The Burke Machine Tool Co.

National Labor Relations Board - Board Decisions

Nov 27, 1941

36 N.L.R.B. 1329 (N.L.R.B. 1941)

In the Matter of THE BuRn.E MACHINE TOOL COMPANY and INTER-
NATIONAL ASSOCIATION OF MACHINISTS (A. F. OF L.)
Case No. C-192,5 .-Decided November 27, 1941
Jurisdiction : machine tool manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; posting notice sug-
gesting formation of an inside union to combat employee-organization and
circulating a notice among employees to same effect ; sending letters to em-
ployees as individuals while they were engaged in concerted activities ; discrim-
inatory distribution of overtime work.
Collective Bargaining: union's majority established by signed application cards-
failure to bargain collectively; refusal to recognize or bargain with union;
meeting with union representative with preconceived intent not to recognize
nor deal with union ; requiring union to reestablish its majority after commis-
sion of unfair labor practices ; seeking to deal directly with employees.
Remedial Orders : employer ordered to cease and desist-from engaging in unfair
labor practices and to bargain with union on requests; reinstatement of unfair
labor practice strikers.
Unit Appropriate ` for Collective Bargaining : production and maintenance em-
ployees excluding supervisors, foremen, clerks, and the president and general
manager.
Mr. Max W. Johnstone, for the Board.
Smith cC Kauffman, by Mr. Harold E. Kauffman, of Conneaut, Ohio,
and Stanley & Smoyer, by Mr. Harry E. Smoyer, of Cleveland, Ohio,
for the respondent.
Mr. Henry A. Schrader, of Washington, D. C., for the Union.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International Asso-
ciation of Machinists (A. F. of L.), herein called the Union, the Na-
tional Labor Relations Board, herein called the Board; by the-Regional
Director for the Eighth Region (Cleveland, Ohio), issued its com-
plaint dated May 14, 1941, against The Burke Machine Tool Com-
36 N. L. R. B, No 263.
4 3311 8-4 2-vol 36-85 1329
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany,l Conneaut, Ohio, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the-Act. Copies of the complaint,-accom-
panied by notice of hearing, were duly served upon the respondent
and the Union.
With reference to the unfair labor practices, the complaint alleged
in substance: (1) that by January 22, 1941, and at all times subsequent
thereto, a majority of the respondent's employees in an appropriate
unit had designated the Union as their bargaining representative, and
that on or about January 22, 1941, and at all times thereafter, the
respondent refused and now refuses to bargain collectively with the
Union as the exclusive representative of said employees; (2) that from
January 22, 1941, shortly prior thereto, and at all times subsequent,
thereto, the respondent engaged in a continuous plan and course of
action designed to interfere with the self-organization of its employees
in their efforts to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities' for the purposes of collective bargaining
and other mutual aid or protection; and (3) that by such acts and by
threatening to forcibly evict one A. P. Nobozny, representative of the
Union, from the office of the respondent where the said Nobozny had
gone for the purpose of collective bargaining with the respondent on
behalf of its employees within the appropriate unit, by making anti-
union remarks to said Nobozny and to the respondent's employees, by
informing employees to bring grievances to the respondent, by dis-
criminating with respect to overtime work against employees who had
joined the Union, by persuading employees that they should withdraw
from the Union, by interrogating employees as to whether or not they
had joined the Union and interrogating them with respect to a union
meeting, and by soliciting employees to form an inside union and
causing a petition in favor of such union to be circulated among the
respondent's employees in the respondent's plant, the respondent
caused and prolonged a strike of its employees and interfered with.
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. On May 31, 1941, the respondent filed
an answer admitting certain allegations of the complaint with respect
to its business, but denying that it had engaged in the alleged unfair
labor practices except in certain particulars which are discussed below.
Pursuant to notice, a hearing was held from June 2 to 5, 1941, at
Conneaut, Ohio, before Gustaf B. Erickson, the Trial Examiner duly
'The complaint refers to the respondent as The Burke Machine Tool Co. This as
corrected by amendment at the hearing
THE BURKE MACHINE TOOL COMPANY 1331
designated by the Chief Trial Examiner . The Board and the respond-
ent were represented by counsel and participated in the hearing. Full
opportunity to be heard , to examine and cross -examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
At the close of the Board's case , the respondent moved to dismiss the
complaint . The motion was denied . Counsel for the respondent
then moved to dismiss designated portions of the complaint. The
motions were denied as to certain portions , ruling was reserved as to
others, and the motions were granted as to paragraph 10 (f)' and as
to a portion of paragraph 10 (k) of the complaint 2 The respondent
renewed the motions which were not granted at the close of the hear-
ing. The Trial Examiner reserved ruling on these motions. In his
Intermediate Report, the Trial Examiner denied all pending motions
addressed to the complaint. At the close of the Board's, case and
again at the close of the hearing, counsel for the Board moved to con-
form the pleadings to the proof as to 'such formal matters as dates,
places, and names. The Trial Examiner granted this motion. Dur-
ing the hearing , the Trial Examiner made numerous rulings on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed . The rulings are hereby affirmed.
