The Englander Co., Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1955

114 N.L.R.B. 1034 (N.L.R.B. 1955)

1034 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
cept to the extent that such right is affected by an agreement made in conformity
with Section 8 (a) (3) of the Act.
H. H. ERIKSON AND ERIK E . EJKSON, CO-PARTNERS,
D/B/A -DETROIT PLASTIC PRODUCTS COMPANY,
Employer.
Dated---------------- By---------------------------------------------
(Representative ) (Title)
This •notice ,mist remain,posted for 60 days from,the date hereof, and must not be
altered, defaced, or covered by any other material.
The Englander Company, Inc. and District 15, International
Association of Machinists, AFL and Local 21, Retail Clerks
International Association, AFL, Party to the Contract.. Case
No. 9-CA-4163. November 16,1955
DECISION AND ORDER
On August 16, 1955, Trial Examiner Robert E. Mullin 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 therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent and the Party to the Contract filed
exceptions to the Intermediate Report together with supporting
briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner with the modifications set forth
below 2
1 The Trial Examiner found that Organizer Lew called employee Rath a troublemaker
at a meeting of the employees on December 2, 1954. The Trial Examiner attributed testi-
mony on this to employee Driscoll . The record shows that Garland testified to hearing
the remark made by Lew . ,We correct the Intermediate Report in this respect. Our
correction does not alter. our concurrence in the remainder of the Trial Examiner's find-
ings and-conclusions.
a The Trial Examiner found that the Respondent discharged employee Wilbur Rath in
violation of Section 8 (a) (3) of the Act. The finding here rests on the Trial Examiner's
credibility resolutions . The Respondent asks the Board to upset those resolutions. It has
been the Board 's settled practice not to disturb the credibility findings of a Trial Examiner,
based on his observation of the demeanor of the witnesses , unless the clear preponderance
of all the relevant evidence demonstrates that the Trial Examiner 's resolution was in-
correct. Standard Dry Wall Products, 91 NLRB 544 , enfd. 188 F . 2d 362 ( C. A. 3)._ We
find, on consideration of the record as a whole , that the preponderance of the evidence
114 NLRB No. 160.
THE ENGLANDER `COMPANY, INC. 1035
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Englander
Company, Inc., Bayonne, New Jersey, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in District 15, International Associ-
ation of Machinists, AFL, or in any other labor organization of its
employees, by discharging or refusing to reinstate any of its em-
ployees, or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of their em-
ployment, except to the extent permitted by Section 8 (a) (3) of the
Act.
(b) Assisting or contributing support to Local 21, Retail Clerks
International Association, AFL, or to any other labor organization.
(c) Recognizing Local 21, Retail Clerks International Association,
AFL, as the exclusive representative of the Company's employees at its
Bayonne; New Jersey, plant, for the purposes of collective bargaining,
unless and until said labor organization shall have been certified by
the National Labor Relations Board as the exclusive bargaining rep-
resentative of the employees in an appropriate unit.
(d) Giving effect to the agreement with Local 21, Retail Clerks
International Association, AFL, entered into on November 4, 1954,
or to any extension, renewal, modification, or supplement thereof, or
to any superseding agreement, unless and until Local 21 shall have
been certified by the National Labor Relations Board, and then only
if the agreement otherwise conforms to the provisions of the National
Labor Relations Act; but nothing herein shall be construed as requir-
ing the Company to vary or abandon the wages, hours, seniority, or
other substantive features of any such agreement.
(e) Giving effect to any checkoff cards, heretofore executed by its
employees, authorizing the deduction of periodic union dues from
wages for remittance to Local 21, Retail Clerks International Associa-
tion, AFL, prior to the date of compliance with this Order.
(f) Encouraging membership in Local 21, Retail Clerks Interna-
tional Association, AFL, or in any other labor organization of its
employees, by conditioning the hire or tenure of employment or any
term or condition of employment upon membership in, affiliation with,
or dues payments to that Union, or to any other labor organization
does not warrant overruling the Trial Examiner 's findings on veracity . We adopt them.
