S. L. Allen & Co., Inc.

National Labor Relations Board - Board Decisions

May 13, 1936

1 N.L.R.B. 714 (N.L.R.B. 1936)

In the Matter of S. L . ALLEN & COMPANY, INC., A CORPORATION and
FEDERAL LABOR UNION LOCAL No. 18526
Case No. C-60.-Decided May 13, 1936
Farm Implement and Machinery Industry-Sled Industry-Strike-Lockout-
Employee Status : during strike ; during lockout-Interference , Restraint or
Coercion : during strike ; soliciting individual strikers to cease striking-Strike-
Breakers: employed-Unit Appropriate for Collective Bargaining: history of
collective bargaining relations ; production employees-Representatives: proof
of choice : membership in union-Collective Bargaining: employer's duty, as
affected by strike ; negotiation in good faith : meeting with representatives,
but with no intention of bargaining in good faith ; reasonable effort ; counter
proposals-refusal to meet representatives ; refusal to negotiate with repre-
sentatives-Reinstatement Ordered, Strikers: strike provoked by employer's
law violation ; displacement of employees hired during strike ; preferential list
ordered, including.
Mr. Gerhard P. Van Arkel for the Board.
Brown cC Williams, by Mr. Ira Jewell Williams, Jr., of Philadel-
phia, Pa., for respondent.
Mr. Lewis G. Hines, of Philadelphia, Pa., for American Federa-
tion of Labor.
Hilda Droshnicop, of counsel to the Board.
DECISION
STATEMENT OF CASE
On February 3, 1936, Federal Labor Union Local No. 18526, here-
inafter referred to as the union, filed with the Regional Director for
the Fourth Region a charge that S. L. Allen & Company, Inc., of
Philadelphia, Pennsylvania, had engaged in unfair labor practices,
forbidden by the National Labor Relations Act, approved July 5,
1935, hereinafter referred to as the Act. On February 26, 1936,
the Board issued a complaint against the S. L. Allen & Company,
Inc., hereinafter referred to as respondent, the complaint being
signed by the Regional Director for the Fourth Region and alleging
that respondent had committed unfair labor practices affecting com-
merce within the meaning of Section 8, subdivisions (1) and (5) and
Section 2, subdivisions (6) and (7) of the Act.
714
DECISIONS AND ORDERS 715
In respect to the unfair labor practices the complaint alleged in
substance that respondent, by its officers and agents on January 27,
1936 and thereafter, attempted to dissuade its employees at the Phil-
adelphia plant from continuing their membership in the union, and
that on January 13, 1936 and thereafter it refused to bargain col-
lectively with the union in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
The complaint and accompanying notice of hearing were served
on respondent and the union in accordance with Article V of Na-
tional Labor Relations Board Rules and Regulations-Series 1.
In its answer, filed March 4, 1936, respondent denied the jurisdic-
tion of the Board on constitutional grounds, and challenged the
complaint on the ground that it contained no copy of the charge. In
respect to the unfair labor practices it alleged that respondent had
neither solicited nor intimidated its employees to discontinue mem-
bership in any union; that respondent conferred with the union's
representatives as late as January 20, 1936; and that no agreement
was then possible because the union's demands exceeded what re-
spondent was willing to concede. It alleged further that on Febru-
ary 1, 1936 respondent had received a. letter from the union request-
ing a further meeting, but that since said letter contained no further
concession on the part of the men and no suggestion that any further
concessions would be made, respondent had replied that further nego-
tiations would be useless. The answer contained also the allegation
that respondent is willing at any time until further notice to receive
and consider carefully any written proposal from the duly authorized
representatives of its former employees, but that it is not under any
obligation to act, and reserves its right at any time to decline to
deal with any person or persons with whom it does not wish to deal.
By order of the Board, dated March 5, 1936, the proceeding was
transferred to and continued before the Board in accordance with
Article IT, Section 35 of National Labor Relations Board Rules and
Regulations-Series 1. In the same order Robert M. Gates was
designated as Trial Examiner to conduct the hearing.
Pursuant to the notice, a hearing was held at Philadelphia, Penn-
sylvania, on March 9, 10 and 11, 1936 before the Trial Examiner, and
evidence was taken. Full opportunity to be heard, to examine and
cross-examine witnesses and to introduce evidence bearing upon the
issues was afforded to all parties.
At the hearing respondent renewed its constitutional objections to
the jurisdiction of the Board. At the end of the hearing respondent
moved to dismiss the complaint on the same constitutional grounds
and also on the ground that the evidence did not support the allega-
tions of the complaint. The Trial Examiner reserved decision on
these motions. Both motions are hereby denied.
