Newark Rivet Works

National Labor Relations Board - Board Decisions

Oct 27, 1938

9 N.L.R.B. 498 (N.L.R.B. 1938)

In the Matter of NEWARK RIVET WORKS and UNITY LODGE No. 420,
UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, C. I. O.
In the Matter of NEWARK RIVET WORKS and UNITY LODGE No. 420
OF THE UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, C. I. O. ,
Cases Nos. P-587 and C-497, respectively.Decided October 27,1988
Steel Wire Products Manufacturing Industry-Interference, Restraint, or
Coercion: surveillance of union meetings ; interference with union meeting ;
persuading employees to refrain from union activity ; questioning employees
regarding feeling toward union; requiring employees to sign individual con-
tracts as condition of reinstatement-Company-Dominated Union: domination of
and interference with formation and administration ; support ; strikebreaking
device, initiation and use of, as; dominant role of supervisory employees in ; en-
couragement of membership in, by supervisory employees ; disestablished, as
agency for collective bargaining-Discrimination: discharge for union activity ;
charges of, not sustained as to one person ; strikers, requiring individual con-
tracts as condition of reinstatement-Collective Bargaining: refusal to meet
with representatives ; refusal to negotiate with representatives ; negotiation
in good faith ; dilatory and evasive tactics ; meeting with representatives but
with no bona fide intent to reach an agreement; failure to offer counterpro-
posals; employer ordered to grant recognition of union-Unit Appropriate for
Collective Bargaining: production employees-Representatives: proof of choice :
application cards-Strike: result of unfair labor practices-Reinstatement
Ordered-Back Pay: awarded-Contracts: individual contracts of employment:
employer ordered to cease giving effect to-Investigation of Representatives:
petition for, dismissed because of order to respondent to bargain.
Mr. Christopher E. Hoey, for the Board.
Lambe & Lerch, by Mr. J. G. Lerch, and Mr. David A. Golden of
New York City, for the respondent.
Mr. Samuel L. Rothbard, of Newark, N. J., for the United.
Mr. Benjamin P. DeWitt, and Mr. Sidney Pepper, of New York
City, for the Council.
Mr. Martin Kurasch, of counsel- to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges 1 duly filed by Unity Lodge No.
420 of the United Electrical, Radio & Machine Workers of America,
3 The original charges were filed by Unity Lodge No. 1560 of the International Associa-
tion of Machinists. As explained more fully below, this Lodge subsequently became Unity
Lodge No. 420 of the United Electrical, Radio & Machine Workers of America, C. I. O.
The organization filed the amended charges under the latter name. The organization will
be referred to in the Decision as the Unity Lodge.
9 N. L. R. B., No. 47.
498
DECISIONS A\D ORDERS 499
C. I. 0.,2 herein called the United, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Second Region (New York City), issued its complaint, dated No-
vember 13, 1937, against Newark Rivet Works, Newark, New Jersey,
herein called the respondent.
The complaint alleged, in substance, that the respondent, on or
about April 5, 1937, discharged Edward Oremusz 3 and Russell Serio
because they joined and assisted Unity Lodge No. 1560 of the Inter-
national Association of Machinists, herein called the I. A. M.; that
the respondent, on or about April 25, 1937, and at all times there-
after, refused .to bargain collectively with the I. A. M., and with its
successor. union, the United, which had been designated as the
collective bargaining agent by a majority of the employees in an
appropriate unit; that on or about May 13, 1937, the production em-
ployees of the respondent struck because of the alleged unfair labor
practices, that the strike was ended on or about July 14, 1937, and
that the respondent, on or about July 15, 1937, refused to reinstate
John Tomkovitch, Andrew Riley, Rose Cieri, Veronica Lucinskas,
and Nicholas Dubas; 4 that respondent had dominated and interfered
with the formation and administration of the Newark Rivet Works
Employees' Council, herein called the Council; e and that by these
and further acts, the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning
of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
On October 29i'1937, the United filed a petition 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 November 10, 1937, the Board, acting pursuant to Section 9 (c)
of the Act and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-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. On the same
day, the Board, acting pursuant to Article III, Section 10 (c) (2),
and Article II, Section 37 (b), of its Rules and Regulations, ordered
a consolidation of the two cases.
'The complaint was amended at the hearing , without objection , so as to substitute the
designation United Electrical , Radio & Machine Workers of America, C. I. O. for the
designation United Electrical & Radio Workers of America, C. I. O.
3 Designated in the complaint as Edward Oremus.
4 The name of Alfred Watson, alleged to be an employee whom respondent had refused to
reinstate , was stricken from the complaint during the hearing.
6 The Comicil had been incorrectly designated in the pleadings as Newark Rivet Workers
Employees Council. The designation was corrected by a motion to that effect made during
the hearing.
134008-39-vol ix--33
500 NATIONAL LABOR RELATIONS BOARD
The complaint, the petition, and notices of hearing thereon were
duly served upon the respondent, the Council, and the United. On
November 23, 1937, the respondent filed an answer to the complaint,
denying that it had engaged in or was engaging in the alleged unfair
labor practices and requesting that the complaint be dismissed. On
November 24, 1937, the respondent filed a motion to dismiss the com-
plaint on the ground that the United did not represent a majority of
the respondent's employees and was not in a position to invoke the
jurisdiction of the Board.
Pursuant to notice, a hearing on the complaint and the petition
was held on November 26, 29, and 30, 1937; December 6, 7, 13, 14, and
23, 1937; and January 17 and 18, 1938, before H. R. Korey, the Trial
Examiner duly designated by the Board. The Board, the respondent,
the Council, and the United 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.
At the conclusion of the Board's case, counsel for the respondent
made another motion to dismiss the complaint on the ground that no
prima facie case had been made. The Trial Examiner denied all
motions to dismiss the complaint. On December 23, 1937, during the
course of the hearing, counsel for the Board moved to amend the
complaint so as to include the name of Edna Winciss among those
who had presented themselves on July 15, 1937, and had been refused
reinstatement by the respondent, and to amend the complaint by
inserting certain paragraphs alleging, in substance, that respondent,
on or about November 4, 1937, discharged or laid off Alexander Van
Dean because he refused to contribute financial support to the Coun-
cil, and that such discharge or lay-off, and the failure to reinstate
Van Dean, constituted an unfair labor practice within the meaning
of Section 8 (3) of the Act. The Trial Examiner reserved ruling on
these motions. The hearing was adjourned from December 23, 1937,
to January 17, 1938. During the adjournment, the Trial Examiner
informed counsel for the respondent that both motions had been
granted. Counsel for the Board stated, and counsel for the respond-
ent agreed, that the respondent's answer would be deemed to stand
as a denial of the allegations that its failure to reinstate Edna Winciss
and its discharge of Alexander Van Dean, constituted unfair labor
practices.
During the course of the hearing, other rulings were made by the
Trial Examiner on motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
DECISIONS AND ORDERS 501
On February 18, 1938, counsel for the respondent and counsel for
the Council filed briefs with the Board in support of their conten-
tions in the case.
On March 23, 1938, the Trial Examiner filed his Intermediate
Report, finding that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the
Act.
He recommended, inter alia, that the respondent cease and desist
from engaging in the activities constituting the unfair labor prac-
tices; that it reinstate with back pay certain of its employees found
to have been discriminatorily discharged by the respondent; that it
similarly reinstate with back pay certain other employees found to
have been discriminatorily refused reemployment; and that it with-
draw all recognition from and disestablish the Council as an agency
for collective bargaining with the respondent.
