denied this con-
versation. Upon the entire record, we do- not credit his denial.
On the afternoon' of March 13 Davis noticed that the men in they
plant had stopped working. He testified that he came downstairs - ,
to the office and was confronted with a new employee, whose name
Davis did not know, but who had taken his job during the strike and
still retained it. This employee asked Davis what he was doing in the
office. Davis told his successor that it appeared that some union
activity was in progress, whereupon Davis' successor warned Davis
to go back to the stockroom or he would call Baff. Baff was called.
He told Davis to go back to the stockroom; that as an office employee
lie had no concern with the activities of factory employees; and that
if be did not go back to the stockroom, to "go out." Davis, after a
43 The stockroom serves the factory office for the storing of supplies and is separate
and 'distinct from the main office stockroom . There is no chair in the room'-and the only
walking space in it is a corridor about 4 feet by 3 feet
44 Davis had, taken inventory in December 1940, a job which two men could finish in
1 day.
}
NATIONAL CONTAINER CORPORATION '605
few- moments, went out. He thereby joined his fellow employees in
their concerted activities which resulted in the stoppage of Match 13
and which we have heretofore found was caused by the unfair labor
practices`of the re'spondent.'
On the morning of March 14 Davis reported for work as usual. Ball
met him and told him that there- was no work for him. He asked
Baff if he was laid off or discharged and what status lie had with the
respondent. Baff's final answer was, according to Davis, "You can't'
get me to say anything. All I am telling you is there is no more work."
Davis left. 'As he was leaving the plant, lie met Melvin Schwartz.
The two of them went to,union headquarters; where they met Harry
Davis.
Later that day Harry Davis, Gerald Davis, and. Melvin Schwartz
went to see Goldberg. Thus, Gerald Davis' testimony in respect to
that meeting substantially corroborates the testimony of Harry Davis,
as above set forth. We find that, in addition to Harry Davis' testi-
mony with regard to that conversation, Goldberg said, "You ,^aunt,a
statement from me for the Labor'Board."
Gerald Davis has not been recalled to work for the respondent. He
is now serving in the armed forces of the United States.
Baff is also serving in the armed forces of the United States. He
did not materially negative the testimony of Gerald Davis. On
March 15 he sent to the front office of the respondent in the regular
course of business the following communication:.
SUBJECT: DISMISSAL OF BOB (GERALD) DAVIS
Since his return to.work on Monday, March 10th; his manner
was arrogant and his tone condescending.
He reported late for work every morning from Tuesday 'to
Friday and while he stayed late to make up the lost time he com-
plained about the schedule of hours.
He indicated that he did not like the work assigned to him and
kept annoying me with requests to 'change his work.
When the factory, employees stopped working at 3 p. in. on
Thursday, he also stopped working and insisted on joining the
others. (His people he called them.) .
He was told not leave the office. and sat in the factory vestibule
orating to the watchman and others present on the benefit, etc.
of the New Order which the labor union would bring about. He
remained there for approximately two hours and because of this,
the scale was unattended from 4 to 5 p. in. .
He was not permitted to return to work that day or, the follow-
ing day.
Baff remembered the conversation with Davis relative to his duties
in the stockroom after the first strike on March 10, and did iiot deny
606 -DECISIONS 1OF- NATIONAL LABOR RELATIONS BOARD
that the conversation was, substantially as related by Davis./ He
sought to justify Davis' new assignment by the following testimony :
It was necessary to assign him to the stockroom because of the
condition _of the stockroom for one thing. He had already been
replaced by another employee, and so I assigned him to the -stock-
room.
Baff denied that he confined Davis to the stockroom and restricted
him from talking to other employees. However, Davis' testimony
that his successor Warned him to go back to the stockroom on March
13 on the penalty of calling Baff, is undenied. The successor called
Baff and Baff ordered Davis back to the stockroom. We, like the
Trial.Examiner, reject Baff's denial.
In addition to the fact that the settlement agreement of March 6
provided for the return of the 'strikers without discrimination, it is
well settled that a refusal to reemploy a striker is a violation of Section
8- (3) of the Act, where, as'here, the strike was caused by the unfair
labor 'practices of the respondent. Davis was a participant in an
unfair labor practice strike. When he returned to,the plant to go to
work on March 10, he was entitled to his former job, even if it were
necessary to discharge his successor. The credible testimony dis-
closes, and we find, that the respondent gave no reason, other than
that his job had been filled by a strikebreaker, for refusing him that
job. -
We credit the 'testimony of Gerald Davis with respect to his-con-
versations with the respondent's officials and with respect to the events
which culminated in his discharge, and find that on March 10, 1941,
the. respondent discriminated with regard to the hire and tenure of
employment of Gerald Davis for the reason that he was a member
of and joined in the union activities of Local 65, thereby discouraging
membership in Local 65, encouraging membership in Local 411, and
interfering with,-restraining, and coercing its. employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. We further find
that the respondent discharged Gerald Davis on March 14, 1941, be
cause of his membership in and activities on behalf of Local 65, thereby
discouraging membership in Local 65, encouraging membership in
Local 411, and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. We also find that the respondent on March 12 vilified and dis-
paraged Local 65 and its leaders as part of its course of conduct, in-
terfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Melvin Schwartz did not testify. The evidence establishes that he
was the respondent's office boy. He joined Local 65 on or about 'Jan-
uary 31,. On the same day the respondent discharged him. No 'evi=
k
NATIONAL • CONTAINER CORPORATION 607
deuce was offered as to the• respondent's reason, for discharging him,
despite the fact that the complaint alleged that Schwartz was dis-
charged because of his union membership and activities. He joined
the strike on February 1 and continued as a striker until the end.
