Standard Gage Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1943

54 N.L.R.B. 160 (N.L.R.B. 1943)

In the Matter Of ' STANDARD GAGE COMPANY, INC. and UNITED ELECTRI-
CAL] RADIO & MACHINE WORKERS OF AMERICA, C. 1.,0.
Case No. 2-C-5016.-Decided December 30, 1943
DECISION
AND
ORDER
On September 29, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist from the unfair labor practices
found and take certain affirmative action, as set out in the copy of the
Intermediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief. Oral
argument, in which only the respondent participated, was held before
the Board in Washington, D. C., on November 30, 1943. The Board
has considered the rulings of the Trial Examiner at the hearing and
finds that iib prejudicial errors were committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the respondent's brief and exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner , with the exceptions, additions, and quali-
fications noted below :
1 The Trial Examiner found, and we agree, that the respondent ef-
fectively caused the disestablishment of the committee of toolroom
employees and discouraged the concerted activities of its employees in
violation of Section 8 (1) of the Act. As part of the respondent's
conduct, the Trial Examiner considered the respondent's proposal at
the first meeting with the committee that the committee abandon its
plans with respect to the.petition and proceed to select one representa-
tive from each department to form a shop committee; he also con-
sidered President Aldeborgh's remark to employees Cherwinski and
Eisert on the next day, after the respondent had already caused the
disestablishment of the committee, that the respondent had managed
well without a shop committee and he could not see any particular
reason for changing that policy. We are of the opinion that the re-
54 N. L R. B., No 26.
160
STANDARD GAGE COMPANY 161
spondent's suggestion in the first instance, that the employees proceed
to choose a shop committee composed of representatives from each
department, was advanced in bad faith, and that, once having achieved
the desired result of disestablishing the committee, the respondent
made known its true attitude on the matter of the self-organizational
rights of its employees. Accordingly, we find that by its shifting po-
sition on the issue' of a shop committee, together with its other acts
and conduct, as found by the Trial Examiner, the respondent mani-
fested its opposition toward the concerted activities of its employees
in violation of the Act.
2. The Trial Examiner found that the respondent, through the acts
of its officers and agents in causing the illegal arrest of Union Or-
ganizer Sarti on November 6 and again on December 24, 1942, inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. We concur only in the
finding with respect to the arrest on November 6. While we are con-
vinced of the respondent's complicity in the arrest of Sarti on No-
vember 6, we regard the evidence with respect to the arrest on
December 24 as insufficient to warrant a finding that the respondent
authorized or ratified the conduct of Purdy, a plant guard, in causing
the arrest. Accordingly, we do not find that the action of Purdy on
December 24, is imputable to the respondent.'
3. The Trial Examiner found that the respondent violated Section 8
(1) of the Act by the acts and conduct of Holve, assistant to the re-
spondent's president, in calling a meeting of the toolroom employees on
February 11, 1943, and delivering to the assembled employees a speech,
designed to discourage membership in the Union. We concur in this
finding. Moreover, we regard as particularly significant, in establish-
ing the coercive effect of the aforesaid acts and conduct, Holve's state-
ments that "as a matter of fact, some of this agitation has retarded
some of the improvements which might take place at the present time
.. . part of this agitation has retarded [the] completion [of job re-
classifications], otherwise it might have been completed a couple weeks
ago . . . a lot of these things you don't think about." We are of the
opinion and we find that these statements not only made clear to the
employees that the respondent had already effected economic reprisals
against them because of their union activity but also constituted a
direct threat to them of economic reprisals for continuing such activity.
4. In his discussion of the discriminatory discharge of Elizabeth
Kodess, the Trial Examiner found that on or after October 12, 1942,
Foreman William Crum asked Kodess, while at work, if Eisert had
' We have never held that the acts of ordinary plant guards are unfair labor practices
which can be imputed to an employer in the absence of circumstances indicating authoriza-
tion or ratification by the employer of the conduct in question . See Matter of Drava Cor-
poration, 52 N. L. R. B. 322.
567000-44-vol 54-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought her "in the shop to organize the place"; if she had signed up
with the Union; and why she liked the C. I. O. He found further that
William Olah, foreman of the toolroom, frequently asked Kodess,
"How was the meeting last night?" or "Did you go to the meeting last
night?"; and that on one occasion Olah stated, "Say, I bet Rudy Eisert
got you into this place to organize it, didn't he?" We concur in these
findings, and find further that, by the interrogations of Foremen Crum
and Olah, the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7, of
the Act.
5. The Trial Examiner rejected the respondent's defense that Eliza-
beth Kodess was discharged on December 18, 1942, for "visiting," and
found that she did no "visiting," but that the true reason for her dis-
charge was her union and other concerted activity.' We agree with
the Trial Examiner. - Moreover even assuming, as testified to by the
respondent's witnesses, that Kodess did some "visiting," we find that
it did not constitute the basis for her discharge, but was seized upon by
the respondent as an excuse for ridding itself of a union member.3
Thus, it is clear from all such testimony that her visiting was, at best,
momentary, and that the respondent condoned similar conduct in
others. General Manager Reves, who was cross-examined at length
with respect to Kodess' "visiting," testified that he saw her away from
her department on "four or five occasions" ; that two of those incidents
lasted "a minute or less than a minute"; and that a third incident took
"more than a minute, or it may have been a minute and a half or might
have been two, or it might have been three." Further proof of the
insignificance of her "visiting," even if conceded, can be found in Reves
failure either to warn Kodess' or to report such conduct to her fore-
man 5 or to apprise Holve of his observations until the day of the dis-
charge; in Reves' admission that he had seen other employees doing
the same thing as Kodess on more than one occasion; and in the fact
that the record is barren of any proof of other discharges for "visiting."
6. The Trial Examiner referred to the date of the union organiza-
tional meeting, which the respondent kept under surveillance, vari-
ously as November 15, 1942, and November 15, 1943. It is clear,
however, and we find that the meeting occurred on November 15, 1942.
2 The respondent 's contention that Kodess had a poor employment background and that
that was a factor considered in its decision to terminate her employment, is without sup-
port in the record
8 We are convinced and we find that the respondent knew of Kodess' membership in the
Union and of her association with employee Eisert , a union member of recognized in-
fluence and leadership among the employees; that it suspected that she had joined or
,would loin with Eisert in an attempt to organize the respondent 's plant ; and that it was
aware of her contemporaneous activities as a member of a non-partisan labor committee.
4 Holve testified that he had told Reves to warn all employees who were "running around"
or "visiting "
S Reves testified that whenever lie noticed an employee "away from [ his] station of
work, [he] would always make it a point to bring it to the attention of the foreman."
STANDARD GAGE COMPANY 163-
At one point in the Intermediate Report, the Trial Examiner found
that Aldeborgh had in fact testified that "we have always gotten along
the way we have been for years, and I cannot see any particular reason
at this time to change the [labor] policy of the Company." The record
discloses, however, and we find, that this remark was attributed to
Aldeborgh by Holve.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Standard Gage Company,
Inc., Poughkeepsie, New York, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Electrical, Radio & Ma-
chine Workers of America, affiliated with the Congress of Industrial
Organizations, or in any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment;
(b) Maintaining surveillance of the activities of United Electrical,
Radio & Machine Workers of America, affiliated with the Congress of
Industrial Organizations, and of the activities of its employees in
connection with that organization or any other labor organization;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Offer Elizabeth Kodess immediate and full reinstatement to
her former or a substantially equivalent position, without prejudice
to her seniority or other rights and privileges;
(b) Make whole the said Elizabeth Kodess for any loss of pay she
has suffered by reason of the respondent's discrimination against her,
by payment to her of a sum of money equal to the amount which she
normally would have earned as wages from the date of her discharge
to the date of the respondent's offer of reinstatement, less her net
earnings during said period;
(c) Post immediately in conspicuous places in and about the re-
spondent's plant at Poughkeepsie, 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
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 respond-
ent will take the affirmative action set forth in paragraphs 2 (a) and
(b) of this Order; and (3) that the respondent's employees are free
to become and remain members of United Electrical, Radio & Machine
Workers of America, affiliated with the Congress of Industrial Or-
ganizations, or of any other labor organization, and that the respond-
ent will not discriminate against any employee because of his
membership or activity in that or in any other labor organization;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARD D. RFALLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr John J. Cuneo, for the Board.
Breed, Abbott & Morgan, by Mr. Thomas E Kerwin, of New York, New York,
for the respondent.
STATEMENT OF THE CASE
Upon a first amended charge duly filed by United Electrical, Radio & Machine
Workers of America, affiliated with the Congress of Industrial Organizations,
herein called the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Second Region (New York, New York),
issued its complaint dated June 28, 1943, against Standard Gage Company, Inc.,
Poughkeepsie, New York, herein called the respondent, alleging that the respon-
dent had engaged in and was engaging in unfair labor practices within the mean-
ing of Sections 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint ac-
companied by notices of hearing were duly served upon the respondent and the
Union. _
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that the respondent on or about December 18, 1942, discharged Betty Kodess
and since that date has refused to reinstate said employee for the reason that
she joined or assisted the Union or engaged in other concerted activities for the
purposes of collective bargaining or other mutual aid or protection; (2) that the
respondent from on or about December 1941 to the date of the complaint dis-
paraged and expressed disapproval of the Union; interrogated its employees
concerning their union affiliations; urged, persuaded, threatened,.and warned
its employees to refrain from assisting, becoming members of or remaining mem-
bers of the Union ; caused the arrest of a union organizer for distributing union
literature at or near its plant ; kept under observation the meeting places, meet-
ings and activities of the Union, or the concerted activities of its employees for
the purpose of self-organization or improvement of working conditions ; and for
STANDARD GAGE COMPANY 165
the purpose of discouraging membership or assistance to the Union ; and (3)
that by the acts described above, the respondent has interfered with, restrained
and coerced and is interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
On or about July 21, 1943 , the respondent filed its answer denying that it had
engaged in the unfair labor practices alleged.