716 NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, including the pleadings, the
stenographic transcript of the hearing, and the documentary and
other evidence received at the hearing, the Board makes the
following :
FINDINGS OF FACT
1. THE COMPANY
Respondent, S. L. Allen & Company, Inc., is a Pennsylvania cor-
poration, having its principal plant which is the scene of the present
dispute, and place of business in the City of Philadelphia, Pennsyl-
vania. Respondent operates another factory in Madison, Ohio. Re-
spondent is engaged in the production and sale of sleds and farm
implements. Sixty per cent of its products are agricultural im-
plements and 40 per cent are snow sleds. It is one of the largest
manufacturers of snow sleds in the United States.
Respondent has approximately 225 employees in the Philadelphia.
plant. About 160 or 165 of these are production workers, the rest.
comprising the foremen, office force, engineering department, sales-
men and officers. °
The principal materials used by respondent in the manufacture of
its products are steel castings, both grey iron and malleable, wood
parts, bolts and rivets. Respondent's answer admitted that 20 per
cent of these materials were bought in states other than Pennsylvania.
A substantial proportion of the wood parts for sleds and handles of
agricultural implements are purchased in New York and Tennessee.
Most of the bolts, nuts and rivets used in the assembly of various
agricultural implements and sleds are imported from Connecticut.
Over 50 per cent of respondent's finished products are sold out-
side of Pennsylvania. Thus, in December 1935 and in January 1936,
respondent made shipments to Alabama, Arkansas, Connecticut, Dis-
trict of Columbia, Georgia, Illinois, Indiana, Maryland, Massachu-
setts, Michigan, Mississippi, New Hampshire, New York, Ohio, Rhode
Island, Virginia and Canada. Three trademarks, "Planet, Jr.""
"Flexible Flyer" and "Airline Pilot" are registered by respondent for
use in interstate and foreign commerce.
The chief methods of transportation used by respondent are freight
and truck. Respondent has a railroad siding adjoining the delivery
platforms on its property which connects with the Pennsylvania and
Reading Railroads.
At least seven or eight salesmen travel throughout the country
selling respondent's products. These sales are to jobbers all over
the United States. Respondent advertises in periodicals having a
national circulation such as "Farm Journal" and "Toys and
Novelties."
DECISIONS AND ORDERS 717
The aforesaid operations of respondent constitute a continuous
flow of trade, traffic and commerce among the several States and with
foreign countries.
H. APPROPRIATE UNIT AND THE UNION AS REPRESENTATIVE OF THE
MAJORITY IN SUCH UNIT
Farm Implement Workers' Union, Federal Labor Union Local No.
18526 is a labor organization, affiliated with the American Federation
of Labor. It was formed in the early fall of 1933 for the purpose of
creating an agency for collective bargaining between respondent and
its production workers. The union is composed exclusively of
respondent's production workers.
The complaint alleges that the production workers of respondent
at its Philadelphia plant constitute a unit appropriate for the pur-
poses of collective bargaining. The record contains no denial of this
allegation, nor does respondent assert that any other unit is the,
proper one. In dealing with them over a considerable period, re-
spondent has recognized that its production workers comprise an
appropriate classification.
We find that the production employees of respondent at its Phila-
delphia plant constitute a unit appropriate for the purposes of col-
lective bargaining. Approximately 165 of respondent's 225 employees
in the Philadelphia plant are production workers. At the time it
was formed the union contained 125 or 130 of these production work-
ers; in October, 1935, 145 or 150 of them were members; in the middle
of January, 1936, when the present labor dispute began, the union
had a membership of approximately 164. On March 11, 1936, the
last day of the hearing in the instant case, four of the men had
returned to work, leaving the union with a membership of 160. At
no time during the strike has its membership fallen below that figure.
The union, on or about January 13, 1936 and at all times there-
after was the duly designated representative of the majority of the
men in the production department of respondent's Philadelphia
plant.
III. COLLECTIVE BARGAINING PRIOR TO THE STRIKE
In, September, 1933, shortly after the organization of the union, all
but 8 or 10 of the production men took part in a strike for higher
wages, better hours, union recognition, a more equitable method of
bargaining and a signed collective agreement with respondent. The
plant did not operate during the two weeks' duration of the strike.
On October 3, 1933, the men returned to work. The settlement was
worked out through negotiations between respondent, the union offi-
cials, Mr. Kitely, a mediator representating the United States De-
718 NATIONAL LABOR RELATIONS BOARD
partment of Labor, and Mr. Hines, a representative of the American
Federation of Labor, who had been called in by the union. Re-
spondent at that time consented to adjust wages, to recognize the
union committee and to provide for collective bargaining. It was
further agreed that a memorandum which was drawn up by the
mediator would govern respondent's relations with the union for the
duration of the National Industrial Recovery Act.