On March 10 Schwartz returned to his job as office boy. On'March
14 he was denied the right to go to work. The respondent offered no
reason for discharging him, and when he, with the two Davises asked
Goldberg on that day if he was discharged, Goldberg refused to
answer, stating that the employees wanted a statement for the "Labor
Board." Schaeffer testified that he had seen Schwartz and Harry
Davis wear, their union buttons in the office. The facts and circum-
stances in the case lead us to find that the respondent discharged'
Schwartz on January 31- and March 14 because it knew of and resented
his union activities, thereby discouraging membership in Local 65,
encouraging membership in Local 411, and interfering With, restrain-
ing, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act. '
5. The lock-out of March 20
The complaint alleges that the respondent on or about March 20 ,
discharged, locked out, and refused, to employ'21 named employees
because of their union membership and activities. Gruneisel testi-
fied that all the employees so named in the'complaint were kept from
work that morning except Benjamin Migdalski, Stella Stevens, Her-
man Rivera, and Bernard Herr. The time cards show that Migdal-
ski, Stevens, and Rivera worked on March 20. We shall dismiss
the complaint as to-these employees. As is hereinafter found, Herr
was kept out of the plant with the others, all of whose names appear
in Schedule B, which is attached to and made a part of this Decision
and Order.
As above found; a number of men were picked out of line when-they
reported for work on March 20. The decision' to lock out the em-
ployees named in Schedule B was arrived at on the evening of March
19 at a meeting between Kipnis, Goldberg, and Gruneisel. The testi-
mony of Gruneisel, who appears to have selected the men,.as to the
basis for his selections was replete with contradictions. He'stated
that "those selected were the ones who started a-walk-out on the 19th,
left their. machines running, causing damage to paper, and walking,
out of the plant 'without anyone talking to them or anything else."
He then testified that he picked out people who were machine tenders
or, had anything to do with a machine. He stated first that he was
sure that he did not select employee Bernard Herr on that, morning
because Herr had nothing to do with a machine, then because Herr
did not work in the department that walked out, and finally admitted
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Herr was working in the fibre department that walked out, then
admitted that Herr was working in the fibre department which was,
supposed to work until 6. Gruheisel testified that those kept out on
the 20th had caused damage, disturbance, and fights, and again, that
all'- of ,them- had -somethiiig to do with the istoppage and leaving
machines running, and finally that he selected only the "ring leaders."
Herr, whose testimony we, like the Trial Examiner, credit, testified
that he was one of the employees who was kept out, on the -20th, and
that he worked on the evening of the 19th until his foreman, Lombardo,
told,hiin to-go home. The respondent's time cards'show that'Herr
worked until 5:16 p. in. 'on the 19th and did not work on the 20th.
We find that Herr was denied entry to the plant on the 20th.
Goldberg testified that the employees, who were picked 'out on the
20th, were those who did not work until 6 p. in. on the 19th, and further
stated that he believed certain departments were not supposed to
work until 6 p. in. Kipnis testified that certain employees were asked
to step aside and find out why, "when their own men agreed to certain-
things and they do not back their own committee." -
We find that Gruneisel's claim that he selected the men on the basis
of their operation of machines is without foundation in view-of the
fact that, with but three or four, exceptions, he'admitted that none of
those selected was a machine operator or had left his machine running.
Although the foremen of the slitting and nesting' departments testi-
fied, neither,of them mentioned that any niachines had been left running
on the 19th. These were the two departments in which Gruneisel
testified that such a condition existed. -
It thus appears that, in addition'to Gruneisel's contradictory testi-
mony as to the reasons for keeping the, employees from going to work
on the morning of March 20, neither Kipnis nor Goldberg corrob-
orated 'him. We reject as incredible his testimony concerning the
reasons for locking out the-employees , on March 20. The time cards
show that all but 68 of the 232 employees who worked on March 19,
punched out before 6 o'clock. Still, only 18 men were locked out.