On July 3, 1941 , the Trial Examiner issued his Intermediate Report,
copies of which were duly served upon the respondent and the Union,
wherein he found that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce,, within the meaning
of Section 8 (1) and ( 5) and Section 2 (6) and (7) of the Act. He
recommended that the respondent cease and desist therefrom and take
certain affirmative action designed to remedy the effects of the unfair
labor practices . On August 18 and on August 26, 1941, respectively,
pursuant to an extension of time granted at the respondent 's request,
the respondent filed its exceptions to the Intermediate Report and a
brief in support thereof.
On August 20, 1941, the respondent filed with the Board an appli-
cation for leave to adduce additional evidence of events which had
occurred after the close of the hearing. The Board has considered
the application and finds that the additional evidence which the re-
spondent seeks to adduce is not material to a determination of the
2 Paragraph 10 (f) alleged that the respondent had advised a certain employee that he
should drop out of the Union and join an "inside " union Counsel for the Board joined
in the motion to dismiss paragraph 10 (f). The portion of paragraph 10 (k) which was
dismissed alleged that Harry Rockwell , president and general manager of the respondent,
warned that if the Union succeeded in organizing the plant , the employees would prob-
ably lose their Christmas bonus.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues raised by the complaint. Accordingly, the application is hereby
denied .'
Pursuant to request by the respondent and notice to all parties, a
hearing was held before the Board on September 4, 1941, in Washing-
ton, D. C., for the purpose of oral argument. The respondent and
the Union were represented by counsel and participated in the hearing.
The Board has considered the exceptions and the -brief filed by the
respondent and finds the exceptions without merit in so far as they
are inconsistent with the findings, conclusions, and order set forth
below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Burke Machine Tool Company is an Ohio corporation, with
its principal place of business at Conneaut, Ohio. In the year 1940,
the respondent purchased raw materials value at $46,955.55, of which
$20,807.84 was expended for purchases obtained outside the State
of Ohio. During the same period, the total sales of the respondent
amounted to $120,379.49, of which amount $116,767.21 was obtained
from sales of merchandise shipped to places outside the State of
Ohio. The respondent admits that it is engaged in commerce with-
in the meaning of the Act.4
II. THE ORGANIZATION INVOLVED
International Association of Machinists is a labor organization,
affiliated with the American Federation of Labor, admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain; interference, restraint, and coercion
1. The Appropriate ,Unit _
The parties stipulated and the Trial Examiner found that all pro-
duction and maintenance employees of the respondent, at its Con-
neaut, Ohio, plant, excluding supervisors, foremen, clerks, and the
8 In the application it was alleged that subsequent to the hearing the strike was officially
terminated by action of the Union ; that, although the respondent-had maintained a
continuing offer of reinstatement since the commencement of the strike , eight strikers
failed to apply for reinstatement , and that four strikers applied for and were granted
reinstatement , three of whom thereafter failed to report for work.
4 The facts set forth in this section are taken mainly from a stipulation entered into
by counsel for the Board and the respondent.
-THE BURKE MACHINE TOOL, COMPANY 1333
president and general manager, constitute a unit appropriate for the
purposes of collective bargaining.
- We find that all production and maintenance employees' of the
respondent, at its Conneaut, Ohio, plant, excluding supervisors, fore-
men, clerks,,and the president and general manager, constituted at
all times material herein, and now constitute, a unit appropriate for
the purposes of collective bargaining, and that said unit insures to
employees of the respondent the full benefit of their right to self-
organization and to collective bargaining- and otherwise effectuates
the policies of the Act.
2. The Majority
Counsel for the Board introduced into evidence 28 union member-
ship application cards signed by employees of the respondent in the
appropriate unit. Nine of these cards were signed on January 20,
1941, and the remaining 19 on January 21, 1941. All these 28 cards
were signed by employees within the unit hereinabove found appro-
priate for the purposes of collective bargaining. It was stipulated
at the hearing that there were then and at all other times material-
herein 49 employees in such unit.
We find, as did the Trial Examiner, that on January 22, 1941, and
at all times thereafter; the Union was designated and selected by a
majority of the employees in the unit found appropriate for the
purposes of collective bargaining, and that pursuant to Section 9 (a)
of the Act was on that date and at all times thereafter, the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining with the respondent in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
3. Sequence of events
A. P. Nobozny, a Grand Lodge Representative of the Union, met
with employees of the respondent at the home of employee Harold
Johnston on the evenings of January 20 and 21, 1941, on which occa-
sions the membership application cards, above mentioned, were
signed. These meetings came to the attention of Harry Rockwell,,
president and general manager of the respondent. On the morning,
of January 22, 1941, he questioned employee George Weaver about the,
meeting.. Weaver replied that it was "fine." Rockwell then said that
he knew ,all about the meeting of the night before.5
During the noon hour on January 22, 1941, Rockwell talked with
a group of approximately 30 employees in the plant, during which
6 The respondent 's answer admits that Rockwell "by way of informing them that he
had been - informed that a union meeting had been held the night of January 21, 1941,
said to a group of employees standing waiting for the work whistle to blow, `flow was
the meeting last night ?' " The respondent denies that Rockwell " in any wise interrogated
them about what had transpired at said meeting , or who had attended it."
