Paul Uhlich & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1940

26 N.L.R.B. 679 (N.L.R.B. 1940)

In the Matter Of PAUL UHLICH & CO., INC. and PAINT, VARNISH
AND ALLIED PRODUCTS DIVISION, UNITED MINE WORKERS OF
AMERICA, DISTRICT No. 50, C. I. O.
Case No. C-1495.-Decided August 16, 1940
Jurisdiction : color product manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; declarations of union
preference; threats of interference with employees' tenure and other conditions
of employment; interference with collective bargaining; attempts to induce
employees not to remain members of union by offers of benefits.
Company-Dominated Union: unsuccessful attempt to form-employer's partici-
pation in formation of: supervisory employees' suggesting formation of, solicita-
tion of employee support for, presenting to employees plan for.
Discrimination. allegation of discrimination dismissed.
Collective Bargaining- designation of representatives by majority of employees:
by express authorization-failure to negotiate in good faith-employer's failure
to advance counter-proposals; imposing acceptance of demands as prerequisite
to bargaining; refusal at outset to enter into signed agreement; attempts to
form company-dominated union while ostensibly conferring with union.
Remedial Orders : order to bargain; to put agreement into writing if one is
reached;,and to cease dominating or contributing support to any union among
employees.
Unit Appropriate for Collective Bargaining : all production, maintenance, and
shipping employees of respondent, exclusive of supervisory and clerical em-
ployees and research chemists.
Practice and Procedure:
Respondent's motion for subpoena duces tecuni directing Board's Regional
Director to produce data and documents in Board's possession bearing upon
the charges filed and the complaint issued against said respondent denied
on the grounds, inter aria, that wholesale publication of information and
confidences gained by the Board in its preliminary investigations of cases
would deter persons from supplying material information.
Mr. Richard J. Hickey, for the Board.
Wingate & Cullen, by 111r. Platt K. Wiggins, Mr. Cyrus S. Jullien,
and Mr. Joseph F. Kelly, of Brooklyn, New York, for the respondent.
Mr. Samuel Machlis, of New York City, for the Union.
Mr. Leonard Lindquist, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Paint, Varnish
and Allied Products Division, United Mine Workers of America,
26 N. L. R. B., No. 70.
679 ,
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District No. 50, C. I. 0., herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Second Region (New York City) issued a complaint dated
June 21, 1939, against- Paul •Uhlich• & 'Co., Inc., 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), (2), and (5). and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint alleged in substance that the respondent through its-
officers and, agents, at its Brooklyn plant, (1) on and after October 6,
1938, urged, persuaded, and warned its employees to refrain from
becoming or remaining members of the Union and threatened to close
down its plant if, the employees continued to engage in union activity;
(2) on or about October 10, 1938, Iiutiated, formed, and sponsored'a
labor organization of its emplovees,,herein referred to as the Plan;
(3) on and after October 10, 1938, refused to bargain with the Union
although a majority of the production and maintenance employees
comprising an appropriate unit had designated the 'Union as their
bargaining representative; and (4) by the foregoing and other acts,
interfered with, restrained,, and coerced its employees in the exercise
of the rights guaranteed in Section 7, of the Act. Copies of the com-
plaint, accompanied,by notice of hearing, were duly served upon the
respondent, the Union, and Erza A. Wethered as it representative
of'the Plan.
On "July 21, 1939, the respondent filed its answer denying that it
had engaged in the unfair labor practices alleged in the complaint.
On-July 20, 1939, the^Board, by its Regional Director, amended its
complaint to include an allegation that the respondent had discharged
and refused to reinstate William Volz because he had joined and
assisted the Uiiion, thereby discriminating in regard to his hire and
tenure of employment and discouraging membership in the Union.
Copies of the amendment to the complaint were duly served upon the
respondent, the Union, and We'thered. '
On,'July 28 the respondent filed its amended answer to the com-
plaint, as amended, denying the material allegations thereof and
setting up, by way of affirmative defense, that (1) the Union never
submitted proof of its majority representation to the respondent and
was never authorized to act as exclusive bargaining representative for
the respondent's employees; (2) the respondent at divers times and
places conferred with representatives of the union and these con-
ferences constituted collective bargaining; (3) the Board cooperated
with the Union in initiating this proceeding not because of any alleged
violation of the Act by the respondent, but for the purpose of com-
pelling the respondent to comply with various demands of the Union
PAUL UHLICH & CO., INC..-
not required by the Act;, and (4) the proceedings against the respond-
ent were irregular and void in that the complaint ,was based on
amended charges which were dated and served after the complaint
was issued, and the charges did not comply with the, Board's Rules
and Regulations in effect when the charges were filed.
Pursuant to notice, a hearing was held at New York City from S'ep-
tember 18 through October' 7, 1939; before' Charles E. Persons;. the
Trial Examiner duly designated by the Board. At the commence-
ment of the hearing, the Trial Examiner granted certain=parts of'a
request for a bill of particulars by the respondent. He denied a
motion by the respondent for a subpoena daces tecum addressed to
Samuel Machlrs, field organizer for the Union, requiring him to pro-
duce certain documents, including the mmutes of all meetings held by
the Union with respect to the filing of the charges hereni, and for a
'subpoena daces tec'dm to' the Regional Director for the Second Region
directing that the latter produce, among other things,
All notes, memoranda, data and documents whatsoever made
by or in the possession of said Board or its Directors, Examiners
or agents in any way relating to, bearing upon or forming the
basis of the several charges of said Union and/or the complaint
and amendments to the complaint issued in the above entitled
case.
The motion was renewed in whole, of in part, at various stages of the
hearing- and was consistently denied by the Trial Examiner on the
ground- among others, that the request was,too general and inclusive.
We have reviewed the record and conclude that the Trial Examiner's
denial of this motion was proper.'
At various times during the hearing, the respondent moved to dis-
miss the complaint on the grounds that the amended charges on which
it allegedly was based were dated and filed after the complaint was
issued. This motion was at all times, denied by the Trial Examiner.
We have reviewed this ruling and it is hereby affirmed. It is clear
that charges herein were duly filed before the complaint was issued:
that the amended charges filed after the issuance of the complaint
merely amplified the original charges; and that second amended
charges also were duly filed prior to the issuance of the amendment to
the complaint. ' The respondent also moved to dismiss the complaint
on the ground that the charges on which the complaint was based did
not comply with the Board's Rules and Regulations in effect when the
I Tn this connection it may be pointed out that (1) the blanket nature of the respondent's request indicates
merely a general exploration which would hare prolonged this hearing indefinitely with no promise of
iesults, (2) union records are generally of a confidential nature and their production ought not lightly to be
required over the Union's objections, and (3) any wholesale publication of the information and confidences
gained by the Board in its preliminary investigation of charges filed pursuant to the Act to' determine their
substantial character would unquestionably deter certain employees involved in such charges from supply-
mg the Board with information material to its investigation, -
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
charges were filed. The Trial Examiner denied this motion We have
reviewed this ruling and it is hereby affirmed.'