We find, therefore, that the reasons given by Goldberg have no basis in
fact. - We have found above that the committee which met with Kipnis
on Marcli 19 agreed that the combiners would work until 6 p. in. and
the other departments would work so -long as there was work to be'
done, but not-longer than 6 o'clock; and that Kipnis was told that since'
the committee did not represent the union members, it would not take
the 'responsibility of binding * the employees to the agreement. It
thereupon devolved upon the respondent to notify the employees in
the usual and customary way, which, v'as by its foremen, of the new -
overtime order. IThe evidence establishes that it did not'do so. The
combiners worked until 6 o'clock. Goldberg testified that he believed
NATIONAL CONTAINER CORPORATION 609
that certain departments were not supposed to work until 6 p. in.
It therefore follows, and we find, that no agreement:was broken when
some of the eniplcyee-s left at the usual quitting time- and others',there-
after worked' until after 6 p. in. We further find that the respondent's
dealings with a non-representative and unauthorized committee of the
employees was calculated to and did confuse the workers as to the
overtime requirement and that the confusion was aggravated by the
failure'of the foremen in some departments to ask their employees to
work ove`rtime'. In addition, we find that Kipnis' reason for locking
out the employees on the morning of March 20 is without merit.
As we Jade hereinabove found, the overtime order of March 19 was
discriminatorily designed to keep the respondent's employees from
attending a previously scheduled meeting of Local 65. We further
find that the employees named in Schedule B attached hereto, were
locked out of the plant by the respondent on the morning of March 20
because of their union membership and activities in attending the,
previously scheduled meeting of- Local 65 in disregard of the
discriminatory overtime order. •
The respondent denies that the workers who were locked out on
March 20 were discharged. The pay roll for. the week ending March
18 shows that the entries opposite the names of each of the employees
locked out on the'20th appear in distinctive green crayon;'' a check
was drawn on March 20, which was not a pay day, covering the pay
of the employees-locked out on the 20th,-not only,for the pay due them
for the week ending March 18, but also for one additional day's pay,
viz; March 19, which normally would not have been paid until March
28. , Gruneisel, whose testimony was admittedly hearsay, testified that
the' drawing of this check was an accident' which resulted' from the
fact that an office-boy erroneously took the time cards and time war-
rants of these employees from Gruneisel's desk to the pay-roll depart-
ment where another error-was made in drawing a check for their pay.
He could not explain why only these cards were removed from his
desk' by the office boy and not other time cards of absentees, which-
were there; nor' could- he cite another instance when such a 'mistake
had been made. The pay-roll clerk with first-hand knowledge of the
facts was not called to testify.
It is the contention of the respondent that the green crayon entries
have little significance because two of the employees whose entries are
also in green crayon, -viz: Goldstein and Horowitz, were locked out
that morning and were not so alleged in the complaint. The respond-
ent made the same claim 'concerning Herr, whose entries also are in
u In addition to those named In Schedule B, the pay roll carries similar entries as to
employee Canderelli , who admittedly was in the excluded group
601248-45-vol 57-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
green cr'ayon and who is alleged in the complaint to have been locked
out on the 20th. As above found, Herr was locked out on the,20th.
Canderelli, who was admittedly locked out on the 20th, also has his
entries, in green crayon; yet his name is not alleged in the complaint.
The time card records show that neither Goldstein nor Horowitz
worked on the 20th; no credible explanation of their absence was given
by the respondent. Both Goldstein and Horowitz were members of
Local 65; having joined on January 21 and January 14, respectively.
Although the time cards show that about 40 workers (excluding those
on the night shift) did not report for work on March 20, and although
Gruneisel's explanation of the alleged mistake involved the-commm-
gling of the cards of the locked-out employees with those of absentees,
and although some non-members of Local 65 were absent on the 20th
(i. e. DiGeorgio J-31, and Leff J-62), it is noteworthy that only Local
65-members are included among the group whose pay,was drawn on
the 20th. Gruneisel admitted that he had segregated the time cards
of the locked-out group on the 20th, which, we find, indicates that the
cards of Horowitz and Goldstein were included in this group when
the cards; were taken to the pay-roll department. We also note that
on the 19th Horowitz and Goldstein punched out, at about the same
time as employees Kiezak, McCarthy, and Herr., It is reasonable to
assume, and we find, that since the latter employees were locked out,
Horowitz and Goldstein ,were accorded the same' treatment. Even if
Goldstein and Horowitz were mere absentees on March 20, the re-
spondent offered no credible explanation of the pay-roll entries con-
cerning the other locked-out employees,'and of the fact that a check
was drawn for their pay on the 20th.
Kipnis,did not deny having given instructions to draw the pay check
for this group of employees; nor to pay them off. ,, This, he said he
could not recall because "It is such a trifling matter to me."