We order here a broad remedy enjoining the violations found as well as any other
interference , restraint , and coercion by the Respondent . We do not decide whether the
Respondezs plant manager independently violated the Act in his speech to the employees
on December 7, 1954,'as,,we°Rwould issue thea'same,,'Order in, any, event ,to,-remedy the
violations found.
-1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except where such conditions shall have been lawfully established by
an agreement in conformity with Section 8 (a) (3) of the Act.
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization; to form
labor organizations, to join or assist District 15, International Associa-
tion of Machinists,'AFL, or any other labor organization,,to,bargain
collectively through representatives of their own' choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all
of such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3J of the Act.
2.' Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Wilbur Rath immediate and full reinstatement to his
former or substantially equivalent position, without'prejudice to his
,seniority or other rights and privileges previously enjoyed, and make
,him whole for any loss of pay he may have suffered by reason of the
Respondent's discrimination against him, in the manner provided in
the section of the Intermediate Report entitled "The Remedy."
(b) Withdraw and withhold all recognition from_, Local 21, Retail
-Clerks International Association, AFL, as the exclusive bargaining
representative of its employees at the Bayonne, New Jersey, 'plant, un-
less and until the said labor organization shall have been certified as
such representative by the National Labor Relations Board.
(c) Preserve and upon request make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay due
and the rights of employment under the terms of this Order.
(d) Refund forthwith to all employees and former -employees, at
the Bayonne, New Jersey, plant, from whose wages it has withheld or
'deducted funds for transmittal to Local 21-, Retail Clerks Association,
AFL, the amount of any and all such deductions and withholdings,
to the end that each such employee shall be promptly, fully, and com-
pletely reimbursed for all monies so deducted or withheld.
(e) Post at its plant in Bayonne, New Jersey, copies of the notice
attached hereto and marked "Appendix A." 3 Copies-of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent, be posted by it immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
3In the event that this Order is enforced by a decree of a United States Court of
,Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
.words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
THE' ENGLANDER COMPANY, INC: ' 1037
notices to employees are customarily -posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) 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.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discharged Simon
Sokol in violation of Section 8 (a) (3) of the Act.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in District 15, Interna-
tional Association of Machinists, AFL, or in any other labor
organization of our employees, by discharging or refusing to re-
instate any of our employees, or by discriminating in any other
manner in regard to their hire or tenure of employment, or any
term or condition of employment, except' to the extent permitted
by Section 8 (a) (3) of the Act:
WE WILL NOT assist-or contribute support to Local 21, Retail
Clerks International Association, AFL, or to any other labor
organization.
WE WILL NOT recognize, and hereby withdraw and withhold
recognition' from, Local 21,- Retail Clerks International Associa-
tion, AFL, as the exclusive representative of our employees for
the purposes of collective bargaining unless and until said labor
organization shall have been certified by the National Labor Re-
lations Board as the exclusive bargaining representative of the
employees in an appropriate unit. -
WE' WILI. NOT give effect to the agreement entered into with
Local 21, Retail Clerks International Association, AFL, on No-
vember 4, 1954, or to any extension, renewal, modification, or sup-
plement thereof, or to any superseding agreement, unless and until
Local 21 shall have been certified by the National Labor Relations
Board, and then only if the agreement otherwise conforms to
the provisions of the National Labor Relations Act.
WE WILL NOT give effect to any checkoff cards, heretofore exe-
cuted by our employees, authorizing the deduction of periodic
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union dues from their wages for remittance to Local 21 , Retail
Clerks International Association, AFL.
WE WILL NOT encourage membership in Local 21, Retail Clerks
International Association , AFL, or in any other labor organi-
zation of our employees, by conditioning the hire or tenure of
employment or any term or condition of employment upon mem-
bership in , affiliation with , or dues payments to that Union, or
to any other labor organization except where such conditions shall
have been lawfully established by an agreement in conformity
with Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-or-
ganization , to form labor organizations , to join or assist Local
21, Retail Clerks International Association , AFL, or any other
labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection , and to refrain from- any'or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8 (a) (3) of the
Act.
WE WILL offer to Wilbur Rath immediate and full reinstate-
ment to his former or substantially equivalent position , without
prejudice to any seniority or other rights and privileges pre-
viously enjoyed , and make him whole for any loss of pay suffered
as a result of the discrimination against him.