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he said that unions were "no good"; that their members paid dues to
them and never received anything in return; and that he had been a
member of the Union for a number of years and had never received
any benefit from it. He added that the men were "joining up with a
bunch of Communists" and that the dues they paid would "go across
to Mussolini, Hitler, or Stalin." Johnston, Rockwell'said, "was a poor
friend of the boys to start them into an organization where they had
to pay out their dues, and receive nothing back." He added that the
men were foolish to join a union at any time, that there never had
been one at the plant, that he did not want any, and that he would
start "a beer joint" or a laundry before he would have a union "in
there." Those who had signed union applications, he warned, had
signed their "death warrants." The machinists at the Nickel Plate
Railroad in Conneaut, he asserted, would compel the respondent to
discharge all the union employees, for the reason that one apprentice
had to be employed to each 5 machinists 6 but that if the Nickel Plate
machinists did not demand their discharge he would discharge them
himself. Rockwell then suggested that the men form an "inside"
union. He observed that there was a place "upstairs" in the plant
which they could use for meetings and that they could elect their own
officers.
Rockwell also warned that the employees who signed union appli-
cations would not receive any, overtime work. At that time, the
men customarily worked 55 hours a week, receiving time and a half
for all work in excess of 40 hours. Under this system, it was cus-
tomary to work 10 hours a day on Monday through Friday and 5
hours on Saturday. Rockwell insisted, however, that the union men
would have to leave the plant at 4 p. in. when they had completed
8 hours of work and that there would be no overtime work for such
men "until the union is settled." He repeated this last statement to
several other employees later that afternoon.'
Since Rockwell had ordered that union men should not work over-
time; 25 employees who had signed union applications left the plant
Rockwell testified that he stated that the union of Nickel Plate machinists "used to
allow one apprentice to every five machinists," that he did not know whether the respond-
ent's employees would be eligible to membership in that union, and that he did not "see
bow they would have one rule governing the shop there and another rule governing another
shop " There was no further explanation in the record concerning this statement.
a Rockwell denied most of the statements attributed to him. He testified that he did
not remember saying that the men would get nothing in return for their dues. He ad-
mitted that he might have said that the men "could fix up the upstairs" for a meeting
of an inside union In this latter connection, the respondent in its answer "admits that
on January 22, 1941, or January 23, 1941, in the course of an open conversation with a
group of respondent's employees in respondent's plant, and by written notice hereinafter
referred to, the said Rockwell made some statements generally in favor of ` inside organiza-
tions.' " The written notice mentioned in this portion of the answer is discussed below.
We find, as did the Trial Examiner, that Rockwell made the statements attributed to him.
I
THE BURKE MACHINEL TOOL COMPANY 1335
between 4 p. m. and approximately 4:30 p. m. on January 22, 1941.
These employees had worked only 8 hours on that day.'
Some of the employees who had thus been deprived of overtime
work complained to Nobozny, who called upon Rockwell at his office
in the plant shortly after 4 p. m. on the same day. He opened the
conversation with Rockwell by saying, "My name is Nobozny, and I
represent the International Association of Machinists, and a majority
of your employees." Rockwell replied, "Such a God-damned name.
Nobody knows your name and nobody can pronounce your name.
Where in the hell are you from?" Nobozny answered, "My name
is Nobozny. You pronounce the name the same as you read it. I am
a representative of the Machinists organization, and I came down here
to protest against your interference with the employee's rights." Rock-
well asked who was interfering with such rights, to which Nobozny
replied, "You are, by laying off the men who signed up cards to join
the Union." Rockwell denied any interference, said that the men had
a right to join any union they wished, but added that they did not
"need to join a union so that you can sit on your fat ass and draw a
salary." He maintained that the employees could form their own
union and did not have,to pay "tribute to you or the likes of you"
and added other disparaging remarks about Nobozny. During the
course of the conversation, Nobozny commented that Rockwell had
threatened the employees that the machinists of the Nickel Plate Rail-
road would expel them from the Union. Rockwell admitted that he
had so advised the employees and explained that the machinists of the
Nickel Plate Railroad limited apprentices to a ratio of one apprentice
to every five machinists. Nobozny replied that there was such an
arrangement at the railroad, "but that should not be an obstacle for us
to be able to reach as solution here. As I understand it you have no
apprentices." Rockwell answered, "No, I have got learners, and they
are a good bunch of boys, and they have been a good bunch of boys,
but you came in here and dissatisfied them." Nobozny replied that
the employees had asked to be organized. To this, Rockwell said that
the employees could organize and have a union "of their own." No-
bozny then stated that it vas "evident that you don't want our form of
organization." To this observation, Rockwell asserted in a loud voice
that "You better get the hell out of here, or I will" throw you out on
your ass, if you keep monkeying around here." Nobozny left, stating
that he would "see" Rockwell again .9
8 Although the time cards of four of these employees indicated that they had worked
81/2 hours , the record shows that these four men engaged in a conversation with Rockwell
after 4 p in in which he told them that if they would "take their names off the union
list," they could work until 6 p. in . as usual, but that otherwise they would be allowed to
work only 40 hours a week.
9 Rockwell and his stenographer , who Ras present during the conversation , denied that
most of the above statements were made and gave a somewhat different version of what
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediately thereafter, Rockwell went into the plant and told sev-
eral employees that he had "just' kicked that damn Communist Or-
ganizer . . . out of his office, and told him not to come in any more."
-He added that it "hurts real bad" to have the employees "bring in
some outside man" and that they should "settle it" among themselves.