During the hearing, the respondent moved that the Trial Examiner
be disqualified in that he had shown "bias and prejudice" by his
examination and 'cross-examination of certain of the respondent's
witnesses. ,This motion was denied by the Trial Examiner. In
affirming this ruling, we believe that the Trial Examiner in his exami-
nation of the witnesses properly exercised a judicial prerogative, and
there is no evidence to support the respondent's contention that such
action manifested a bias and prejudice against the respondent, or in
any manner limited the right of the respondent to present its side of
-the case.3 At the close of the Board's case, the respondent moved
to dismiss-on the ground that the evidence adduced did not sustain
the allegations of the complaint. The Trial Examiner denied this
motion. At the close of the Board's case and again at the close of the
hearing, counsel for the Board moved to conform the pleadings to the
proof. The Trial Examiner granted this motion.
,During the hearing, the Board and the respondent were represented
by, counsel and the Union by an official; all participated. Full oppor-
tunity to be heard, to examine and to cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course of they hearing, the Trial Examiner ruled on various
motions other than those mentioned above 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. At the close of the hearing, counsel
for'the Board moved to strike that part of the respondent's affirmative
2 In Consumers Power Company v N. L R B (C C A 6), decided June 27, 1940, the Court, in dis-
missing the respondent's contention that the charge therein did not comply with the Board ' s Rules and
Regulations and was therefore inadequate to confer jurisdiction , stated
The Act contains no specification of what constitutes a proper charge, save that it shall state that the
respondent has engaged , or is engaging in any unfair labor practices affecting commerce . It would
seem'clear, therefore , that the provisions of Article 11, S 4, of the Board 's rules and regulations , are for
the information of the Board , to apprise it of the nature of the unfair labor practices alleged with suffi-
cient particularity to enable it to determine that the charges are substantial and not frivolous, and so
that it may enter intelligently upon the exercise of its exploratory powers.
a Cf Code of Evidence , Tentative Draft No 1, American Law Institute (April 18, 1940), Rule 111, wherein
the following principle concerning the calling and examination of witnesses by a judge is stated:
The judge may calla witness of his own motion, or at the request of a party He may also interrogate
a witness , by whomever called, in such manner as be may deem expedient.
Comment
It is generally recognized in this country that the judge may in the eercise of his discretion call a
witness whether requested to do so by a party or not, and that he may examine any witness called by a
party His action in so doing , however, is often condemned as amounting to a comment upon the
weight of evidence or credibility of witnesses . This rule confirms the power of the judge to call and
examine witnesses , and removes any restrictions which may be thought to exist as to the form and
extent of examination
It also should be noted that , after the hearing had been in progress for approximately 10 days, counsel
for the respondent stated that he had no complaints as to the manner in which the Trial Examiner was
conducting the hearing , but continued , " I am complaining about the law, which I think is wrong in
principle."
PAUL UHLICH & CO., INC. 683
defense which alleged that the Board cooperated with the Union in
initiating this proceeding not because of any violation of the,Act by
the respondent , but to compel the respondent to comply with various
demands of the Union not required by the Act . The Trial Examiner
reserved ruling on this motion . At the close of the hearing the
respondent again moved to dismiss on various grounds, including that
of lack of substantial proof to support the allegations of the complaint.
The Trial Examiner also reserved ruling on this motion.
On February 20, 1940, , the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all parties. In his
Intermediate Report, the Trial Examiner stated that the respondent
had failed to produce any evidence to substantiate its charge of col-
lusion between the Board and the Union in initiating this proceeding.
Accordingly , he granted the motion made by counsel for the Board to
strike that part of the respondent's affirmative defense which alleged
such collusion , on which motion he previously had reserved ruling.
Also, the Trial Examiner , in his Intermediate Report, denied the
respondent's motion to dismiss, on which he previously had reserved
ruling.
The Trial Examiner found that the respondent had engaged in
and was engaging in unfair labor practices within the meaning of
Section 8 ( 1), (2), (3),-and (5) and Section 2 (6) and (7) of the Act,
and recommended that it cease and desist therefrom and take certain
specified affirmative action to effectuate the policies of the Act.
Thereafter, the respondent filed exceptions to the Intermediate Report
and a brief in support thereof.
The Board has considered the exceptions to the Intermediate
Report and , save as they are consistent with the findings , conclusions,
and order below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Paul Uhlich & Co., Inc., a New York corporation , with its office
located at New York City , and its plant at Brooklyn, New York, is
engaged in the import and export business , and in the manufacture,
sale, and distribution of dry colors and related products . The dry
colors manufactured at its Brooklyn plant, here involved, are used
in the manufacture of paint, printing inks, linoleum, plastic products,
buttons, paint , varnish, lacquer, and rubber products. The principal
raw materials used by the respondent are coal derivatives , approxi-
mately 10 per cent of which are obtained " outside the State of New
York. From July through December 1938, approximately 72,000
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pounds of its finished-products , constituting 67j2 per cent of its out-
put for that period, were shipped to destinations outside the State of
New York.
Since the death of the'fdunder, Paul Uhlich, on December 23, 1935,
the business of the respondent has been operated by four trustees,
provided for in Uhlich's will. The trustees are, Mrs. H. Madeleine
Uhlich, widow of the founder, Miss Catherine Fair, Mr. Frank Meyer,,
and the Kings County Trust Company., These trustees, through
their control of the respondent's stock, elect directors for the respond-
ent and have general supervision of its affairs under terms laid down
in the will.
II. THE ORGANIZATION INVOLVED
Paint, Varnish and Allied Products Division, United Mine Workers
of America, District No. 50, C. I. 0 , is a labor organization admitting
to its membership all production, maintenance, and shipping em-
ployees of the respondent, but excluding supervisory and clerical
employees , . and research chemists.
III. THE UNFAIR LABOR PRACTICES
A. Inte7ference, restraint , and coercion
11 In the fall of 1938 the Union began a membership drive among the
employees of the Brooklyn plant, and by October 8, 1938, a majority
of the employees had designated the Union as their. bargaining agent.
When Edward E. Griffith, the plant superintendent, returned to the
Brooklyn plant from a business trip on October 10, 1938, lie received
a call-from Samuel Machlis, a representative of the Union , requesting
an immediate conference at the plant. Griffith granted the request,
and subsequently met with Machlis and employee members of the
bargaining committee. Machlis informed Griffith that a majority of
the men had joined the Union and that thereafter he would represent
them. Griffith replied, "This is rather a shock to me. I have always
been very close to these men. Their troubles were my troubles."
He further stated that he felt the employees should have informed
him of their -organization plans. Machlis stated he would submit a
contract and Griffith replied that he would be willing to consider it.
Later in the day and during working hours, Griffith called a meeting
of,all the employees in the plant and in substance stated-
It was not a fair and honest thing to knife a person in the back,
When they could have joined a union any time. It was their
privilege: To do it while I was away.
After all, it does not make any difference, but I do feel a little
hurt about it after the treatment I had given the men.