Exceptions to the Intermediate Report were thereafter filed by the
respondent and the Council. The respondent filed a statement and
the Council filed a brief and supplemental brief in support of their
respective exceptions. Oral argument on the exceptions to the Inter-
mediate Report was held before the Board at Washington, D. C. on
May 3, 1938. We have considered the exceptions to the Intermediate
Report, but, save for those exceptions which are consistent with the
findings, conclusions, and order set forth below, we find 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
Newark Rivet Works, a New Jersey corporation, with its princi-
pal office in Newark, New Jersey, is engaged in the manufacture of
umbrella frames, metal stampings, bag frame hardware, corset hard-
ware, sheet metal goods, rivets, and wire. The raw materials used
in the manufacture of the respondent's finished products are wire
rods, hoop steel, sheet steel, dowels, and brass. During the period
from January 1 to September 1, 1937, the amount of purchases of
these raw materials made outside the State of New Jersey was $109,-
305.28. Ninety-five per cent of the purchases of raw materials were
made outside the State of New Jersey.
Ninety-five per cent of the respondent's finished products are sold
in or shipped to States other than New Jersey, principally New York,
Ohio, California, Pennsylvania, Massachusetts, Illinois, and Virginia.
The gross volume of sales made outside the State of New Jersey dur-
ing the period from January 1 to September 1, 1937, was $356,638.31.
502 NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Unity Lodge No. 1560 of the International Association of Ma-
chinists was.a labor organization, affiliated with the' American Fed-
eration of Labor, admitting to membership the production employees
of the respondent, excluding supervisory employees.
Unity Lodge No. 420 of the United Electrical, Radio & Machine
Workers of America, is a labor organization affiliated with the Com-
mittee for Industrial Organization, admitting to membership the
production employees of the respondent, excluding supervisory em-
ployees.
The Newark Rivet Works Employees' Council is an unaffiliated
labor organization admitting to membership the production em-
ployees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronological summary of events
.Prior to 1937, there had been no union organization in the respond-
ent's plant.' Sometime in March 1937 Edward Oremusz, William
Kozuczko, and about ten other employees working in the hardening
department, drew up and signed a petition asking for a 5-cent per
hour increase in wages. Kozuczko was told, when he took the peti-
tion into the res'pondent's office, that nothing could be done because
one of the Trilnpi brothers, who constitute the officers of the respond-
ent corporation, was not there. Later the respondent announced a
10-per cent wage increase."
Early in March 1937 some employees approached all organizer for
the Amalgamated Association of Iron, Steel, and Tin Workers of
North America, herein called the Amalgamated, who gave them cards
designating the Amalgamated as the employees' bargaining agency.
These cards were distributed among the respondent's employees for
signature. In the latter part of March 1937 Kozuczko and other
,employees planned a strike, and posted on the respondent's bulletin
board a sign announcing the strike. The strike did not occur.
On March 27, 1937, Kozuczko and Dubas, another employee, be-
lieving that the respondent's employees did not properly fit into a
union of steel workers, went to see James J. Matles, then a grand
lodge representative of the I. A. M. Pursuant to Matles' suggestion,
they brought a committee of 12 to 14 employees to his office on Easter
Sunday, March 28. Each member of the committee signed a card
applying for membership in the I. A. M. and took with him a large
number of additional cards to distribute among the employees. The
committee gave Matles the Amalgamated cards and, having obtained
6A 10-per cent increase was smaller than a 5 -cent per hour increase would have been.
DECISIONS AND ORDERS 503
the consent of the Amalgamated, he accepted them as cards designat-
ing the I. A. M. At meetings of the respondent's employees, held on
March 29 and April 1, 1937, many more employees signed the I. A. M.
cards.
William Kozuczko distributed cards in his department during the
week following Easter Sunday. He testified that in the early part
of April, immediately after the week in which he obtained the cards
from Matles and started to circulate them, he saw Heilmann and the
foreman of Kuzuczko's department, Willie Wolf, talking together in
the room where Kozuczko worked. At that time, Gertrude Kersting,
the forelady in the department, told Kozuczko to watch out, that they
were talking about him. Later on, she told Kozuczko that Heilmann
thought that Kozuczko was the ringleader, but that Wolf had said
it was not true, and was "fighting for" Kozuczko.
During the month of April 1937, Schultz, a foreman, several times
told Kozuczko while Kozuczko was working that he should have no
part in the union organization and that he should drop it.
On April 5, 1937, Matles was informed that two of the employees
active in union work, Russell Serio and Edward Oremusz, had been
discharged that day. On the next day, April 6, 1937, Gertrude Ker-
sting, the forelady in the umbrella rod department, went around
asking each individual employee whether he or` she wanted to join
the union, was for or against the union, was for or against the factory,
and whether or not he or she wanted to work there: Willie Wolf,
the foreman of that department, then made a second round of the
employees in the paint shop and asked each of the employees why
they were for the union.
On the same day, Matles saw Heilmann at the-plant, asked for all
explanation of the discharges, and asked that the men be reinstated.
Heilmami said that he would speak with the higher executives of the
respondent and would call Matles at 2 o'clock that afternoon. Heil-
mann failed to call. Matles called Heilmann, and Heilmann told him
that the respondent would not reinstate the discharged employees
and did not care to enter into negotiations with his organization.
When Matles told Heilmann that the "tally" his foremen had taken
that day was forbidden by the Act, Heilmann asked why this was
so, but did not discuss the matter further.
After this conference Matles called the United States Conciliation
Service. Charles Johnson Post, the conciliator assigned to the case,
stated to Matles, after negotiations, that he could not persuade the
respondent to alter its position.
On April 16, 1937, the I. A. M. filed charges with the Board. On
April 26,' a conference was arranged at the office of Lerch, the re-
spondent's attorney, and the Unity Lodge presented a draft con-
tract, providing for a closed shop, wage increases and overtime pay,
504 NATIONAL LABOR RELATIONS BOARD
and the recognition of seniority of service in lay-offs or rehiring.
Lerch stated that, because of Japanese competition , the respondent
could not afford to give any wage increases . Matles suggested that
they first discuss matters which would not involve any expenditure on
the part of the respondent , such as reinstatement of the discharged
employees , recognition of the union , and seniority rights, but the
respondent refused to discuss or take a position on any of the points
in the agreement . When Matles accused Lerch of dodging the re-
instatement question by refusing to discuss matters other than wages,
Lerch stated that on the matter of the discharges , he would investi-
gate the company records and would call Matles in 6 or 7 days. Lerch
also promised another conference . However, Lerch failed to call
Matles.
Several telephone calls by Matles to Lerch failed to result in an-
other conference , and on May 7 , 1937, Matles telegraphed Lerch to
the effect that unless a bargaining conference was arranged within
a few days , the Unity Lodge would be compelled to take a strike
vote. On May 11, 1937 , the employees , at a union meeting, authorized
the union shop committee and Rubicz , business agent of the Unity
Lodge and the man who succeeded Matles in the negotiations , to take
any action necessary to force the respondent to talk over the agree-
ment. On May 13, a strike was called.
The next day , Friday , May 14, Lerch, Heilmann , and Radler,
the respondent 's paymaster , met with the Unity Lodge committee.