In view of all the evidence we find that the respondent's pay-roll
records indicate that the respondent intended to pay off the locked-out
employees on the 20th; that a pay check was drawn-for this purpose;
and that the respondent's contention that it had no intention to, and
did not; discharge any one on that day has no merit. We find, further,
that this evidence corroborates that'of Burke regarding the instruc-
tions given the men to come back for their pay, as above set forth.
From a consideration of 'all of the evidence, we find that the re-,
spondent on March 20,•1941, locked out and discharged the employees
named in Schedule •B hereof because of their union membership and
activities, thereby discouraging membership in Local 65, encouraging
membership in Local 411, and interfering with, restraining, and coerc
iiig. its employees in the exercise of the rights guaranteed in Section 7
of the Act.
U
NATIONAL CONTAINER CORPORATION , ' 611
6. Lionel Medina, Harry Brown, Harry Davis, Joseph Valentine,
Stephen Arvay
The complaint alleges that Lionel Medina on April 4 and 10, Harry
Brown on April 4, and on various occasions thereafter, Joseph Valen-
tine and Stephen Arvay on April 7, and Harry Davis on March 10,
applied for and were refused reinstatement by the respondent to their
former or substantially equivalent employment, for the reason that
they joined and,assisted Local 65. The case of Harry Davis has been
discussed. above in Section 4.
As,-stated hereinabove, the second strike was settled on April 4 by
the parties' acceptance of proposals submitted by Comiiiissioner Liller.
'It is undisputed that the respondent undertook to ' telegraph, those
employees whom it was ready to reinstate that work was available.
There was no duty on the part of the workers to apply for reinstate-
ment in the absence of such notice:- Nevertheless, on April 7, the day
the notified employees returned to work, Osman, a Local 65 represent-
ative, telephoned Kipnis and told him that some of the employees
were refused employment when they reported for work that morn-
ing. Kipnis answered, according to the uncontradicted testimony
of .Osman, which we credit, "I have nothing to discuss with you. I
will hire whoever I please and I will fire whoever I please, and if
you do-not like it, you can go plumb to hell." , - - -
Lionel Medina did not receive a telegram but reported to the plant,
only to be told by Gruneisel that he was not wanted. He has not
been recalled to work.
Medina joined Local 65 on February 7, 1941. He took part in both
strikes. As above found, he refused to cooperate with the respondent
in its scheme to promote Local 411. On March 13 he had befriended
employee Harry Rodriquez by acting as his interpreter when Spengler
ordered Rodriquez to remove his steward button.
The respondent contends that Medina was not reinstated because
he had told Kipnis,to go to hell. This, he admittedly did on March
25 when he went to the plant for -his, pay during the ,period of the
second strike. While Medina was standing in line, Kipnis taunt-
ingly asked him several times "for a smile." Instead, Medina told
him to go to hell. It thus appears, and, we find, that Kipnis pro-
voked the incident. In his letter to the Regional Office dated July. 24,
1941, Kipnis wrote: "I felt as'president of the company I did not
deserve such treatnment, and if I didn't fire the man for insubordina-
tion, it would have a bad effect, on the other employees who heard
the remark he made to me." On March 13 Richter used worse lan-
guage toward =Gruneisel with impunity, when he refused to obey an
order Gruneisel gave him; on March 10 Smith "steamed" at Ginsberg,
"What the bloody hell is ,going on here?" without reproach or discip-
612 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD _
liriary action being taken against him. An overall consideration of
the case leads us to conclude and find that Medina was refused rein-
statement, not because Medina made the remark to Kipnis, ,butbe-
cause he was active in Local 65 affairs "and refused to be respondent's
tool in its campaign to destroy Local'65 and to promote'Local 411.
We also find that, the respondent on April 7, 1941, refused,•to rein-
state Lionel Medina to his' former 'or substantially equivalent employ-
ment for the reason that he joined and assisted Local 65, thereby dis-
couraging membership in Local 65, encouraging membership in Local
411, and interfering with, restraining, and coercing its employees in
the exercise-of the rights guaranteed in 'Section 7 of the Act.
.,&eph,en Arvay joined Local 65 before the first,strike and was made
a steward. , Shortly prior to the strike his foreman, Joe Lombardo,
asked him why he joined "that.CIO union," and suggested that Arvay
attempt to "organize a'company union." He refused to do so. Arvay
participated in both strikes and was not called back to work after the
second strike even though his job was admittedly available. At all
times since, he has desired reinstatement to his former job. In Sep-
tember 1941 the respondent sent him to work in its California plant
with the promise that it would also pay his transportation back to
New York if he were not, satisfied with the job.- He returned to New
York late in November 1941, the respondent having defrayed all of
his expenses. The respondent has not recalled him. In defense of 'its
position Gruneisel testified that about 2 weeks after April- 7 he was
told by Arvay that 'he was working in Jersey; that Gruneisel asked
him, "was he going back to work"; and that Arvay said,he would go
out of'-town if the respondent had a job for him in one of its other
-plants.- 'It was the duty of the respondent to notify Arvay that his
job was available for him. This, it-did not do.