PAUL UHLICH & CO ., 'IN C. '685
Griffith testified that at the meeting he said to John O'Brien, 'a member
of the Union ,- that he did not think that O'Brien would "do a thing
like that." This statement Griffith explained as based on his feeling
that O'Brien " should have come to me because at that particular
time he was one thousand dollars, or' approximately one. thousand
dollars in my debt." After asking the employee representatives of the
Union to remain, Griffith dismissed the other employees from the
meeting. He then asked the members ' of the committee what they
wanted, and in reply they mentioned various grievances including
the need for better respirators , rubber gloves , and a place in which to
eat lunch. William Volz, a member of the committee , testified that
Griffith then said:
All right, there ' ll be no bonus this year. The bonus is definitely
stopped. And you, Volz, I promised you a , raise before I went
away. You remember that? Well, there can't be-there can be
nothing like that now; you may as well . forget about it. Not
after this I can't give it to you.
Griffith admitted that Volz , with others , had been promised a raise,
and that about November 1 , 1938, he informed Volz that the respond-
ent then was unable to grant it. He explained that the failure to
grant this promised increase was due to complications arising because
of the financial condition of the respondent , and the requirements of
the Federal Fair Labor Standards Act, the provisions of which were
just becoming effective . Whatever the real reason for not granting
the increase , it is clear that Griffith 's statement to Volz was intended
to express , and in fact conveyed , his resentment toward union organi-
zation, and therefore was an act of coercion . After promising the
committee that he would build , a lunch room and -supply good respi-
rators, Griffith further said, according to Volz's testimony:
there could be no C. I. O. union there. He wouldn't mind any
other union under the A. K of L. or any other union but not the
C.I.O.
On October 21 a vote was taken by ''12 of the 13 union members,
constituting a majority of the employees in the respondent 's, plant,
as to whether or not they desired to be represented by the Union.
The result of the vote was 11 to 1 for ' the Union . Several of the
Board's witnesses , supported in part ' by testimony given by certain of
respondent 's witnesses , testified , and we find , that this vote `was taken
at Griffith 's request, that he had made special ' arrangements for the
extension of the work week in order that the men might be present to
take this vote , and that the results of the•vote were thereafter reported
to him by Joseph Whitman, a member of the Union . 'Whitman
testified that preceding this vote, he had a conversation ' with Griffith
by whom he was ' advised to tell the-men that in case they gave. -Lip
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their C. I. O. affiliation, the respondent would do better than the
proposed union,contract in some things. Griffith specified, according
to Whitman,s testimony, "Well, a week's vacation and more holidays
and a little more money."
After, Whitman reported the result of the ballot to Griffith, the
latter stated, according to, Whitman's testimony, "Well, I gave them
their last chance.. You better, tell the men at quitting time to pack
up their clothes. , I am closing up the place Saturday and I will advise
you to,do whatever I want to." Going downstairs, Whitman met
Volz and reported this matter to, him, whereupon they began to remove
their clothes from their lockers and pack them up. Ernest Bossa,
assistant superintendent, observed these activities and inquired as to
the cause. They reported the orders they had received from Griffith.
Thereupon, Bossa telephoned I to Griffith and, returning, told the
men that Griffith had been misunderstood,, that he had meant only
that Whitman should tell the .men to take their clothes- out in order
that the inside of their' lockers' might be painted. Griffith acknowl-
edged the telephone conversation with Bossa substantially as stated
:by Whitman, but contended that he merely' had informed Whitman
of his intention to paint the room and the inside of the lockers. Griffith
testified that it was his belief that the room was painted the next day.
Other witnesses testified that the room was painted, but at a much
'later date, and that the inside of the lockers never were painted. In
view (of, the circumstances, we' do not credit Griffith's testimony as
to this incident, and find that the act of coercion occurred substantially
as stated by Whitman and as confirmed by Volz.
James 'Hendren, , a pressman who had 8 years' service in the re-
spondent's employ, testified as follows concerning advice given to,
him on April 26, 1939, by Ezra Wethered, after the latter had been
promoted to the position of acting assistant 'superintendent:
"If you-if you men want to• play ball with •me," he says, "I can
do a lot for you." He says, "I'm in a position to do plenty for
you." He told me if we would do away with Machlis or any
other third party and meet together, he, could guarantee us a
bonus back again. , ,
We'd get paid for our sicknesses, two weeks' vacation with pay
in the summer, and, he also spoke about an increase in wages.
He then told, me that-he says: "You're not too busy this after-
noon," he says,."you could get in touch with the rest of the men
and have a meeting during working hours, talk it over with them,
and I would like to know what you're going to. do by quitting
time." . ,
Similar testimony concerning 'Wethered's anti-union activities was
given ,.by employees Volz; Thomas Kenyon, and Edward Carroll.
PAUL 'UHLICH & •CO., INC. 687'
Their statements differed in details'but agreed that Wethered was in
a supervisory position at the time, and that he promised various'
benefits in case the men would abandon the Union. ''Wetlere'd did'
not recall nor deny the making of these promises, and we find that
this incident occurred substantially as stat'ed'in Hendren's testimony.
Kenyon, a color maker in the plant'with. 7 or 8 years' service,'
testified, and we find, that early 'in 1939 Griffith 'tol'd' him' that the
respondent "wouldn't sign any contract with an outside' union, and
that at any time the plant may close' down it doors." Volz also
testified that, in connection with a conversation concerning ' union
activities in the fall of 1938, Griffith''warned''that' he' was 'goingto
"close up", the factory.
Several of the Board's witnesses stated that' in May, Wethered
notified the union members that he would no longer recognize Kenyon
as their shop steward although he had' been 'so "designated by 'the
employees, but that thereafter any grievances should be presented
by the individuals concerned. ' Wethered's own version of this incident
is•quoted from his testimony:
I told Mr. Kenyon that he was the shop steward, but if ho 'could'
not get his-his complaints straight, that I would not recognize
that-him as the spokesman for the men; that I would recognize
every man as an individual, "because you have told me some
statements that is not true. Therefore I cannot accept your'
word as the law for the rest of the men." That they ,all have an
equal chance to come to me and state their cases.
We find that Wethered by this admitted act interfered with the em-
ployees' right to have their grievances handled through collective
action. ' • • , , ' I I
From the foregoing it is apparent,,and we find, that by disparaging
the Union, threatening reprisals if the employees remained members
thereof, refusing to recognize the representative chosen by the em-
ployees for the presentation of shop grievances, and promising benefits
should the employees abandon the Union, and by various other acts,
the respondent has interfered with, restrained, and coerced,its em-,
ployces in the exercise of the rights guaranteed in Section 7 of the Act.
B. The formation of the Plan
On October 10, 1938, shortly after the 'meeting of Griffith with the
union committee as described above, Wethered called' Whitman and
Volz into the washroom. According to Whitman's testimony.,
Wethered told them that, "Griffith' gave him the privilege' to talk
to us to see,what he could do about joining a company union .