On May 27, 1935 the National Industrial Recovery Act was de-
clared unconstitutional. August 5, 1935 respondent received a letter
from Alexander J. Ross, and Thomas Davies, president and secre-
tary of the union, respectively, enclosing a proposed memorandum
of agreement to supplant the one which had expired, and requesting
an opportunity to negotiate. Respondent failed to acknowledge or
answer this letter. On August 17, 1935 the union again wrote to
respondent, pointing out that its former request had been ignored,
and asking an interview on August 21, 1935, at 10 o'clock.
On August 29 Mr. Scammell, Mr. Llewellyn, and Mr. Richie,
president, treasurer, and superintendent, respectively, of respondent,
met with the union negotiating committee which was composed of
Mr. Rosshirt, Mr. Fields, Mr. Shepherd, Mr. Perpente and Mr. Ross.
Scammell reminded the committee that he had asked them several
months before to submit a revision of the labor rates on Firefly Sleds
and pointed out that he had not received it. He also asserted that he
had not had time to read the proposed union agreement. There fol-
lowed a discussion of the projected contract in the course of which
Scammell said that the provision for vacations was more than the
company could afford, that he would never recognize the closed
shop, and that the clause entitled, "Dismissal for Cause" was unac-
ceptable. He rejected also the provision requiring him to dismiss
any employee who failed to pay his union dues by the 15th of any
month.
On September, 6 the,union committee again conferred with Scam-
mell, Llewellyn and Richie. Scammell opened the meeting by read-
ing the memorandum which had expired on May 27, 1935, and stated
that respondent could not sign the new agreement because it con-
tained a closed shop provision. There was then considerable discus-
sion of wages. Scanunell again refused to agree to vacations with
pay, and to the clause providing that foremen were not to perform
any of the work of the regular worknnen. He reiterated his objec-
tions to the closed shop at some length. Scammell also expressed
doubt that any other company reinstated and paid for time lost by
them, men whom the union decided had been dismissed without cause.
Extensive cross-examination of Ross by respondent's counsel from
complete minutes of these conferences failed to elicit evidence that
DECISIONS AND ORDERS 719
Scammell agreed to sign any provision of the proposed agreement
or showed a disposition to consider seriously compromise on any
clause which he found objectionable. The union's conferences with
respondent in the latter part of August and in September thus proved
fruitless.
Late in October, 1935, respondent discharged Ross, the president
of the union. Efforts of the union committee to discuss the subject
with respondent's officers were rebuffed. For three days Hines' office
attempted to reach respondent's officials at the plant, and Scammell
at his home, without success. The union then called 51 meeting to
take a strike vote. Ross was thereupon reinstated.
This episode over, the union renewed its attempts to arrive at an
agreement with respondent. On October 25, the union notified Hines
that it needed his aid in negotiating with respondent. On October
28, respondent was asked by the union to fix a date for a meeting to
which it could bring Hines. Respondent failed to answer this letter.
Hines then wrote to respondent on November 4, 1935 requesting an
appointment for the purpose of discussing the agreement. This
letter was never answered.
Through the good offices of two conciliators, Mrs. Forrester of the
United States Department of Labor, and Mr. Kutz of the Pennsyl-
vania Department of Labor and Industry, respondent was persuaded
to meet again with the union committee on December 2. Mrs. For-
rester, Kutz, Hines, Scammell, Llewellyn, and the union committee
were at this meeting. On December 9 Kutz, Mrs. Forrester, Scam-
mell, Llewellyn, Richie, and the union committee met again. At the
December 16th meeting the same persons were present, with the
exception of Mrs. Forrester. This group and Hines were present on
January 3, at the last meeting at which the proposed contract was
considered.
At the December 2 conference the proposed agreement was dis-
cussed paragraph by paragraph. Scammell continued to find insu-
perable objections to provision after provision. Kutz suggested at
the December 9 meeting that respondent present alternatives to the
proposals it had rejected. Scammell replied that respondent had
never consented to enter into any agreement, that no signed agree-
ment was necessary, and that comparison of respondent's labor stand-
ards with those of other plants in the industry would demonstrate
respondent's superior treatment of its employees. Discussion of the
contract continued, however, Scammell refusing to make any con-
cessions in regard to clause after clause. To a request for time and
a half payment for overtime, Scammell replied that since the depres-
sion appeared to be on the wane, he might consider time and a third.