Rubicz stated that the strike action had been taken because the re-
spondent had not replied to the proposals of the Unity Lodge since
April 26. The employees refused to accept a proposal that they go
back to work on Monday and that negotiations be continued Mon-
day evening.
A conference was held on Monday , May 17. Conlin , an accountant
called by the respondent, attempted to show that the respondent
could not increase wages. The respondent claimed that it had made
only $11 ,000 in 1936 , that its prospective profits for 1937 were no
greater, and that its $850 ,000 of undistributed surplus had been
accumulated in 1916 , 1917 , and 1918 . Lerch again insisted that it
would be useless to discuss any other demands of the Unity Lodge
until some agreement had been reached on the question of wages.
The meeting adjourned until an inventory could be taken by repre-
sentatives of the respondent and the Unity Lodge with a view to de-
termining whether the respondent had made any profit during the
first six months of 1937 . The strike was continued and the plant
remained shut.
On May 19, 1937, however , Heilmann informed the Unity Lodge
committee that Lerch had changed his mind and that the inventory
DECISIONS AND ORDERS 505
could not be taken. Rubicz tried to get in touch with Lerch, but
was told that Lerch was in Washington on business.
The strike continued and no new negotiations were had until
June 2, 1937, when a conference, arranged by Cromwell, a Board
representative, was held at the New York City regional offices of the
Board. Lerch and Howard Trimpi, secretary of the respondent,
represented the respondent. Lerch was the chief spokesman for the
respondent. Lerch indicated that if the wage-increase demands
were withdrawn, there would be no trouble between the Unity
Lodge and the respondent as to the agreement.
The conference was continued in the respondent's offices on June
4, 1937. At this meeting, Lerch presented a "Memorandum of the
Position of the Newark Rivet Works" and stated that many of the
members of the respondent's Board of Directors were willing to close
the plant entirely. The memorandum stated that the respondent
could not increase its wages and could "see no future to negotiations
which hinge upon an increase in wages." The memorandum stated
that the respondent had decided to remain closed at least until July
1, or until such time as the employees were willing to go back to
work on their old wage scale, and that if the respondent could not
resume operations on the basis of the old wage scale within a reason-
able time, it would "liquidate its assets and indefinitely suspend op-
eration." Lerch then reiterated his statement that the only difficulty
was that the respondent could not grant the wage increase demanded,
The Unity Lodge committee at this time agreed to drop its original
wage demands and to ask instead for only such wage increases as
could be taken care of by the, expected $11,000 profit in 1937. Lerch
stated that he would take up the matter with the respondent's Board
of Directors and indicated that he would make a favorable recom-
mendation.
Nothing further occurred until June 7, when Rubicz called Lerch
to inform him that the members of the Unity Lodge had ratified
the action of the Unity Lodge committee in withdrawing its original
wage demands. On June 8, 1937, Lerch called Rothbard, attorney
for the Unity Lodge, and informed him that the respondent would
not accept this second wage proposal of the Unity Lodge.
On June 17, a new contraef was presented to the respondent. This
,contract provided neither for an increase in wages nor for a shorten-
ing of hours, nor did it contain the closed-shop provision present in
the first contract. It called for- union -recognition, as did the first
contract, and contained an article which provided "That a committee
shall be appointed by the union which committee shall meet with
the. representatives of-the company regularly, for the purpose of
adinsting any and all grievances which may arise during the term,
506 NATIONAL LABOR RELATIONS BOA Hi)
of this agreement." When Lerch read the contract, he stated that
the grievance committee provision was not acceptable to the re-
spondent. Lerch said that, although he personally might be in
favor of a grievance committee set-up, he knew that the Trimpis
"would not put up with a standing Grievance Committee who could
represent the workers and come in and bother and argue with the
company with respect to grievances." The meeting then broke up.
At the suggestion of Rothbard, Cromwell arranged another con-
ference at the Board offices in New York City on June 24, 1937, but
the respondent again took the same position. Immediately after this
conference, Rubicz called a meeting of the strikers so that he could
report as to what had happened. Several foremen were present at
the meeting. Schultz, the foreman in the machine shop, Gertrude
Kersting, a forelady, and Harry, a tool foreman on the-first floor,
created a disturbance by calling Rubicz a liar, stating that Rubicz
had been "thrown out" by the Labor Board, and that "the company
union" had been recognized. Two employees were sent to the Board
offices and they reported to the membership that Rubicz had been
telling the truth.
In the latter part of June 1937, a group consisting of William Kin-
ney, Willie Wolf, and William Schultz, all of whom were supervisory
employees in the respondent's employ, together with,some-Iion-super-
visory employees, held several meetings in a saloon. At:these meet-
ings, the group arranged for the printing and distribution of slips of
paper which read :
I, the undersigned, hereby agree to return to work at my former
position under the terms and conditions that existed at the time
of the walk-out in the Newark Rivet Works:
This is my own voluntary act and signed without coercion of
any kind.
Kinney had obtained the names and addresses of the respondent's
employees from Radler. These slips were brought to the employees
at their homes and they were asked to sign and mark one of the two
blank squares, marked "Inside Union" and "Outside Union," which
appeared on the slip.
Subsequently, a post card, signed by "The Committee," was mailed
to the respondent's employees, asking them to attend a meeting at
Bibbo Centre on July 1, 1937. At the meeting officers were elected.
Kinney was elected president. Wolf was elected treasurer, Gertrude
Kersting, forelady of the rod room department, was elected secretary,
and George Krebs, son of Foreman Tony Krebs, was elected vice
president after being either nominated - or seconded by his father.
Members of the Unity Lodge who were present at the meeting at-
tempted to nominate Kozuczko for the presidency, but his nomination
I CISIONS AND otamiS 507
was not accepted and it was stated that there was to be no discussion
from the floor.
Another meeting was held on July 10, 1937. The prominent com-
mitteemen of the Unity Lodge were refused admittance at this meet-
ing. When John Tomkovitch, one of these committeemen, presented
the post card, which-was a prerequisite to admission, to Kinney, who
was stationed at the door, Kinney called Wolf and Wolf advised
Kinney not to let Tomkovitch in because Tomkovitch was "too strong"
for the Unity Lodge.
The organization had, by this time, been named Newark Rivet
Works Employees' Council. At this meeting, Kinney read to the em-
ployees what he said were the terms of a contract under which they
might go back to work. The employees voted to accept the terms.
By a letter dated July 10, 1937, the Council, after the meeting held
on that day, informed Lerch that it wished to announce that it had en-
rolled a majority of the respondent's employees as members, asked
for recognition as sole bargaining agent, and requested a conference.
Radler testified that Kinney came to him on July 9 or 10 and said
that he had talked to a lot of people that wanted to go back to work.
Radler called up Lerch, and Lerch "stated that if Mr. Kinney could
show him that he had a majority of the people signed up, that are
willing to go back on terms of the agreement that -he had drawn up,
that we would sit down and bargain with them."
On July 12, the Council presented the slips. The names appear-
ing on the slips were compared with the names of the employees on
the respondent's pay roll, and it was found that a majority of the
employees had signed the slips. Radler testified that they found a
majority of the employees were "willing to go back with a certain
agreement that we had, and we sat down and bargained with them on
the strength of that -agreement." The agreement referred to was not
one between the respondent and the Council, but was a form of indi-
vidual contract of employment.
The plant reopened on July 14, 1937. Each employee returning to
work was required to sign a card, purporting to be the result of the
negotiations between the Council and the respondent, which consti-
tuted a contract between the individual employee and the respondent.