We're willing to do, better . . .:than' what -you fellows ask for in the,
contract, whatever it is," and further that "Griffith gave him the
privilege to spend any amount of money." This testimony was con-
Egg DECISIONS OF NATIONAL LAnOR RELATIONS BOARD
firmed by. Volz. Wethered's testimony; shows that he had had a
conversation, with Griffith that morning shortly after Griffith had
learned of the. organization in the plant. Wethered further admitted.
that, he had had a conversation with Whitman and Volz at the time
and place indicated by their testimony. His version of the incident,
however, states that this conversation with Whitman and Volz had
to do, solely with the, question of why Wethered, had not been asked
to .join ,the, Union. Wethered, at this time did not . occupy a super-
visory, position, and Griffith denied that he had ever given Wethered
authority„ to, sound out the men as to the possibility of securing their
allegiance to, a company union. We are satisfied, however, that
Wethered urged the formation of a company union substantially as
stated by Whitman and Volz and, in view of the circumstances, includ-
ing the fact. that Wethered began his activity shortly after Griffith
made. known his hostility toward the Union, we also conclude that
Griffith encouraged Wethered's organization efforts. This conclusion
is confirmed by the undisputed evidence of other events-occurring in
the plant at about the same time, particularly the fact, as. found
below, that Wethered, together with Oroshnik, Charles Scholz, and
others, signed on'October 17 a 'document presented by Griffith pro-
viding for a.p'lan't union.
'On October 12, 1938, Oroshnik, who at the time was chemist in the
plant and whom Griffith regarded as a supervisory employee, told
various employees that he had permission from Griffith to inquire
whether they would be willing to join a company union and withdraw
from the Union. Testimony to this effect "was given by Volz, Molini,
Hendren, 'and Whitman. Oroshnik, who resigned from the respond-
ent's employ on January 1, 1939, did'not appear as a witness. Griffith,
in his testimony, beyond stating that he had not authorized such a
canvass, did not dispute this occurrence. The employees' testimony
stands unrefuted on the record and is credited by us.
On October 17; near quitting time, Griffith called the men together,
and read to them a document 'which had been prepared for him by
one Ballieson, a labor relations' counsellor attached to the Brooklyn
Chamber of Commerce. The introductory paragraph of the document
refers to the fact that a' week earlier, Machlis' had called upon Griffith
and that he had since presented a proposed contract. -It then stated,
"We have studied this contract and have come to the conclusion that
we cannot sign it." After enlarging upon.the benefits received by the
employees' through labor policies laid down by Paul Uhlich, the
founder of the Company, the statement declared that the respondent'
would not enter into any closed-shop contract and further said, "The
company also will not sign a contract and, as you know, the record
proves that it has always maintained its promises' and pledges." The
-r-
PAUL UHLICH & CO.; INC. 689
essence of the respondent's proposal as it relates to a company union
is contained in the following paragraph:
While the company will not sign a contract for a closed shop or
sign a contract with any union, nevertheless, if you employees-so
desire, the company will recognize any collective bargaining
agency you may elect consisting of your fellow employees and
you may have on that committee any outsider you choose, and
in this way we believe a method can be found for carrying on the
same cordial and satisfactory relationship which has existed from
the beginning of this company.
The closing paragraph reads as follows:
In closing let us emphasize the fact that we'have no interest in your
union or non-union affiliations. We cannot and will not object to
your having any one represent- you in collective bargaining that
you choose. 'We sincerely hope that you will give this matter
your deep consideration and, we will be glad to abide by the
wish of the majority in this respect.
After reading the statement, Mr. Griffith produced another paper
which he requested certain employees to sign. The introductory para-
graph of the document read, "'We the undersigned employees'of Paul
Uhlich & Company have this day formed a committee that we wish
to' have represent us in collective bargaining . . . " The document
further set forth that the committee had no connection with any out-
side organization, and that its members were authorized to negotiate
with the respondent, provided they were bound by the provisions con-
tained in the document previously read by Griffith. The third and
final paragraph was as follows: "We also hereby notify you that we
have not authorized any other group to represent us in collective bar-
gaining with you as our employer." Wethered, one of the signers of
the document, testified, "It was just an agreement that there was
satisfaction, satisfactory satisfaction, among the men, the way we had
been treated, and so forth." Other of the employees who signed were
Bossa and Oroshnik, supervisory employees, and William McCartney.
and Scholz. Scholz was the only union member among the signers.
Andrew Molmi, another union member, testified that on presenting
the document Griffith said to him, "How about you Andy?" Mo-
lini replied, "I don't know what to do." Whereupon Griffith said, "I
thought you were a friend of mine but I guess I'm wrong." Edward
Carroll, also a union member, testified that he was asked by Griffith
to sign the paper, but demurred, saying, "I am going to see what the
rest" of the men do." Griffith thereupon said, according to Carroll,
"lie didn't think I'd do that; I was in the factory because I was a
friend of, the family." Griffith admitted having asked Molini and
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carroll to sign.. We find that this incident was correctly stated by
them. ' The document bearing, the various signatures, according to
Griffith's testimony, was thereafter taken to Ballieson's office.
Some time in December, at a date not definitely fixed in the record,
'Wetheinvited' employees Andrewv Melini,, Julio Burgos and
serratte Rodriguez 4 to meet with him at a nearby inn and indulge1 . 1 el
in a social drink or two.' Molini and Burgos reported this invitation
to union. committeemen, Whitman find Volz, and were advised to
accept and find out what Wethered had in mind. When they arrived
at the inn,' th'ey' found that Wethered was accompanied by Scholz,
the day engineer in the plant and, as stated above, a signet of the
paper presented by Griffith 'on October 17. Whitman and Volz
were accustomed to f working somewhat later than the other men
concerned,;but after finishing their duties they went to the inn arriv-
ingtsome 45.minutes later than the.five other men. What happened
there. can best be presented by the testimony of Molini. According
to.Molini; Wethered first asked if the men still wanted to belong to
the "C. I. 0." He received no answer. Molini went on to testify:
So,he started telling us that he had seen Mrs. Ublicli and he
knows, the place is going to close down after Christmas, and if
we join a company union that he knows we-could get whatever
we wanted. , We'd get our bonus back and a raise and vacation
and , Then Charley ,Scholz spoke up and .he told us the. same
thing. He started telling us about that he thought the company
would treat us all right, would give us what we ask them for.
And he (Scholz) said he belonged to unions before, that he went
out, on strike once and he-when it was time to pull out he was
the only one out, and, he was-left out in the cold. So he says:
"I, don't, believe in unions no more." So he said: "Why don't
you fellows get wise and stick with us," stick with the com-
pany? I-I think the company will treat you all right.
Since neither Rodriguez 'nor Burgos could furnish any clear recol-
lection of what happened on this occasion, and the testimony of
Wethered was 'very' vague, the testimony of Scholz assumed large
importance. He testified:
Well,•we all had our little talk about unionization and different
topics. I ,don't know. I had"my say. I tried to get the boys
to 'get out of the union, I myself.
I tried to put them out of the ether, so to speak, that the
C. I. O. put them under. The whole set-up was all wrong, the
whole set-up. ,
4 Known in the plant as "Frank" and frequently referred to under that name in the transcript,
PAUL ' UHLICH '& 'Co.; INC. 691'
Wethered admitted that he "wanted to form some sort of committee
whereby we could band together to' wo'rk' for' one common cause, the
interests of all."
