New Era Die Co.

National Labor Relations Board - Board Decisions

Jan 8, 1940

19 N.L.R.B. 227 (N.L.R.B. 1940)

In the Matter of NEW ERA DIE COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 243, (A. F. OF L.)
In the Matter of NEW ERA DIE Co . and. INTERNATIONAL ASSOCIATION
OF MACHINISTS, LODGE 243, A. F. OF L.
Cases Nos. C-1.73 and R-1322, respectively.Decided
January 8, 1940
Steel Clicking Die Manufacturing Industry-Interference , Restraint, and
Coercion: anti-union statements including threats to close plant if majority of
employees joined union ; circulation of petition which sought to compel employees
to reveal to respondent their desire to be represented by an outside labor organi-
zation ; testimony of employees that they signed respondent 's petition of their
own free will rejected as irrelevant and immaterial ; failure of respondent to
discipline employees for leaving plant during working hours in order to "run"
union organizer out of town held to be endorsement of. their action-Unit Ap-
propriate for Collective Bargaining : production and maintenance employees,
excluding supervisory and clerical employees-Representatives : proof of choice :
authorization cards signed by majority ; revocation of authorizations after
respondent 's unfair labor practices held ineffective-Collective Bargaining: re-
.spondent 's interference , restraint , and coercion immediately after request of
union for a bargaining conference held to constitute a refusal to bargain;.
refusal to permit designated representatives of union to attend bargaining
conference: respondent ordered to bargain-Discrinvination: reduction in pay
and subsequent lay-off of employee most active in Union without substantial
evidence of decline in quality of his work or that the lay-off was in accord with
respondent 's usual practice-Reinstatement Ordered: of employee discrimina-
torily laid off-Back Pay: awarded , to compensate both for discriminatory re-
duction in pay and for discriminatory lay-offInvestigation of Representatives:
petition for, dismissed , in view of order to respondent to bargain.
Mr. Joseph F. Castiello, for the Board.
Mr. Robert C. Fluhn'er and Mr. Basil A. Shorb, of York, Pa., for
the respondent.
Mr. N. Barr Miller, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed on behalf of Inter-
national Association of Machinists, Lodge 243 (A. F. of L.), herein
called the .Union, the National Labor Relations Board, herein called
19 N. L. R. B., No. 27
227
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board, by its Regional Director for the Fourth Region (Phila-
delphia, Pennsylvania) issued its complaint, dated March 11, 1939,
against New Era Die Co., Inc.,' Red Lion, Pennsylvania, 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. A copy of the complaint, accompanied by notice of
hearing, was duly served upon the respondent and upon the Union.
With respect to the unfair labor practices the complaint alleged,
in substance, that the respondent (1) on November 30, 1938, and at
all times thereafter,' had refused to bargain collectively with the
Union as the exclusive representative of its production and mainte-
nance employees, who constituted a unit appropriate for the purposes
of, collective bargaining, (2) had circulated petitions and made
threats,, remarks, and speeches to its employees, interfering with the
rights of its employees guaranteed in Section 7 of the Act, and de-
signed to destroy the majority designation of the Union, (3) had
reduced the hourly wage of one employee and later terminated his
employment because of his membership and activities in the Union.
On March 20, 1939, the respondent filed an answer denying that it
had committed any of the unfair labor practices alleged in the com-
plaint, but at the same time admitting and explaining certain of the
specific facts alleged.
On December 7, 1938, a petition on behalf of the Union was filed
with the Regional Director for the Fourth Region alleging that a
question affecting commerce had arisen concerning the representation
of employees of the respondent and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Act.
On February 1, 1939, the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Section 3, of National Labor Relations
Board Rules and Regulation's-Series 1, as amended, ordered an in-
vestigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice, and also
acting pursuant to Article III, Section 10 (c) (2), and Article II,
Section 37 (b), of said Rules and Regulations, ordered that the two
cases be consolidated for the purposes of hearing. On March 11,
1939, notice of the hearing in the consolidated cases was duly served
upon the respondent and upon the Union.
Pursuant to the notice, a hearing on the consolidated cases was
held on March 23 and 24, 1939, at York, Pennsylvania, before Web-
ster Powell, the Trial Examiner duly designated by the Board. The
1 Designated in certain of the formal papers as New Era Die Company or New Era
Die Co.
NEW ERA DIE COMPANY 229
Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties, and the respondent availed itself of
the opportunity to argue orally before the Trial Examiner. At the
close of the hearing paragraph 2 of the complaint, concerning the
movement of the raw materials used and the finished products manu-
factured by the respondent, was amended by agreement of the par-
ties. Motions were made to conform the complaint and the answer
to the proof, which motions were granted by the Trial Examiner.
During the course of the hearing, the Trial Examiner made various
other rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On May 3, 1939, the Trial Examiner filed his Intermediate Report,
finding that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and
(5) and Section 2 (6) and (7) of the Act, and recommending that
the respondent cease and desist therefrom and take certain specified
affirmative action to effectuate the policies of the Act. In his Inter-
mediate Report the Trial Examiner notified the parties that they
might file exceptions within 20 days and request the privilege of
filing briefs or presenting oral argument before the Board within 10
days of the receipt of the Intermediate Report. On May 20, 1939,
exceptions to the Intermediate Report were filed by the respondent,
but no requests have been made by the parties for the privilege of
filing briefs or presenting oral argument. The Board has considered
the exceptions to the Intermediate Report and, save as consistent with
the findings, conclusions, and order, hereinafter set forth, finds them
to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
New Era Die Co., Inc., is a Pennsylvania corporation, with office
and plant at Red Lion, York County, Pennsylvania. The officers
of the corporation are: Frank Dedrick, president; Harry W.