The card provided that "In consideration of the employees of the
Newark Rivet Works of Newark, N. J., resuming work in the said
Rivet Works at the same wage rates existing at the time said Works
were closed because of a strike, the Newark Rivet Works agree to
the following articles : ." It then set forth the hours of work,
overtime provisions, and a seniority clause, and provided that the
respondent would pay its employees weekly instead of every other
week, as was the custom prior to the strike. The agreement was to
run until July 1, 1938.
508 NATIONAL LABOR RELATIONS BOARD
On July 15, 1937, a group of employees, with Kozuczko acting as
spokesman, called on Heilmann and Radler and stated that they
wished to go back to work but did not wish to sign the cards. Heil-
mann and Radler indicated that they were willing to take each mem-
ber of the group back, but that the signing of the card was a neces-
sary prerequisite. The group consisted of Veronica Lucinskas,
Nicholas Dubas, Rose Cieri, John Tomkovitch, and Kozuczko. . Dur-
ing the conference, Radler referred to the agreement as a "company
union card" and indicated that signing the card made them members
of the "company union." These employees refused to sign, and were
not permitted to go back to work.
It was decided by the Unity Lodge, however, that Kozuczko, be-
cause of his importance as a union leader, would be more useful to,
the Unity Lodge inside than outside, and he went back on the next
day, July 16. He was told that if he continued to do anything in
regard to union activity in the shop, he would be dismissed. He
signed the contract and was told by Wolf to report for work on the
following Monday.
On July 15, Edna Winciss, one of the strikers, also applied for
work. Radler told her that the card was a "contract for a company
union." She refused to sign and was not permitted to return to
work. -
On July 16, Andrew Riley applied for work. He refused to sign
a card, and was not permitted to return. _-
At a meeting of the Council on July 22, 1937, someone suggested
that there were too many foremen in office. After the foremen
offered to resign, another vote was taken and the foremen were
reelected.
After the reopening of the plant, Gertrude Kersting collected Coun-
cil dues on company time, initialed the Council dues books, and re-
turned them either to the employees individually or to the person
whose responsibility it was to collect in the particular department.
She also spoke in favor of the Council and urged the employees to
forget the other union and to work with the Council. Willie Wolf
talked about the Council to the individual employees in his depart-
ment and told the employees "that if (sic) there was no chance of
holding us there if we did' not want to play' ball with them and
sign up and that if we did not do that we had a right to leave if we
wanted to."
B. Domination of and interference with the Newark Rivet Works -
Employees' Council
The Council, from its inception, was characterized by the dominant
role played by the respondent's foremen. About half of the com-
mittee which formulated plans for the creation of the Council con-
DECISIONS AND ORDERS 509
sisted of foremen. Of the four officers of the Council, three were
foremen and one was the son of a foreman; two of these officers had
been nominated for the position or had had their nominations sec-
onded by foremen. Foremen were members of the committee which
went in to bargain with Lerch and Radler. Gertrude Kersting, it
forelady, and secretary of the Council, collected dues on company
time, and spoke in favor of the Council. Wolf, a foreman, treas-
urer of the Council, talked to employees in his department and
clearly indicated that their job security depended on their joining
the Council.
The respondent denied that Kinney, the president of the Council,
had any supervisory duties. It contended that John Mount, rather
than Kinney, is the supervisor of the shipping department. It ap-
pears, however, that Mount is 75 years old, and is away from the
shipping department a number of days a week. Kinney is in charge
of the shipping department when Mount is away. In testifying on
the discharge of Van Dean, Radler stated that Kinney reported on
the work of Van Dean, and, in fact, discharged Van Dean. There
can be no doubt of Kinney's supervisory capacity. Kinney, the
leading spirit of the Council, was not called upon to testify at the
hearing.
Veronica Lucinskas testified that the only persons she had taken
orders from since she started working for the respondent were Wolf
and Kersting. The respondent did not challenge the fact that these
two of the Council's officers were employed in supervisory capacities.
The respondent asserts that the fact that foremen attended meet-
ings of the Unity Lodge indicates that no conclusions can be drawn
from their participation and leadership in the Council. The situa-
tions, however, are hardly comparable. A check of the cards sub-
mitted-by the Unity Lodge indicates that none of the foremen were
members of the United.7 Rubicz indicated that foremen were per-
mitted at meetings because the Unity Lodge feared that attempts to
exclude the foremen would result in the creation of a disturbance.
There was at least one meeting prior to the strike at which foremen
were excluded. When the Unity Lodge was organizing, it was Ger-
trude Kersting who questioned the individual employees as to their
union affiliation. We cannot credit the respondent's claim that be-
cause she attended Unity Lodge meetings, her interests were not allied
with those of the respondent.
Nor does the course of bargaining between the Council and the
,respondent in any way cast doubt upon the conclusion that the re-
spondent did, in fact, dominate and interfere with the Council. The
° There is one card signed by John Jacobs The signer, however, indicated that he
worked in Tony's department and that he made 35 cents per hour. This is quite obviously
not the John Jacobs who is head foreman.
510 NATIONAL LABOR RELATIONS BOARD
slips which were distributed to employees called for return to work
at the pre-strike terms and conditions; the Council agreed to have
the employees sign individual contracts; the provisions of the agree-
ment provided for the return of the employees to work at substan-
tially the same terms; the respondent was not approached until the
employees had agreed to these terms.
We find that the respondent has dominated and interfered with the
formation and administration of and contributed support to the New-
ark Rivet Works Employees' Council and has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
C. The refusal to bargain collectively
1. The appropriate unit
Both the Unity Lodge and, at the present time, the Council, admit
to membership the production employees of the respondent, excluding
supervisory employees, The respondent did not claim that any other
unit was the appropriate one.
We find that the production employees of the respondent, excluding
supervisory employees, constitute an appropriate unit for purposes
of collective bargaining, and that such a unit insures to the employees
the full benefit of their right to self-organization and to collective
bargaining.
2. Representation by the Unity Lodge of a majority in the
appropriate unit
A list of the respondent's employees as of April 26, 1937, contains
543 names. The cards of employees in the appropriate unit, which
the Unity Lodge presented in evidence and which have been checked
and have been found to correspond with the names on the list, num-
ber 406.8 Although the cards were not dated there is uncontradicted
testimony to the effect that 300 of the cards had been signed by
April 26.
On June 2, 1937, the Executive Board of the Union, which at that
time was Unity Lodge No. 1560 of the International Association of
Machinists, and which had members from 12 shops, including New-
ark Rivet Works, decided to affiliate themselves with the United
Electrical, Radio & Machine Workers of America, affiliated with the
Committee for Industrial Organization. The employees from the
various shops then voted and ratified the action of the executive com-
mittee. The employees of the respondent who were members of the
union ratified the executive committee's action at a meeting on June
8 Of these, 20 are Amalgamated cards
DECISIONS AND ORDERS 511
9, 1937. Witnesses for the Board testified that about 250 or 300
employees attended this meeting. A 'stipulation entered into by coun-
sel for the Board, counsel for the respondent, and counsel for the
Council, stated that at least 325 of the employees, had they been
called, would have testified that they did not attend that meeting.