The respondent also filed a motion for a bill of particulars , which was allowed
by the undersigned , in part, in response to which particulars were filed by the
Board.
Pursuant to notice , a hearing was held in Poughkeepsie , New York, from July 22
through August 4, 1943 , before Peter F. Ward, the Trial Examiner duly designated
by the Chief Trial Examiner . The Board and respondent were represented by
counsel and each participated in the hearing . Full opportunity to be heard, to
examine and cross-examine witnesses and to introduce evidence bearing on the
issues, was afforded all parties . After the parties had rested, the undersigned
granted , over the objection of the respondent 's counsel , the motion of counsel for
the Board to conform the complaint to the proof with reference to names, dates and
minor variances . Also, at the close of the hearing, counsel for the respondent
made a motion to dismiss the complaint , a "request for a decision in Respondent's
favor" and a request for time in which to submit a brief to the undersigned in
support of such motions . The undersigned granted respondent 's counsel time in
which to submit such brief and withheld ruling on the motions to dismiss and for
"a decision in Respondent 's favor," pending receipt of such brief . The under-
signed, having received and considered respondent 's brief in support of the afore-
said motions , denies said motions. Oral argument , participated in by counsel for
the Board and the respondent , was had on the record at the conclusion of the
hearing.
Upon the entire record in the case and from his observation of the witnesses, the
undersigned makes, in addition to the above , the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT'
The respondent is a New York corporation engaged in the manufacture, sale and
distribution of precision gages and- instruments, having its principal office and
plant in Poughkeepsie, New York. The principal raw materials used are steel,
brass, aluminum, cast iron castings and zinc die castings. During the period
from about July 15,,1942, to July 15, 1943, the respondent purchased raw materials
in excess of $50,000, of which more than 33 percent were shipped to the plant
from outside the State of New York. During the same period, the respondent
manufactured and produced finished products valued in excess of $50,000, of which
more than 33 percent were sold and shipped by the respondent to places outside
the State of New York. In excess of 90 percent of the respondent's total business
is the production of materials for war purposes.
if. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the respondent.
I The facts found in this section are based upon a stipulation filed at the hearing.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
1."Concerted activities
The record discloses that concerted activities among the respondent 's employees
first commenced in the latter part of December 1941 as the result of the posting of
a notice 2 upon the bulletin board, by the respondent.
Following the posting of this notice, Rudolph Eisert, an employee of many
years standing, in the tool room, and other tool room employees were personally
advised by William Olah, their foreman, that the employees should work on New
Year's Day, 1942, the same as any other work day. Tool room employees had
been working long hours over a considerable period of time and resented the idea
of working on New Year's Day at the regular wage scale.
On Sunday, December 28, Eisert and Charles Cherwinski, a fellow tool room
worker, met at the latter's home and composed a "petition" addressed to "Manage-
ment, Standard Gage Co. Poughkeepsie, New York" and signed " Employees of
Standard Gage Co." A number of copies of the petition were typed by Cher-.
winski's son and taken to the plant-on Monday, December 29, 1941. One copy
was posted on the bulletin board and other copies were passed out to employees
for their signatures.
2NOTICE!''!!!!
DECEMBER 26, 1941.
- AT THE REQUEST OF THE WAR DEPARTMENT,'THE FACTORY AND OFFICE WILL
OPERATE NEXT WEEK ON A FULL TIME SCHEDULE BASIS. THIS INCLUDES
THURSDAY, JANUARY 1, 1942-NEW YEAR'S DAY. (Signed)
STANDARD GAGE COMPANY, INC,
(Signed) ERICK ALDEBORGH, Piesident.
2 Management, Standard Gage Co, Poughkeepsie, New York.
We, the employees of the Standard Gage Co, being fully aware of'the gravity of the
present situation our country is in, are willing in every way to co-operate with out Govern-
ment to win the war and crash the dictatorial powers in the world However, we also
understand that although we work on Government orders, we do not work directly for the
Government but for the Company, which profits by these orders and our labor. Since the
establishment of our country, it was a tradition among employers to pay their employees
double time for all work done on holidays. Therefore, we respectfully request the Standard
Gage Co. to abide by these sacred American traditions, and do likewise Furthermore, we
have been -informed by our foremen [0lah] on Saturday, December 27, 1941, that the manage-
ment of the Standard Gage Co decided that all-the employees must work on Thursday,
January 1st, 1942, and contribute the earnings of that day to the Red Cross. [Italics
added ] We as free Americans, object to this high-handed method. A statement like that
might be good in Hitler's Germany, or Mussolini's Italy, but it is an' insult to free Ameri-
cans We are in a war to crush Hitler, not to introduce his methods here. The American
way of settling questions is by conference, not by dictator ship. (sic) Therefore, we
employees of the Standard Gage Co propose the following. we will work on thursday, (sic)
January 1st, 1942, if the Company abides by the American traditions, and pays, us double
time We will also contribute to the Red Cross half of our earnings of that day, providing
the Company matches our money dollar for dollar for the same cause regardless of previous
'contributions And moreover, we want our representatives to be present when the con-
tribution is made, to report to us. We also request the Company to consult with the em-
ployees concerning their private income, as we have the Right (sic) to decide what to do
or not to do with it This Right (sic) is granted to us By (sic) the Constitution of the
United States, and we shall defend it to the utmost If the Company agrees to these
proposals, the shop committee will gladly meet to discuss the matter. We aie willing to
work and to co-operate with the Government, but if Standard Gage Company refuses to
grant our just requests, we will be forced to cease work on New Year's Day and all holidays
until our terms are met by the Company.
With sincerest wishes for peacefull (sic) understanding, we remain,
EMPLOYEES OF STANDARD GAGE CO.
STANDARD GAGE COMPANY 167
When Niles Holve, assistant to the respondent's president, arrived at the plant
on Monday morning, December 29, his attention was called to the petition on the
bulletin board. Holve removed the petition and then conferred with Erik Alde-
borgh, respondent's president, with the result that a notice was prepared and
posted on the bulletin board which in substance asked the authors of the
"undated and unsigned petition," which had been posted on the bulletin board,
to report to the office at 2 o'clock in the afternoon of December 29.
At 2 o'clock, eight employes 4 reported aS the office. According to Eisert,
Aldeborgh opened the meeting and, with the petition which had been removed
from the bulletin board before him, asked those present whom they represented,
how they came to be chosen as a committee, and whether it was a spontaneous
movement, or whether there was any outside influence connected with it.
Cherwinski replied in substance that the eight men there assembled considered
themselves the shop committee referred to in the petition under discussion.
Aldeborgh then suggested that they sign the petition and, after a short consul-
tation, either Eisert or Cherwinski stated that the committee would sign the
petition Each of the eight committeemen then signed it. According to the
testimony of Board witnesses," Aldeborgh stated in substance that the committee
was not proceeding in the proper way, that there was "a right and wrong way"
of doing things, and suggested that the proper procedure would be for each
department in the plant to select a representative.
Respondent's witnesses, Aldeborgh and Holve, testified that no suggestion was
made to the effect that the petition which was then being circulated throughout
the.plant be abandoned and a shop committee be selected by departments, and
that Aldeborgh stated to the committee that he felt that, before the contents of
the petition were discussed, lie wanted proof that the committee represented all
departments. Holve further testified that Aldeborgh adjourned the meeting until
10 o'clock a m., December 30, "in which time the committee were during the
supper hour and after working hours, to produce the paper where the signatures
were." Holve further testified that the committee had stated during the meeting
that they already had a number of signatures on the petition "but they definitely
refused to substantiate that statement by bringing in the paper with the signa-
tures on it." Holve admitted that Cherwinski might have asked that the respon-
dent-agree to the request contained in the petition, to-which Aldeborgh answered
in substance: "Prove first that you represent the entire plant. If you prove
that tomorrow morning at 10 o'clock, then we will discuss other subject after-
wards "
The firste meeting "ended rather friendly," Aldeborgh and Holve believing that
the committee would follow their suggestion, abandon further attempts to obtain
signatures to the petition and proceed to select one representative from each
department to form a shop committee. The committee members, however, did
not adopt the suggestion and proceeded to get further signatures to the petition.
Holve subsequently learned that the committee was proceeding to obtain
signatures to the petition and on the night of December 29 ° he sent for Aldeborgh
to come to the plant office, and reported the facts regarding the circulation of
the petition to him. Aldeborgh then directed that the committee of eight report
4In addition to Eisert and Cherwinski, the following tool room employees, John War-
wzonek, Domenic Cavaliere, George Emery, William Wenner, Stephen Persely and Norman
Scofield, appeared
Eisert, Wenner, and Emery testified on behalf of the Board
While there is no'dispute between, the parties that a second meeting was held, there is a
dispute as to the exact time of such meeting Board witnesses fixed the time as December
30, respondent's witnesses fixed it as the night of December 29. For reasons set forth
bclow, the undersigned is of the opinion and finds that the second meeting did, in fact, occur
on the night of December 29.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately in his office. All of the committee members except Cherwinski 7
reported shortly after 8 p. in. When they arrived Aldeborgh opened the meeting
in an "excited" manner, "pounded the table," and was "incensed". In substance,
Aldeborgh stated to the committee that he did not care to be forced into any
agreement with it concerning overtime but that he had thought that after the
first meeting the committee "would stop getting signatures to the petition."