The next day, January 23, 1941, the respondent posted a notice on
its bulletin board reading as follows :
January 23, 1941
NOTICE
There appears to be a great misunderstanding between, the
employees and the management of the Burke Machine Tool Com-
pany. When I first heard of this , I immediately started to inquire
if there were any grievances and I 'did find that there were some
grievances which had never been presented to me and as we have
always been able to settle all grievances satisfactorily to all con-
cerned, it naturally created a feeling that perhaps I had drifted
away from my employees , which I never intended to do.
This shop has operated for years and has trained boys that are
out in the field today making good . as mechanics . A great many
plants have been anxious , to employ our trained men , and it cer-
tainly is a disappointment to feel that I could not be approached
upon any subject.
I have tried to advocate for years an organization of our em-
ployees to be governed by them and them alone ; that at all times
they would have control of their money and they could have
various types of committees to govern grievances or anything
that should be taken care of for the benefit of all concerned.
For an organization of this kind belonging to the employees and
to be operated entirely by them, I, personally , would give you
$100.00 to start your fund . Naturally I believe in your initia-
tion fees being low and that your dues be low , not to exceed
100, per week. Sick benefits could be handled from this fund
governed by you . Any time that an employee should leave to
work elsewhere , he would be allowed to draw from this fund a
percentage according to the , number of employees here at that
occurred . Among other things, they denied that Noliozny stated that he represented the
Union and a majority of the employees . They asserted that Nobozny first used insulting
language , stating "what the hell do you mean by discriminating against the Union?"
They further testified that the two men then engaged in a heated argument dealing In
personalities However , both admitted that Nobozny handed Rockwell his card identifying
him as a representative of the Union, that Rockwell looked at the card, and that towards
the end of the conversation Rockwell told Nobozny to leave him alone . The credible
evidence supports the facts as related above , which the Trial Examiner, from his observa-
tion of the witnesses , credited and which we find to be ' true. ,
THE BURKE MACHINB TOOL COMPANY - 1337
time. I also would recommend that no employee could have any
drawing power upon this fund until he was here at least six
months.
These rules and regulations to be worked out by you. The
financial report of your organization to be posted on our bulletin
board once a week or once a month according to your instruc-
tions. After reading this notice , we will endeavor to assist you
in organizing . Your meetings could -be held in our office and if
you felt that you had rather talk over anything with the writer
not present , he will be only too glad to step out. You are to
name this organization . Call it by some name suitable to you.
As long as the feeling is worked up at this time , let us all get
together at once.
Signed HARRY RockwELL,
Manager.
HR/eh
In' response to the notice , a document was circuated in the plant
the same day during working hours. Adam Rolland, head of the
shipping room, signed this document and -also participated in its
circulation . Twenty-nine other employees were induced to sign this
document , which, other than the signatures thereon, reads as follows :
January 23, 1941
The undersigned has read the notice on the bulletin board and
I look very favorably on this type of an organization . There-
fore, sign my name for application and I will at all times en-
deavor to abide by the Rules and By-laws set up by the majority.
That afternoon at 4 o'clock 18 of the respondent 's employees who
had signed union applications left 'work after completing eight hours.
The next morning , January 24 , 1941, 18 employees left work at 11
o'clock at which time they had completed a 40-hour week. These
18 were among the 25 who left work early on January 22 , 1941. Of
the remaining 7, 1 was ill on January 23, 1941 , another was ill on
January 24 , 1941, and a third remained away from work on January
24, 1941 , for personal reasons. The others were among the employees
whb had been induced to sign the document circuated on January
23, 1941 , in response to the notice which Rockwell had posted on the
bulletin board.
Harold Johnston and George Weaver, who were among the 18
employees who left work at 4 p. m, on January 23 ,-1941, returned to
the plant together shortly thereafter and inquired of Rockwell why
the remaining six employees did not leave with the others as,they had
the -previous day. Rockwell again urged them to join' the inside
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, made favorable statements concerning such an organization,
and denounced the representatives of the Union as "a bunch of Com-
munists." On both 'January 23 and 24, 1941, Rockwell repeated
to one or more employees that they were not to work overtime.
The original charge in this proceeding was filed on January 23,
1941. The respondent, in its answer, alleges :
That by telegram dated January 23, 1941, it was informed by the
Regional Director of the Board that charges had been filed
against it by the Union ; that thereafter it consulted counsel ; that
counsel advised respondent that in some particulars its conduct
had been violative of the Act; that although respondent dis-
claimed all responsibility for the time lost by respondent's em-
ployees . . . counsel advised it to reimburse fully each employee
for the time he lost on January 22, 23, and 24, 1941, as evidence
of its good faith in the matter, and for the purpose of avoiding
any litigation in respect thereto; that counsel advised that re-
spondent post in its plant, and that respondent posted in its
plant, on February 5, 1941, where it has since remained posted,
the following notice :
Notice To Employees of The Burke Machine Tool Company.
Within the past two weeks a representative of the National
Labor Relations Board has advised us that this company has
violated the National Labor Relations Act.
It is our desire to fully comply with that law.
Section 7 of the National Labor Relations Act reads as
follows :
Employees shall have the right to self-organization to
form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to
engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection.