McGuigan, vice president; Paul S. Raub, secretary; and L. Earl
Grove, treasurer.
The respondent is engaged in the manufacture, sale, and distribu-
tion of steel clicking dies used for the purpose of cutting materials
for the fabrication of shoes. Approximately 20 per cent of the value
283030-41-vol. 19-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the materials used in the processing of the dies comes from out-
side the State of Pennsylvania. The value of the finished products
manufactured by the respondent in 1938 was $58,045.22. The gross
value of the respondent's products shipped outside the State of Penn-
sylvania in 1938 was $34,365.96. - These products went chiefly to
Maryland, Virginia, New York, New Jersey, "Massachusetts, New
Hampshire, and Maine. There are approximately 46 persons em-
ployed in the respondent's plant and office.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Lodge 243, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership all production and maintenance employees of the
respondent, excluding supervisory and clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
On or about May 28, 1938, Fred Cederholm, Grand Lodge repre-
sentative of the Union, came to Red Lion and had conferences with
two of the respondent's employees concerning organization of the
plant. Thereafter, unionization was a subject of discussion among
the employees. In the latter part of June or early July 1938 Frank
Dedrick, who at that time was plant superintendent, called a meeting
of all employees. The meeting took place in the plant at about 2
p. in., during working hours. Dedrick stated in substance that the
respondent was not an old enough concern to meet the obligations
and wage rates which would be imposed by unionization; that the
men would derive no benefit from being in a union and that the
money paid in by them for dues would be sent out of town. He
.further told the employees that if they should join a union they
would have union dues to pay whether they worked or not, and under
a union shop they would be limited to performing one job in the
production process, whereas without a union they could transfer
from one job to another within the -plant. Dedrick did not- testify
and these statements stand undenied.
Cederholm returned to Red Lion on several occasions during the
summer of 1938 and on Sunday, November 20, 1938, arranged for a
meeting of the employees of the respondent at the Windsor fire house.
At this meeting, 19 employees signed cards designating the Union. as
their collective bargaining agency. At a second meeting on Novem-
ber 27, 6 additional employees signed authorization cards, bringing
the total to 25 out of approximately 39 employees on the pay roll of
the respondent for the week ending December 7, 1938, in a unit here-
NEW ERA DIE COMPANY 231
with found to be appropriate for the purposes of collective
bargaining.
At the first organization meeting of employees on November 20,
1938, Stanley E. Eby, Dean Poet, and Charles Kelly were selected as
shop committeemen. At the second meeting a week later, Cederholm
was authorized by those present to begin negotiations with the re-
spondent regarding an agreement covering wages, hours, and other
conditions of employment. Pursuant to this authorization Ceder-
holm wrote to the respondent under date of November 28, 1938, stating
that the Union had been designated by a majority of the employees
as their collective bargaining agency and requesting a conference.
The respondent made no reply to this letter.
As soon as Cederholm's letter was received by Paul S. Raub, secre-
tary of the respondent, Raub prepared a, petition or statement for
circulation among the employees. The petition, to which the letter
from Cederholm was attached, is as follows :
To all Employees of New Era Die Company:
We have received a letter from the International Association
of Machinists, to the effect that they have your authorization to
have them represent you as your collective bargaining agency,
with the officers of New Era Die Company.
In a spirit of fairness and co-operation between you as em-
ployees and we as employers, it is our desire that we know
definitely, your sentiment in this matter, before we enter any
negotiations with the above mentioned representative.,
NEW ERA DIE COMPANY,
By:
Secretary.
We desire a Union Shop : We desire an open shop :
Number Name Number Name
The petition was placed in the hands of Charles S. Mosher, super-
intendent and general manager of the plant, and circulated among
the employees on November 29 and 30 at the instruction of Mosher.
The respondent secured signatures of 30 out of the approximately
42 employees for an open shop; none signed for a union shop. Bruno
-Bierbrauer, foreman of the filers, and Leon H. Null, a clerical em-
ployee, solicited most of the employees. The petition was brought to
Stanley Eby, one of the production employees, by Null and Bier-
brauer. When Eby refused to sign, Null said : "Are you one of those
suckers, too? Paying money into unions." Then he added : "We
will close up shop, I guess." Null was awitness at the hearing but
did not deny making these statements. Mosher himself asked Dean
Hibbs to sign the document. Hibbs asked Mosher whether he would
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be fired if he signed for the Union. Mosher replied that he would
not be fired for it but that he should sign one way or the other because
he could not expect any "gravy" on the job if he did not. Hibbs
understood this to mean that he would not be given an opportunity
to earn extra money by working on other jobs in the plant after his
regular job was done. In view of Dedrick's earlier statement that
employees could work at only one job if there was a union in the
shop, this was a disguised appeal to Hibbs to sign under the open-
shop column of the petition. Mosher's final statement to Hibbs was
that he did not believe the company would continue to operate "if we
got a union in the shop."
After Cederholm sent his letter of November 28, he telegraphed
the respondent that he would come to Red Lion for a conference on
November 30. Mosher and Paul Raub, secretary of the respondent,
met with Cederholm on that day in Raub's office. Cederholm stated
to them that he was there to negotiate an agreement covering the
wages, hours, and working conditions of the respondent's employees.
Mosher asked Cederholm what authorization he had to represent the
employees. Cederholm replied that he had 25 authorization cards
signed by the respondent's employees but that he had left the cards
in Philadelphia. Mosher then showed Cederholm the "open shop-
union shop" petition, previously circulated at the plant, as evidence
that the employees did not desire the Union to represent them.