0
720 NATIONAL LABOR RELATIONS BOARD
At the December 16 meeting Scammell reversed himself on his
previous statement concerning time and a third for overtime. Re-
spondent's officers continued to find nothing in the agreement to
which they could accede. The union pointed out that it was im-
possible for it to demonstrate that wages at respondent's plant were
lower than those paid by competitors because rival companies would
not disclose their wage scales. Scammell countered with the state-
ment that of course such figures alone would convince him because
only they would be comparable to his own expenses. Kutz then sug-
• Bested that Dr. George Taylor of the University of Pennsylvania
arbitrate the union's disagreements with respondent. Scammell
definitely rejected this suggestion.
Scammell exhibited no greater disposition to come to terms at the
January 3 conference. He rejected the arbitration clause and the
overtime clause. When asked what was wrong with the latter provi-
sion, Scammell replied that nothing was wrong with it except that
he would not agree to it. He added that there was not enough work
and time and a half overtime pay was absolutely out of the question.
After further discussion, which brought the conferees to the end
of the proposed agreement, Scammell suggested that Kutz embody
the result of the foregoing meetings in a new memorandum as a basis
for further discussion. His parting words as Kutz, Hines and the
union committee were going out the door were, "You can draw up
this memorandum of agreement, but I haven't signed it yet."
Ross testified that throughout the extended conferences in which
he took part, it was apparent that Scammell went through the
motions of bargaining with no intention of seriously attempting to
reconcile the differences between respondent and the union. Subse-
quent events confirmed Ross' inference that respondent's participation
in these conferences did not connote a bona fide acceptance of the
principle of collective bargaining.
IV. THE UNFAIR LABOR PRACTICES
On the morning of Thursday, January 9, Ross and Rosshirt were
summoned to a special meeting with Richie, Cooper, Ross' foreman,
and Kelly, foreman of the hammer.shop. Richie opened the meeting
with the words, "We have called you in to tell you we are putting
on a night shift." 20 or 25 men were to be put on a 3:45 p. m.-12:45
a. m. night shift, and certain day men were to report to work at 7
a. m. instead of at 8 a. m. Ross protested against the suddenness of
the announcement and said that this information came as a surprise,
since Scammell had told the committee that there was so little work
That even overtime would be unnecessary. He stated, however, that
the question would be considered at the union meeting scheduled for
the following night, Friday, January 10. Richie rejoined that that
DECISIONS AND ORDERS 721
would be too late, an answer must be given that very day, and a
meeting should be held immediately in the locker room. At the 12
o'clock lunch hour the men concerned, from the hammer shop, the
machine shop, the maintenance men and the steel grinders, discussed
the question of the night shift. They decided that since night shift
work necessarily increased their cost of living, and would involve the
use of inexperienced helpers, that those affected should receive an
increase in piece-work payments-of 10 per cent. With 25 men on the
night shift about $66 would be added to respondent's weekly payroll.
That afternoon Ross and Rosshirt reported that the men requested
a 10 per cent increase in wages for those going on the night shift.
The committee stated explicitly, however, that they would be willing
to compromise on less than a 10 per cent increase if respondent dem-
onstrated its good faith by making some concession. Rosshirt and
Ross suggested that a 6 per cent raise might be satisfactory. The
union also offered to submit the question to arbitration. Richie re-
plied that he had no authority to grant the raise in wages, but would
communicate with Scammell. Ross requested that Richie notify him
of Scammell's answer. This was not done.
Friday, January 10, at 4: 30, without further consultation with
the committee, Richie posted a notice on the bulletin board stating
that beginning Monday, January 13, a night shift would be insti-
tuted ; that the hours of some of the day shift men would be 7 a. in. to
3: 45 p. in. instead of 8 a. m. to 4: 45 p. m. and that those affected by
the change of hours would be notified by their respective foremen.
Ross immediately went to Richie and asked if this night shift was
being forced on the men. Richie denied that force was intended but
repeated that the night shift was going on as scheduled. Ross then
requested an interview with Scammell, who was in the plant that
day. In their interview with Scammell later in the afternoon of the
same day Ross and Rosshirt again indicated that they would accept
less than a 10 per cent increase and asked Scammell if the night shift
was to be forced on the men. Scammell replied that the night shift
was necessary because ,the hammer shop had fallen ; behind in the
production of cultivator wheels, etc. and that he would pay no higher
rates for the night shift because a dozen or more other firms in Phila-
delphia did not. He concluded with the statement, "I am going to
put a night shift on . . . You are going to like it. The union is not
dictating terms to me." When Ross rejoined, "Well, if that is the
way of it, no night shift is going on," Scammell returned with,
"There is a night shift going on."
At the union meeting on Friday night it was decided that the men
would all report for work at the usual time and that the committee
would continue negotiations with respondent for a 10 per cent in-
crease for the night men.