Accordingly you are advised that this Company will not:
(a) Discourage membership in any labor organization of its
employees, including the International Association of Machin-
ists, by discharging or refusing to reinstate employees, or in
any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment;
(b) In any manner attempt to form any labor organization
of its employees or interfere with the formation or administra-
tion of any labor organization of its employees, or contribute
any financial or other support thereto;
(c) In any manner, sponsor, initiate, or continue to inspire
the formation of any labor organization by its employees;
THE BURKE MACHINE,, TOOL COMPANY - 1339
(d) Recognize or deal with any organization that may have
been formed or come into being as a result of the notices posted
in this plant and the signatures obtained pursuant thereto on
and after January 23, 1941;
(e) In any other manner interfere with, restrain or coerce
its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
Among other things, the foregoing technical language
means :
(1) That whether or not you become or remain members of
any labor organization is entirely your own business, except.
that the one formed or attempted to be formed on January 23,
1941 is out because we had something to do with that;
(2) That we are advised that we had no right to post the
notices in the plant that we posted on January 23, 1941, and
that you are advised to completely disregard them;
(3) That we are advised that your signatures obtained on
January 23, 1941, to papers referring to said notices must be
considered, and that we will consider them as cancelled and
entirely disregarded;
(4) That we will bargain collectively with any labor organi-
zation that is not violative of the National Labor Relations
Act, including the International Association of Machinists,
providing that said organization is duly chosen as their repre-
sentative by a majority of our employees in an appropriate
bargaining ' unit under the procedure prescribed by the
National Labor Relations Act.
This notice is not to be interpreted as a recommendation by
the company that you form any labor organization, or that you
join any particular labor organization, or that you refrain
from joining any labor organization, except that the one
started on January 23, 1941, and any subsequent organization
in any way connected with it, or growing out of it, we are
advised, would be illegal.
The attention of all foremen and supervisory employees is
specifically called to this notice and they are directed to strictly
comply with it.
THE BURKE MACHINE ,TOOL COMPANY,
By , Manager.
CONNEAUT, OHIO, February 5, 1941.
Do not remove this Notice until April 7, 1941.
The record establishes that the respondent had in fact posted such
a notice in its plant and that it reimbursed the employees who had
lost overtime work. Furthermore , as indicated in the first paragraph
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the notice, a Field Examiner of the Board had advised the re-
spondent on or about January 24, 1941, that, in his opinion, the
respondent had violated the Act. It was stipulated at the hearing,
however, that the Board "had nothing to do with the notice" which
the respondent posted in its plant.
- In the meantime, Nobozny had written a letter to the respondent on
January 24, 1941, asking for a conference "to reach an agreement,
covering wages, hours and other conditions of employment, account
of us being selected by a majority of your employees.'-' A meeting
was held- on February 6, 1941, in Rockwell's office. Present were
Nobbzny and Rockwell, and two attorneys for the respondent, Harry
E. Smoyer and Harold E. Kauffman. At the outset of this meeting,
Smoyer advised Nobozny that the respondent did not believe that the
Union represented a majority of its employees; that the employees
who had lost overtime had been repaid in full; and that in addition
the respondent had posted the notice of February 5, 1941. Smoyer
then handed Nobozny a copy of an undated consent election agree-
ment, signed by Rockwell on behalf of the respondent. Smoyer told
Nobozny that until such" time as the Union proved its majority by
an election held under the auspices of the Regional Director, the re-
spondent would not recognize it as the representative of its em-
ployees.- He also told Nobozny in substance that he could select his
own date for the consent election. Nobozny replied that the Union
represented a majority and that a consent election was unnecessary,
but that he would consider the matter. However, on the following
day, February 7, 1941, he informed Smoyer that he rejected the pro-
posal for a consent election.
On February 10, 1941, at a meeting of the Union, Nobozny advised
those present that the respondent had refused to bargain with the
Union. The Union then took a strike vote and on March 3, 1941,
following unsuccessful efforts at mediation, approximately 16 of the
employees went on strike. The strike was still in progress at the
time of the hearing. The plant shut down on or about March 6, 1941.
On March 6, 1941, the respondent mailed to the home of each of
its employees a letter stating that "we want each of you to know
exactly what the present strike is about and the Company's answers
to various questions which are being asked around town." In sub-
stance, the letter stated that the respondent had refused to recognize
the Union because it did not believe that the Union represented a
majority; and that the ,strike "was wholly unnecessary" since the
respondent had offered to consent to an election under the auspices
of, the Board to be held on any date the Union named and that the
Union's agent had refused the offer., The' letter also asserted that
the respondent would deal with the Union if an election conducted
-THE BURKE MACHINE. TOOL -COMPANY 1341
by the Board showed that it represented a majority, but that it would
not bargain with a minority union; and that it believed the Union
represented a minority, since 34 of its 53 employees refused to join
the strike when it was declared. The plant shut down 2,or 3 days
after the strike began, according to the letter, because of threats' by
pickets and "unidentified outsiders" against those who continued to
work. Further, the 'letter alleged that the respondent recognized
that the strikers continued as employees and that it would take them
back to work if they desired, to return; those who did not desire to
join in the strike, it asserted, could continue to work at the plant.
Employee John Pryately testified that on May 12, 1941, Rockwell,
in a conversation with him referred to Nobozny as a "Communist"
and to one Don McKee, President of the Conneaut local of the Union
and a member of another American Federation of Labor union, who
had assisted the Union, as a "racketeer." Rockwell and Mrs. Elsie.
Hudson, his stenographer, denied that Rockwell had made, the above
remarks. However, the Trial Examiner found and we, find that
Rockwell made the remarks attributed to him by Pryately.