Aldeborgh then questioned the patriotism of the members, and contrasted the
work of the employees with that of men on the battlefield According to Holve,
Aldeborgh spoke "about the soldiers in the field, and things of that nature.
He gave that very forcefully, in my opinion, to the men in the room.) On cross-
examination Holve stated, "He (Aldehorgh) made quite extended remarks, to
the best of my recollection, about the fact that there was a lot of men in uniform
out fighting for the country, and that all that was asked of ITS at this particular
point was to sacrifice our New Year's Day." At this point in the meeting
Eisert arose and stated, "that [he] considered [himself] just as good a citizen
as anybody in the room."
Following the criticism of the committee by Aldeborgh, and Elsert's remark
above set forth, John Warwzonek, a member of the committee, asked to be
excused from the meeting, and stated that he wanted to resign from the com-
mittee. Aldeborgh then requested Warwzonek to remain and after Holve said
to Warwzonek, "don't get excited You might.as well hear the rest of it . . ."
Warwzonek resumed his seat and remained for the balance of the meeting.
During the meeting Holve requested Eisert to produce the petition and sig-
natures. Eisert stated that he did not wish to show the signatures because, he
did not have them all in and furthermore "he had lived in Poughkeepsie too
long to hand over a list of signatures in a case like this, and I knew what would
happen to them."
According to Holve, Aldeborgh told the committee that it had come to his
attention that the committee members were going about the plant making
"false statements" in order to obtain signatures to the petition "The false
statements" were that Aldeborgh and Holve "would agree . . . to anything"
if a majority of the employees signed the petition. Aldeborgh testified as to
the reason he was "incensed," as follows :
Well, I felt this way :
That they had not gone about the matter as we had discussed the same
morning, or same afternoon, rather, at two o'clock, and that their approach
to the whole thing was entirely out of order.'
On direct examination Aldeborgh was asked if he had made any statements
comparing the committee members with the men in the armed forces. He
testified :
I don't recall. I do recall, however, that I did say that if the policy and
condition under which they are working didn't (sic) suit them, that they
had the privilege to resign, and that [we] furthermoi a did not want to
have any dissatisfied employees in our plant. [Italics added.]
The respondent contends, in effect, that the second meeting was called because
the committee members were making "false statements" to the effect that if a
T Cherwinski lived some 30 miles from the' plant and, unlike the others , quit work at 8
p in instead of at the usual quitting time of 9 p. in.
8 Aldeborgh thus admits that a discussion as to procedure was had . His contention that
all that the committee was required to do was to present the signed petitions already on
hand is not credible No adjournment of the first meeting would have been necessary to
permit the submission of such petitions . It is clear , and the undersigned finds, that Alde-
borgh sought to induce the committee to abandon the aims sought by their petition and to
set up a committee along lines he suggested He became enraged When he learned that
the committee was proceeding with the original form of petition.
STANDARD GAGE COMPANY 169
majority of employees signed the petition respondent's officials would "agree
to anything." It is clear , however, and it is found, that the calling of the
second meeting was occasioned by the fact that the committee members refused
to follow Aldeborgh's and Holve's suggestion, made in the first meeting, that
they abandon circulation of the petition and select a shop committee by
departments.
A third, meeting was held on December 30.9 The parties are in accord to a
substantial degree as to what occurred at this meeting.
Board witnesses Wehner and Emery testified in substance, and without contra-
diction, that Foreman Olah of the tool room sent them and four others of the
committee to Aldeborgh on this occasion. Holve testified that on the morning
of December 30, Olah informed him that some of the boys who had attended the
meeting on the previous night "felt a little bit reluctant about remaining on
the committee," and when Holve asked Olah what he meant by such a statement,
Olah replied that the men "got cold feet" Olah1" then, according to Holve,
asked the latter if there was some way of removing the names of the committee
from the petition which they had signed and was advised that the latter would
investigate the matter and take it up with Olah later.
Holve further testified that he took the matter up with Aldeborgh, advising
him of Olah's indication that the men wanted to take their names off the petition.
In this connection, Holve testified as follows :
Q. None of these men had come to you, but some of them had asked Olah
whether or not they could withdraw their names from the petition. Is that
correct?
A. If they could get their names off that piece of paper.
Q. Yes.
A. Mr. Aldeborgh and I discussed it, and we definitely, recalled the inci-
dent on the previous evening, when John Warwzonek withdrew from the
committee right during the course of the meeting.
Inasmuch as most of these fellows on the committee, with the exception of
Cherwinski and Eisert, were young fellows, we felt that maybe we could.
[Italics added.]
Aldeborgh and Holve then prepared a typewritten form as set out in the
footnote ; u and Holve, according to his testimony, telephoned Olah to send "the
0 There is no dispute as to the number of meetings held, but there is a dispute as to the
time the second and third meetings, and the separate meeting attended by Cherwinski and
Eisert, were held Board witnesses Wehner, Emery and, Eisert fixed the dates of the
meetings as December 29, 30 and January 2. Respondent witnesses fix the dates as
December 29 at 2 p. in, for the first meeting ; December 29, at 8 p in, for the second
meeting ; December 30, at 10 a. in for the meeting of the six "young fellows" and
December 30, at 2 p. in. for the meeting with Clierwinski and Eisert The record does not
disclose that Cherwinski attended the second meeting and that, unlike other tool room
employees, he did not work after 8 p in. The withdrawal "affidavits," referred to below,
are dated December 30, and as documentary evidence are entitled to great weight. Upon
the basis of the foregoing and the entire record, the undersigned accepts the version of the
respondent's witnesses and finds that the meetings were held as follows . (1) 2 o'clock p. in
and (2) 8 o'clock p in on December 29, (3) about 8 • 30 o'clock a in. and (4) 2 o'clock
p in. December 30.
10 Olah, although shown to have been available was not called as a witness
I I I , -------------------- do hereby withdraw my name in whole from an undated letter
directed to the Management of Standard Gage Company, Inc., Poughkeepsie , N Y , and
signed in the office of the President December 29, 1941.
I make this withdrawal of my own free will
Signed ------------------------------
Dated ---------------- 1941.
Sworn to before me this------------ day of ---------------- 1941.
--------------------------------
Notary Public
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
boys who wanted to withdraw" to his office . Shortly thereafter all members
of the committee except Cherwinski and Eisert arrived at the office.
In this connection, Holve testified :
When they came, the six of them-that is, all but Rudy Eisert and Charlie
Cherwinski, as appears on that paper-when they came to my office, I asked
them; "-I understand that you want to withdraw your nanmes 'froth,the peti=
tion. You can readily understand it is impossible to erase names that have
already been written, but if you still have a desire to withdraw from the
petition itself, we believe it can be accomplished by your signing an affidavit."
The six committee members entered Aldeborgh's office and Holve advised Alde-
borgh, "'These are the boys who apparently want to withdraw from the com-
mittee'-not from the committee, but to withdraw their name from the petition."
Holve further testified :
I recommended to Mr. Aldeborgh that he should let them do so... .
Aldeborgh, then read the copy of the affidavit of withdrawal to the six men who,
according to Holve, thereupon stated that they wanted to sign it. Mrs Poolin,
-Aldeborgh's confidential secretary, a notary public, was called to witness the
signatures. The six men signed-the affidavit, after which Aldeborgh dismissed
them "and told them to go ,back to work and to forget about the whole incident."
The men shook hands.with,Aldeborgh'and' Holvi?-'and--returned, to,work.
It is the contention of the respondent that, when the first meeting between
the management and fEe committee was held on the afternoon of December 29,
the meeting was adjourned until 10 o'clock, December 30, for the sole purpose
of permitting the committee to submit signed copies of the petition to the
respondent for the purpose of proving that the committee represented a majority
of the entire plant.
In connection with the proposed "10 o'clock meeting," Holve stated that no
one showed up at that time. He further testified :
As often was the custom, Mr. Aldeborgh and I had lunch that day and'
discussed what our next move should be, being that no one showed up at
the 10 o'clock meeting.
We of course realized that six of the men had resigned from the com-
mittee,' and there were only two left. . . - _ `
. Q. When you say, "resigned from the committee," do you mean withdrew
their names?
A. Withdrew their names, which we in effect took as resigning from the
committee.
On cross-examination, Holve testified :
Q. Now, did you call Bill Olah after 10 o'clock a. m., when they had
not shown up?
A. No.
Q. Why not?
A. Six'members, which would-be'75 'percent of the'so-called 'committee,
had, prior to 10 o'clock resigned from having anything to do with the
whole matter, just as has been described.
Q. Then you had every reason to believe that they would not show up, in
view of the fact that six of them had resigned? Is not that right?
A. It is possible.
Q. Who did you expect to show up when six had resigned before?
STANDARD GAGE COMPANY 171
A. The balance of the committee.
Q That was two men?
A. Right.
Q. Cherwinski and Eisert? Correct?
A. Correct.
Q. And they did not show up?
A. No, they did not.
Approximately at 2 o'clock in the afternoon of December 30, Holve called Olah
and told him to send Eisert and Cherwinski to Aldeborgh's office, which he did.