The change in affiliation did not result in the existence of two
labor organizations in the respondent's plant. There was but one
organization, which continued to function in exactly the same manner
throughout the period under consideration. There was no interrup-
tion in the strike; there was no break in the continuity of the attempts
at bargaining. . The respondent, at no time, either before or after
the change in affiliation, challenged the fact that the Unity Lodge
represented a majority of its employees. We therefore find little
merit in the respondent's contentions that because the action of the
executive committee in changing the national affiliation of the union
was ratified by a vote of less than a majority of the union members,
the respondent was excused from bargaining with the Unity Lodge,
a labor organization representing its employees. We find that on
April 26, 1937, and thereafter, the Unity Lodge represented a ma-
jority of the employees in the appropriate unit.
3. The refusal to bargain
The chronological summary of events, set forth above, shows that
the respondent refused to bargain with the representatives of its em-
ployees in good faith in a genuine attempt to reach an understanding
on the proposals advanced.
On April 26, 1937, the respondent refused to discuss any of the
matters on which the union desired to reach an understanding except
the matter of wages. And on the matter of wages, the respondent
asserted that it could not consider the possibility of an increase. The
respondent has advanced no good reason to justify its refusal to
discuss the other proposals until the wage question was settled, or to
show why it was necessary to have the discussion of pressing matters
such as the union's demand for reinstatement of discharged employees
wait upon a determination of the wage problem. It may be that if
an agreement had been reached on other points, each party would
have been more tractable on the question of wages. The attitude of
the respondent was neither reasonable nor in accord with usual bar-
gaining practice. As was shown by the course of events, the respond-
ent was making the withdrawal of the union wage demands a prereq-
uisite to collective bargaining, and, it was the respondent's unwilling-
ness to bargain collectively, rather than the wage difficulties, which
was the real obstacle in the way of a collective bargaining agreement.
Subsequent to April 26, the respondent met the requests of the
512 NATIONAL LABOR RELATIONS BOARD
Unity Lodge with a policy of delay. Requests for a further confer-
ence always came from the Unity Lodge, never from the respondent.
The respondent did not fulfill either its promise to meet with the
Unity Lodge in another conference on the agreement or its promise
to call the Unity Lodge for further discussion on the discharges when
it had examined the company records. Even the telegram of May 7,
which clearly indicated that the respondent was forcing the Unity
Lodge to take drastic measures in order to get a conference, failed to
result in the respondent's agreeing to a conference. Finally, because
of this failure of the respondent to meet with the Unity Lodge, the
Unity Lodge called the strike on May 13.
The day after the strike was called, the respondent's representatives
met with the union committee, and a conference was arranged for
May 17. At that conference, the respondent again took the position
that it would discuss no other union proposal until the wage problem
was settled, and insisted that it could not possibly grant any increase
in wages. The respondent promised that an inventory could be
taken, but two days later it canceled its permission for the taking of
the inventory. The respondent thus nullified the only result of the
May 17 conference, and, while doing this, took no steps to initiate new
conferences or to propose alternative measures.
The parties did not meet again until Cromwell, the Board repre-
sentative, arranged a conference which took place on June 2. At this
conference, the respondent not only remained adamant as to its posi-
tion that the union wage demands must be disposed of first, but also
indicated clearly that the wage question was the only thing standing
in the way of an agreement. The modified wage demands which
were proposed by the Unity Lodge as a result of this statement by
the respondent were then declared by the respondent to be just as
unsatisfactory to it.
The Unity Lodge again took the initiative on June 17, when it
presented the new contract with no wage demands; the Unity
Lodge had completely capitulated on the question of wages. The re-
spondent, however, now for the first time, raised objections to the
clause providing for recognition of the union. A clause calling for
union recognition was present in the first contract; the respondent
had been aware for almost 2 months that the Unity Lodge was seek-
ing to be recognized. During this period, the respondent at no time
expressed to the Unity Lodge its disapproval of that clause and, in
fact, indicated on June 2 that the only thing which prevented an
agreement from being reached was the wage proposals. Once the
respondent had won its point on the wage question, however, it
raised this new objection.
Clauses which provide for explicit recognition of the Union are
usual in collective bargaining agreements, and we have held that
DECISIONS AND ORDERS 513
,uch recognition is an essential prerequisite to genuine collective
bargaining and cannot properly be withheld by an employer.,, The
respondent contends that it could not agree to the clause because the
majority of the workers might choose another collective bargaining
representative and the respondent would thus have to refuse to
deal with the Unity Lodge. Whether or not the provision in the
proposed contract, which provides that "The company hereby and
herewith recognizes the Union," means that the respondent would be
contracting to recognize the Unity Lodge as bargaining agency for
the 6 months' duration of the contract, we need not decide. It is
only necessary to note that the respondent at no time suggested an
alternative provision; although a clause calling for recognition of
the union for as long as it represented a majority of the employees
would obviously have met the respondent's objection.
Nor did the respondent offer any alternative provisions to the
proposal by the Unity Lodge of a grievance committee, which would
have provided the machinery for continued collective bargaining
during the period of the contract, and to which Lerch stated the
respondent objected. The estimate by Lerch that the Trimpis
',would not put up with a standing grievance committee who could
represent the workers and come in^ and bother and argue with the
company with respect to grievances" is indicative of the respond-
ent's attitude.
The refusal to meet with representatives of its employees from
April 26 until the strike; the refusal to discuss the union proposals
other than the wage proposal; the insistence on the withdrawal of the
wage demands before it would bargain on the other matters ; the
raising of another objection when these demands were withdrawn;
the evasive manner of the respondent's negotiating, its failure to sub-
mit counterproposals, and its failure to take any initiative whatever
in the attempt to achieve a settlement ; and its refusal to accord the
Unity Lodge formal recognition; all show clearly that the respondent
was not bargaining in good faith or making any effort to attain an
understanding with the Unity Lodge through the bargaining process.
There is further evidence of this. Trimpi, Radler, and Lerch, each
of whom was a responsible representative of the respondent who took
leading parts in the negotiations with the Unity Lodge, differed
widely in their testimony as to the respondent's objections to the
second contract. Lerch stated that the respondent objected to the
grievance committee clause and the union recognition clause. This
is also stated in the respondent's brief. Radler testified that the re-
Cf Matter of The Griswold Manufacturing Company and Amalgamated Association of
Iron , Steel and Tin Workers of North America, Lodge No 1197, 6 N L R B 298;
Matter of United States Stamping Company and Enamel Workers Union, No. 18650, 5
N. L. R B. 172.
514 NATIONAL LABOR RELATIONS BOARD
spondent also objected to the article dealing with dismissal for
cause. There is no other evidence of this. Trimpi testified that on
June 24, Cromwell was insisting that the respondent agree to a closed
shop. There is. no closed-shop,'-provision in. the second union con-
tract; there is no evidence of any demands for a closed shop at'that
time. These differences ^ in understanding of • the issues in the bar-
gaining can only be explained by the fact'that respondent's repre-
sentatives we're giving no serious consideration to the union proposals,
and that their bargaining was sham.
It is significant also that at the end of June, when meetings
between the respondent and the Unity Lodge were taking place, the
respondent was beginning its interference with the formation and
administration of the Council,10 and it is indicative of the respond-
ent's attitude that, even in its dealings with the Council, it insisted
upon contracts with its individual employees and-did not enter into
any real collective bargaining agreement.
We find that on April 26, 1937, and at all times thereafter, the
respondent refused to bargain collectively with the' Union as the
representative of its employees in the appropriate unit in respect
to rates of pay, wages, hours of employment, and other conditions
of employment and thereby interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed in Section 7
of the Act.