B. Conclusions with respect to interference, restraint, and coercion, and
the refusal to bargain
Immediately after the Union began to organize the respondent's
employees, Rockwell threatened to discharge employees who joined it,
suggested the formation of an "inside" union, offered to assist such an
organization, and made other disparaging statements about the Union.
He. immediately, discriminated against those who had signed applica
tions by prohibiting them from obtaining overtime work, while con-
tinuing to allow overtime work to non-union employees 10 We find
that the respondent, by such acts, interfered with, restrained, and
coerced its employees in the exercises of the rights guaranteed' in
Section 7 of the Act.
The` complaint alleges, inter alia, that the respondent refused to
bargain with- the -Union on January 22, 1941. The respondent asserts
in its answer that the Union had not asked it to bargain on January 22,
1941, and hence it could not have refused to bargain with the Union on
that date. We find this contention-to be without merit. While Nobozny
did not use the term "collective bargaining" in his conversation with
Rockwell on January 22, 1941, his mission was clear. As we found
above, Nobozny protested against the elimination of overtime work for
10 The respondent contended that the men who did not work overtime did so of their
own volition ; that several employees had complained of the long hours ; and that the
respondent was merely conceding that grievance until it could be settled The evidence
is clear, however, and the Trial Examiner found and we find that there was no dissatis-
faction on the point in question and that Rockwell ' s prohibition of overtime work for
those who had signed union applications ' as motivated by his anti -union predilections
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those who had signed union applications. It was clear, we believe, to
Rockwell that Nobozny, acting for the Union, was present in his office
on January 22, 1941, in order to bargain at least for adjustment of the
overtime grievance. Moreover, Rockwell's conduct at this meeting
designedly and effectively prevented any further discussion of the
purpose of Nobozny's visit. The respondent is hardly in a position to
maintain that there was no request to bargain, in view of Rockwell's
conduct during Nobozny's visit. As Nobozny expressed it in his testi-
mony, "There was no opportunity to negotiate an agreement with a
man that was in the frame of-mind that Rockwell was."
Rockwell showed plainly at this meeting his preconceived intent not
to recognize the Union or deal with it. His conduct at the meeting,
taken together with his other anti-union activities, as described above,
particularly the efforts to establish an "inside" union, is eloquent proof
that the respondent was unwilling to accord the recognition it,-was
required by the Act to give to the representative of a majority of its
employees. The respondent did not dispute at this meeting that the
Union represented a majority of its employees, nor did it question
Nobozny's authority to act for the employees. Moreover, at the outset
of the conversation on January 22, 1941, Nobozny identified himself
as a representative of the Union and'stated that the Union represented
a majority of the employees. In addition, as we have found, 28 of the
49 employees in the appropriate unit had signed application cards by
January 21, 1941, and 25 employees left work early on January 22,
1941, in compliance with Rockwell's orders that members of the Union
were not to work overtime. We find, accordingly, that the respondent
refused to bargain with the Union on January 22, 1941, as exclusive
representative of its employees in an appropriate unit.
On the day after Nobozny's meeting with Rockwell, the respondent
posted the notice suggesting the organization of an unaffiliated union
and offering to contribute $100 to its formation. In direct response to
the notice, the document stating that the signers favored the organiza-
tion of such an unaffiliated union was circulated on the same day. In
addition, one of the respondent's supervisors signed the document and
assisted in its circulation. We find that the respondent, in posting the
notice and in assisting in its circulation, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Among the 30 employees who were induced to sigh this document
were employees who had previously designated the Union as their rep-
resentative. Six of these employees failed thereafter to leave the
plant with the remaining adherents of the Union on January 23, 1941,
as they had on January 22, 1941, and 5 failed to leave the plant on
January 24, 1941. It is clear, and the Trial Examiner found, and we
find, that the failure of these persons -to. leave the plant with the others
THE BURKE' MACHINE TOOL COMPANY 1343
.was the intended and direct result of the respondent's unfair labor
practices.
On February 6, 1941, the respondent advised Nobozny that it would
bargain with the Union, provided that it established in an election that
it then represented a majority of its employees. Rockwell, in fact,
tendered Nobozny a signed consent election agreement which Nobozny
subsequently rejected. The respondent contends that by this offer to
consent to an election, by the notice it posted in the plant on February
5, 1941, described above, and by making whole those employees who,
had lost overtime work on January 22, 23, and 24, 1941, it has "long
since purged itself of anything of wrong-doing or in violation of this
Act." We find this contention to be without merit. The "purge" was
not coextensive with the wrong. The offer to consent to an election
followed upon the respondent's refusal to, bargain with the Union on
January 22, 1941, its efforts to induce employees to join its own "inside"
union, and upon the other unfair labor practices detailed above. In
addition, it came after 6 employees on January 23, 1941, and 5 em-
ployees on January 24, 1941, had failed to join with other adherents of
the Union in leaving the plant without obtaining overtime work, in
accordance with the rule Rockwell had set for those who had signed
union applications. These men had, in effect, abandoned the Union
and their action in so doing, as we have found, was the direct and
intended result of the respondent's unfair labor practices. Under the
circumstances, if the respondent sincerely desired to remedy the con-
sequences of its unfair labor practices, it should have offered to bargain
collectively with the Union. It well knew that the Union at one time
represented a majority of its employees, for 25 of the 49 employees in
the appropriate unit left work at 4 o'clock on January 22, 1941, in
accordance with the respondent's orders that union men were not to
work overtime. In requiring the Union to reestablish its majority
after the commission of unfair labor practices, the respondent imposed
upon the Union an undue obstacle to collective bargaining."'