WE WILL refund to all our employees and former employees
from whose wages we have deducted funds for transmittal to
Local 21 , Retail Clerks International Association , AFL, the
amount of all such deductions and withholdings to the end that
such employees shall be reimbursed for all monies so deducted or
withheld.
All our employees are free to become, remain , or refrain from be-
coming members of any labor organization , except to the extent that
this right may be affected by agreements in conformity with Section
8 (a) (3) of the National Labor Relations Act.
THE ENGLANDER COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
THE ENGLANDER COMPANY, INC . , ' 1039
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor Management Rela-
tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in New York City
on June 1, 2, and 3, 1955, pursuant to due notice to all parties. The complaint,
issued on May 17, 1955, by the General Counsel of the National Labor Relations
Board I and based on charges duly filed' and served, alleged that the Respondent had
engaged in unfair labor practices proscribed by Section 8 (a) (1), (2), and (3) of
the Act by discriminatorily discharging two named employees, by assisting the
organizational efforts of the Retail Clerks while interfering with those of the Machin-
ists, and by various other acts and conduct. In its answer, duly filed, the Respondent
conceded certain facts with respect to its business operations, but denied the com-
mission of the alleged unfair labor practices.
All parties were represented at the hearing by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce rele-
vant evidence, to argue orally, and to file briefs and proposed findings and conclu-
sions. Respondent's motions to dismiss, made at the close of the hearing, were taken
under advisement. They are disposed of as appears hereinafter in this report.2 On
June 21, the Respondent submitted a brief and on June 23 a brief was received from
the Retail Clerks.
From my observation of the demeanor of the witnesses, and upon the entire record
in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, has its principal office and plant in
Chicago, Illinois, and other plants and subsidiary offices located in Illinois and various
other States, including a factory at Bayonne, New Jersey, the only one involved in
this proceeding. At the Bayonne location, first opened in August 1954, the Re-
spondent is engaged in the manufacture, sale, and distribution of beds, bedding, and
related products. At the hearing on June 1, 1955, the Respondent stipulated that by
the end of the first year of operation at Bayonne it will have purchased, transferred,
and delivered to that plant raw materials valued in excess of $1,000,000, of which
over $900,000 worth will have been transported in interstate commerce directly to
States other than New Jersey during the course of the 12 months from August 1954
to August 1955. The Company further stipulated that by the end of the same period
it will have manufactured, sold, and distributed from the Bayonne factory, finished
goods valued in excess of $1,000,000, of which amount products valued in excess of
$250,000 will have been shipped directly from this plant to points outside the State
of New Jersey. On the foregoing facts, the Respondent concedes, and I find, that
it is engaged in commerce within the meaning of the Act.
It. THE ORGANIZATIONS INVOLVED
The parties stipulated , and I find, that both the Machinists and the Retail Clerks
are labor organizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The evidence and conclusions with respect to the alleged violations of Section
8 (a) (1) and (2)
It was undenied that shortly after the Bayonne plant opened Joseph Senna, assist-
ant to the superintendent, called a number of employees into his office, or spoke to
them at work, to request that they sign application cards and checkoff authorizations
in the Retail Clerks. Robert Ferdinand, the plant manager, testified that early in
September 1954, a Mr. Whitman, president of Local 21, asked him if the Company
2 The General Counsel and the staff attorney appearing for him at the hearing are
referred to herein as the General Counsel and the National Labor Relations Board as the
Board. The above-named Company is referred to as the Respondent, the Charging Party
as the Machinists, and the Party to the Contract as the Retail Clerks or Local 21.
2At the close of the hearing the General Counsel, in a motion that as unopposed by
the other parties, moved to conform the pleadings to the proof. The transcript reflects
no ruling on this motion. It is now granted.
1040 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
would afford them clerical assistance by making cards available to the employees at
the new plant . In testifying as to his contacts with the personnel about the matter,
Mr. Senna stated that it was his responsibility "to assist in seeing that they [ the cards]
were signed ." A number of the employees testified as to the manner in which the
subject was introduced to them. Thus, Anthony Mongelli, one of the maintenance
men, stated that one day in September Senna called him to his office and told him
about the Retail Clerks. According to Mongelli, upon asking Senna if the employees
would have an opportunity to pick another union, the latter told him that "we had
to sign those cards and that [Local 21] was the only union at that particular time."