We find that the respondent on April 7, 1941, failed and refused to
reinstate Stephen Arvay to his former or substantially equivalent
employment because he` joined and assisted Local 65, thereby, dis=
couraging membership in Local 65, encouraging membership in Local
411, and interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
Harry Brown was the picket captain for Local 65 in both strikes
and had been in the respondent's employ since 1934 as a chopper,
machine operator. He was the only regular chopper machine oper-
ator in the plant. - Although the respondent sent, for employees whom
it wished to reinstate after the second strike, Brown was not recalled.
On April 7 and on several subsequent occasions, he asked Gruneisel
for his job and was told each time by Gruneisel' that there was no
work for him. No valid defense was offered by the respondent' for
not reinstating him. We, like the Trial Examiner, ascribe the failure
and'refusal of the respondent to reinstate Brown to his union, activities'.
NATIONAL CONTAINER CORPORATION 613, • `
"We find that the respondent on April 7, 1941 , failed and , refused
to reinstate Harry Brown to his former or substantially equivalent'
employment for the reason that he joined and assisted Local 65, thereby
discouraging membership in Local .65, encouraging membership in
Local 411, 'and 'interfering with,, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
Joseph Valentine had been employed by the respondent since June, -'
1939. His strong union sympathies have already been discussed in
connection with the March `13 stoppage in Section 2, above. He was
not offered reinstatement after the second strike , although there was
work available for him . He reported for work on April 7 but, was
refused employment by Giuneisel . In the fall• of 1941 he again ap-
plied for his job and was told by, Gruneisel that there was no work
for him because the machine on which he formerly worked had been,
,removed from the plant. The last entry on his employment history
card with regard to reason for termination of employment is "3/20/41
Left Strike ." We find that he was refused employment because of
his union activities.
We further find that the respondent on April 7, 1941, failed and
refused to reinstate Joseph Valentine to his former or substantially
equivalent employment for the reason that he joined and assisted
Local 65, thereby discouraging' membership in Local 65, encouraging
'membership in Local 411, and interfering with, restraining , and co-
ercing its employees in the 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 the operations of the respond-
ent 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 had engaged in, and is engaging
in, unfair labor practices ' we shall order it to cease and desist there-
from and to take certain affirmative action which we find is necessary
to effectuate the policies of the Act.
We have found that . the respondent discharged Ira Sugarman on
January 8 , 1941, and thereafter refused to reinstate him to his'former
or substantially equivalent employment because he joined and assisted
Local 65. We have further found that the respondent violated the
Act on March' 10 by assigning Sugarman to the scale house, t position
614 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
1,
not substantially equivalent to' that held,by him prior to his discharge
on January 8, 1941. We shall, therefore, order the respondent to offer
- him immediate and full reinstatement to his former or substantially
equivalent employment without prejudice to his seniority and,other
rights and privileges. We shall further order the respondent to
make Sugarman whole -for any loss of pay that he has suffered by
reason 'of the -respondent's discrimination against him, by payment to
him of a,sum of money equal to the amount which he normally would
' haveearned as wages from January 8, 1941, the date of his discharge,
to March 20, 1941, the date on which Sugarman participated in the
strike of Local 65, and from April 7, 1941, the date upon which ' the
respondent should,have recalled him to work pursuant to the settle-
ment agreement, to the date of the respondent's offer of reinstatement,
less his net earnings 46 during such periods.
We have,found that on March 13 the respondent discharged Joseph
Valentine, Paul Cianci, Sam Kinstler, and Barney Landsberg be-,
cause of their refusal to remove their steward buttons and their
activities on behalf of Local 65. These employees ' were rein-stated
,to their jobs 'on March 14, 1941. We shall order that they be made
whole for any loss of pay they have suffered by reason of, their dis-
criminatory discharge, by payment -to each of them of a sum of money
equal to the amount which each normally would have earned as wages
during-the period of the respondent's discrimination against him from
March 13 to March 14, 1941, less his net earnings during such period.
We have,found that the respondent on- March 14 discriminatorily
locked out the employees named in Schedule A attached to this Order.
The respondent reinstated them to their' job's approximately 3 hours
later. We shall order that the respondent make them, whole for any
loss of pay they have suffered by, reason of their having been dis-
criminatorily locked out for that period by payment 'to them of a
sum of money equal to the amount which each normally would have
earned as wages during that period, Bless his net earnings during such
period. , - - ,
,We have found that the respondent discriminatorily discharged
-Melvin Schwartz on January 31 and reinstated him on March 10, 1941;
.that on March 14 it again discriminatorily discharged him and since
that day has refused to reinstate him to his former or substantially
equivalent employment. We shall '-order that the respondent offer
to Melvin Schwartz -full and immediate reinstatement to his former
46 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 shall be considered as earnings . See Republic Steel v. N. L . R.B., 311 U. S. 7.