In sending to its employees the letter of March 6, 1941, summarized
above, the respondent further emphasized its refusal to bargain with
the Union for (1) although the respondent was duty-bound to bargain
with the Union, it first discriminated against union men and then made
"Cf. N, L R. B v Bradford Dyetnq Ass 'n, 310 U . 918, rev'g 106 F (2d) 119
(C C A 1), and enfg Matter of Bradford Dyeing Ass'n, etc, and Textile Workers Organ-
izing Committee, etc, 4 N L I{ B . 604; Int ' l Ass'n of Machinists , etc, v N L R. B,
311 U S 72, aff 'g 110 F ( 2d) 29 (C A of D C ), enf'g Matter of The Serrick Corporation
and Int'l Union,' etc, 8 N L R B 621 ; N L R B' v Highland Park Mfg. Co , 110 F.
(2d) 632 (C C A 4), enf g Matter of Highland Park Mfq Co and Textile Workers
,Organizing Connnnttee , 12 N L R B 1238 . Matter of National Seal Corporation and
Intl Ass n of Machinists, etc, 30 N L R B , No 27 An employer "can not be heard
to say that he entertains an honest doubt of a Union ' S malority « here he conducts a
diivo to destroy that majority . " Matter of Lennox ' Farnace Co , Inc and
Sy'acuse Federation of Labor , 20 N L Il B 962, Matter of Normistown Box Company
and Int ' l Brotherhood, etc, 32 N L R 11 , No 148
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its offer to bargain conditional upon the Union winning an election,
and (2) in seeking to deal directly with the employees, the respondent
violated its obligation to bargain exclusively with the designated rep-
resentative of its employees.12 The existence of a strike did not, of
course, lessen the respondent's duty to bargain with the Union 13 In
addition, by sending this letter to the employees as individuals while
they were engaged in "concerted activities," the respondent has, we
find, interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
We find that the respondent, on January 22, 1941, and at all times
thereafter, refused to bargain collectively with the Union as the repre-
sentative of its employees in an appropriate unit, and has thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. We find that the
strike which began on March 3, 1941, was caused and prolonged by the
respondent's unfair labor practices herein found. By the conduct
hereinabove described, the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE -
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the 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 and is engaging in
certain unfair labor practices, we shall order it to cease and desist
therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the respondent has refused to bargain collectively
with the Union as the exclusive representative of its employees in an
. 11 See N. L. R. B. v. Acme Air Appliance Co., Inc., 117 F (2d) 417 (C C. A. 2), enf'g
as mod Matter of Acme Air Appliance Cd, Inc. and Local No. 1223 , etc., 10 N. L. R B.
1385; Stewart Die Casting Corp. v. N L. R. B., 114 F. (2d) 849 (C. C. A. 7), cert. den.,
61 S Ct. 449, enf'g as mod Matter of Stewart Die Casting Corporation and United
Automobile Workers of America, Local 298, etc., 14 N. L R. B 872. N. L. R. B. v. Rem-
ington Rand, Inc, 94 F. ( 2d) 862 (C C. A. 2), cert' den., 304 U. S . 576, enf'g Matter
of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District
Council Equipment Workers, 2 N L. R. B. 626; Matter of National Seal Corporation,- cited
In footnote 11, supra.
13 See Act, Section 2 (3) ; see also N. L. R. B. v Mackay Radio it Telegraph Co, 304
U. S 333, rev'g 92 F. (2d) 761 (C C. A. 9 ), and aff'g Matter of Mackay Radio it Telegraph
Co. and Ameiican Radio Telegraphists Ass'n, etc. , 1 N. L. R,B. 201.
THE BURKE MACHINE- TOOL COMPANY 1345
appropriate unit, we shall order the respondent, upon request, to bar-
gain collectively with the Union as such representative with respect to
rates of pay, wages, hours of employment, or other conditions of
employment.
We have found that the unfair labor practices of the respondent
caused and prolonged the strike which began on March 3, 1941. In
order to restore the status quo as it existed prior to the time the, re-
spondent committed the unfair labor practices, we shall order the
respondent (1) to offer reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges, to those employees who went on strike on March
3, 1941, or thereafter, and who have applied for and have not been
offered reinstatement, and (2) upon application to offer reinstatement
to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, to those employees
who went on strike on said date, or thereafter, and who have not previ=-
ously applied for reinstatement; dismissing if necessary any persons
hired by the respondent after March 3, 1941, the date of the strike, and
not in the employ of the respondent on said date. If thereupon,
despite such reduction in force, there is not sufficient employment
available for the employees to be offered reinstatement, all available
positions shall be distributed among such employees without dis-
crimination against any employee because of his union affiliation or
activities, following such a system of seniority or other non-discrim-
inatory practice to such extent as has heretofore been applied in the
conduct of the respondent's business. Those employees, if any, remain-
ing after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list and offered-employ-
ment in their former or substantially equivalent positions as such
employment becomes available and before other persons are hired for
such work, in the order determined among them by such system of
seniority or other non-discriminatory practice as has heretofore been
followed by the respondent.