During the same period , Senna spoke to Simon Sokol , another maintenance employee.
The latter testified that Senna showed him both forms and told him "we have a con-
tract with these people. You have to sign . . . if you want to work here." Sokol
signed both cards and gave them back to Senna. Harold J. Driscoll, another em-
ployee, testified that at the time he was hired in mid-November Senna gave him and
several others who were employed that day copies of the authorization and checkoff
forms and in doing so stated "These are some of the cards that you have to fill out
before you can start working." According to Driscoll, he and all the other newly
hired employees present then signed. Wilbur Rath, an employee hired on November
11, testified that shortly thereafter his foreman ordered him to report to Senna and
that the latter, handed him a membership application and a dues deduction card for
the Retail Clerks. According to Rath, when he objected to this procedure and asked
that he be given an opportunity to find out if it was permissible , Senna told him,
"My orders are from Mr. Ferdinand to have you sign these cards and I have to return
them to him. I know nothing more about it." Rath then signed the cards and re-
turned to work. The foregoing employee's testimony was credible and it was not
denied by Senna when he was on the stand. In fact, the latter conceded that he
never told the employees that they were under no obligation to sign the cards.
On November 4, the Retail Clerks met with Mr. Ferdinand and requested that
the Company recognize Local 21 as the bargaining agent of the employees at the
Bayonne plant. At the time there were 10 rank -and-file employees at work in
the plant and the Union presented authorization and dues checkoff cards from all
of them . According to the plant manager , after he had checked these and phoned
the home office of the Company for its advice, he granted recognition to the Retail
Clerks. The parties then agreed to extend the coverage of a contract which Local
21 had with the Company at its factory in Middlesex, New Jersey, to the Bayonne
plant. This agreement had a union -security provision and, as extended , would not
mature until May 31, 1956. On November 4, the new factory was not yet in pro-
duction and a significantly large number of employees were still to be hired. By
June 1, 1955, there were approximately 75 employees on the plant payroll. The
Company has recognized the Retail Clerks as the exclusive bargaining agent of its
employees at the Bayonne plant at all times since November 4, and early in De-
cember it begain deducting initiation fees and monthly dues for Local 21 from the
wages of the employees who had signed checkoff authorizations.3
Insofar as the record indicates , the employees first heard of the contract between
the Company and Local 21 on December 2 when the Union held a meeting in the
plant washroom. Mr. Ferdinand testified that he gave permission to Joseph Lew, a
representative of the Retail Clerks, to hold this meeting as well as 2 others which
were subsequently held after hours on the factory premises in the ensuing 3 to 4
weeks. The first meeting was attended by most of the approximately 17 men then
employed at the Bayonne plant. According to Driscoll, who was one of those pres-
ent, after introducing himself, Lew stated that the Retail Clerks had a contract which
the employees would have to abide by and then went on to explain that the agree-
ment covering the Bayonne plant was an extension of a previously existing contract
which the Union had with the Company at its Middlesex factory. Driscoll testi-
fied that when some of the employees present announced that they did not want to
join the Retail Clerks, Lew told them that in that case ". . . you can't work here."
According to Anthony Mongelli, when some of the employees asked if they could
see the contract which Lew had mentioned, he told them that that would not be
possible until they joined Local 21 Both Mongelli and Driscoll testified that Rath
and Sokol were extremely vocal in protesting to Lew that they had never heard of
a union getting representation rights without having obtained a majority vote from
the employees and that a somewhat bitter exchange took place between these latter
two employees and Lew. At one point, after Lew told his audience they would
!have to abide by the contract, Rath suggested "Let's not use strong arm tactics.-
When Lew replied ". . . if you want to be cute, I can be cute, too," Rath declared,
3The union-security provisions of the agreement were effective 30 days after November 4.