Moline further testified that', within a' few days-after this social
occasion,' Griffith came to him and asked, "Did you make 'up your
mind?" Molini inquired "About' what," whereupon Griffith replied;
"what Mr. Wethered told you the other day." When Molini replied
that he had not yet made up his mind, Griffith said, according to
Molini's testimony, "I thought you was a friend of mine but I guess
I'm wrong" and further stated, "something about the plant was
going to close down that Thursday, to clean up the place and getting
ready to close it down." Griffith denied any such conversation with-
Molini. After considering the demeanor' of the various witnesses,'
and the consistency of the events narrated by Molini with the undis-
puted record of other occurrences in the plant at about this time, the
Trial Examiner gave no credence to Griffith's testimony as to this
event. We agree with the Trial Examiner's conclusion.
Scholz's testimony shows that on August 13, 1939, he called a
meeting, attended by eight employees, for the purpose of urging the
employees "to sign a petition against unionization in the place."
Scholz assured the employees present that Griffith would not sign a
contract with the Union, and stated that he would speak' to Griffith
concerning concessions- that'might be granted to an inside organiza-
tion. Scholz admitted that he had been accustomed to speaking to
Griffith frequently each week about the union problems' of the plant,
and that in October 1938, he had questioned Griffith as to what
concessions he would grant to an inside union. At that time, Griffith
stated, "I will give the men the same thing that the C. I. O.' can give
them." It is apparent and we find, that the attempts by Wethered
and Scholz to form an inside union were approved by Griffith and
were in full accord with Griffith's original scheme to form an organi-
zation within the plant.
The activity of Scholz furnished the basis for an attempt made
by five union men in the third week of August 1939, to enlist him in
an effort to confer with Griffith, ostensibly to discuss what conditions
he would be willing to give in case they gave up their union organiza-
tion. At the time, as these union members testified, their prime
purpose was to endeavor to secure the reemployment of Volz who had
been discharged on July 14. Scholz accepted the commission and
spoke to Griffith in the matter, returning the answer to Kenyon, the
shop steward, that so long as the men were members of an outside
union, Griffith "couldn't talk contract with us or offer us or give us
anything.",
It thus is established that efforts by the respondent to oust the
Union and substitute an inside organization began immediately after
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge reached the superintendent of the plant that a union had
been formed. It is clear that in such efforts a leading part was taken
by three men who signed the Plant Union document on October, 17,
presented by Griffith. Wethered and Oroshnik initiated the move-
ment and the organization, efforts were continued by Scholz and
Wethered, both of whom were admittedly close to Griffith and acted
with his approval. Wethered formally was designated assistant
superintendent in April 1939, and after January 13,, 1939, when Bossa
left because of illness, had acted in that capacity. As noted in
Section III, A, above, Wethered continued his antiunion and pro-
inside union activities, after he had been promoted to a supervisory
position. The admitted action of Griffith on October 17, while not
successful in its purpose to enlist a majority of the employees in the
Plan which he proposed, did succeed to the extent of securing five
signatures to his proposal, three of which were of non-supervisory
employees eligible to union membership and one of whom was Scholz,
who had signed a union application card on October 7, 1938. The
efforts to discourage union` membership in favor of an inside organi-
zation were continued from October 10, 1938, to a date shortly before
the hearing began on September 18, 1939., It is true that the move-
ment initiated by Griffith did not result in a formal , structural, labor
organization. That the respondent's attempt to form such an
organization was abortive, however, does not condone activities
which are clearly prohibited by the Act.'
From the, foregoing facts and circumstances it is apparent, and we
find, that the respondent dominated and interfered with the formation
of the abortive Plan, and contributed support to it, and thereby inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
C. The refusal to bargain collectively
1. The appropriate unit
The Union contends that the respondent's production, maintenance,
and shipping employees, excluding supervisory and clerical employees,
and research chemists, constitute a unit appropriate for the purposes of
collective bargaining. At the hearing no evidence was offered to
dispute' this contention. The parties differed, however, as to the
5 Matter of Canvas Glove .Manufacturing Works, Inc and International Glove Makers Union , Local No 88,
1 N L R B 519 In this case, the facts of which are strikingly similar to the instant case , the Board stated
In our opinion , Section 8 , subdivision ( 2) of the Act forbids domination or interference not only where
it is successful , and a labor organization is actually formed , but also snakes it an unfair labor practice
where the domination or interference is unsuccessful Since the Act is remedial, it is appropriate
to require the respondent to cease and desist from unfair labor practices which may, at some future
time, be more successful
Cf Matter of Monticello Manufacturing Corporation and Steel Workers Organizing Committee , No 2085,
Affiliated With the Committee for Industrial organization , 17 N L . R B 1091 , Matter of Swift-& Company
and, United Packing I-louse Workers Local Industrial Union #814, 15 N L. R B 992
PAUL UHLICH & CO., INC. 693,
propriety of including certain specific employees 'within the above-
described unit.
While the Union and the respondent agreed that the two regular
engineers, engaged in maintaining steam and heat for the production of
colors, should be included in the appropriate unit, the Union requested
and the respondent opposed the inclusion of the extra engineer. The
extra engineer is employed generally from October to May on the same
type of work as is performed by the regular engineers. Although the
extra engineer's work is seasonal, we do not believe that such a con-
sideration should impair his status as an employee entitled to a voice
in the determination of representatives; consequently, we shall include
him, together with the regular engineers, in the appropriate unit.
During the summer months, when the extra engineer is not em-
ployed at the plant, the respondent keeps a watchman in its employ.
The respondent contends that the watchman should be included in
the unit, and the Union does not dispute that contention. We con-
clude that, like the extra engineer, the watchman is a seasonal worker
entitled to a voice in the determination of representatives, and we
shall include him in the appropriate unit.
The respondent claims that Oroshnik, a research chemist who
resigned from the respondent's employ in January 1939, should be
be included in the unit as a production employee. The Union opposes
the inclusion of Oroshnik. Griffith testified that he considered
Oroshnik a supervisory employee, in that he checked up on colors and
batches produced by the other employees to determine whether or not
they were correctly made. Oroshnik, in October 1938, was one of the
representatives of the respondent at a conference between the Union
and the respondent. We shall exclude Oroshnik from the appropriate
unit.,
Wethered, until he was elevated to the position of assistant superin-
tendent in the spring of 1939, was a maintenance employee. That
Wethered should be deemed within the unit at all times prior to the
date of his promotion is not contested by the parties. It is clear that
Wethered was within the unit during the time that he was engaged,
as an ordinary maintenance worker.
d Some question arises as to the status of Moran, a color maker and a member of the Union until the spring
of 1939, when he was elevated to the position of laboratory chemist After assuming the duties of laboratory
chemist, Moran resigned from the Union , and testified that he no longer considered himself a production
worker. Griffith testified that, except for the independent research work performed by Oroshnik, Moran
as laboratory chemist engaged in the same character of work as had been performed by Oroshnik prior to
the termination of his employment with the respondent There is no dispute as to the propriety of including
Moran in the appropriate unit during the period that he was engaged as a color maker, The respondent
contends , however, that Moran should be deemed still within the unit despite his position as laboratory
chemist, while the Union has taken no position as to his eligibility except that it excludes research chemists
Moran cooperated with Griffith in conducting experiments for research , he engaged in substantially the
same character of work as had Oroshnik , who was considered a supervisory employee by Griffith, and as a
laboratory chemist, Moran considered himself out of the production unit Under the circumstances Moran,
as laboratory chemist, no longer may be deemed to be within the appropriate unit.