According to Holve, Aldeborgh opened the conversation with Eisert and Cher-
winski and reminded them of the fact that the first meeting between man-
agement and the committee held on December 29 had been adjourned until
10 o'clock, December 30, and that, while Holve and Aldeborgh had been in the
latter's office at that time, "no one showed up at the meeting." Eisert replied,
according to Holve, "Well, I was at last night's meeting and thought that the
10 o'clock meeting was all out (sic.)" Aldeborgh then reminded Eisert that
"nothing was mentioned at the previous night's meeting of any cancellation of
the 10 o'clock date ; and that the purpose of the Monday night meeting was to
ascertain the methods by which they were obtaining signatures on the petition "
According to Holve, either Eisert or Cherwinski then inquired, "there wouldn't
be any chance for us to sign such a paper,?" thus making it appear that Eisert
and Cherwinski sought to sign the affidavit of withdrawal on their own mo-
tion. Aldeborgh, however, testified, "To my best recollection, we asked them,
or I asked them about withdrawing their names, the same as happened with
the rest, and I told them about the men who had withdrawn their names, and
if they were also willing to withdraw their names, which they said they would"
During this same meeting, according to Holve's testimony, Cherwinski suggested
that some sort of a' committee should be set up to handle grievances, to which
Aldeborgh replied, "We have always gotten along the way we have been for years,
and I cannot see any particular reason at this time to change the policy of the
company However, whatever you boys want to do, you let me know when you
are ready and actually represent the will of the shop." [Italics added.] Eisert
and Cherwinski signed the affidavit of withdrawal as requested and returned
to work
According to Aldeborgh, -the -respondent's Board of Directors, on December 26,
1941, voted to pay the employees a bonus on the following basis : those employed
6 months or more were to receive 40 hours pay ; those employed 3 to 6 months,
30 hours pay ; and those employed 3 months or less, 20 hours pay. Aldeborgh
at no time advised the committee that a bonus was to be paid, as he "felt that
that was a matter which did not concern those 8 men but the employees as a
whole." The committee had no knowledge of the forthcoming bonus until it
was announced on the bulletin board on New Year's Eve.
On February 16, 1942, a general increase of 10 cents per hour was granted to
all of the respondent's employees.,
The respondent contended in substanice, both at the hearing and .in its brief,
that since there was no union activity in the plant during December 1941, the
respondent is not,, as a result of the acts above set forth, chargeable with a vio-
lation of the Act. Such contention is without merit, inasmuch as the Act guar-
antees to employees the right "to engage in concerted activities," for the pur-
pose of collective bargaining or other mutual aid or protection, and is not lim-
ited to the right to engage in union activity.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions; Interference
with concerted activities
The respondent, pursuant to a request of the,War Department,, determined to
operate its plant on New Year's Day, January 1, 1942, and posted a notice to this
effect. It also agreed to cooperate with the Red Cross in putting on a drive for
funds. Olah, foreman of the tool room, advised some of the tool employees that
they would be expected to work New Year's Day and, to contribute that day's
pay to the Red Cross. Insofar as it appears from the record, the employees
were not consulted concerning the proposed donation of a day's pay to the Red
Cross. The posted notice, advising that the plant would operate New Year's
Day, contained no mention of additional pay for such day's work. The employees
were without any labor organization or other representative which might act
on their behalf at the time.
Eisert and Cherwinski prepared the petition above set forth and undertook
its circulation among the employees. One copy of such petition was placed on
the bulletin board at the plant and other copies were distributed to employees
throughout the plant, who in turn undertook to have others sign them. As
above found, the respondent asked the authors of the petition to report to the
respondent's office. There, the respondent's officials objected to the committee's
plan of procedure (in having the petition signed), and proposed that a shop
committee be selected in a different manner. The committee declined to follow
the respondent's suggestion and continued securing signatures to the petition.
The respondent through its officials, on learning that the committee had declined
to follow its suggestion, ordered Foreman Olah to send the committee to Alde-
borgh's office. When seven of the eight members of the committee, then work-
mg, reported to the office, Aldeborgh pounded the table, in a loud voice ques-
tioned the patriotism of the committee members and told them "- - - that
if the policy and condition under which they were working did not suit them,
they had the privilege to resign - -," thus serving notice on the committee,
that if it did not see fit to follow the respondent's suggestion, that they could
terminate their employment.
Eisert spiritedly defended his patriotism, but Warwzonek announced his resig-
nation from the committee. On December 30, 1941, Aldeborgh sent for the six
young men on the committee and had them sign an "affidavit" withdrawing from
the petition. On the afternoon of the same day Aldeborgh sent for Eisert and
Cherwinski, neither of whom had expressed a desire to withdraw from the
petition or the committee, and advised them that 75 percent of the committee
had withdrawn and requested that they too withdraw Eisert and Cherwinski
signed the "affidavits," and when the latter inquired, "why wouldn't it be a
good idea to have some sort of a shop committee?" Adelborgh replied :
We have always gotten along the way we have been for years, and I
cannot see any particular reason at this time to change the policy of the
Company.
Following the signing of the "affidavits" by Eisert and Cherwinski the com-
mittee ceased to function. Thus, the respondent by its indirect threats of dis-
missal succeeded in disestablishing the committee and discouraging concerted
activities by its employees.
The undersigned finds that the respondent by its acts above described, has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
I
STANDARD GAGE COMPANY
2. The "off-the-record" 'conference
Holve and Jisert
173
Elsert testified that about the middle of February 12 1942, he was advised
by his foreman, Bill Olah, that Holve wished to see him in the latter's office
and that pursuant to such instructions he went to Holve's office. In this con-
nection, Eisert testified :
Q. Tell us what Mr. Holve said and what you said.
A. Well, Mr. Holve asked me to sit down, and I sat down at the desk,
and he told me this was an off-the-record talk, and Mr. Aldeborgh did not
know about it, either, and he went on to say that he had heard rumors that
there was a lot of unrest in the shop, and that a union was coming in.
So I asked him why he called me about that matter, and he said to me
that he felt that the boys would come to me, naturally, to talk it over, and
to get my advice.
He asked me if I knew that if the union came in, we would probably re-
ceive less pay than we were getting because the union would probably want
to cut hours and change piece work prices, and so forth. [Italics added.]
Q. Did he say anything further?
A. I believe I asked him which union he referred, to, and I believe he
mentioned the A. F. of L.
Q. What did you say?
A. So I told him that I belonged to that organization about 20 years
ago,. and he said, "Yes, I know," and I then asked him whether he investigated
that far back.
Q. Did he answer you?
A. He did not answer me.
Q. Then what if anything did you say?
A. I told him that as far as the A. F. of L. was concerned, I would not
have anything to do with it, and I would not try to promote it, but in re-
gard to the CIO, I wouldn't promise anything.
Holve testified, in substance, that at that time he was considering, "in his
own mind," the appointment of a new night foreman. He further testified :
However, first, before I would do that and recommend to do it, I wanted
to have what I would term a little bit of a conversation, particularly with the
man, which is logical, when you are planning to consider a man for any
kind of a position.
I therefore at that time, in April or May, called Bill Olah and asked him
to send Rudy Eisert up in my office.
In talking with him I told him that this was confidential more or less
between him and myself, and that we both could feel free, and I hoped that
he would feel that way, to say just what we might have on our minds.
" It was undisputed that Holve had an "off-the-record" or "confidential" conference with
Eisert. Risert both on cross-examination and rebuttal fixed the date in February 1942,
whereas Holve fixed the date of such conference the latter part of April or the first part of
May 1942. Since the record shows conclusively that Holve and Eisert discussed the elec-
tion held by the National Labor Relations Board in the Matter of the Federal Bearings
Company, Inc., et al., reported in 40 N L. R. B. 1230 (of which decision the undersigned
takes judicial notice), and since such decision discloses that the election was not held until
April 14, 1942, it is clear , and the undersigned finds that the above conference occurred in
April or May 1942.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holve testified that he did not advise Eisert that the latter was being considered
for a promotion to the position of night foreman , but stated that he and Eisert
discussed the fact that Olah, who had less seniority than Eisert , had been
made a foreman in the fall of 1941 , because Eisert had been for over a,year
confined to a particular type of work and was thus not considered at the time
of Olah's promotion . Holve further testified :
* * * Then he (Eisert ) made some remarks, -
"Well, I couldn't expect anything more," and I said , "Why not?"
He said, "Well , after what happened around Christmas."
I told him, "Are you still worrying about that ? That has no effect on
anyone. * * *"
Holve also testified that the conversation drifted and "we finally got to dis-
cussing the election that they had had up at Schatz -Federal Bearings Company
shortly before ," and that during this conversation Eisert volunteered the fact
that he once belonged to a union and stated , "I am not very much in favor of
the CIO, that won up at Federal Bearings * ' * * I would never give you any
assurance that-I wouldn't be interested in the A. F. of L." Holve admitted, on
cross-examination , that he knew that his testimony in this respect was directly
opposite to the testimony of Eisert . As has already been found , the record dis-
closes that Eisert and Cherwinski were recognized as leaders in the concerted
activities engaged in by the respondent 's employees , and it is particularly signifi-
cant that when the respondent sought to discourage the efforts of the employees to
organize a shop committee in December 1941, 'Aldeburgh and Holve had the six
`'young men " "of the committee report and sign withdrawal affidavits , before
sending for Eisert and Cherwinski and advising them that three-fourths of the
committee had quit and requesting them to do likewise.