NATIONAL CONTAINER CORPORATION: - 615 '
or substantially equivalent employment and make him whole for any,
loss of pay he has suffered by reason of -his discharges, by payment
to him of a sum of money equal to the amount which he normally
'would have earned' as wages during the period from January 31 to
March 10, 1941, and during the period from March 14, 1941, the date
of his second discharge, to the date of respondent's offer of reinstate-
ment, less.his net•earnings during such periods.
We have found that the respondent on March 10 discriminated with
regard to the hire and tenure-of employment of Harry Davis by assign-
ing him to an inferior job, and that it discriminatorily discharged him
on March 14. We shall order that the respondent offer Harry Davis
full and immediate reinstatement to the job which he held immediately
preceding March 10, 1941, or to a substantially equivalent position,
and to make him whole for any loss of pay he has suffered by reason
of the respondent's discrimination against him, by payment to him
of a sum of money equal to the amount which he normally would have
earned as wages from March 14, 1941, the date of his discharge, to
the respondent's offer of reinstatement, less his net earnings during
such period. A
We have found that the respondent.on March 10 discriminated
with regard to the hire and tenure of employment of Gerald Davis
,by assigning' him to an inferior job, and that it discriminatorily dis-
charged him on March 14 and has thereafter refused to reinstate him
to'his former or substantially equivalent employment. Davis is now
serving with the armed forces of the United States and is accordingly
-not available for immediate reinstatement. We shall order that the
respondent, upon application by Gerald Davis within 40 days after
his discharge from the armed forces of the United States, offer him
reinstatement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges. We
shall further order that the respondent make whole Gerald Davis for
any loss of pay he has suffered by reason of the respondent's discrimi-
nation against him, by immediate payment to him of a sum of money
equal to the amount which he normally would have earned as wages
during the,period between March 14,- 1941, the date of his discharge,
and the date 'of his induction into the armed'forces, less his net earn-
ings during such period; and by payment to him of a sum of money
equal to the amount which he normally would have earned as wages
during the period between-a date 5 days after Gerald Davis' timely
application for reinstatement and the date of the respondent's offer of
reinstatement, less his net earnings during such period.
We have found- that the respondent on March 20 discriminatorily
locked out and discharged the employees named in. Schedule B of
this Order. Some 3 hours later all of these employees went on. strike.
We shall order that the respondent make whole all the employees
r.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1
iiamed in Schedule B hereof, for any loss of pay they have suffered
by reason of the respondent 's discrimination against them , by payment
to them of a sum of mol'ley equal to the amount which each normally
would have earned as wages from the startingtime of his employment
on March 20, which we have found was 8 a. in., until he'went on strike,
less his net earnings during such period.
We have found that the respondent , on April 7 , 1941 , and thereafter,
refused to reinstate to their former or substantially equivalent employ-
ment Lionel Medina , Harry Brown , Joseph Valentine , and Stephen'
Arvay because they joined and assisted Local 65. We shall order that
the respondent offer them immediate and full reinstatement to their
former or substantially , equivalent employment and make them whole
for any loss of pay they have suffered by reason of the respondent's
discrimination against them , by'payment to each of them of a sum of
'money equal to the amount which each normally would have earned
as wages from April 7,1941 , the date of the discrimination, to the date
of the respondent 's,offer of reinstatement , less his net earnings during
such period.
We have found that'- the respondent unlawfully sponsored, main-
tained, assisted, and supported Corrugated and Fibre Workers Union,
Local 411, International Brotherhood of Pulp, Sulphite & Paper Mill
Workers, affiliated with the American Federation of Labor. In order
to. insure to the employees the full and free exercise of the rights guar-
anteed in Section 7 of the Act, without interference , restraint , or coer-
cion by the respondent , we shall order that the respondent withhold
recognition from Local 411 as the representative ' of any of the em-
ployees of the respondent at its Long Island City plant for the pur-
poses of collective bargaining , until such time as Local 411 may be
certified as their representative by the Board.
No provision of our Order, however, shall be construed as affecting
or interfering with the respondent 's administration of the terms and
obligations of the existing contract with Local 444, first executed on
.September 24, 1941, and as thereafter renewed.
Upon the basis of the above findings of fact and upon the entire
'record in the case, the Board makes ' the following: ' '
CONCLusIoNs of LAW '
1. United Wholesale ' & Warehouse Employees of New York, Local-
65, affiliated -with the Congress of Industrial Organizations is a labor
organization within the meaning of Section 2 ( 5) of the Act.