Cederholm protested that the respondent was taking an active part
in determining the question of representation among its employees
and the conference ended without any discussion of a contract.
Within a few days the respondent called its employees together in
the plant at 6 p. m. Dedrick repeated what he had said at the July
gathering about the inability of the respondent to meet union wage
rates and other obligations, and referred to the disadvantage of pay-
ing union dues when not working, also to the fact that the Union
would prevent an employee from working at more than one job in
the shop. Stanley E. Eby,2 one of the three shop committeemen of
the Union, and the only committeeman who had refused to sign the
petition, was especially instructed by Gutshall, his foreman, to check
out at 5 p. m. that afternoon while all other employees were instructed,
to work until 6 o'clock. When Eby did not leave at 5 o'clock, Bier-
brauer, another foreman, told him to check out at 5:15, which Eby
did.
At the hearing, Mosher admitted that sometime in December 1938,
he offered to refund union dues to three of the employees. In mak-
ing the offer Mosher said : "Well, I don't know why but I pity you.
2 Eby's alleged discriminatory discharge is considered in Section D, infra.
NEW ERA DIE COMPANY 233
fellows and I will give you your dollar back if you show me receipts
that you paid the money."
On December 8 a second conference between Cederholm and the
same officers of the respondent took place. In addition, Robert
Warner, president of the York Federation of Labor, attended as a
union representative. Cederholm was again questioned regarding his
authority to represent the respondent's employees. Cederholm testi-
fied in substance that lie told Mosher he had 25 authorization cards
but had left thein in the Philadelphia office of the Board and that
Mosher might communicate with the Philadelphia office to ascertain
the correctness of his statement and find out whether the representa-
tives of the Board had the 25 authorization cards in their possession.
Raub gave a somewhat different, although not necessarily incon-
sistent, version of the same conference. He testified that Cederholm
asked whether certification by the Board that the Union represented
a majority would be sufficient proof and that he assured Cederholm
that it would be. The record shows that the Union had filed its peti-
tion for certification on the day preceding this conference. Raub
further stated he did not at any time understand that Cedarholm -was
placing the burden on him to write the Board or to verify the Union's
claim in any other manner.
When Cederholm returned to Philadelphia from the conference of
December 8, he found awaiting him a registered letter, dated Decem-
ber 7, containing revocations of the union authorizations by 21 of the
25 employees enrolled by the Union.3
Cederholm made a third attempt to negotiate with the officials of
the respondent on December 21. He called Mosher by telephone on
the morning of that day and requested that Eby, one of the union
committeemen and the shop steward, be allowed to participate in the
conference scheduled for 3 o'clock that afternoon. Mosher objected
to the inclusion of Eby. Cederholm then requested that the manage-
ment meet with him and the entire shop committee, consisting of
Eby, Kelly, and Hibbs, who had been appointed to succeed Poet.
Mosher refused to notify these men about the conference and sug-
gested that Cederholm come up to the plant and notify them him-
self. When Cederholm arrived, he and Mosher had another dispute
regarding the right of the Union to bring whomever it pleased to the
conference with the management. As a result of the argument none
a The revocations took the form of a letter signed by the 21 employees, reading as
follows
we the undersigned employees of the New Era Die Co., Red,Lion , Pa., do this
date hereby wish to cancel all previous authorization for your representative or
your organization to do any further negotiating in our behalf or any agreement
as to hours of labor, wages or other employment conditions from this date on.
We sign this of our own free will and judgment.
234 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
of the shop committeemen was notified. Although Cederholm met
with Raub and Mosher at 3 o'clock, as previously arranged, no nego-
tiations' were entered into, Cederholm taking the position that he
wanted members of the local organization present before commencing
negotiations. Mosher refused to agree to have Eby, Kelly, and Hibbs
at the conference.
At the close of the conference, Mosher offered Cederholm a piece
of advice, saying : "My advice to you is for you not to remain in
town overnight; . . . somebody is out to get you." Cederholm
thereupon left the conference. In the meantime , at the plant as
3 o'clock approached, Dean Poet, one of the employees, shouted,
"Come on, fellows, let's go." Thereupon, by prearrangement, some
10 to 20 employees noisily rang out and left the plant without any
interference by foremen or supervisors, although it was not quitting
time. This group drove to Raub's office, where the conference be-
tween Cederholm and the respondent's officers had taken place. They
were told Cederholm had already left. All except 4 of the employees
returned to the plant. The 4 employees drove about Red Lion until
they found Cederholm in his car. They told him it would not be
"healthy" for him to remain in town and not to make further com-
plaints to the Board against the respondent. They added that he
was not to negotiate further with the respondent on behalf of the
employees. When these employees returned to the plant about 4
p. in. they proclaimed in loud tones in the presence of Foreman
-Gutshall that they had run Cederholm out of town. Their return
was the signal for considerable commotion at the plant. The em-
ployees were never disciplined in any manner for leaving without
permission during working hours, nor were they effectively repri-
manded for any of their actions in the plant .4
B. Interference, restraint, and coercion
The above-recited facts, most of them undenied, reveal a persistent
effort by the respondent to prevent its employees from affiliating with
the Union. President Dedrick's talk in July 1938 was a plain
statement that the respondent did not want to deal with the Union
and was not on a sufficiently sound financial basis to survive if com-
pelled to do so. The circulation of the "open shop-union shop"
petition in November and the circumstances surrounding it increased
the respondent's pressure for its employees to abandon self -organiza-
tion. There were threats to close the plant if the Union succeeded
in establishing its status as exclusive bargaining representative. It
4 Foreman Gutshall testified : "I told several of them when they came back that they
shouldn't have done it." Gutshall also testified that he talked to President Dedrick
concerning disciplinary action. Dedrick told Gutshall that he needed the men for pro-
duction and that nothing could be done about their walking out.