D. Interference, restraint, and coercion
The questioning of the individual employees at the plant by
Kersting and Wolf, the statement made to Kozuczko by Schultz
urging Kozuczko to stop working in the Unity Lodge, the attend-
ance of union meetings by foremen, and the disturbance created by
the foremen at the June 24 meeting of, the Unity Lodge,. were all
acts which restrained and coerced the employees in their right to
self-organization.
We have found that the respondent by one unfair labor, practice,
had caused its employees to strike, and, by another unfair labor
practice, had succeeded in ending the strike and caused a large
number of its employees to choose the Council, rather than the Unity
Lodge, as their bargaining representative. It then sought to ' insulate
itself from the possibility of having to bargain collectively with
representatives of its employees' own choosing, and to assure- the
dominance of the Council among its employees, by imposing on
the employees the individual contracts of employment, negotiated
with the company-dominated Council. These individual contracts
10 Cf Matter of Shell Oil Company of California and -International Association of Ott
Field, Gas Well and Refinery Workers of America, 2 N. L. R. B. 835; Matter of The Gris-
wold Manufacturing Company and Amalgamated Association of Iron, ' Steel and Tin
Workers of North America ; Lodge No 1197, 6 N. L. R B 298
DECISIONS AND ORDERS 515
interfered with the Unity Lodge in 'its' efforts to secure a collective
agreement and discouraged its use as, a- collective bargaining agency.
The requirement of this individual- contract as a condition of em-
ployment' was, under these circumstances, an act which interfered
with, the employees in their right to self-organization and to, join
and assist labor organizations, and to bargain collectively through
representatives of their own choosing.
% Te find that the respondent has interfered with, restrained, and
coerced' its employees in the exercise of their right to self-organi-
zation, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining.
E. The refusal to reinstate
The respondent admittedly refused to reinstate those employee=
who did not sign the individual contracts. It has already been
noted that the individual contracts were the result of the dealings-
between the respondent and the Council, a labor organization whose
formation and administration the respondent has dominated. We
have found that the respondent has committed an unfair labor
practice by refusing to bargain with the Unity Lodge and that
the strike was the result of this unfair labor practice. By another
unfair labor practice, its domination of the Council, the respondent
managed to end the strike and to cause a great number of its
employees to authorize the Council; rather than the Unity Lodge, to
act as their bargaining representative. Through the device of an
agreement with the Council, which it controlled, the respondent then
sought to perpetuate its gains -by requiring its employees to sign the
individual contracts which bound them to work at the pre-strike
wages and hours for one year, and which fixed the overtime rate, the
time of payment, and seniority rights.
The employees had a right under the Act to have the Unity Lodge,
the representative of a majority of the employees in the appropriate
unit, bargain collectively, for them on these basic issues. The require-
ment, as a condition of reinstatement, that, in disregard of this right.,
they enter into individual' employment contracts interfered with
their right to bargain collectively through the Unity Lodge and was
a deterrent to continued membership in that organization. The
respondent,has discouraged membership in the Unity Lodge by
discriminating with regard to the reinstatement of its employees."
The respondent claims that Tomkovitch on July 15, 1937, asserted
that he would not go back to work unless he were put in a depart-
uMatter of Atlas `Bag and Burlap Conipany, Inc and Milton Rosenberg . Organizer;
Burlap z6 Cotton Workers Local Union No. 2469, affiliated with United Textile Workers
Union , 1 N L R B 292 ; Matter , of Amnezzcan Manufacturing Company et at. and Textile
Workers' Organizing Committee , 0. I. 0., 5 N. L. R . B. 443.
134068-39-vol. ix-34
516 NATIONAL LABOR RELATIONS BOARD
ment other than Wolf's, and that this was the reason Tomkovitch
did not go back. Tomkovitch denied this and testified that, as the
group of employees was leaving on that day, after Heilmann had
told them that the signing of the contracts was necessary, he turned
and asked Heilmann and Radler whether, if he agreed to sign the
card, there was a chance of being placed in another department.
Since Tomkovitch went in with a group of employees who were
willing to go back to work if they did not have to sign the con-
tracts, his statement of the reason appears to be the true one. We
find that Tomkovitch was not given work because he refused to sign
the individual contract.
We find that, by discriminating in regard to the hire and tenure
of employment of Veronica Lucinskas, Nicholas Dubas, Rose Cieri,
Edna Winciss, Andrew Riley and John Tomkovitch, thereby dis-
couraging membership in the Unity Lodge and encouraging mem-
bership in the Council, the respondent has engaged in and is engag-
ing in an unfair labor practice, within the meaning of Section
8 (3) of the Act.
Nicholas Dubas was, at the time of the strike, receiving $14 per
week for his work for the respondent. Between July 15, 1937, and
the time of the hearing, Dubas had earned $104 at other employment.
Rose Cieri was receiving about $16.50 or $17 per week. She had
earned no money at other employment between July 15, 1937, and
the date of the hearing.
Veronica Lucinskas was receiving $17.50 per week at the time of
the strike. She had earned between $60 and $65 between July 15,
1937, and the time of the hearing.
John Tomkovitch was receiving $4.40 per day at the time of the
strike. Between July 15, 1937, and the time of the hearing, he earned
$46 at other employment.
Edna Winciss received about $12.50 per week prior to the strike.
She had not had any employment.
Andrew Riley received $14.85 per week at the time of the strike.
He made about $57 in the period from July 16, 1937, to the date of
the hearing.
F. The discharges of April 5
Russell Serio had signed up a majority of the 100 girls on his
floor. Serio asked employees to sign the Unity Lodge application
cards during the lunch hour and after work. He ate his lunch in-
side, and thus his activity in asking employees to sign the cards took
place in the plant.
Serio, who had worked for the respondent about 7 months,_ was
assigned to the rib room. His work consisted of weighing the work
of the girls who worked in that room, bringing material to them,
DECISIONS AND ORDERS 517
and carting away their work. Serio testified that there were never
any complaints about his work, and his forelady and the head fore-
man testified that Serio's work was satisfactory.
On April 5, 1937, Serio was ill and stayed home. That afternoon,
his brother arrived with the pay envelope, and Serio learned that
he had been discharged. The next day Serio asked Oscar Theurer,
the timekeeper, the reason for the discharge. Theurer did not know
and told Serio to see Heilmann. Heilmann told Serio that he should
have telephoned the respondent that he would not be in. Serio then
said, "You mean agitating, don't you?" and Heilmann answered
"Yes." This was not denied.
On the morning of April 5, Margaret Schmidt, the forelady in
the rib department, told John Jacobs, the head foreman, that Serio
was not at work. She testified that if an employee stayed out for a
day he would not_,be given work any more, if the replacement was
satisfactory, although the employee might be taken back the follow-
ing week, if there was room for him.
Jacobs testified that, when informed that Serio had not come in,
he asked Lobozo, who, he thought, was related to Serio, where Serio
was. Lobozo said that he had seen Serio that morning, and that
he did -not know why Serio had not come in. Jacobs testified that
he then told Lobozo that he would leave the job open until dinner
time, and that if Serio did not then come in, a new helper would be
put on. He told Lobozo to go and get Serio, but Lobozo refused.
Jacobs stated that, at noon, as a result of his conversation with
Lobozo, he assumed that Serio had quit.
Jacobs denied that it was the custom of the respondent to dis-
charge an employee if that employee did not report for 1 day.