2. International' Brotherhood of. Pulp, Sulphite &: PapeF'Mill
Workers U . S. Corrugated Workers Union, Local 444, affiliated -with
the American Federation of Labor is a labor organization within the
meaning of Section 2 ( 5) of the Act. '
NATIONAL CONTAINER CORPORATION 617
3. Corrugated and Fibre Workers Union, Local 411, International
Brotherhood of Pulp, Sulphite & Paper Mill Workers, affiliated with
the American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act. -
4. By discriminating in regard to the hire and tenure of employ-
ment of Ira Sugarman, Joseph Valentine, Paul Ciahci, Sam Kinstler,
Barney Landsberg, Melvin Schwartz, Harry Davis, Gerald'Davis,
Lionel Medina, Harry Brown, Stephen Arvay, and the employees
named in schedules A and B, hereof,,thereby discouraging membership
in United Wholesale & Warehouse Employees of New York, Local 65,
affiliated with Congress of Industrial Organizations, and encouraging
membership in Corrugated and Fibre Workers Union, Local 411, In-
ternational Brotherhood of Pulp, Sulphite & Paper Mill Workers, af-
filiated with the -American Federation of Labor, the respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.,
5. By interfering with, restraining, and coercing its" employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting. commerce, within the meaning of Section 2 (6) and (7) of
the Act. • •
7. The strikes of February, and March 13 and 20, 1941, were caused
and prolonged by the respondent's unfair labor practices.
8. The respondent did not discriminate against Joaquin Candenado
on March 13, 1941, W. Koprowski, R. Willey, and Nick Varriale on
March 14, 1941, and Benjamin Migdalski, Stella Stevens, and Herman
Rivera on March 20, 1941.
ORDER,
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, National Container Corporation, Long Island City, New York,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist' from :
(a), Discouraging membership in United Wholesale & Warehouse
Employees of New York, Local 65, affiliated with the Congress of In-=
dustrial Organ'izations' or any other ' labor organization of its-
em-ployees; or encouraging membership in Corrugated • and FibreWork=
ers Union, Local 411, International Brotherhood of Pulp, Sulphite &
Paper Mill Workers, affiliated with the American Federation of Labor,
or any other labor organization of its employees, by demoting, dis-
618 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
charging or refusing,to reinstate any of its employees, or by discrimi-
nating in any ' other manner in regard to their, hire and tenure of
employment, or any term, or condition of their 'employment; ' '
,(b) Recognizing Corrugated and Fibre'Workers'Union, Local 411,
International Brotherhood of Pulp, Sulphite & Paper Mill Workers,
affiliated with the American Federation of Labor, as the representa-
tive of any of its employees at its Long Island City plant- for the
purposes of collective bargaining, with respect to grievances, labor
disputes, wages, rates of pay, hours of employment or other ,conditions`
of employment, unless and until that organization shall have been
certified by the-Board as such representative;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
'labor organizations, to join or assist United Wholesale`& Warehouse
Employees of New York, Local 65, affiliated with the Congress' of
Industrial Organizations, or" any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7• of the
Act. , I t
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withhold recognition from Corrugated and Fibre Workers
Union, Local 411, International Brotherhood of Pulp, Sulphite &
Paper Mill Workers, affiliated with the American Federation of Labor,
as the representative of any of its employees at its Long Island City
plant, for the purposes of collective bargaining with respect to griev-
',ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until that organization
shall have been certified by the Board as such representative;
(b) Offer Ira Sugarman, Harry Davis, Melvin Schwartz, Lionel
Medina, Harry Brown, Joseph Valentine, and Stephen Arvay, im-
mediate and full reinstatement to their former or substantially equiva-,
lent positions without prejudice to their seniority or other rights and
privileges ;
(c) Make whole Ira Sugarman for any loss of pay he has suffered'
by reason of the respondent's discrimination 'against him, by payment'
to him of, -a sum of money equal to the amount which he normally
would have earned as wages from January 8, 1941,"the date of his dis-
charge, to March 20, 1941, the date on which Sugarman participated
in-the-strike of- Local 65, and from April 7, 1941, the, date -upon which
the respondent should have recalled him to work pursuant to a settle-
ment agreement, to the date of the respondent's offer of reinstatement,
less his net' earnings during such periods; , .