NEW ERA DIE COMPANY 235
was pointed out by responsible agents of the respondent that if the
shop were unionized the Union would prevent the employees from
working at extra jobs for extra pay after their regular work was
done. At least one person belonging to the Union was disparagingly
labeled a "sucker" for paying dues. The circulation of the petition
in itself was all interference with the right of the employees to choose
their own bargaining representatives. It was designed and circu-
lated by the respondent in such a manner that if any of the employees
had expressed a preference for the Union that fact would have been
revealed at once to the respondent.5 A canvass of employees by their
employer conducted in a manner to make possible reprisals against
any who reveal their desire to be represented by an outside labor
organization is,coercive and within the prohibition of the Act.,
The respondent attempted to justify the circulation of the petition
on the ground that it was for the purpose of determining the cor-
rectness of the Union's claim to a majority. Even if the respond-
ent's purpose was the one asserted, its action falls within the
prohibition of the Act. However, we cannot credit this explanation
of its purpose for several reasons. First, Superintendent Mosher
stated that from Cederholm's letter lie presumed the Union had
attained majority status before the petition was circulated. Second,
the petition did not offer the employees an opportunity to register
secretly their preference for or against the Union, but was so devised
that any employee who voted for the Union would at once be known
to the respondent. This fact indicates that the respondent was more
interested in knowing who the union adherents were than in deter-
mining whether its employees as a group desired to be represented
by the Union. Third, the remarks and threats of the respondent's
agents when they presented the petition to various employees were
beyond doubt aimed at influencing them to reject the Union. Such
a course of conduct. negatives the claim of the respondent that it
was taking a disinterested poll of the employees by means of the
petition. From these facts we conclude that the respondent intended
by the circulation of the petition to coerce those employees who had
previously affiliated with the Union to renounce their adherence
6 The choice offered by the respondent on the petition is between an "open shop" and
a "Union shop ." However, the petition was in fact circulated as a means of polling the
employees on whether or not they wished the Union to act as their bargaining agent.
This is clearly indicated by the statement of purpose on the petition preceding the listing
of the two alternatives and by the fact that the petition , after being signed in the open-
shop column by 30 employees ,, was treated by the respondent as showing a rejection of
the Union.
B See Matter of Greensboro Lumber Company and Lumber and Sawmill ' Workers Local
Union No. 2688, United Brotherhood of Carpenters and Joiners of America , 1 N. L. R. B.
629: Matter of Stimson Lumber Company and Lumber and Sawmill Workers, Glenwood
Local No. 2540, 2 N. L. R. B. 568: Matter of The Grace Co and United Garment Workers
of America, Local No. 47, 7 N. L. R . B. 766.
236 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
thereto, and to restrain other employees from joining the Union or
designating it as their collective bargaining agent.
The respondent sought to prove that its conduct did not in fact
coerce its employees by placing on the witness stand each of the 30
signers and asking them whether they had signed the open-shop
column of the petition voluntarily and of their own free will. The
Trial Examiner sustained an objection to the question,' to which
ruling the respondent has taken an exception.$ We have heretofore
affirmed the Trial Examiner's ruling. The evidence offered is
irrelevant and immaterial, because, as we have found, the respondent
by the circulation of the petition under the circumstances recited
was asserting its superior economic power in an attempt to interfere
with, restrain, and coerce its employees in the exercise of their rights
under the Act. Such conduct is prohibited by Section 8 (1) irrespec-
tive of its success .9 Furthermore, even if relevant, we do not deem
such testimony of employees, elicited on the witness stand in the
presence of an employer who has already manifested a definite
hostility to outside organization, as here, sufficiently credible to
warrant consideration.
We find that by the above-described conduct the respondent inter-
fered with, restrained, and coerced its employees in their exercise of
the rights guaranteed to them in Section 7 of the Act.10
Continuing its opposition to the Union, the respondent, through
President Dedrick, made another anti-union talk a few days after the
circulation of the petition, and at about the same time, Mosher, the
plant superintendent, offered to refund to three employees dues paid
to the Union, as a further inducement to them to withdraw.
The respondent's persistent campaign brought tangible results on
December 7, when 21 of those who had signed union authorizations
canceled them, and on December 21, when a group of employees
7 The question was: "You signed it [i. e . the petition] of your own free will?"
In making his ruling the Trial Examiner stated : "If you want to ask more specific
questions , counsel , I will rule on them. The ruling will stand as to the general question
as you have put it."
8 After the Trial Examiner had sustained an objection to the question, counsel for the
respondent stated that it had been his intention to produce each signer of the petition
(and of the letter of revocation discussed below in Section C (2)) and to ask him whether
he had signed it voluntarily and of his own free will. Although this statement is not
in the form of an offer of proof, we have treated it as such.
0 See Matter of Yale & Towne Manufacturing Company and United Electrical & Radio
Workers of America , Local No. 227, C. I. 0., 10 N . L. R. B. 1321, at 1328 , where it is
said: ". . . it is an unfair labor practice within the meaning of Section 8 (1) of the Act
for an employer to interfere with the rights of his employees guaranteed in Section 7
irrespective of the success of such interference ." See also Matter of Consunners' Power
Company and Local No. 740, United Electrical, Radio if Machine 'Workers of America,
9 N. L. R . B. 701, 739. Compare Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197,
230 (1938 ), mod'g and aff 'g, 95 F. (2d) 390 (C. C. A. 2), enf'g Matter of Consolidated
Edison Company of New York, Inc . and United Electrical and Radio Workers of America,
4N.L.R.B.7].