It is clear from the testimony that Holve and Eisert did discuss unions on
the occasion of the "off-the-record" conference . Both testified with reference
to a "promise" or an "assurance" made by, or requested from, Eisert in connection
with his probable future activity in behalf of the A. F. of L. or the C. I. O. In
view of this , and the further fact that Holve, without anybody's knowledge sent
for Eisert to come to his office during working hours for this "confidential,"
"off-the-record " conference , the conclusion seems 'warranted that Holve 's purpose
in doing so was to forestall any union activity by Eisert , and it is so found.
The undersigned does , not credit Holve's statement to the effect that he was
considering the appointment and promotion of Eisert to a position of night
foreman." Holve did recognize Eisert's influence and leadership among the
employees and sought to enlist his activities against, and to discourage use of
his influence and activities on-behalf of the threatened union organizational
activities , and the undersigned so finds. By the acts, statements , and conduct
of Holve, as above set forth, -the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
3. The . Union's organizational activities
After the respondent, succeeded in having the committee members resign and
withdraw their names from the petition , the committee engaged in no further
activities. "
Sometime prior to August 28, 1942; Eisert and Cherwinski determined to
procure some "outside help." They got in touch with the Union at its New
as It is significant that John Warwzonek who was the first to withdraw from the petition
and committee referred to hereinbefore was promoted to a position of night foreman in
October or November 1942 and served as such until April or May 1943.
STANDARD GAGE COMPANY 175
York City office and asked that a representative be sent to them. A repre-
sentative came to Poughkeepsie and conferred with Eisert and Cherwinski at
the former 's home. About August 28 or 29 Louis Sarti , a field organizer for
the Union , was assigned to the respondent 's plant and upon his arrival con-
sulted with Eisert. A number of meetings were held at Eisert 's home and
during the second week of September, a meeting of the eight former committee-
men was held at Eisert 's home. During this meeting Sarti procured the names
and addresses of some of the employees and later visited them in their homes.
Those who attended this meeting were given union literature and applications
for membership - Eisert solicited, among others , Elizabeth Kodess, the first
woman to , be employed in the marking , department . Her concerted union
activities , and her discriminatory discharge are discussed below.
On November 6, at about 6: 30 a. in. Sarti stationed himself on the sidewalk
about 5 yards away from the office entrance and outside the respondent ' s plant
on Parker Avenue He distributed union leaflets to employees going into and
coming out of work . While so engaged, Sarti was accosted by a uniformed
guard who advised him that he "could not give out leaflets." Sarti explained
to the guard that he had a right to distribute the leaflets , but the guard refused
to accept Sarti's explanation A man identified as the "night superintendent"
approached Sarti and told him that he could not "give out leaflets" and ordered
him away from the plant." Sarti left, returning on the afternoon of the same
day, at about 3: 30 with a supply of union circulars which he attempted to
distribute at the Garden Street entrance . After handing out several circulars
he was stopped by Guard Bill Purdy , who told him that he could not pass out
the circulars . Sarti advised Purdy to consult with "his bosses" before he said
that, "because we had the right to give out leaflets." Purdy then invited Sarti
into the plant to speak to McCambridge, the chief of the guards . Sarti refused,
and told Purdy that if the chief [McCambridge] would come out he "would
speak to him " Purdy then asked Sarti to "come to the fence , anyway." Sarti
did so, and was shortly joined by McCambridge , who said , "You get the hell
out of here, you son of a bitch ." Sarti replied , "You don't have to be so tough
about it. I came here because the guard [Purdy ] asked me to talk to you." a
Sarti told McCambridge that he had a right to distribute the leaflets and
returned to his former place on the sidewalk and continued to distribute them.
After Sarti had passed out some 10 to 15 circulars, Sgt. Frank J. McManus of
the local police arrived in a police car. McManus testified in substance that as
:a result of a radio call , he was advised by his superior , Lt. Harvey Boyd, that the
respondent "wanted an officer on the Garden Street side of the plant ," as "there
was supposed to be a man distributing circulars." When McManus arrived he
found McCambridge, Purdy, another guard, and Sarti. McManus testified:
When I arrived there, as I said before , Sarti was on the sidewalk with some
circulars . I asked him what the trouble was, and he said he was handing out
these circulars
* * * He [Sarti] said he was handing these out , and I said, or the
discussion arose between him and McCambridge that he was there on the
14 Sarti ' s testimony in this connection was not contradicted . He did not know the night
superintendent 's name but attempted to describe him Counsel for the respondent stated .11. . that sue do not recognize that there has been any description of the night superintend-
ent in the record ." Neither the night superintendent nor the uniformed guard who were on
duty on this occasion and could have been easily identified by the respondent were called as
witnesses The undersigned is convinced and finds that the events as testified to by Sarti
occurred substantially as set forth above
"Neither McCambridge nor Purdy, although shown to have been available was called as
a witness.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company's property. I did not see him on company property, and I tole
McCambridge that he had a right to hand out the circulars on the sidewalk.
* * * * * * *
Q. What was the next thing said or done?
A. The discussion arose that it was a restricted area.
Q. Who brought that up?
A. McCambridge.
Q. Yes.
A And according' to Army regulations, it was a restricted area, and he
didn't want him on the property, and he asked if I would take him down to
have him checked for his true credentials and so forth.
Q. What if, anything did you say or do then?
A I told Mr. Sarti I could not stop him from, distributing the'circulars,
and the best thing to do would be to come down to the station and straighten
out the matter, and he agreed to that. -
Q Did McCambridge insist on your taking him in?
A. Yes, he said he wanted him brought down to the station and checked,
because they were under military, regulations.
McManus further testified :
McCambridge contended that it was all restricted area, including the
sidewalk * * *
Sarti, pursuant to McManus' request accompanied the latter to the police sta-
tion, where he was interviewed in turn by Lt.-Boyd and the Chief of Police, each
of whom advised him that he had no right to distribute circulars. The Chief
,of-Police,stated,-according to,Sarti, "This is.a restricted area * * * You get
out or I will run you in." 1°
Sarti left the police station and attempted to see the Mayor. Finding the latter
out, Sarti got in touch with City Corporation Counsel O'Donnell, and informed him
of the events above set forth, including his arrest.. O'Donnell telephoned the Chief
of Police and advised him that there was no city regulation that would prevent
Sarti from passing out literature. The Chief of Police replied that there was
a military regulation "which prevented it at Standard Gage." 14
Sarti thereafter wrote the Washington, D. C., office of the Union, "asking them
to check with the Army as to whether any new regulations had been passed,
and, if not, to protest that incident at Standard Gage."
Toward the end of November 1942, two army officers called on Sarti. In- this
connection he testified :
Q. Did they introduce themselves?
A. Yes.
16 The respondent contends in effect, that since Sarti was not "booked" or incarcerated
on this, and on a subsequent occasion discussed below, he was not in fact "arrested" and
that in the instant occasion he was taken to the police station to be "identified." Such
contentions are wholly without merit . In the first place, as found below, the streets and
sidewalks about the respondent 's plant were not in a restricted area, except insofar as a
city ordinance restricted the parking of automobiles on certain portions thereof. Sarti, in
passing out circulars , was engaged in legitimate union business in a place where he had a
right to be . The respondent knew, and had advised the police department , that Sarti was
passing out circulars . By insisting that McManus take Sarti to the police station to be
"checked" or "identified", under the circumstances then existing , the respondent caused
Sarti to be illegally detained or arrested , and the fact that he was not "booked " or locked
up is immaterial.
11 This finding is based on the credible testimony of Sarti and is corroborated by succeed-
ing events . Neither O 'Donnell nor the Chief of Police , although not shown to have been
unavailable, were called as witnesses.
STANDARD GAGE COMPANY 177
Q. What did. they say?
A. They told me that the Army, or they understood that I had protested
it to the War Department, that the Army had stopped me from giving out
leaflets, and that the Army had no such policy, and it was not ever the policy
of the Army to interfere with distribution of union literature.
I explained to them that I had not protested that the Army had stopped me,
but I protested the fact that the company guard said the company would
not leave (sic) them be distributed because of the Army regulations, because
Army regulations forbade it.
Q. Did you say anything further to them?
A. Yes, I asked them to take it up with the company and inform them that
we had a right to give out leaflets there, without being disturbed.
Q. What did they say?
A. They said they would.
The fact that Sarti's complaint reached the War Department is corroborated
by Holve's testimony that on November 25, 1942, Major Cornelius Vanderbilt, Jr.,
of the United States Army called on him. Holve testified :
* * * Major Vanderbilt, in a few minutes, came up from the reception
room and I met him. He at that time carried the rank of Major in the
War Department. Major Vanderbilt said immediately what the purpose
of his visit was. He stated that he had received a complaint, or the War
Department had received a complaint from the CIO, that the Standard
Gage Company had unduly arrested one of their field organizers, and he
had been assigned by his department in Washington to personally come
up and investigate the case.
According to Holve, Vanderbilt, after talking to him and to the respondent's
assistant general foreman and hearing their version of Sarti's activities and
arrest stated
You were in your rights, and if it happens again, you can do it. I am telling
you this both as an individual and in my capacity of a Major in the United
States Army, investigating this complaint.
It is significant that Vanderbilt talked only to Holve and the assistant general
foreman, neither of whom were present at the time of such arrest. It does not
appear that Vanderbilt was advised or knew that the circulars passed out by
Sarti were in fact passed out on the sidewalk outside of the respondent's fenced
premises. In any event Vanderbilt's opinion is not controlling herein and
cannot justify the illegal arrest of Sarti and it is so found.