NATIONAL CONTAINER CORPORATION ^ 619
(d)_ Make whole Harry Davis, Melvin Schwartz, Lionel Medina,
Harry Brown, Joseph Valentine, and Stephen Arvay for any loss of
pay they have'suffered•by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal
,to the amount which each normally would have earned as wages from
the date of the respondent's discrimination against him to the'date
of the offer of reinstatement, less his net earnings during such period;
(e)^ Upon application by Gerald Davis, within 40 days after his
discharge from the armed forces of the United States, offer him im-
mediate and full reinstatement to his former or `substantially equiva-
lent position, without prejudice to his seniority or other rights and
privileges; 'i
(f) "Make whole Gerald Davis for any loss of pay he has suffered
by reason of the respondent's discrimination against him, by imme-
diate payment to him of a sum of money equal to the amount which
he normally ,would have earned as wages during the period between
the date of,his discharge and the date of his induction into the armed
forces of the United-States, less his net earnings during such period;
and a sum of money equal to the amount which he normally would have
earned as wages between a date 5 days after Davis' timely application
for reinstatement and the date of the respondent's offer of reinstate-
ment, less his net earnings during such period;
(g) Make whole Joseph Valentine, Paul Cianci, Sam Kinstler, and
Barney Landsberg for any loss of pay they -have suffered by reason
of the respondent's discrimination against them, by payment to each
of them of a sum of money equal to the amount which each normally
would have earned as wages during the period of the respondent's
discrimination against him from March 13 to 14, 1941, less his net
earnings during such period;
(h) Make whole the employees named in Schedule A, attached to
this Order, for any loss of pay they have suffered on March 14,'1941,
by reason of the respondent's discrimination against them on that
date, by payment to each of them of a sum of money equal. to the
amount, which each normally would have earned as wages on March
14, less his net earnings during such period;'
(i) Make whole, ,the employees named in Schedule B, attached to
this Order, for any loss of pay they have suffered on' March 20, 1941,
by reason of the' respondent's discrimination against them on that
date, by payment to each of them of a sum of money equal to the
amount which'each -normally would have earned as wages from the
period of the discrimination against him on March 20 to the time,
when he joined the strike of Local 65 on March 20, less his net earnings
during such period; - ,
(j) Post immediately in conspicuous places in its Long Island City
plant and maintain for a period 'of at least sixty (60) consecutive days
620 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
from the date of 'posting; notices to 'its employees stating : (1) that'
the respondent will-, not engage, in the conduct from which -it is or-
dered to cease and desist in paragraphs 1 (a), (b), and (c) of this
Order; (2) that the respondent will take the affirmative action set out
(g), (h)., and (i) of thisin paragraphs 2 (a), (b), (c), (d); (e), (f),
Order; and (3) that' the respondent's employees are free to become-
and remain members of United Wholesale & W6relhbuse, Employees
of, New York, Local 65, affiliated with the Congress of Industrial Or-
ganizations, or any other labor organization, and that the respondent
will not discriminate against any employee because of his member-
ship or activity in such organization;
(k) Notify th'e Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
.respondent has taken to comply herewith.
AND IT is FIIRTHEB ORDERED that the complaint, insofar as it alleges
that the respondent discriminated against Joaquin Candenado on
March 13,1941, W. Koprowski, R. Willey, and Nick Varriale on March
14, 1941, and Benjamin Migdalski, Stella Stevens, and Herman Rivera
on March 20, 1941, be,-and it hereby is, dismissed.
AND IT Is FURTHER ORDERED that the complaint, insofar as it
alleges that the respondent violated Section 8 (5) of the Act.and
Section 8 (1) of the Act with respect to assistance and support granted
by the respondent to International Brotherhood, of Pulp, Sulphite &
Paper Mill Workers, U. S. Corrugated Workers Union, Local 444,
affiliated with the American Federation of Labor, be, and it hereby is,
di,,
Harry Niemi
Henry Rodriquez
Harry Brown
Margaret' Mattis
Ann Freedman
Stephenia Kostysin
Aida Cuti
Stella Stevens
Benjamin Migdalski
Al Cicolese
Frank Sevilla
Joseph Kershis
Julius Friedlander
Thomas Vitello
Edward Ingram
Jerry Romanelli
SCHEDULE A
Ignatz Migdalski
Teddy Migdalski
Barney Landsberg
Michael 'Richter
Ralph Feliciano
Sam Kinstler
Joseph M. Valentine
Frank Yandoli
Herman G. Rivera.
.Joaquin Candanado
Charles Martin
Estelle Nartowicz
Chester Kierzak
Louis Martinez
Paul Zayatz
Stephen, Arvay
Paul Cianci
Benny Bitel
Isaac Cardona
Jack Canton
S. Candarelli
Jacob Nann
NATIONAL CONTAINER CORPORATION
David Biskin
Walter Miller
Frank Rodriquez
J. Ingram
Rose Risi
Ann Tannacore
SCHEDULE B
Barney Landsberg
Benny Bitel
Jerry Romanelli ,•
Chester Kieszah
David Roth'
,Tom Vitello
John Shavel
Paul Cianci
Sam Kinstler
Joseph Kershis
,Mathew Mieszkowski
Ben Knopka
Bernard Herr
John Ostrowski
Fred' Korzinski
Casimir Strzelecki
Raymond McCarthy
Henry Koszakiewicz
e
L