Jacobs stated that Serio's work was .satisfactory and that this was
Serio's first absence from his work.
Heilmann testified that "Mr. Jacobs, who was his (Serio's) foreman,
came to me and told about him being out, and the change that he has
made. After I heard Mr. Jacobs, the reason he was out, and that
he had to have another fellow to replace him, I sanctioned a dis-
charge, or rather I sanctioned the discharge of Mr. Jacobs discharg-
ing Mr. Serio." Heilmann testified that this conversation took place
a little before noon. Then, when Board's counsel reminded Heilmann
that Jacobs had testified about a message to Serio giving him a
chance to return in the afternoon, Heilmann testified that the con-
versation took place at about 1: 30 p. m. and then said that Jacobs
told him before noon that Serio was not in and told him after lunch
that he had discharged Serio.
Edward Oremusz was a member of the group that saw Matles
on Easter Sunday. - Prior to his discharge, he was considered to be
the most successful person in getting the respondent's employees to
518 NATIONAL LABOR RELATIONS- BOARD
sign, the, application cards, although he never took any cards with him,
to the plant.
Oremusz had started working for the respondent on September 24,.
1936. He injured his finger sometime in October, and was trans-
ferred to the hardening department, of,which Tony Krebs was fore-
man. • Oremusz did not work steadily in that department, but di-
vided a good deal of his time be the hardening department and
Glaser, the shop carpenter. Because Glaser was considered a slow
workman, other foremen frequently came to Oremusz directly to
ask him to do some maintenance work. He also worked for the
electrician and the plumber.
On the morning of April 5, 1937, Oremusz returned to the hard-
ening department from the men's room and found Heilman wait-
ing for him. Heilmann asked him where he had been, accused him
of being out for 20 minutes and then discharged him. Orenlusz
testified that he had been out of the room only about' 31/2 or 5 minutes
and that there had been no prior complaint to him by Heilmann or
anyone else about his being away from his work.
Krebs stated that on April 5, Oremusz had been out 20 to 25
minutes. Krebs testified that Oremusz's work had been satisfactory,
but that he would go off for 25 or 30-minute periods two or three
times a day. Krebs, stated that-on these occasions he did not ask
Oremusz where he had been or what he had been doing, but that he
warned Oremusz about three or four times and then reported the
matter to the superintendent. Glaser also testified that Oremusz
used to disappear two or three times a day, and, when asked, did
not say where he had gone. Glaser stated that when he had nothing
to do he sent Oremusz to Krebs, or Oremusz went to see if he could be
used elsewhere. _
Heilmann testified that Krebs told him about November 1936, that
be did not want Oremusz in, his department because Oremusz loafed
and did not stick to his job, but that he asked Krebs to give Oremusz
another chance. Krebs complained once in November 1936, and once
about a month prior to Oremusz's discharge. Heilmann stated that by
several personal observations, he knew that Oremusz did not stick
to his job. On each such occasion; he noticed that Oremusz was away
from Krebs' room. Heilmann also testified, however, that he knew
Oremusz was not working steadily for Krebs and that Oremusz was
being shifted around from one foreman to another and that he did
various jobs around the factory.
It is significant to note that the day after the discharge of these
two active union members took place, the respondent's foremen asked
the employees individually- whether or not they were for the union.
The sign announcing a strike -had been posted on the respondent's
bulletin board in the latter part of March; at about this time -the
DECISIONS AND ORDERS 519
respondent's employees were being asked, both inside and outside the
plant, to join the union, and Serio and Oremusz were the most sue-*
cessful persons in inducing the employees to sign the cards; meetings
,of the respondent's employees had taken place on March 29 and
April 1; the discharges occurred on April 5; the questioning of the
employees took place on April 6; and at this time, Wolf was con-
sidering action against Kozuczko because of the latter's - union ac-
tivity. The conclusion that the motivating cause of the discharge
of these employees was their union activities would seem justified.
The testimony adduced by the respondent, rather than showing
other motivation, tends to convince us further of the discriminatory
nature of these discharges.
Jacobs denied that it was the custom of the respondent to discharge
an employee who did not report for one day; yet he gave Serio's
place to a man who had not worked in the respondent's plant be-
fore. The testimony of Heilmann, which he shifted facilely on
cross-examination, cannot be considered trustworthy. We can thus
give little credence to the respondent's statements as to the motivating
cause of the discharge of Serio.
We find that Russell Serio was discharged because of his union
activities.
Heilmann's account of the reasons for the discharge of Oremusz
is again an incredible one. He asserted that Oremusz did not stick
to his wvorl; and that he knew that because he noticed that Oremusz
was away from Krebs' room; yet Heilmann admitted that he knew
Orennusz did not work steadily in Krebs' room. The respondent
-claims that Oremusz was away from his work from 25 to 30 minutes
at a time two or three times a day. Yet nothing was done about it
from November 1936 to April 6, 1937, except that two complaints
were made by a foreman to the plant superintendent.
In view of these circumstances we believe that the testimony of
Oremusz as to the amount of time he had been out of the room,
rather than the conflicting testimony, portrays the true fact. His
discharge occurred at the beginning of a period of union organiza-
tion anct took place on the same day as the discharge of Russell
Serio.
We fiuid that Edward Oremusz was discharged because of his
union activities.
Oremusz was receiving $13.50 a week at the time of his discharge.
He has eainecl $114 from the date of his discharge to the date of
the hearing.
Serio was receiving $14.85 a week at the time of his discharge. He
has earned $128 from the date of his discharge to the date of the
hearing.
520 NATIONAL LABOR RELATIONS BOARD
By discriminating in regard to the hire and tenure of employ-
ment of Oremusz and Serio, thereby discouraging membership in
the Unity Lodge, the respondent has engaged in and is engaging
in an unfair labor practice, within the meaning of Section 8 (3)
of the Act.
G. The discharge of Alexander Van Dean
Alexander Van Dean was discharged by the respondent on No-
vember 4, 1937. Van Dean's younger brother, Frank, had been
discharged by the respondent a few weeks prior to November 4,
1937, because he was under age and did not have working papers.
Van Dean was trying to prove to the respondent that his brother
was not, in fact, under age. He brought a letter to Heilmann as
proof but Heilman did not consider the letter as sufficient to show
Frank Van Dean's age. The testimony of the respondent's witnesses
is that Van Dean then became angry, did not do his work properly,
argued with Kinney, his supervisor, and was discharged.
Van Dean testified that he was discharged because he refused to
pay the 25 cents dues to the Council. He testified that he asked
Kinney to state that he had been discharged because of his brother;
Van Dean said that he was afraid of what his wife would do if she
learned he had been discharged for not paying a quarter.
We find that the discharge of Alexander Van Dean did not consti-
tute discrimination with regard to hire or tenure of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A-F above, occurring in connection with the operations of the
respondent 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.
THE REMEDY
We have found that the responaent dominated and interfered with
the formation and administration of the Council. By such domina-
tion and interference the respondent has prevented the free exercise
of its employees' right to self-organization and collective bargaining.
The Council cannot serve the respondent's employees as their
genuine representative. Therefore, in order to restore to the em-
ployees the full measure of their rights guaranteed under the Act,
we shall order the respondent to withdraw all recognition from the
Council and to disestablish it as the representative of its employees
for the purposes of collective bargaining.