The respondent contends in substance and effect that Holve had "joint super-
vision with the War Department over the plant protection activities," and thus
had supervision and direction of the guards employed to protect the plant
property. It further contends, moreover, that the plant property included the
"restricted" area composed of Garden Street, Brookside Avenue, and Parker
Avenue, together with the sidewalks along such thoroughfares, all of which
abutted the plant property. The only credible evidence of any restriction ap-
plicable to this locality was contained in a certified copy of "AN ORDINANCE
AMENDING CHAPTER 34 OF THE CODE OF ORDINANCES OF THE CITY
OF POUGHKEEPSIE," which ordinance amended Section 4 of Chapter 34 by
adding sub-divisions numbered 74, 75, and 76. These ordinances prohibited
parking on Parker Avenue, Brookside Avenue, and that portion of Garden
Street therein designated.
567900-44-vol. 54-13
,178 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
Holve testified at considerable length to the effect that he had been advised
and authorized by the FBI and the War Department to instruct the plant pro-
tection guards not only in connection with the plant premises proper, but also
as to the streets and sidewalks adjacent to the plant property.
During the hearing the respondent offered and had received in evidence a let-
ter from Headquarters, District No. 1, Second Service Command, United States•
Army, New York City, the body of which letter is as follows:
Attention : Mr. N. Holve
For purposes of adequate plant security, it is the recommendation of this
office that the driveway from Garden Street to the entrance gates of your
plant located at 151 Garden Street, Poughkeepsie, N. Y., should be restricted
as to traffic, both vehicular and pedestrian. Such restriction has been the
recommendation of the War Department on the occasion of numerous past
inspections by representatives of both the New York Ordinance District and
this office. It is understood that such restriction of certain streets in the
vicinity of your plants has been established by local ordinance and this office
concurs in this action.
For the Commanding General :
(Signed) F. W. Russnri
Captain, C. M. P.
Asst. Plant Security Officer.
The foregoing letter, as appears from the face thereof, is merely a recommen-
dation, and the concluding sentence is obviously in error insofar as it suggests
that the local ordinance is applicable to pedestrian traffic.
Holve testified that a notice over the name of H. A. Drum, Lieutenant General,
U. S. Army, posted on the respondent's premises bearing the heading "Warning.
Keep Out Prohibited Zone," coupled with the other rulings and ordinances in his
opinion, constituted the guards authority to prohibit the distribution of union
literature by a union organizer on a street in "a restricted area."
On the basis of the foregoing, and upon the entire record, it is clear, and the
undersigned finds, that the streets and avenues abutting on the respondent's plant
property are not included in an area restricted as to pedestrian traffic, and that
the respondent and its agents were and are without authority to interfere with
union organizers engaged in the lawful distribution of union literature to the
respondent's employees upon ways not included in the respondent's property 1D
4. Surveillance
The Union advertised an organizational meeting to be held at 2:30 p. m., No-
vember 15, at Moose Hall on Mill Street. Shortly before the meeting Ejnar
Reves, the respondent's general foreman, drove past the meeting place in an auto-
mobile. Reves greeted Eisert and other employees there assembled. Before the
meeting got under way, Reves made several further trips past the meeting place.
After the close of the meeting, and while Eisert and "two or three other men,
employees of the Standard Gage Company" were on the street in front of Moose
78 This letter dated July 26, 1943, was solicited and procured by the respondent during
the period that the hearing was in progress , and for the obvious purpose of buttressing its
position on this issue.
10 See Matter of Adolph Spalek and William J. Zrenchik, Co-partners, doing business as
Spalek Engineering Company and Society of Designing Engineers , Local 201, Federation of
Architects, Engineers, Chemists and Technicians , CIO, 45 N. L. R. B. 1272.
STANDARD GAGE COMPANY 179
Hall, Reves again drove by, and again greeted the group. According to Reves'
"-there was quite a point made of these fellows returning my greetings." 20
Reves testified that later that afternoon or early evening he again drove
past the meeting place on the way to the movies with his wife. Upon his
return from the movies, after driving his wife home, between 9:30 and 11
o'clock he went to Holve's house and reported to Holve that he had driven
past Moose Hall, the Union meeting place. In this connection, Reves testified:
The reason for my visit to Mr. Holve's house that evening was the fact
that I had seen these boys down on the street down there, and 'I thought
I would go up and tell Mr. Holve, and the substance of the conversation
may be that I may be on the spot, having seen these boys down there.
Reves further testified that he was aware of the Union's organizing activities
at the time of the Mill Street incident, and of the fact that his action might be
misinterpreted.
The complaint alleges, in part, that the respondent "has kept under observa-
tion the meeting places, meetings and activities of the Union . . . for the purpose
of discouraging membership or assistance to the Union." The Board contends,.
in effect, that by Reves' action and conduct above set forth, the respondent has-
been guilty of improper surveillance of the Union's activities. Reves, however,
testified, in substance, that his mission on Mill Street on the first occasion was,
to locate a blacksmith for the purpose of haviflg his lame horse relieved of its
shoe. Egelston testified that, while he and Reves were horseback riding on
that Sunday morning in November, the latter's horse became lame. He and
Reves then made an appointment to meet in the afternoon at a hotel on Mill
Street to attempt to locate a blacksmith shop which, they were advised, was located
in the 300 block on Mill Street. According to Egelston, he and Reves made one
trip down Mill Street, returned to the hotel, and then separated. Reves ad-
mitted that he passed Moose Hall at least twice before he and Egelston made
their trip and again passed the hall when en route with his wife to attend the
movies.
As set forth below, both Reves and Holve kept Eisert under close observation
from on or about October 15. As has been found above, Eisert's leadership
among the respondent's employees was known and recognized by the respondent.
From the foregoing, and upon the entire record in the case, the undersigned is
convinced and finds that, while Reves may have been on Mill Street on November
15, 1942, for his purported reason, namely, to locate a blacksmith, he neverthe-
less utilized the occasion to make some three to five unnecessary trips past the
ball in order to keep the union meeting under surveillance, and thereafter
admittedly reported his observations to Holve.
Sarti testified, without contradiction, and the undersigned finds, that follow-
ing the discharge of Kodess, and on December 24, 1942, he and Kodess went to
the Brookside entrance of the respondent's plant. They started to give out
union circulars, which contained in part a mimeographed report of the Kodess
discharge and the Union's efforts to have her reinstated. Guard Purdy stopped
them from handing out circulars. Sarti told Purdy that the matter had been
taken up with the City and the War Department, and that they had said that
it was all right to do so. Purdy insisted that the area was "restricted" and
that distribution of circulars was prohibited there.
10 These findings are based on the testimony of Eisert, Sarti, and Reves, each of whose
testimony was substantially the same in connection with the above incident. Reves and'
C. G. Egelston, a friend and business acquaintance testified to a trip made past Moose Hall
on the same day in the latter's car. Neither Eisert nor Sarti mentioned having seem
Egelston with Reves.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Purdy called a police officer who was nearby and caused the latter to take
Sarti to the Police Station TM Sarti was again taken before Lt. Boyd. Boyd,
after talking to the Chief of Police on the telephone, stated to Sarti that it
was "straightened out." Sarti was1 released and returned to the plant.
The undersigned finds that the respondent, through the acts of its officers
and agents in causing the illegal arrest of Sarti on November 6, and again on
December 24, 1942, and by the acts of its general foreman, Reves, in keeping
the union meeting of November 15, 1943, under surveillance, interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
B. The discriminatory discharge of Elizabeth Kodess 22
Kodess made written application for employment with the respondent on
September 22, 1942, at which time she was interviewed by Reginald Sturgis,
the personnel manager . In her application she listed the names of four previous
employers together with the names of three persons as references. Sturgis
advised her of the rates of pay ; the fact that she would have to serve a
probationary period of 3 months ; and asked her if she was "willing to stick
with" the respondent after she had received her training, "and not just do it
as a patriotic gesture for the moment." Kodess replied in the affirmative
Kodess was assigned to work in the marking department, also known as
department 5, under the supervision of Foreman Erik Lindmark and started
her employment on September 25, 1942. Her job consisted of marking gauges.
At first, she did such marking by means of a stamp and hammer, and sub-
sequently by an etching process involving the use of acids.
Early in October 1942, Kodess became a member of the "Labor Non-Partisan
Committee to Elect Judge Hoyt to Congress." Hoyt was then an opponent
of Congressman Hamilton Fish in an election contest for a seat in the United
States Congress. On the night of October 7, the Hoyt group held a meeting
and on October 8, the Poughkeepsie-New Yorker, a local paper published an
.'account of such meeting. At a further meeting held on the night of October
14, 1942, Kodess was elected Secretary-treasurer of the Pro-Hoyt group and
was also named as one of a five-member publicity committee set up by such
group. An account of the meeting was published in the October 15 issue of the
Poughkeepsie Eagle-News.u
21 It is undisputed that Aldeborgh and Holve drove by at about this time.
22 Kodess is referred to in the complaint , and frequently in the record, as "Betty"
Kodess
23 Kodess had attended a local night trade school for 120 hours during July and
August 1942
24 HOST LABOR GROUP CHAIRMAN NAMED.
Honorary chairmen were appointed last night at a meeting of the Non -Partisan Labor
Committee to Elect Judge Hoyt for Congress, at the Windsor hotel headquarters, by Rudy
G Abrahams, chairman.
The appointees are Edward M Batey, president of the Central Trades and Labor council ;
Otto Nelsson, president of the Building and Construction Trades council ; Harry Schertz,
vice president of the Central Trades and Labor Council ; Fred Melito, business agent for
the Laborers' Local 1,000, AFL ; Arthur Goodman of the Employes of Goldberg and
Seltzer; Ray French of the UAW (CIO) ; Frank Nesin, president of the Scliatz-Federal
Bearing local UAW.