323429-42-vol. 26-45
694, DECISIONS OF NATIONAL.LABOR RELATIONS BOARD
We find that all the production, maintenance, and shipping em-
ployees of the respondent, exclusive of supervisory and clerical
employees, and research chemists, at all times material herein con-
stituted and they now constitute a unit appropriate for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other, conditions of employment, and that said
unit insures to the employees • of the respondent the full benefit of
their right to self-organization and to collective bargaining and other-
wise effectuates' the policies of,the Act.
2. Representation by. the Union of the majority in the
appropriate unit
The respondent's pay-roll 'lists for the weeks ending October 8,
1938, and June 21, 1939, within which period several 'bargaining
conferences were held between the respondent and the Union, were
introduced in evidence. These lists show 15 employees to be within
the appropriate unit for the pay-roll period ending October 8, and 13
employees in the unit for the pay-roll period ending June 21.
There also was submitted- in evidence 13 membership application
cards designating the, Union I as bargaining representative-. , All • of
these'cards were signed between October 6 and October 8, 1938. • The
cards reveal that 43 of those employed in the unit for the pay-roll'
period ending October 8; 1938, and 10• of those employed in the ' unit
for the pay-roll period ending June -21, 1939, were 'members of • the
Union. , , •
Atthe hearing, Walter, Dowd, Rodriguez, Burgos, and Scholz, all,
of whom had signed the Union's cards, testified, in response to exami
nation by counsel for the respondent, that they no longer desired: to
be represented by the Union for purposes of collective bargaining'
with the respondent. In view of the various and numerous unfair
labor practices of the respondent, we are satisfied that this professed
defection from ' the, Union resulted from the respondent's unlawful'
conduct and cannot be deemed to represent a free and untrammeled
expression of the desires of these employees. Accordingly', we, are
unable to give any weight to the testimony that these four employees
no longer wish to be represented by the Union.
We find that on October 8, 1938, and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees in the appropriate unit, and, pursuant to Section 9 (a) of
the Act, was the exclusive representative of all the employees in'such
unit for the purposes of collective bargaining.
7 The name of the Union designated as bargaining agent on these cards is "Chemical Division of District
No. 50, United Mine Workers of America", whereas, the name of the Union filing the charges herein is
"Paint, Varnish and Allied Products Division, United Mine Workers of America, District No. 50, C. I. 0."
At the hearing Machlis testified , in substance , that the Union to which the application cards were addressed
is the parent organization of the Union filing the charges herein ,
PAUL UHLICI3 '& 'CO., ` INC. ' 695
3. The ,refusal to bargain
As noted in Sections III A and B above, the respondent, after
being notified by the Union that a majority of the employees had
designated it ' as their bargaining representative , by various acts 'of
coercion attempted to persuade the employees to abandon the Union
in favor of an inside organization.
Having met with little success in his attempt of October ' 17, 1938,
to set up an independent organization , Griffith. on October 18 met
with representatives of the Union to discuss a contract that it had
submitted . Among other things, the contract provided for a closed
shop, share-the-work method of operation , a fixed lunch hour; 11
named holidays with pay, hiring through the Union, review by the
Union of discharges , fixed hours with time and one -half 'for ' overtime,
increased wages, vacations with pay, and procedure for the presenta-
tion of grievances . In 'a document entitled "Objections to the
Union's Demands," which was read to the representatives of the
Union at the October 18 meeting, the respondent refused all the Union's
demands except those providing for a procedure for the presentation
of grievances , time and one-half for overtime , and a week 's vacation
with pay. The concluding paragraph of this document read:
In general , the company does not see fit to sign a written con-
tract with this union because it feels that the union is not a
responsible party. A true contract can only be written between
responsible parties. The union could not be held for breach
of contract nor has this Local , been in existence long enough
to, prove that it is a reliable organization . The company has
no objection to the union at any time presenting grievances
for its members or bargaining with. the union for its members.
The demands in general and in their entirety are so preposterous
and out of line with the conditions under which our competitors
operate that should we agree to its terms it would,mean that we
would have to go out of business.
Subsequent conferences between the Union and the respondent
were held on October 24 and November 3, 1938, and January 4 and
March 15, 1939. In these later meetings , the parties made no
advance over the position reached on October 18.8
In the conference held on January 4, 1939, the Union "representative
suggested that an arbitrator or mediator be called in. The Union
e 9'lie respondent at the hearing contended that the majority representation by the Union had never been
proven. After October 10, 1938, when Griffith was informed that a majority of the employees had designated
the Union as their bargaining agent, the question of majority representation by the Union was not raised
at any of the bargaining conferences. Griffith in his testimony named 10 men whom he had seen wearing
union buttons in October 1938, thereby acknowledging notice that a majority of the employees had sub-
scribed to membership in the Union. At the conference of October 18, the respondent admitted that the
Union was entitled to negotiate for the employees Also, as noted above, Griffith was notified of the results
of the election held at his behest on October 21, at which time a clear majority of the employees chose the
Union as their bargaining representative.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also asked for a counterproposal from the respondent. Griffith,
speaking for the respondent, stated that he had no counterproposals
to make, and while he agreed to consider the arbitration or mediation
suggestion, he later declined to enter into any such proceedings unless
and until the charges filed against the respondent by the Union were
withdrawn.
As noted in Section III A above, Wethered, as assistant superin-
tendent, notified the employees in May 1939, that he would no longer
recognize the representative chosen by them for the presentation of
shop grievances.