722 NATIONAL LABOR RELATIONS BOARD
That the union intended to negotiate the question and had not
decided to strike is borne out by the fact that on Saturday morning,
January 11, the shop committee visited Hines and requested his help
in bargaining with respondent's officers. Hines made repeated efforts
to contact respondent's officials on Saturday, but none of them could
be reached.
When the men reported for work at 8 o'clock on Monday morning,
about 25 employees who had been instructed to appear at 7 o'clock
instead of at the regular 8 o'clock hour were refused admission to the
plant. Ross sought out Richie immediately and asked whether these
men were locked out. Richie replied, "No, these men are not locked
out, but until they can report for work at the time we want them to
they need not report at all." Ross asked Richie to permit the men to
continue work and to discuss the question of the night shift ration-
ally. Richie rejoined with a categorical "No." To Ross' request that
he be permitted to have the day off in order to be free to negotiate
the dispute, Richie said, "See your foreman." Cooper, Ross' foreman,
refused to give him leave, and Ross was told that he would be dis-
charged if he left his work that day. He was not even given an
opportunity to telephone to Hines.
At two-thirty on Monday afternoon, January 13th, Richie and
Llewellyn called a conference with Shepherd, Perpente, Fields and
Ross of the shop committee. Ross pointed out the urgent necessity
of adjusting the dispute at once because of the unrest caused in the
plant by the lockout of the men. Llewellyn refused to consider any
concessions to the union's demands, but said that if the second shift
was not put in that it would be necessary to farm out some of the
work and that it would probably not come back. Perpente then
asked whether it was not worth the 10 per cent. Llewellyn replied
that the work to be done was not "competitive stuff" meaning, pre-
sumably, that this was a special situation. The committee then
renewed its offer to compromise on the 10 per cent demand and again
suggested that the question be submitted to arbitration. Llewellyn
closed the conference with the statement, "Well, I don't think you
can adjust it now because you know the type of man Mr. Scammell
is. It would be fruitless to try and adjust it." Ross then said,
"Well, Mr. Llewellyn, I am very sorry to tell you that under the
circumstances the men are agitating on the inside on behalf of the
men on the outside, and if there is no settlement before three o'clock,
we have the full sanction from the American Federation of Labor
to walk out in sympathy." Llewellyn then said, "Well, if you can
take it we can." At three o'clock on Monday afternoon, January 13,
the remaining production men in the plant, with the exception of
two non-union workers, struck.
DECISIONS AND ORDERS 723
On January 14 Hines came to the plant with the union committee
and requested a meeting with respondent's officers. He was asked to
come upstairs alone. Later the committee joined Hines in a confer-
ence with Llewellyn and Richie. Hines stated that respondent's
refusal to admit to work the 25 men who reported at 8 o'clock instead
of at 7 o'clock was a lockout and that a satisfactory settlement would
be expedited by a return to the old schedule pending negotiations on
the night shift wage question. Rosshirt challenged Llewellyn's state-
ment that the increase in compensation was impossible because of
competitive conditions by pointing out that if the night shift com-
prised 20 men the extra pay would add only $2.50 a month for each
of the 20 employees to respondent's payroll. Llewellyn then adverted
to the fact that the stockholders had not received dividends for seven
years. To the committee's remark that there had been no night shift
before, he answered that times were not what they had been.
Llewellyn's concluding statements reflected respondent's determina-
tion to make this issue a sticking point; he said that he was himself
without authority to alter the situation in any way, that Scammell
had the last word and that Scammell's instructions were that the
men would have to go on the night shift on his terms; that is, with
no increase in pay.
After this meeting the union committee had difficulty in reaching
respondent's officers. On Hines' suggestion, Mrs. Forrester and Mr.
Kutz made several attempts to bring Scammell and the union com-
mittee together. These were unsuccessful. On January 17 how-
ever, the union committee and Mrs. Forrester, Mr. Hines, Llewellyn
and Richie met, but respondent's position remained unmodified.
The subsequent efforts of Mrs. Forrester and Mr. Kutz to persuade
Scammell to confer with the union representatives failed. On Janu-
ary 27 the strikers were notified by respondent that owing to their
cessation of work without permission or excuse, they were no longer
employees and should call for their tools not later than January 31,
1936. On the following day, and throughout that week, respond-
ent's foremen made personal visits to several of the strikers' homas,
saying that Scammell would never recognize the union, that the plant
was going to resume operations, and urging the inen to return while
return was still possible.
On January 29 the union committee made another attempt to see
Scammell. On their arrival at the plant with Mrs. Forrester and
Mr. Kutz, they were told that Scammell would not see the commit-
tee. Through the mediators Scammell sent word that he would not
meet with the committee, and would entertain no communication
relating to the proposed contract, but that he would consider a
written offer on the dispute which had directly caused the strike.