10 See Matter of Waiter Stover, etc. and Upholsterers Allied Crafts Local Union No. 501,
15 N. L . R. B. 035 , and cases cited in footnote 8 therein.
NEW ERA DIE COMPANY 237
ordered Cederholm, the union organizer, out of town after- he had
attempted to negotiate with,,the respondent on their behalf. While
the respondent may not have planned this incident, Mosher's warn-
ing to Cederholm indicates that the respondent knew that the em-
ployees intended to take some action against Cederholm while he
was' in Red Lion. Although Cederholm was subjected to no physical
violence, Mosher's statement, "somebody is out to get you," suggests
that he expected the action of the employees to take the form of
actual violence. Yet the respondent made no effort whatever to re-
strain its employees either at the plant or when they stopped at
Raub's office in their search for Cederholm. We find that the re-
spondent's failure to make an effort to restrain its employees from
leaving the plant when it had knowledge or well-founded suspicion
of the purposes for which they were leaving, and its complete failure
to discipline or effectively reprimand the men for deserting their
duties at the plant in mid-afternoon and for causing a commotion
when they returned with the announcement that they had run Ceder-
holm out of town, amounted to encouragement and approval by the
respondent of the acts of those employees.
We find that by the activities hereinabove described in this section
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
C. The refusal to bargain collectively
The complaint alleges that the respondent on or about November
30, and thereafter , refused to bargain with the Union as the exclu-
sive representative of the respondent 's production and maintenance
employees.
(1) The appropriate unit
At the hearing the parties stipulated that the unit appropriate
for the purposes of collective bargaining should consist of all pro-
duction and maintenance employees of the respondent, exclusive of
supervisory and clerical employees.
The production and maintenance employees all work in a single
room, approximately 100 feet long and 60 feet wide. The testimony
shows a high degree of interdependence from the beginning to the
end of the process of manufacturing clicking dies. The production
employees are paid on an hourly basis. Of the two maintenance
employees, one who is a janitor is paid a salary. In applying their
stipulation the parties apparently have excluded him from the unit.
We see no justification for such exclusion and find that he is within
the appropriate unit.
We find that the production and maintenance employees of the
respondent, excluding supervisory and clerical employees, constitute
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an appropriate unit for the purposes of collective bargaining and that
such unit insures to the employees of the respondent the full benefit
of their right to self-organization and collective bargaining and other-
wise effectuates the policies of the Act.
(2) Designation of the Union as exclusive representative
We have previously stated that 25 of the 39 employees in the appro-
priate unit signed cards on November 20 or 27, 1938, authorizing the
Union to act as their bargaining agent. The respondent conceded that
the signatures on these cards were genuine, but objected to them on
the ground that they were all signed on Sunday and therefore invalid,
or at least voidable. Assuming that there is a rule of law making
contracts signed in Pennsylvania on Sunday invalid or voidable, it
can have no application in this situation, where the function of the
Board is merely to determine whether a majority of the employees in
an appropriate unit have-selected a bargaining agent. For this pur-
pose the authorizations are sufficient regardless of their validity as
contracts.
On December 7, 1938, 21 of the 25 employees who had signed the
authorizations joined in sending to Cederhohn a registered letter con-
taining revocations of their authorizations. The record indicates that
the employees themselves had secured the revocations and that the
officers and supervisors of the respondent had not directly participated
in obtaining the signatures. The respondent contends that these revo-
cations destroyed the majority designation of the Union, as of Decem-
ber 7.11 We do not agree with that contention. We think it is plain
that the respondent's outspoken opposition to the Union and other
acts of interference and restraint, which 'we have found above to be
unfair labor practices, induced the revocations. Under these circum-
stances they cannot be accorded validity as uncoerced expressions of,
the signers' desires. The respondent sought to put on the witness
stand at the hearing the 21 employees who had revoked the union
authorizations, asserting that each would testify that he had signed
the revocation "voluntarily and of his own free will." The Trial
Examiner sustained an objection to the question,12 to which ruling the
11 Each card provides that the authorization "shall remain in full force and effect for
one year from date and thereafter, subject to thirty ( 30) days written notice of my
desire to withdraw such power and authority to act for me in the matters referred to
herein."
However , the respondent contended that the revocations were effective at once because
(1) seven who signed the revocations were minors and their authorizations being voidable
were revoked immediately . and (2 ) a principal has absolute power to revoke an agency
at any time regardless of an agreement that it shall continue for a specified time. It
is unnecessary to determine the merits of these contentions.
12 The question was: "Did you sign that [ I. e. the revocation ] of your own free will?"
See footnotes 7 and 8 , supra, and related text for additional details concerning the offer
of proof and the ruling of the Trial Examiner thereon.
NEW, ERA DIE COMPANY 239
respondent has taken an exception. We have affirmed the ruling of
the Trial Examiner because we believe that the evidence is immaterial.
In the first place, as we find in subsection (3), below, there was a
refusal by the respondent to bargain prior to the date on which the
revocations were signed and while the Union clearly represented a
majority. Under these circumstances, the subsequent revocations can-
not be given any effect, for "unfair labor practices of the respondent
cannot operate to change the bargaining representative previously
selected by the untrammeled will of the majority." 13 Moreover, as
pointed out in Section B, above, where a, similar offer was made with
reference to the "open shop-Union shop" petition, such testimony
lacks sufficient credibility to warrant consideration.