At the hearing, Griffith testified that the essential difficulties which
the respondent found with the men's demands were three: (1) the
request for a signed agreement; (2) the closed shop; and (3) the demand
that the Company should consult with the Union both in the hiring
and in the discharge of its employees. From the beginning of bargain-
ing negotiations between the Union and the respondent, until the dis-
continuance, thereof because of the failure of the parties to agree on
certain issues presented, the Union requested that regardless of the
terms agreed upon, the parties be willing to incorporate those terms in
a signed agreement. The respondent at no time during the bargaining
conferences receded from the position that it would never enter into
a signed agreement with the Union, stating as one of the reasons there-
for, that it did not consider the Union a responsible party. The Trial
Examiner in his Intermediate Report found that this insistence by
the respondent that it would not reduce any understanding reached
between the parties into a written contract was a factor in the final
breakdown of negotiations. We agree in this determination. In
numerous other cases we have found that the duty to bargain collec-
tively encompasses the duty to reduce to writing the terms of any
understanding reached if requested to do so by the employees' repre-
sentatives.9 It is also apparent that there is no merit in the respond-
ent's contention that the Union insisted upon a closed shop, preferen-
tial hiring, and union review of discharges as conditions precedent to
any agreement. It is undisputed that Machlis, during one of the
bargaining conferences, suggested that a representative of the Division
of Mediation for the State of New York be called in to "sit in with us
as we negotiate our contract, and we will take his advice, or listen to
his advice, as he offers it to either party." A suggestion such as this
9lllatter of Westinghouse Electric & Manufacturing Company and United Electrical , Radio and lvfachine
Workers of America, 22 N L R B 147, and cases cited in note 23 therein , Matter of Producers Produce
Company and Amalgamated Meat Cutters and Butcher Workers of No,th America , Poultry and Egg handlers
Division, Local No 172, Affiliated with American Federation of Libor, 23 N L. R B 876, Cf Art Metal Con-
struction Company v N L R B , 110 F (2d) 148 (C C A 2 ), decided February 26, 1940, mod 'g as to other
issues and enf'g Matter of Art Metal Construction Co and Int Ass'n of Machinists , Local 1559 , 12 N. L R. B.
1307, N. L R B. v Highland Pork 1lfanufactuiing Company (C. C. A 4), decided March 11, 1940, enf'g
Matter of highland Park Manufacturing Co and Textile Workers Organizing Committee, 12 N. L. R. B 1238.
PAUL UHLICH & CO., INC. 697
emanating from the Union's representative indicates a willingness on
the part of the Union to compromise these demands which Griffith
claims to have considered as real obstructions to collective bargaining.
As already noted, the respondent, (1) immediately after being
requested to recognize the, Union as the majority representative,
promised its employees certain benefits should they abandon the
Union in favor of a plant organization; (2) on the day previous to its
meeting with the Union for the consideration of a proposed contract,
urged the employees to subscribe to its proposal for the establishment
of ,in inside organization; and (3) while ostensibly conferring with the
Union for the purposes of collective bargaining, continued its attempts
to secure employee adherence to the Plan. In view of the circum-
stances, we think the above conduct by the respondent clearly mani-
fests that at no time during the negotiations with the Union slid the
respondent intend to bargain collectively in good faith.
We find that on October 18, 1938, and at all times thereafter, the
respondent refused to bargain collectively with the Union as the
representative of a majority of its employees within an appropriate
unit, and thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. ,
D. The alleged discriminatory discharge of William Volz
The amended complaint alleged that the respondent on July 13,
1939, discharged and refused to reinstate William Volz because he had
joined and assisted the Union . Volz joined the Union when it began
its membership drive at the respondent ' s plant in the fall of 1938, and
served on the Union 's bargaining committee from the date of its incep-
tion. He began working for the respondent as a pressman in 1922
and was employed as a color maker at the date of his discharge , having
been granted several wage increases during this interval . Griffith
described Volz as "Very capable . One of the best men we had in the
place."
On July 12 Wethered gave Burgos a formula and directed that he
should go to Volz and aid him in producing the batch of color, which
the formula represented , by weighing out the materials needed.
Wethered also instructed , Volz who, at the time was busy with another
batch, to show Burgos where the materials needed for the operation
were located . Volz testified that he twice showed Burgos three barrels
from which materials were to be drawn in weighing off the batch.
Burgos, however , who had never worked in this part of the plant
before, testified that Volz declined to show him where the materials
were located , but referred him rather to the formula which he had
with him. During the time that Burgos was in the room with Volz,
they had some discussion about union matters. Although Burgos had
joined the Union in the fall of 1938, he subsequently had become
698 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
inactive therein, and other union members suspected that Burgos and
Rodriguez had joined the inside organization sponsored by Wetherell.
Volz testified that he inquired why Burgos no longer spoke to.the
union members and that Burgos retorted that the failure to talk was
due to the attitude of union members toward him. Burgos' version,
however, was that Volz was disinclined to be helpful because Volz
was doubtful of Burgos' loyalty to the Union. Burgos, after a short
time, left the room and complained to Griffith that he was unable to
carry out his assignment because Volz was unwilling to show him the
material which he was supposed to weigh. Griffith thereupon turned
the assignment over to Kenyon. Later Wethered reprimanded Volz;
stating, "Bill, -when I send a man to you and tell you to show him
something I expect you to do it." Volz contended that he had done
exactly as Wetliered had directed him and suggested that if Wethered
wished the formula read for Burgos, he should have given it to Volz.
Wethered then responded that Volz's attitude was insubordinate and
might lead to his' discharge. Volz retorted that Wethered's position
also was not too secure, and that he knew many things about Wethered
which might be reported to Griffith.
The next morning, July 13, Wethered complained to Griffith con
cerning this incident, and Griffith thereupon called in Volz and
instructed him to tell all the union members that Wethered had full
authority to hire and fire employees in the plant. Volz said, `,`All
right," and left. During 'the same afternoon, Volz asked Rodriguez
for the address of one Pechacho, a former employee in 'the plant, with
whom Burgos had had some previous difficulties, including a fistic
encounter. Rodriguez, being a close companion of Burgos, mentioned
this request of Volz to Burgos, who voluntarily wrote the address of
Pechacho on a slip of paper and gave it to Volz. Burgos testified that
Volz, upon taking the address, stated, "I fix you." Volz admitted
that Burgos handed him the address, at the same time stating, "Tell
him (Pechacho) to come over here-I'll fix him myself." Shortly
thereafter, Volz returned the address to Burgos. Volz testified that
lie made inquiries of Pechacho's address for Whitman's brother who
had some thought that he might find a job on the steamship on which
Pechacho was working.I Whitman confirmed this testimony; however,
no explanation was made eitlier'to'Burgos, Rodriguez, Wethered, 'or
Griffith, that such was the reason for'Volz's inquiry.
Burgos complained to Griffith concerning this alleged threat ' by
Volz, and the matter was then' turned over to Wethered with instruc-
tions to investigate and take appropriate action. Wethered then
summoned Burgos and Volz, instructing Volz that he could not
threaten anybody on company property 'and that he disapproved of,
Volz's insubordinate conduct of the previous (lay. Although Volz
denied having threatented Burgos,, Wethered informed him that it
.PAUL UHLICH & CO:,' 1NC..
would be necessary to lay him off. According to Wethered's, testi-
mony, Volz then responded, that Wethered, in laying. shim off, was
merely acting • as a "puppet", for Griffith. Volz, admitted 'telling
Wethered he was only a "Charlie McCarthy" for Griffith. Wethered
stated; "When you feel that you know how to act toward a fellow man
I may consider taking you back." At, the hearing, Wethered testified,
"I laid off . Volz because there had been 'a charge, against him and
because'he talked back to me and doubted the authority that I had."
In view of the circumstances, we concluded that thee lay-off occurred
for the reasons stated by Wethered rather than because of Volz's
union membership or activity.