724 NATIONAL LABOR RELATIONS BOARD
On the following day, January 30, the union dispatched to Scammell
an answer signed by 112 men.
The letter asserted that the strikers still considered themselves,
employees and that they desired to discuss through their represen-
tatives the issues involved in the dispute. It concluded with a re-
quest that Scammell set a date for a conference or submit the whole
question to arbitration. To this communication respondent replied
in the following terms :
"Your letter dated January 30, 1936 was received this morning.
"Without commenting on the statements in the letter, some of
which are inaccurate, we will say that it is clear that further
negotiations would be useless.
"We have accordingly made other plans."
The union then decided to make no further overtures until re-
spondent evinced a disposition to meet it in good faith and to
bargain.
Respondent's "other plans" consisted of a project to resume
operation of the plant by hiring strike-breakers through the Metal
Manufacturers' Association of Philadelphia. Police officers in the
district of respondent's plant testified that up to this period the beha-
vior of the strikers had been exemplary, and that it had been unnec-
cessary to increase the normal police protection around respondent's
factory. On Saturday, February 5, Llewellyn informed the police
that respondent proposed to open the plant on the following Monday,
and requested that more policemen be detailed to the district. On
the same day Hines, who is a member of the Mayor's Labor Commit-
tee in Philadelphia, appealed to the Mayor to intervene personally.
The Mayor telephoned Scammell and urged him to meet the union.
Scammell unqualifiedly refused to do so. February 7 a large group
of men were collected in front of the Metal Manufacturers' Associa-
tion for transportation to respondent's plant. In a last effort to
forestall an open breach between respondent and its employees, Hines
telephoned Mr. Earl Sparks, secretary of the Metal Manufacturers'
Association. Sparks' reply to Hines' opening remarks were, "We
are going to put the union out of business."
Respondent's relations with its strike-breakers follow a pattern
which has become familiar in this type of case. The strike-breakers
were hired through the Metal Manufacturers' Association rather than
at the regular employment office maintained at respondent's plant.
The men were largely imported from other cities; many were una-
ware that a strike was in progress at respondent's plant. A few
had been told that they were to be sent to Baltimore, Maryland, and
were taken to the Philadelphia plant against their will. It was tes-
tified at the hearing that two of the strike-breakers begged a police-
DECISIONS AND ORDERS 725:
man to aid them to escape from the plant after they had been there
for a few days. That most of the men were not ordinary workmen
intending to live as normal citizens is evident from the fact that
respondent made arrangements to house them in the plant. They in
fact slept there for two nights, when the Board of Health evicted
them because of the unsanitary conditions.
It is clear that respondent's officers were under no illusions as to
the caliber of the bulk of the strike-breakers they had brought to the
city and employed in their, factory. Pursuant to request of the po-
lice, as the strike-breakers were delivered by the Metal Manufac-
turers' Association, Llewellyn submitted their names to have their
criminal records searched. Two of the strike-breakers left the plant
immediately when they discovered that this was being done. Frank
Alvero, one of the strike-breakers, on February 21, while working
at respondent's plant, without provocation viciously attacked one of
the strikers with a knife, on a public railway train. Respondent was
informed by the police on February 22 that Alvero and at least
another of his new "employees" had criminal records. There is no
evidence that either of these were discharged. On March 1 Alvero
was held in $1500 bail. Though respondent's officers were thus fully
apprised of his dangerous character, Alvero was still given the run
of the plant on March 9 at the time of the hearing, nearly three
weeks after these events occurred.
Although respondent hired approximately 51 strike-breakers be-
tween the beginning of February and March 6, production continued
to be seriously crippled. Respondent had a conference with Mrs.
Forrester and Mr. Kutz on February 26, at which it reiterated its
statement of January 29 that it would consider a written offer from
the union looking to settlement of the strike. This Scammell fol-
lowed with a somewhat cryptic letter to Ross on February 27, in
which he stated that the loss of orders due to the dispute had cut
down materially the number of employees necessary for operations,
and that he regretted the plight of his older employees. (The aver-
age service of the strikers was about 20 years.) Ross told the me-
diators that the committee must meet with respondent's officers in
order to negotiate; the mediators brought back the message that
respondent would consider only a written proposition. On March
3, 1936, the union delivered to Mrs. Forrester a letter in answer to
Scammell's verbal message, stating that the men on March 2 had
authorized their representatives to confer with respondent's officials
at any time suiting their convenience, for the purpose of negotiating
terms of settlement permitting resumption of work and such other
terms covering wages, hours and working conditions as were mutu-
726 NATIONAL LABOR RELATIONS BOARD
ally desirable, to govern the relationship of the employees and re-
spondent for the future. The letter concluded with'the statement:
"To this end we wish to assure you and your respective depart-
ments through you, that we are ready to negotiate and mediate
any differences that we may have with the Company and, if need
be, are willing to arbitrate in order to compose any differences
not able of adjustment through negotiations or mediation."