DECISIONS AND ORDERS 521
The respondent urges that the Council, rather than the Unity
Lodge, is now the collective bargaining agent of the majority of the
employees in the appropriate unit. This situation, however, is the
result of the respondent's unfair labor practices. We cannot recognize
a change from the bargaining representative previously selected by
the untrammelled will of the majority, which was brought about by
the respondent's unfair labor practices. To give effect to the policies
of the Act the Board must disregard such effects of the unfair labor
practices and base its order upon the situation existing at the date
of the refusal to bargain.12
Since we have found that the respondent discriminatorily dis-
charged Russell Serio and Edward Oremusz because of their union
activity, we shall order the respondent to make the discharged em-
ployees whole for any loss of pay they have suffered by reason of
their respective discharges by payment to each of them of a sum of
money equal to the amount which he normally would have earned as
wages from April 6, 1937, to the date of the offer of reinstatement,
less his net earnings 13 during said period.
We will order the respondent to offer reinstatement to John Tom-
kovitch, Veronica Lucinskas, Rose Cieri, Nicholas Dubas, Edna Win-
ciss, and Andrew Riley, and to make them whole for any loss of pay
they have suffered by reason of the discrimination with regard to the
hire or tenure of their employment by payment to each of them of a
sum of money equal to the amount which each normally would have
earned as wages, in the case of Andrew Riley, from July 16, 1937, to
the date of the offer of reinstatement, less his net earnings during
that period; in the case of the other five, from July 15, 1937, to the
date of the offer of reinstatement, less the net earnings of each, re-
spectively, during said period.
We have found that the respondent, by having required its em-
ployees to sign individual contracts of employment, has restrained
its employees in their right to self- organization and to join and assist
labor organizations. In restoring the status quo, it will be necessary
to require the respondent to give no effect to these contracts or any
renewals thereof. 14
i' Cf Matter of Bradford Dyeing Association (U S A) (a Corporation) and Textile
Workers Organizing Committee of the C. I. C , 4 N. L. R B. 604.
>s 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 dis-
charge 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.
14 Cf. Matter of National Licorice Company and Bakery and Confectionery Workers
International Union of America, Local Union 105, Greater New York and Vicinity, 7
N. L. R. B 537.
.522 NATIONAL LABOR RELATIONS BOARD
TAE PETITION
In view of the findings in Section III above as to the appropriate
bargaining unit and the designation of the Unity Lodge by a ma-
jority of the respondent's employees in the appropriate bargaining
unit as their representative for the purposes of collective bargaining,
it is not necessary to consider the petition of the United for certifica-
tion of representatives. Consequently the petition will be dismissed.
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Unity Lodge No. 1560 of the International Association of
Machinists ; Unity Lodge No. 420 of the United Electrical, Radio &
Machine Workers of America, C. I. 0., and Newark Rivet Works
Employees' Council are all labor organizations within the meaning
of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of the Council, and by contributing support thereto, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Russell Serio, Edward Oremusz, John Tomkovitch, Nicholas
Dubas, Rose Cieri, Veronica Lucinskas, Edna Winciss and Andrew
Riley, thereby discouraging membership in the Unity Lodge, the
respondent has engaged in and is engaging in an unfair labor practice
within the meaning of Section 8 (3) of the Act.
4. The production employees of the respondent, excluding super-
visory employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
5. The Unity Lodge, which, until June 2, 1937, was designated
Unity Lodge No. 1560 of the International Association of Machinists,
and after June 9, 1937, was designated Unity Lodge No. 420 of the
United Electrical, Radio & Machine Workers of America, C. I. 0.,
was on April 26, 1937, and at all times thereafter has been, the exclu-
sive representative of all the respondent's employees in such unit for
the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
6. By refusing, on April 26, 1937, and thereafter continuing to
refuse to bargain collectively with the Unity Lodge as the exclusive
representative of the employees in the above-stated unit, the respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (5) of the Act.
DEIGISIONS AND ORDERS 523
7. 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.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
9. By discharging Alexander Van Dean the respondent did not
engage in an unfair labor practice, within the meaning of Section 8
(3) 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, Newark Rivet Works, and its officers , agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
Newark Rivet Works Employees' Council , or with the formation and
administration of any other labor organization of its employees, and
from contributing support to the Newark Rivet Works Employees'
Council or any labor organization of its employees;
(b) Discouraging membership in Unity Lodge No. 420 of the
United Electrical , Radio & Machine Workers of America, C. I. 0.,
or any other labor organization of its employees , by discriminating
in regard to hire or tenure of employment or any term or condition
of employment;
(c) Giving effect to the individual contracts of employment herein
found to have been executed or any renewal thereof ;
(d) Refusing to bargain collectively with Unity Lodge No. 420 of
the United Electrical , Radio & Machine Workers of America, C. I. 0.,
as the exclusive representative of its production employees, excluding
supervisory employees;
(e) 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 labor organizations , to bargain collectively through rep-
resentatives of their own choosing , and to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or
protection , as guaranteed in Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act;
524 NATIONAL LABOR RELATIONS BOARD
(a) Withdraw all recognition from the Newark Rivet Works Em-
ployees' Council as the representative of any of its employees for the
purpose of dealing with this respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
of employment, and disestablish the Newark Rivet Works Employees'
Council as such representative;
(b) Offer to Edward Oremusz, Russell Serio, Nicholas Dubas, Ve-
ronica Lucinskas, Rose Cieri, John Tomkovitch, Edna Winciss, and
Andrew Riley immediate and full reinstatement to their former posi-
tions, without prejudice to their seniority and other rights and
privileges;
(c) Make whole Russell Serio and Edward Oremusz for any loss
of pay they have suffered by reason of the respondent's discrimination
in regard to hire and tenure of employment by payment to each of
them of a sum of money equal to that which each would normally have
earned as wages during the period from the date of such discrimina-
tion to the date of the offer of reinstatement, less his net earnings
during such period;
(d) Make whole Nicholas Dubas, Veronica Lucinskas, John Tom-
kovitch, Rose Cieri, Edna Winciss, and Andrew Riley for any loss of
pay they have suffered by reason of the respondent's discrimination in
regard to the hire and tenure of employment by payment to each of
them of a sum of money equal to that which each would have earned
as wages during the period from the date of such discrimination to the
date of the offer of reinstatement, less the net earnings of each, re-
spectively, during that period;
(e) Upon request bargain collectively with Unity Lodge No. 420
,of the United Electrical, Radio & Machine Workers of America,
C. I. 0., as the exclusive representative of its production employees,
excluding supervisory employees, with respect to rates of pay, hours
of employment and other conditions of employment;
(f) Post immediately notices to its employees in conspicuous places
within the plant stating : (1) that the respondent will cease and
desist in the manner aforesaid; (2) that the respondent will with-
draw all recognition from the Newark Rivet Works Employees' Coun-
cil as the representative of any of its employees for the purpose of
dealing with this respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, and that said organization is completely disestablished as
such representative; and (3) that the execution of the individual
contracts of employment was in violation of the National Labor Rela-
tions Act and that such individual contracts or any renewals thereof
will no longer be given effect, and maintain such notices for a period
of at least thirty (30) consecutive days from the date of posting;
DECISIONS AND ORDERS 525
(g) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
It is further ordered that the complaint be, and it hereby is, dis-
missed with respect to the discharge of Alexander Van Dean.
And it is further ordered that the petition for investigation and
certification of representatives filed by the Unity Lodge be, and it
hereby is, dismissed.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision and Order.