Mrs. Betty Koddis (sic) was elected secretary-treasurer of the committee. A publicity
committee named by Mr. Abrahams included Mrs Koddis, Peter Gragis, A. Goodman,
H. Scheitz, A. Kalish, E. M Batey
A departure from the old system of canvassing and getting out the vote was suggested.
A committee will contact voters' by telephone. It is found that the respondent knew of
Kodess' "labor activities" in this connection through Holve, who testified he read these
newspapers frequently. Holve's instructions to Sturgis to "double-check" on Kodess,
soon after this item appeared , lends support to this conclusion.
STANDARD GAGE COMPANY 181
Kodess had met Eisert prior to her employment by the respondent, and, at
his solicitation, had joined the Union on October 12, 1942, as is discussed in more
detail below, Kodess and Eisert were in the habit of eating lunch together in
Eisert's car which he parked in a parking area on the respondent's premises.
Holve testified in substance, that sometime in the early part of October,
Aldeborgh said , "Holve, you know we are putting on a lot of women. Are
you sure that you are keeping your eye on them?" When Holve asked, "What
women?" Aldeborgh said, "Take a look for yourself around the yard. Better
have Reves keep an eye on them too."
Thereafter, according to Holve, he personally looked around the yard and ob-
served that Eisert "had a woman sitting in his car, which was very unusual to
me." 2a Also, according to Holve, although he did not recognize the woman in
the car, he later identified her as Kodess, looked over her personnel record, and
noticed "that there was no . reference from her out of town employment-
I noticed that there was nothing about her character references. I ordered
[Personnel Manager] Sturgis to double-check on that person, both as to her out
of town employment as well as her character references. They were direct
orders from me to Mr. Sturgis."
Kodess testified credibly that on the night of October 16, Martin Fallon, an
instructor of dramatics at Vassar College, whose name she had given as a refer-
ence on her application telephoned her and informed her that Sturgis had tele-
phoned Fallon that morning and asked a number of questions concerning her.
On Saturday morning, October 17, Kodess reported her conversation with
Fallon to Foreman Lindmark. Kodess testified :
I told Mr. Lindmark that Mr. Fallon had called me and told me that Mr.
Sturgis called him that morning at Vassar College. Mr. Sturgis asked him
how long he had known me, and lie stated that I had given him as a reference.
Mr. Fallon said, "Mr. Sturgis asked me what I knew of your activities."
Mr. Fallon replied, "What type of activities?" To which Mr. Sturgis an-
swered, "Any unAmerican activities."
Mr. Fallon said, •'I do not know what you mean 'unAmerican activities."'
To which Mr. Sturgis replied, "Labor" and stopped.
His next remark was, "We have to be careful whom we are hiring in a de-
fense plant." ze
in this connection Sturgis admitted calling Fallon, and testified :
Q. Do you recall whether you asked Mr. Fallon if he knew anything about
the outside activities of Mrs. Kodess?
A. I do not.
Q. Do you recall telling Mr. Fallon that the firm could not be too careful
about the kind of persons they employed?
A. Very possibly.
Q. And that they would have to employ loyal workers?
A. Very likely.
Q. Very likely you said that?
A. Very likely I said that.
Q. To Mr. Fallon?
A. With reference to calling Mr. Fallon.
za Holve testified in substance ; that after receiving instructions from Aldeborgh, he
"may have been a little specific" In keeping his eyes open with reference to female em-
ployees and subsequently noticed Kodess in Elsert 's car, "possibly" as many as 20 times.
26 Lindmark , although shown to have been available , was not called as a Ncitness.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Do you recall saying that any information Mr. Fallon could give you
about any organization in which Mrs. Kodess was interested would be
strictly confidential?
A. I don't recall that.
Q. You don't recall that?
A. No, sir.
Q. Do you recall Mr. Fallon asking what kind of organizations you had
reference to?
A. No.
Q. Do you recall asking Mr. Fallon whether Mrs. Kodess belonged to any
workers' groups?
A. No, I do not.
From the foregoing it is clear, and the undersigned finds that Sturgis pursuant
to Holve's orders to "double-check" on Kodess, called Fallon on October 16 and
sought to learn of Kodess' "labor" activities.
Kodess and Eisert continued talking lunch in the latter's car over a period
of some 6 weeks and then discontinued the practice after noting that Reves was
keeping them under observation."
Kodess testified credibly without contradiction, and the undersigned finds,
that William Crum, foreman of the special gauge assembly department, asked
her, on or after October 12, if Eisert had brought her "in the shop to organize
the place" ; if she had signed up with the Union; and why she liked the CIO.
Kodess also testified that William Olah, foreman of the tool room talked to her
frequently in her department and would ask, "How was the meeting last night?"
or "Did you go to the meeting last night?"; that on one occasion Olah stated : "Say,
I bet Rudy Eisert got you into this place to organize it, didn't he?" and that Olah
would usually question Kodess concerning unions on "the day of the evening
the meeting was to be, or the following day after the meeting." Olah's conversa-
tion with Kodess occurred in her department while those with Crum occurred
in the- latter's department where Kodess had occasion to take goods to and'
from a dumbwaiter." Kodess testified, without contradiction, and the under-
signed finds, that Foreman Lindmark frequently complimented her on her work.
On December 18, Kodess was advised by Lindmark that Sturgis wanted her to
go to his office immediately, "but first [to] punch out." Kodess reported to
Sturgis' office as directed and was taken immediately to Holve's office. Holve
then said to Kodess, "You know your probationary period is up?" When Kodess
acknowledged that she did, Holve advised her, "We find that we no longer can
use your services." Holve admitted that Kodess' work was satisfactory, but
told her that she was being fired "for visiting." " Kodess denied that she had
visited and asked Holve, who had told him that. she had done so. Holve stated
that no one had told him so, but that he had seen her visiting. Kodess again
asked Holve to tell her the real reason for the discharge . He replied :
There is no other reason ; visiting ., Furthermore, you have not yet finished
your probationary period and therefore we have a perfect right to discharge
you for any reason that we may see fit, or I may see fit.
24 That he did keep Kodess and Eisert under observation is admitted in part by Reves.
In this connection he testified : " I have looked out of various windows throughout the
plant and I have seen Mr. Eisert and Mrs. Kodess during the lunch period in Mr. Eisert's
car on a few occasions ." Reves further testified that he did not "recall having seen Mrs.
Kodess talking to Rudy Elsert " during working hours.
28 Although both were shown- to have been available , neither Crum nor Olah was called
as a witness.
21 According to both Holve and Reves, Kodess' name was not mentioned between them in
connection with her alleged visiting until December 18, the day she was discharged.
STANDARD GAGE COMPANY 183
It was admitted that Kodess asked that her foreman, Landmark, be sent for,
but such request was refused by Holve.
The complaint alleged in substance that Kodess was discharged, and thereafter
refused reinstatement, because she joined or assisted the Union and engaged in
other concerted activities for the purposes of collective bargaining or other'
mutual aid or protection. The answer denied such allegation and the respond-
ent contended at the hearing that the discharge was occasioned by reason of
Kodess' "visiting."
The respondent admits, and its records disclose, that Kodess was, at the date
of her discharge, rated, "good" as to her work; "good", as to her attendance;
and "good", as to her "speed." Her "conduct" was rated "poor" because of
alleged visiting.
Reves testified that he took particular notice of Kodess" "visits" in the latter
part of her employment with the company and after Holve had spoken 80 to him
on or about October 15 and advised him to keep his eyes open, up to which time
her conduct was satisfactory, insofar as he (Reves) was aware.
The record discloses that at no time, during the period in which the "visiting"
was alleged to have occurred, did any official or supervisory employee of the
respondent warn 81 Kodess against visiting. Kodess testified, without contra-
diction, and the undersigned finds, that during the fall of 1942, Alice Billings,
an employee in Department 5, was frequently absent from work without advis-
ing her foreman. Lindmark reprimanded and warned Billings four or five times
and finally advised her that "the next time you do a thing like that," he would
speak to General Foreman Reves. Billings again offended and after such
warnings, covering a period of 3 weeks, was discharged.
The respondent relies, almost wholly, on the testimony of Holve to support
its claim that Kodess "visited." " Holve testified in substance that the only
person he spoke to concerning Kodess' visiting was Reves. Holve stated that he
had seen Kodess upstairs around the inspection department ; outside the tool crib
window ; and "other places throughout the plant. I could not recall." He
further testified :
Q. What are the various other places throughout the plant?
A. I couldn't recall.
80 According to Holve's testimony , "visiting" consisted of "Being In places where I con-
sidered she did not belong in line with her duties." Reves testified, in this connection, "By
'visiting', I understand a person going through various departments , stopping various places
and also carrying on conversation with other employees in the plant."
11 Sturgis testified that during his interview with Kodess prior to her employment he
had advised her of the respondent's rules which prohibited visiting. This was the only
occasion when such rule was called to the attention of Kodess by any official or supervisory
employee of the respondent.
88 Reves testified that he had seen Kodess visiting on a number of occasions but the rec-
ord indicates that he never warned or mentioned the fact to Kodess or to her foreman,
Lindmark. The record further indicates that if Reves ever did discuss the alleged visits
with Holve, it was on December 18, the day of her discharge, and after Holve had deter-
mined to discharge her. Reves testified :
Q. Did you report those instances to Mr. Holve, those occasions about which you
have just testified?