We find that the revocations were induced by the respondent's acts
of interference, and therefore had no effect upon the majority status
previously'acquired by the Union. We find that on November 27,
1938, and at all times thereafter, the Union has been designated by a
majority of the employees in the appropriate unit as their respresent-
ative and by virtue of that designation is the exclusive representative
of all employees of the respondent in such unit for the purposes of
collective bargaining in respect to wages, hours of employment, and
other conditions of employment.
(3) The refusal to bargain
The record establishes that, although the Union represented a
majority of its employees in an appropriate unit, the respondent at
no time either accorded exclusive recognition to the Union upon
proper request or entered into negotiations with it.' The respondent
contends, however, that it was under no duty to enter into negotiations
at the conferences of November 30, December 8, and December 21, be-
cause (1) the Union failed upon request to show the respondent its
authorization cards or to supply other proof that it represented a
majority, and (2) after December 7 the revocations destroyed the
majority status of the Union. We shall consider these contentions,
the second of which requires no further discussion since we have
already found that the revocations were induced by the unfair labor
11 See Matter of McKaig -Hatch, Inc. and Amalgamated Association of Iron, Steel, and
Tin Workers of North America, Local No . 1139, 10 N. L . R. B. 33 , 40; Matter of Lady
Ester Lingerie Corp . and International Ladies' Garment Workers ' Union, 10 N. L. R. B.
518, 532.
See also Int . Ass'n of Machinists, Tool and Die Makers Lodge No. 35, affiliated with
7. A. M. v. N. L. R. B., 110 F.. (2d) 29 (Ct. of App., D. C.), aff'g Matter of The derrick
Corporation and Internationab Union, United Automobile Workers of America , Local No. 459,
8 N. L. R. B. 621.
11 See N. L. R. B. V. The Griswold Mfg. Co. 106 F. (2d) 713 (C. C. A. 3d), decided September
21, 1939, enf 'g Matter of The Griswold Manufacturing Company and Amalgamated Associa-
tion of Iron, Steel and Tin Workers of N. A ., Lodge No. 1197. 6 N . L. R. B. 298.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices of the respondent and therefore had no effect upon the
previously acquired majority status of the Union.
As to the request of the respondent for proof of the Union's ma-
jority, we have held in other cases that when a labor organization
claims to represent a majority and the employer questions that claim
in good faith, it is the Union's duty to offer and the employer's cor-
relative duty to accept some reasonable method for ascertaining the
truth of the Union's claim.,-' However, it is unnecessary to determine
here whether the parties fulfilled their respective obligations in that
regard, since we are convinced that the respondent never intended
to bargain collectively with the Union, and merely utilized an asserted
doubt regarding the Union's status as majority representative to evade
bona fide collective bargaining with the Union.1' The conduct of the
respondent after receiving the Union's letter stating that it rep-
resented a majority of the respondent's employees and requesting a
bargaining conference impels us to this conclusion. The respondent
admits by the testimony of its superintendent, that it presumed from
Cederholm's letter that the Union had a majority as claimed. But
instead of declaring its readiness to sit down at the conference table,
the respondent embarked on a campaign of opposition to the Union,
which we found in Section B, above, was intended to and did coerce
those employees who had previously affiliated with the Union to re-
nounce their adherence thereto, and to restrain other employees from
joining the Union or designating it as their collective bargaining
agent. The respondent's unmistakable purpose in engaging in these
unfair labor practices was to undermine the majority status of the
Union and thus escape the duty to bargain collectively. Such con-
duct "is as patently a refusal to bargain within the meaning of Sec-
tion 8 (5) of the Act as a forthright refusal to meet with representa-
tives of a labor organization clothed with the right to exclusive
recognition." 17 Under these circumstances the respondent's chal-
lenge of 'the Union's majority status was not made in good faith, and
any failure of the Union to offer a reasonable method for establishing
its claim is no defense to the respondent's refusal to bargain.
The respondent's conduct falls within the prohibition.of Section 8
(5) of the Act in another respect. On December 21, the respondent
16 See Matter of The Serrick Corporation and International Union, United Automobile
Workers o f America, Local No. 459, 8 N. L. R . B. 621, enf'd in Int. Ass'n of Machinists;
Tool and Die Makers Lodge No. .75, affiliated with I A. M. v. N. L. R. B., 110 F. (2d) 20
(Ct. of App., D. C.). Matter of Hamilton-Brown Shoe Company, a corporation and Local
No. 125 United Shoe Workers of America,,afliated with the C. I. 0., 9 N. L. R. B. 1073, 1180.
Cf. Matter of Stehli & Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and
Vicinity, Local #133, 11 N. L. R. B. 1397. 1425-26.
. 19 See Matter of The Stolle Corp. and Metal Polishers, Buffers, Platers, and Helpers Int.
Union, 13 N. L. R. B. 370.
17 See Matter of Chicago Apparatus Company and Federation of Architects , Engineers,
Chemists and Technicians, Local 107, 12 N. L. R. B. 1002, 1012.
NEW ERA DIE COMPANY 241
objected to Cederholm's proposal to have Eby, one of the shop com-
mitteemen, attend the conference, on the ground that he had not
been elected by the men. Nor would the respondent agree to the
proposal to have present at the conference the three members of the
shop committee-Kelly, Eby, and Hibbs. Inasmuch as the employer
is without right to determine what persons shall act as representatives
of the properly designated bargaining agent,"' the failure of Mosher
to permit these representatives to participate in the conference con-
stitutes a refusal by the respondent to bargain collectively with the
Union.
We find that on November 30, December 8, and December 21, 1938,
and at all times thereafter the respondent refused to bargain col-
lectively with the Union as the exclusive representative of the re-
spondent's production and maintenance employees, exclusive of clerical
and supervisory employees, with respect to wages, hours, and other
conditions of employment.