On July 14, the morning following his lay-off of Volz, Wethered
reported to Griffith concerning the incident, after which Griffith
requested Kenyon, the shop steward, to investigate the alleged threat
against Burgos by Volz' and that if it was' found that Volz had not
threatened Burgos, he would be taken back. At the, hearing the
respondent claimed that at this point Volz was temporarily laid off
subject to being rehired if it was found that the charges made against
him were false; and that subsequently he was permanently discharged
due to the admission of, Volz that he was in possession of copies of a
substantial part of the respondent's formulas which it used for'making
colors.
As to this alleged cause for the final discharge of Volz, Griffith
testified that on the morning of July 14, Rodriguez reported, that in
response to frequent requests by Volz some 6 or,7 months previous,
he, had supplied Volz with copies of the weights and measures of
various formulas that he worked on. Rodriguez at the time, of
delivering this material to Volz was employed in the ice-color depart-
ment while Volz was employed in the dry-color department. , When
Volz appeared at the plant later in the morning to talk with Griffith
concerning his lay-off by Wethered, Griffith questioned Volz con-
cerning Rodriguez's report. Volz answered that Rodriguez had given
him copies of a "lot of formulaes," and that, he was in possession of
the "biggest part" of the respondent's formulas. Griffith responded,
"You should be able to get a good job." At this,point,Volz left the
plant and has not since been reemployed by the respondent.
Although, Griffith admitted that anyone working as a color maker,
as did Volz, would become familiar with,the formulas that he worked
with, yet, he testified ,that the only legitimate possession of formulas,
or copies thereof, by the, employees was,in connection with their
actual work of making colors., It. was the uncontradicted testimony
of all witnesses, including Volz,, that the formulas were regarded as
the confidential property.of the respondent and that the employees
on finishing the color which the, formula represented were required
to turn the,formula back to the respondent for safekeeping.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,Griffith stated that, after this admitted violation of the respond-
ent's regulations as to its formulas by Volz, he considered Volz
ineligible for further employment, and that he so informed Kenyon,
whereupon the union investigation of the alleged threat by Volz
against Burgos was dropped. Since Volz admitted to Griffith that he
had solicited information as to certain formulas from a fellow worker,
we are satisfied that his additional statement that he was in possession
of the major portion of the respondent's formulas provided a reason-
able basis for the respondent's conclusion that Volz had misused the
confidences entrusted him as a color maker.
In view of the foregoing, we find that Volz was discharged for
reasons other than his union membership and activity. Accordingly
*e will dismiss the complaint insofar as it alleges such discrimination.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A, B, and C, above, occurring in connection with the operations
of the respondent described in Section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead' to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has interfered with, restrained,
and coerced its employees in their exercise of the rights guaranteed
in Section 7 of the Act, we shall order it to cease and desist therefrom,
and to take certain affirmative action designed to effectuate the policies
of the Act.
We have found that the respondent has dominated and interfered
with the formation of, and contributed support to, the abortive Plan.
The fact that the respondent met with little success in this endeavor
is no assurance that in the future it will refrain from engaging in unfair
labor practices similar to those directed to the formation of the Plan.
Thus, we shall enter an appropriate order that the respondent cease
and desist from such unfair labor practices.
We have found that on October 18, 1938, and at all times thereafter,
the respondent refused to bargain collectively with the Union as
exclusive bargaining representative of all its employees within an
appropriate unit. In connection with its refusal to bargain, the
respondent on several occasions expressed its determination not to
sign any agreement with the Union regardless of the terms thereof.
We shall order the respondent, upon request, to bargain collectively
with the Union as the exclusive representative of the employees in
the appropriate unit, in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment. We shall further
PAUL UHLICH & CO., INC. 701 ,
order the respondent, if any understanding is reached on the afore-
mentioned matters and the respondent is requested by the Union to
do so, to embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon ,the
entire record in the case, the Board makes the following:.
CONCLUSIONS OF LAW
1. Paint, Varnish and Allied Products Division, United Mine
Workers of America, District No. 50, C. I. 0., is a labor organization
within, the meaning of Section 2 (5) of the Act.
2. The respondent's production, maintenance, and shipping em-
ployees, excluding supervisory and clerical employees, and research
chemists, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. Paint, Varnish and Allied Products Division, United Mine
Workers of America, District No. 50, C. I. 0., was on October 10,
1938, and at all times thereafter has been, the exclusive representa-
tive of all employees in such unit for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
4. By refusing and continuing to refuse to bargain collectively
with Paint, Varnish and Allied Products Division, United Mine Work-
ers of America, District No. 50, C. I. O. as the exclusive representa-
tive of its employees in such unit, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section
8 (5) of the Act.
5. By dominating and interfering with the formation of, and by
contributing support to, a labor organization of its employees, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (2) of the Act.
6. By interfering with, restraining, and coercing its employees in,
the exercise of the rights guaranteed them in Section 7 of the Act,
the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
8. The respondent has not engaged in unfair labor practices 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 respondent,
Paul Uhlich & Co , Inc., and its trustees, officers, agents, successors,
and assigns, shall:
702 DECISIONS OF -NATIONAL LABOR - RELATIONS BOARD
1. Cease and, desist from: 1 11 , - . .
,(a). - Refusing to bargain collectively with Paint; - Varnish, and Allied,
Products Division, United Mine Workers of America, District No. 50,
C. J. O:: as the exclusive representative of the respondent's produc-
tion, maintenance, and shipping emplooyees, excluding clerical and
supervisory employees, and research chemists;
(b) In any manner dominating dr interfering with the formation
or ;administration of any labor organization! of itsi employees, or con-
tributing support, to any such labor organization..
(c) In any other manner interfering with, restraining, or coercing
its -employees in. ,the exercise of their right - to self-organization, to
form, join, or assist labor organizations, to bargain collectively through,
representatives of -their own choosing, and to engage in concerted,
activities for the purpose-of collective bargaining or other mutual aid,
or 'protection, as guaranteed in Section 7 of the National Labor
Relations Act. I
, 2. Take the following, affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request bargain collectively with Paint, • Varnish and
Allied Products Division, United Mine Workers,of America, District
No. 50, C. I. O. as exclusive representative of its production, main-
tenance, and shipping employees, excluding clerical and supervisory
employees, and research, chemists, ,in respect to rates of pay, wages,
hours of employment, and other conditions of employment; and if an
understanding is reached on any such matters, upon request, embody'
said understanding in a,signed agreement;
(b) Post immediately in conspicuous places at its plant at Brooklyn,
New York, and maintain for a period,of at least sixty (60) `consecutive
days from the date,of posting, notices to, its employees stating: (1);
that the.respondent will not engage in the conduct from. which' it is
ordered to cease and -desist,in paragraphs 1 (a),-(b); and (c) 'of this
Order;. (2) that the, respondent will take' the affirmative action. set
forth in paragraph 2 (a), of the Order;
(c) Notify the Regional Director for the Second Region' (New
York City) 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 amended complaint be, and it
hereby is, dismissed in so far, as it alleges that, the respondent has
engaged in unfair labor practices within the meaning of Section 8 (3)
of the National Labor Relations Act:
'MR. WILLIAM M. LEISERSON took no part in the coi ideration of
trio above Decision and Order. - ' "
It . . , 1 u !