We shall order the respondent to make whole those employees who
went on strike March 3, 1941, or thereafter, and who have applied for
and have not been offered reinstatement, for any loss of pay they may
have suffered by reason of the respondent's refusal, if any, to reinstate
them, as provided above, by payment to each of them of a sum of
money equal to that which he would normally have earned as wages
during the period, from five (5) days after, the date on which he applied
for reinstatement to the date of the respondent's offer of reinstatement
or placement upon a preferential list, less his net earnings'14 if any,
14 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 the respond-
433118-42-vol 36-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during such period. We shall also order the respondent to make whole
those employees who went out on strike on March 3, 1941, or thereafter,
and who have not previously applied for reinstatement for any loss
of pay they may suffer by reason of the respondent's refusal, if any,
to reinstate them, as provided above, by payment to each of them of
a sum of money equal to that which he would normally have earned
as wages during the period from five (5) days after the date on which
he applies for reinstatement to the date of the respondent's offer of
reinstatement or placement on a preferential list, less his net earn-
ings, if any, during such period.
In his Intermediate Report the Trial Examiner recommended that
the respondent post notices in its plant, stating that it would cease
and desist from engaging in the unfair labor practices which it was
found to have committed and that it would take the affirmative action
recommended in the Intermediate Report. The notice posted by the
respondent on February 5, 1941, neither satisfied the requirements of
the recommendation nor remedied the effects of the respondent's un-
fair labor practices. It did i,ot contain an offer to bargain collectively
with the Union, as was the respondent's duty. Moreover, no agent of
the Board participated in or approved the notice. In order to com-
pletely dissipate the effects of the respondent's unfair labor practices
and effectuate the policies of the Act, we will order the respondent to
post notices in the form recommended by the Trial Examiner.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists (A. F. of L.) is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent at
its Conneaut, Ohio, plant, excluding its president and general manager,
supervisors, foremen, and clerks, constituted at all times material
herein, and now constitute, a unit appropriate for the purposes -of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
3. International Association of Machinists (A. F. of L.) is, and at
all tunes since January 21, 1941, has been, the exclusive representative
of all the employees in the above unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
ent's discrimination against him and the consequent necessity of his seeking employment
elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of Amea ice, Lacmber and Sawmill Workers Union, Local 2590, 8 N. L B B.
440 Monies received for work peifoiined 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.
THE BURKE MACHINEi TOOL COMPANY 1347
4. By refusing on January 22, 1941, and at all times thereafter, to
bargain collectively with International Association of Machinists (A.
F. of L.) as the exclusive representative of the employees in such unit,
the respondent has engaged in and is engaging in unfair. labor prac-
tices within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6.-.The aforesaid,_unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, The Burke Machine Tool Company, Conneaut, Ohio, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from : -
(a) Refusing,to,bai•gain collectively with International Association
of Machinists (A. F. of L.) as the exclusive representative of all pro-
duction and maintenance employees at its Conneaut, Ohio, plant, ex-
cluding its president and general manager, supervisors, foremen, and
clerks ;
(b) In any other manner interfering with, restraining, or coercing
its empl,oyees.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 activ-
ities for the purposes 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) Upon request, bargain collectively with International Associa-
tion' of Machinists (A. F. of L.) as the exclusive representative of all
production and maintenance employees at its Conneaut, Ohio, plant,
excluding its president and general manager, supervisors, foremen,
and clerks, with respect to rates of pay, wages, hours of work, and other
conditions of employment;
(b) Offer to those employees who went on strike on March 3, 1941,
or thereafter, and who have applied for and have not been offered
reinstatement, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, in the manner provided in the section
entitled "The Remedy" above; and place those employees for whom
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment is not immediately available upon a preferential list in
the manner set forth in said section, and thereafter,' in said manner,
offer them employment as it becomes available; -
(c) Upon application offer to those employees who -went on strike
on March 3, 1941, or thereafter, and who have not previously applied
for reinstatement, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, in the manner provided in
the section entitled "The Remedy" above; and place those employees
for whom employment is not immediately available upon a preferen-
tial list in the manner set forth in said section, and 'thereafter, in
said manner, offer them employment as it becomes available ; -
(d) Make whole the employees specified in paragraph 2 (b) above,
for any loss of pay they may have suffered by reason of the respond-
ent's refusal, if any, to reinstate them, pursuant to paragraph 2 (b)
above, by payment to each of them of a sum of money equal to that
which he would normally have earned as wages, during the period
from five (5) days after the date on which he applied for-reinstate-'
ment to the date of the respondent's offer of reinstatement or place=
ment upon a preferential list, less his net earnings, if any, during said
period; - ,
(e) Make whole the employees specified in paragraph 2 (c) above;
for any loss of pay they may suffer by reason of the respondent's re-
fusal, if any, to reinstate them pursuant to paragraph 2 (c) above;
by payment to each of them of a sum of money equal to that which he
would normally have earned as wages, during the period from five (5)
days after the date on which he applies for reinstatement to the date
of the respondent's offer of reinstatement or placement upon a prefer-
ential list, less his net earnings, if any, during said period;
(f) Post immediately in conspicuous places throughout its plant at
Conneaut, Ohio, and maintain for a period of not less than sixty (60)
consecutive days from the date of posting, notices to its employees
stating that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order, and that the respondent will take the affirmative action set forth
in paragraphs 2 (a), (b), (c), (d), and (e) of this Order: -
(g) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order. "