D. The discriminatory discharge
The complaint alleged that Stanley E. Eby received a reduction
in pay and that his employment with the respondent was terminated
because he joined and assisted the Union.
Eby was first employed by the respondent in August 1937. Be-
cause of his previous experience as a bender of dies he became an
instructor in the bending department and was placed on a salary
basis. In December 1937 his employment with the respondent was
terminated after he had refused to report for work on Saturday.
On this occasion Eby asked Dedrick whether his work was not good
enough, to which Dedrick replied: "It is not that; you are just an
instigator of trouble." Eby was rehired by the respondent on May
23, 1938, this time as a bender on an hourly basis.
Eby was the most active union man in the shop from the time he
signed an authorization card on November 20, 1938, and was recog-
nized by the respondent as a leading figure in union activities at the
plant. He was appointed shop steward by Cederholm early in De-
-cember, in addition to being one of the shop committee selected to
represent the Union in its negotiations with the respondent. Eby
was the only shop committeeman who refused to sign the "open
shop-Union shop" petition circulated by the respondent; nor
did he revoke his authorization designating the Union as his
representative.
Dedrick, Mosher, and Gutshall manifested their hostility toward
Eby in various ways after November 20. Prior to that time Eby
11 See Matter of Lindeman Power and Equipment Company and International. Association
of Machinists, 11 N. L. R. B. 868, 879.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Gutshall, who lived next door, were on the friendliest terms.
It had been Eby's practice to ride to and from work in Gutshall's
car several days each week. Without warning or explanation Gut-
shall informed Eby one day soon after the latter had joined the
Union that he would not be able to take Eby home any more. Ded-
rick also changed his attitude toward Eby after the meeting of
November 20, refusing to speak to him. Eby was sent home early
from work on the occasion in December when Dedrick addressed
the employees regarding his reasons for opposing the formation of
a union in the plant. As previously set forth, Mosher made strenuous
objection to the participation of Eby in the conference of December
21 between officials of the respondent and Cederholm. There is no
explanation in the record for the change in attitude on the part of
these supervisory officials, save the fact that they were hostile to the
Union and knew Eby to be active in its behalf.
On January 19, 1939, Eby received a reduction in pay from 55
cents to 50 cents per hour. The explanation given by the respondent
for this reduction is stated in its notice to Eby as follows :
Beginning January 20th your hourly rate will be 50 cents.
Shop production records show that neither the quality nor the
quantity of your work entitles you to a higher rate than the
rest of our employees. If you can show us during the next 3
-months a justifiable increase, we will be glad,to reinstate or
increase your rate accordingly.
The testimony shows that it was not until the middle of December
1938, after Eby became active in behalf of the Union, that his produc-
tion record was questioned. Mosher testified that Eby had been an
excellent worker when he (Mosher) had become superintendent of the
respondent's plant in August 1938. The respondent offered no evi-
dence to substantiate its statements that the quality and quantity of
Eby's production had declined. Eby testified that shortly prior to the
day on which he was notified of the reduction in his rate, or on the same
day, the other employees in the plant received wage increases. This
is not denied by the respondent. It is true that Eby's hourly rate had
been higher than that of any other bender in the employ of the re-
spondent. Even after the wage reduction he was receiving more per
hour than most of the benders and only two or three others were being
paid as much as he. Nevertheless, we believe from all the evidence,
especially in view of the subsequent discriminatory lay-off of March 1,
discussed below, that the cause of the reduction in Eby's hourly rate
was his interest in and activity on behalf of the Union.
On March 1, 1939, Eby was laid off, together with two other em-
ployees of the respondent, Wilson Myers, and John Blattenburg. The
only reason given to Eby at the time was that work was slack. Al-
NEINT ERA DIE COMPANY 243
though it is not disputed that the period from February to July is a
slack period in the die-making industry, the previous practice of the
respondent during such periods had been to allow all the employees to
report for work each day and to distribute the work as it came in.
The respondent sought by inference to prove that its policy had been
changed in this respect with the advent of Mosher as general manager
in the latter part of 1938. The Trial Examiner found, and we agree,
that this contention is not substantiated by the evidence. We there-
fore conclude that Eby's lay-off was contrary to the established prac-
tice of the respondent. Moreover, his selection as one of the three to
be laid off was not based on any failure to do satisfactory work.
Mosher admitted during the hearing that Eby had been an excellent
worker in August 1938. He was a more experienced bender than a
number of the other employees. Mosher stated that at the time of the
lay-off Eby's work was better than that of three or four who were re-
tained. Eby had greater seniority than at least one of those retained
but there is no showing that the respondent customarily followed any
seniority policy. At the hearing the respondent advanced as a reason
for the lay-off the fact that the respondent corporation had been estab-
lished to give employment to residents of Red Lion and that he be-
lieved Eby was not living in Red Lion on March 1. Mosher said that
he had been informed by Kenneth Bidaman, a clerk in the respondent's
office, that Eby resided in Dallastown. Actually, Eby was living in
the Borough of Red Lion at the time of his lay-off and had lived there
for 10 of the 13 months he had been employed by the respondent.
Moreover, there were other employees living outside of Red Lion on
March 1 who were not laid off at that time. The Trial Examiner
found that the reason advanced by Mosher that Eby was laid off be-
cause he was not a resident of Red Lion was merely an afterthought
to lend some color of justification to the respondent's act, and we agree
with his finding.
We find that Stanley E. Eby received a reduction in rate of pay on
January 19, 1939, and was•laid off by the respondent on March 1, 1939,
because of-his union membership and activity; that the respondent has
discriminated in regard to hire and tenure of employment, thereby dis-
couraging membership in the Union; and has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaran-
teed 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 sub-
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial relation to trade,, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease' and desist from further
engaging therein. Moreover, we shall order the respondent to take
certain affirmative action which we deem necessary to effectuate the
policies of the Act.