Respondent's officers did not reply in writing to this communica-
tion. On the last day of the hearing, on March 11, 1936, respond-
ent's treasurer, Mr. Llewellyn and Williams its counsel, had occasion
to demonstrate its attitude. During a recess, Stanley W. Root, Re-
gional Director for the Board, suggested that respondent's officers
and the union committee meet around the table. Llewellyn and
Williams declined, saying that they would receive an offer if the
union would transmit it through Root, but that they would not
meet with the representatives of the men until they were apprised
of the contents of such an offer, and considered the offer a possible
basis of agreement. Root returned from a conversation with the
union representatives with suggestions and questions relating to the
position which respondent would take under certain conditions.
Llewellyn and Williams sent back word that this could not be con-
sidered a firm offer. Yet the union had many times presented its
position; it had even offered alternative terms. All this was clear
to respondent. Respondent had consistently refused during first the
entire negotiations relating to the proposed contract and then in
connection with the night shift to grant a single demand or suggest
a single counter proposal; while asking the union to submit a written
offer, it gave no indication that it had receded or would recede from
this attitude in any way. It is obvious that under such circumstances
there was, in the absence of oral discussion, no basis upon which the
union could construct a written offer, short of complete capitulation.
By refusing to meet with the union representatives, respondent made
it impossible for them to explore with respondent the now existing
.ituation,-much had changed since the last meeting-upon the basis
of which exploration alone was it possible for the union to make an
intelligent offer at the same time consonant with the union's needs
and offering a possibility of acceptance by respondent.
Conclusions respecting unfair labor practices
The evidence indicates that by January 9, when it announced the
night shift, respondent had determined to dispense even with the
pretense of bargaining collectively with the union representatives.
Thus, although respondent's officers were. cognizant of the fact that
DECISIONS AND ORDERS 727
Its production employees were already dissatisfied with the existing
scale of wages and were depending upon further negotiations for
adjustment of their basic compensation, Scammell failed to consult
the committee in regard to a fundamental alteration in the time
schedule, informally notified Ross of the change, refused to recon-
sider or to modify the decision in any manner, and disregarded the
committee's plea that the status quo be maintained pending nego-
tiations. To the committee's offers of compromise or arbitration
respondent thus opposed a determination to discredit the union by
initiating changes without its knowledge or consent. The indicia of
good faith are notoriously elusive, but respondent's tactics after
January 9 point definitely to a desire to demonstrate conclusively
the union's impotence in influencing the management. That both
parties regarded the outcome of this dispute as decisive of the ques-
tion whether respondent would bargain collectively with the union
is apparent from the whole tenor of the discussions after the issue
was made explicit by respondent's announcement concerning the
night shift on January 9.
Respondent contends that its numerous conferences with the union
committee on the night shift issue both before and after the strike
conclusively establish its compliance with the collective bargaining
provisions of the Act. It justifies its subsequent refusal to meet with
the union on the ground that negotiations had reached a deadlock and
that there was no point in continuing the conferences until some
possibility of agreement presented itself.
Respondent's position is based upon a misunderstanding of the
import of the collective bargaining provision of the Act. To meet
with the representatives of his employees, however frequently, does
not necessarily fulfill an employer's obligations under this Section.
A construction of the collective bargaining provision which over-
looked the requirement that a bona Fide attempt to come to terms must
be made, would substitute for non-recognition of the employees' rep-
resentatives the incentive simply to hamstring the union with endless
and profitless "negotiations." In the absence of an attempt to bar-
gain in good faith on the employer's part, it is obvious that such
"negotiations" can do nothing to prevent resort to industrial warfare
where a dispute of this nature arises.
Respondent's contention that it was legally absolved from the
necessity of meeting the strikers after the last conference in January,
when the "deadlock" was reached, is scarcely tenable. We have found
that the failure of negotiations before and after the strike was due to
respondent's refusal to bargain and its determination to demonstrate
to its employees that the collective bargaining machinery could be of
no avail in securing concessions. There was thus not an impasse in
97571-36-vol 1-47
728 NATIONAL LABOR RELATIONS BOARD
the negotiations but rather a refusal to bargain on respondent's part.