A. I mentioned the fact to Mr. Holve, that is, the fact that Mrs. Kodess had been
visiting and I had observed her visiting.
Q. Was that on the day of her discharge or before her discharge?
A. I do remember on that particular day I did speak to Mr. Holve about these various
Instances that I have just related to you.
Q. That was on December 18th, the day of her discharge?
A I believe that was the date.
Q. You did not report them at the time you saw these instances?
A. Not necessarily.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You don't recall?
A. No.
Q. Did you report that to her foreman?
A. I did not.
Q. You never said a word to her foreman, Mr. Lindmark, did you?
A. I did not. I spoke to Mr. Reves.
Q. What did you say to Mr. Reves?
A. I don't recall the exact words. I think my conversation was more like;
"You better watch some of the new employees down on the basement floor "
I doubt if I particularly singled out Mrs. Kodess at that point.
* * * * * * *
A. On or about December 18, 1942-it was either in the afternoon of the
17th or in the morning of the 18th-I told Mr. Reves that "I think the best
thing I can do is to get rid of Mrs. Kodess before her 90-day period is up."
Q. Did he have any part in that conversation?
A. No more than that he agreed with me.
Q. What did he say?
A. I can't recall any words.
Q. In substance?
A. But the substance was that he agreed that she should be fired.
* * * * * * *
Q. Did you speak to Mr. Reves on more than one occasion with reference
to Mrs. Kodess visiting?
A. I spoke to him the day of her discharge.
Q. Is that the only day you spoke to him?
A. I may have spoken many times in between. I don't recall. (Italics
added.)
*
Q. You at no time attempted to obtain his (Lindmark's) version as to
whether or not Mrs Kodess had been visiting, away from her work?
A. Not to my recollection.
Kodess denied that she "visited" and testified credibly that, like other em-
ployees, she had to go to the dumb-waiter located in the snap gage department,
to get gages upon which to work and return them ; that she had to go to the lap-
ping room to consult Foreman Anderson 38 concerning gages ; that she had to go
upstairs once a day to procure kerosene (used in cleaning gages marked by the
acid etching process) ; that she had to go to the hardening department, where
she washed her hands, after using acid and kerosene, and in going to the ladies'
rest room upstairs ; and that she handed certain hand lotion obtained from the
plant nurse to other girls in the department, with Lindmark's 36 permission.
Conclusions
On the basis of the foregoing, and upon the entire record, the undersigned is
convinced and finds that Kodess did no "visiting", and that she was in fact an
excellent worker. This conclusion is fortified by the fact that the respondent
did not call as a witness Foreman Lindmark, who was in a better position than
any of the respondent's supervisory employees to know of her conduct in such
regard. Nor did the respondent call Foremen Olah, Crum, Anderson, or other
foremen who would be most likely to have known if she had "visited" in their
departments.
13 Anderson , although shown to be available , was not called as a witness.
14 As above stated , Landmark did not testify.
STANDARD GAGE COMPANY 185
The record clearly discloses that the respondent is opposed to any organiza-
tion of its employees, since, as Aldeborgh testified, "We have always gotten
along the way we have been for years, and I cannot see any particular reason at
this time to change the [labor.] policy of the Company." Eisert had long been
recognized as a pro-labor leader among the respondent's employees, a fact well
known to Aldeborgh, Holve, and the foremen. Kodess was apparently consid-
ered by the respondent -a satisfactory employee until she joined the Pro-Hoyt
Labor Group as an officer, as above described, and began to lunch frequently
with Eisert in the latter's car. Thereafter, Holve insisted, and gave "direct
orders", that she be "double-checked." It is significant that on the day after a
local newspaper carried an account of the Hoyt Group which included a ref-
erence to Kodess, Sturgis called Fallon and asked if the latter knew of any un-
American ["labor"] activities on the part of Kodess.
While Holve testified that he did not know that Kodess belonged to the Union
until she so advised him at the time of her discharge, the undersigned is con-
vinced and finds that he knew of her activities as a member of the "Non-Parti-
san Labor Committee to Elect Judge Hoyt for Congress," had joined, or would
join, with Eisert in an attempt to organize the respondent's plant. Holve be-
lieved that, since Kodess' probationary period of 90 days had not expired, she
could be discharged for any, or for no reason at all, and utilized this as a pre-
tended, rather than the real basis for her discharge.
Upon the credible evidence, and in all the circumstances, of this case, the un-
dersigned is convinced and finds that the respondent discharged Elizabeth Ko-
dess because of her union and other concerted activity and that by discharging
her on December 18, 1942, the respondent discriminated in regard to her hire
and tenure of employment thereby discouraging membership in the Union and
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
C. Further interference, 7estratnt and coercion
On or about January 21, 1943, a Field Examiner for the Board called at the
respondent's plant in connection with an investigation of the Kodess discharge.
He interviewed a number of the respondent's supervisory, employees, including
Holve. 'Holve testified that as the result of "agitation" and unrest throughout
the plant he called a meeting of the tool room employees on February 11, 1943,
and made a "speech," which was taken in shorthand and later transcribed by
his secretary.
In his speech, Holve referred to "agitation" going on during working hours,
which he defined as "talking over things that do not belong to the business."
He stated , in substance-that any union had a right to distribute circulars "to
you fellows," but that neither the union nor the men had a "right to distribute
circulars on the premises of the company, [Italics added] and from now on
anyone who is found distributing this kind of literature is going to be asked
to leave the employ of the company."
Holve further stated in part : "I know definitely that there are certain
things which have taken place in the last couple (sic) years such as general
increases from time to time ; the idea of rest periods, etc., that a certain union
is taking, the credit for and are trying to sell individuals. The ones spreading
that know it is a lie-they have nothing to do with it. As a matter of fact,
we have never been approached by anyone. If they want to come here, they
know where the front door is. As a matter of fact, some of this agitation,
has retarded some of the improvements which might take place right at the
present time." [Italics added.]
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holve then stated in substance that inasmuch as wages were frozen, "this
plant is not in (sic) position to give a general increase any more." He then
explained in substance that an employer may give individual increases such as
promotions, reclassifications, and merit increases. He stated that the Com-
pany had been working on reclassifications for a long time, but for various
reasons the reclassifications had not gone through. "Part of this agitation has
retarded its completion, otherwise it might have been completed a couple
weeks ago-a lot of those things you don't think about." [Italics added.]
Holve further stated :
If we tolerate some of these things, such as circulars On the premises,
etc., do you realize there is a possibility that we will be accused in time on
the outside that we are favoring a certain faction and therefore coercing
the men in our plant into joining that union? If the time has come that
you want to join a union, we want it to be perfectly clear and free from coer-
cion so as to prevent a small click ( sic) from jeopardizing the actual will
of the majority." [Italics added.]
While Holve's speech paid lip service to the Act and parts of it had no refer-
ence to the Union, it is clear from the context that the purpose and intent of
the speech was to discourage membership in the Union, and it is so found.
The undersigned finds that by the acts and conduct-above described the re-
spondent has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to
the hire and tenure of employment of Elizabeth Kodess, thereby discouraging
membership in the Union. In order to effectuate the policies of the Act, it is
recommended that the respondent offer to Elizabeth Kodess immediate and full
reinstatement to her former or substantially equivalent position without prej-
udice to her seniority or other rights and privileges and that it make her whole
for any loss of pay she may have suffered by reason of the discrimination
practiced against her, by payment to her of a sum of money equivalent to that
which she normally would have earned as wages from December 18, 1942, to the
date of offer of reinstatement less her net earnings "6 during said period.
as By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N.-L. R. B. 440., Monies received
for work performed upon Federal , State, county, municipal , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
STANDARD GAGE COMPANY 187
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affiliated with,the'
Congress of Industrial Organizations, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. The respondent by discriminating in regard to the hire and tenure of em-
ployment of Elizabeth Kodess, thereby discouraging membership in a labor
organization has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. The 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 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Standard Gage Company, Inc., and its
officers, agents, successors, and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in United Electrical, Radio & Machine Workers
of America, affiliated with the Congress of Industrial Organizations, or any other
labor organization of its employees by discharging or refusing to reinstate any
of its employees, or in any other manner discriminating with regard to their hire
or tenure or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Elizabeth Kodess immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority and other
rights and priveleges ;
(b) Make whole the said Elizabeth Kodess for any loss of pay she may have
suffered by reason of the respondent's discrimination against her by payment to
her of a sum of money in the manner set forth in the Section entitled "The
remedy";
(c) Post immediately in conspicuous places in and about the plant located in
Poughkeepsie, New York, and maintain for a period of at least sixty (60) con-
secutive 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 recommended that
it cease and desist in paragraph 1 (a) and (b) of these recommendations;
(2) that it will take the affirmative actions set forth in paragraphs 2 (a) and
(b) of these recommendations; and (3) that the respondent's employees are free
to become or to remain members of the United Electrical, Radio & Machine
Workers of America, affiliated with the Congress of Industrial Organizations ; and
that the respondent will not discriminate against any employee because of mem-
bership in or activity on behalf of that or any other labor organization ;
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director of the Second Region in writing within ten
(10) days from receipt of this Intermediate Report of the steps the respondent
has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
i receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,1942-
any party may within fifteen (15) days from the (late of the entry of the order
transferring the case to the Board, pursuant to Section 32 of Article II of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington,
D C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four, copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, requests therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the Board.
PETER F. WARD
Trial Exwniner
Dated September 29, 1943.