We have found that the respondent has refused to bargain col-
lectively with the Union, a labor organization representing a majority
of the employees in the unit hereinbefore found to be appropriate.
We shall, therefore, order the respondent to bargain collectively with
the Union upon request.
Since we have found that the respondent reduced the rate of pay
of Stanley E. Eby and later laid him off because of his activities on
behalf of the Union, we shall order the respondent to reinstate Eby
and to make him whole for the loss of wages sustained by reason of
the reduction in rate and the lay-off. For the period from January
19, 1939, when Eby's hourly rate was reduced, to March 1, 1939, when
he was laid off, the respondent will be required to pay Eby the dif-
ference between the amount he would have earned at the higher rate
and the , amount actually paid to him at the lower rate. We shall
further order the respondent to pay to Eby a sum of money equal
to the amount he would normally have earned as wages from the
date of his lay-off to the date of the offer of reinstatement, less
his net earnings 19 during said period. The respondent is not en-
titled to deduct amounts paid to Eby by union organizations as relief
payments.2°
THE PETITION
In view of the findings in Section III above as to the appropriate
unit and the designation of the Union by a majority of the respond-
ent's employees as their representative, it is not necessary to consider
39By "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 are not considered as earnings, but as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State. county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief projects.
20 See Matter of M-issouri-Arkansas Coach Lines , Inc. and The Brotherhood of Railroad
Trainmen, 7 N. L. R. B. 186.
NEW ERA DIE COMPANY 245
the petition of the Union for certification of representatives. Conse-
quently, the petition will be dismissed.
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONor usIONs OF LAW
1. International Association of Machinists, Lodge 243, affiliated
with the American Federation of Labor, is a labor organization,
.within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent,
exclusive of supervisory and clerical employees, constitute a unit
appropriate for the purposes of collective bargaining, within the
.meaning of Section 9 (b) of the Act.
3. International Association of Machinists, 'Lodge 243, was on
November 28, 1938, and at all times since has been, the exclusive
representative of all employees in the above-described unit for pur-
poses of collective bargaining, within the meaning of Section 9'(a)
of the Act.
4. By refusing and continuing to refuse to bargain collectively
with the Union as the exclusive representative of the employees in
.the above-described unit on November 30, 1938, and at all times
thereafter, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act..
5. By discriminating in regard to the hire, tenure, and other terms
of employment of Stanley E. Eby, thereby discouraging membership
in a labor organization, the respondent has engaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise• of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. There is no question concerning representation within the mean-
ing of Section 9 (c) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
. Upon the basis of the above findings of fact 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, New Era Die Co., Inc., Red Lion, Pennsylvania, and its officers,
agents, successors, and assigns shall :
283030-41-vol. 19-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, Lodge 243, as the exclusive representative of. all
its production and maintenance employees, excluding supervisory and
clerical employees;
(b) Discouraging membership in the International Association of
Machinists, Lodge 243, or any other labor organization, by discrimi-
natiori. iri regard to hire or tenure of employment or any term or
condition of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, 'or' assist International Association of Machinists, Lodge 243, 'or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of. collective bargaining or other mutual aid or pro-
tection, as.guarariteed in Section '7 of the Act.
2. Take the followirig affirmative action which the Board finds will
effectuate the policies of the Act :
(4) Upon request, bargain collectively with International Associ-
ation of :Machinists,' Lodge 243, as the exclusive representative of
all . its production and maintenance employees, exclusive of super- -
v.isory'a id clerical employees, in respect to rates of pay, wages, hours
ofemployment, 44A 'other conditions of employment;
(b) Offer to Stanley E. Eby immediate and full reinstatement to
his former position Without. prejudice to his seniority and other
rights and privileges
„ (c). Make whole the said 'Stanley E. Eby' for the loss of pay he'
suffered by reason of the respondent's discrimination with regard to
his rate of pay. by payment to him of a sum of money equal to the
difference between the amount he would have earned between Jan-
uary 19, 1939, and March 1,. 1939, at the hourly rate paid him prior
to' Jaiidary 19, 1939, and the amount he actually was paid by the
respondent between January 19, 1939, and March 1, 1939; and further
make"whole the said Stanley E. Eby for any loss of pay he may have
suffered by reason of the respondent's discrimination with regard to
.his.hire and. tenure of employment by payment to him of a sum of
money equal to that which he would have earned as wages or salary
during the period from March 1, 1939, to the date of offer 'of rein-
statement, less his net earnings during said period, deducting, how-
ever, from the amount otherwise due him, monies received by him
during said period for work performed upon Federal, 'State, county,
municipal or other work-relief projects, and pay over the amount,
so deducted, to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;'
NEW ERA DIE COMPANY 247
(d) Post immediately in conspicuous places in its plant at Red
Lion, Pennsylvania, and maintain for a period of at least sixty (60)
consecutive days, notice to its employees, stating (1) that the re-
spondent will cease and desist in the manner aforesaid; (2) that
the respondent will, upon request, bargain with the International
Association of Machinists, Lodge 243, as the exclusive representative
of the respondent's production and maintenance employees, exclusive
of supervisory and clerical employees, with respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(3) that the respondent's employees are free to become or remairn
members of the International Association of Machinists, Lodge 243',.
and that the respondent will not discriminate against any employee
because of membership or activity in that organization;
(e) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the petition for certification of repre-
sentatives, filed by International Association of Machinists, Lodge
243, be, and it hereby is, dismissed.