Respondent's subsequent refusal to meet the committee because it
would not accept respondent's terms was therefore merely another
aspect of the same violation. It has been noted above that respondent
had so narrowed the field that the only "offer" which it would con-
sider a suitable basis for another conference was virtual capitulation
by the union. Passing this point, however, it is relevant to state that
even if respondent had bargained in good faith before and directly
after the strike, and an impasse had been reached, nevertheless, the.
employer may not always attempt to confine the union's subsequent
efforts to secure a settlement, to written offers which may be rejected
or accepted without explanation. Interchange of ideas, communica-
tion of facts peculiarly within the knowledge of either party, personal
persuasion and the opportunity to modify demands in accordance
with the total situation thus revealed at the conference is of the
essence of the bargaining process. Where in the course' of the striko
supervening events, such as the formal discharge of the strikers and
the importation of strike-breakers, introduce new issues, the employer
must meet with the representatives of its employees in order to realize
the full benefits of collective bargaining. It is particularly signifi-
cant that respondent refused to meet with the union after importing
the strike breakers. It sought thus, to force the strikers back to work
and to dispense completely with the machinery of collective bar-
gaining.
We find that respondent refused to bargain collectively with the
representatives of its employees, and that by such refusal respondent
interfered with, restrained and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.,,
V. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We found above that respondent's plant was closed for two weeks
owing to the strike of September, 1933. As a result of the present
strike respondent's factory shut down completely between January 14
and February 5. It has since only partially resumed operations.
For a considerable period shipments to and from the plant ceased
entirely; they are still far below normal. By its refusal to bargain
collectively with Federal Labor Union Local No. 18526 respondent
precipitated and prevented the settlement of the strike.
We thereforefind that the aforesaid acts of respondent have led and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
'The charge in this case does not specify an Independent violation of Section 7 by
virtue of respondent's attempts to persuade its employees to abandon the union ; since this
allegation of the complaint is unsupported by the charge, we make no finding on that
allegation.
• ' DECISIONS AND ORDERS 729
THE REMEDY
We have found that respondent's production workers struck on
January 13, 1936 owing to respondent's refusal to bargain collectively
with its employees, and that the strike is still in progress owing to
respondent's continued refusal to bargain with the union . Since the
strike was caused by respondent's unfair labor practice, respondent
is under a duty to reinstate the strikers to their former positions and
to restore the status quo which existed prior to its commission of this
unlawful act. Respondent must accordingly offer to respondent's
employees who went on strike on January 13, 1936 employment in
their former positions on the basis of seniority, to the extent that
work is available and is being performed by persons employed since
January 13, 1936, apart from strikers. Persons employed since Jan-
uary 13, 1936 must be dismissed if that is necessary to arrive at this
result. Those strikers for whom employment is not available must
be placed on a preferred list to be offered employment on the basis of
seniority as it arises.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding the Board finds and concludes as a
matter of law:
1. Federal Labor Union Local No. 18526 is a labor organization,
within the meaning of Section 2, subdivision (5) of the Act.
2. The production employees of respondent constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
3. By virtue of Section 9 (a) of the Act, Federal Labor Union Lo-
cal No. 18526, having been designated as their representatives by a
majority of the employees in an appropriate unit, was on January 13,
1936, and at all times thereafter has been, the exclusive representative
of all employees in such unit for the purposes of collective bargaining.
4. Respondent, by refusing to bargain collectively with Federal
Labor Union Local No. 18526 in respect to conditions of employment
on January 13, 1936, and at all times thereafter, has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8, subdivision (5) of the Act.
5. Respondent, by interfering with, restraining and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8, subdivision (1) of the Act.
6. The unfair labor practices in which respondent has engaged and
is engaging constitute unfair labor practices affecting commerce,
within the meaning of Section 2, subdivisions (6) and (7) of the Act.
730 NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the foregoing findings of fact and conclusions of
law and pursuant to Section 10, subdivision (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that, respondent, S. L. Allen & Company, Incorporated, a corporation,
and its officers and agents, shall :
1. Cease and desist from refusing to bargain collectively with Fed-
,eral Labor Union Local No. 18526 as the exclusive representative of
its employees engaged in production in respect to rates of pay, wages,
hours of employment and other conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Federal Labor Union
Local No. 18526 as the exclusive representative of its employees en-
gaged in production in respect to rates of pay, wages, hours of
employment and other conditions of employment.
(b) To the extent that work is available and is being performed
by persons employed since January 13, 1936, apart from strikers,
within 10 days offer employment in their former positions on the basis
of seniority to respondent's employees who went on strike on January
13, 1936, dismissing if necessary persons employed since January 13,
1936, and place those strikers for whom employment, is-not available
on a preferred list to be offered employment on the basis of seniority
as it arises.