THE ENGLANDER COMPANY, INC. 1041
"Well, I can defend myself, too ... and if this pipe- on the floor and I have to use it,
I will use it." During the course of the remarks between Lew and Rath, the former
also declared, "I know you from way back, Rath, you are a trouble maker from the
last job you had." 4 At another point during the meeting, when Sokol suggested'
that perhaps the employees did not want Lew's Union, the latter declared, "Well, may-
be we don't want you." 5 The foregoing testimony of employee witnesses as to the'
events at the union meeting on December 2 was neither denied nor contradicted by,
either the Respondent or the Retail Clerks. Since these witnesses were themselves'
worthy of belief, I find their testimony, set forth above, credible.
Shortly thereafter Rath contacted a representative of the Machinists. That Union
thereupon scheduled an organizational meeting for the evening of December 7 and
in the intervening period Rath, Sokol, and others solicited their fellow workers to
attend. On the afternoon of December 7, Rath was discharged, a matter in issue-
here which will be discussed later, infra. On December 14, the Machinists filed
a petition with the Regional Office of the Board in which that Union requested a rep-
resentation election among the production and maintenance employees at the
Bayonne plant.
At the close of the shift on the day of Rath's dismissal the employees were told
to assemble for a speech by the plant manager. Mr. Ferdinand testified that he then
related to those present a telephone call from a representative of the Machinists in
which the latter had told him that unless Rath was reinstated immediately a picket
line would be established at the plant gate. According to Ferdinand, he informed
the men that if there was a picket line the next day he would still expect them to
come in unless there was violence, in which event they should telephone the plant
for additional instructions. He also testified that he assured his audience that no one
would be penalized for attending the Machinists meeting, since it was their demo-
cratic right to do so if they chose. The testimony of the employee witnesses cor-
roborated much of the foregoing. However, these same witnesses also testified that
the plant manager placed great emphasis on the likelihood of trouble if a rival to
the Retail Clerks appeared. Thus, Driscoll stated that although Ferdinand told them
that they had aright to attend the meeting he further stated that he would not advise
them to do so because "if we did another union might come in and there would
be violence because they had the same trouble in Brooklyn." According to Driscoll,
when he asked if the employees were compelled to join the Retail Clerks, the plant
manager told him, "Well, we have a contract and it works very well in Middlesex."
Driscoll also testified that Ferdinand concluded his remarks by stating that if an-
other union came in there would be violence, and that, in that event, since it was not
too late, the Company would shut down the plant. The testimony of this employee
was corroborated by both Sokol and Mongelli. According to the latter, Ferdinand
also told them that since the plant was not yet in production the employees should
try to go along with the Retail Clerks. Mr. Ferdinand did not deny having mentioned
the likelihood of a plant shutdown or any of the other remarks set out above which
manifested a marked preference for Local 21.
Concluding Findings
The General Counsel alleges that the Respondent rendered unlawful assistance
and support to the Retail Clerks: through the activities of Ferdinand and Senna, by
allowing Local 21 to hold meetings at the plant, by recognizing the latter, by en-
forcing the union-security provisions of the November 4 agreement, and by deducting
dues for that Union from the wages of its employees. The General Counsel further
contends that, as a result, the Retail Clerks do not represent an uncoerced majority
of the employees and that its contract covering the Bayonne plant is invalid. The
Respondent denies these allegations in their entirety. The latter relies heavily on
a provision of its contract with Local 21 at its Middlesex plant whereby that agree-
ment could be extended to cover any new plants in certain named counties in New
Jersey, including Hudson, where the Bayonne plant is located, upon satisfactory proof
of majority by the Retail Clerks. Respondent characterizes the activities of its
supervisors in connection with the signing of the cards as no more than the extension
of a convenience to that Union.
The activities of Mr. Senna cannot be dismissed as lightly as the Company now
contends. His statement to Sokol that since the Company had a contract with the
4 The foregoing quotations in this paragraph are from Driscoll's credited, undenied
testimony
5 The foregoing quotation is from the undenied testimony of Simon Sokol which was
also corroborated by that of Driscoll
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks "you have to sign ... if you want to work here" and his comment to
Mongelli that Local 21 "was the union that the Company had, that was representing
them" and that the employees had to sign the cards, were made prior to November
4 and before that Union sought recognition at Bayonne. Yet cards obtained in this
manner made up the purported majority held by the Retail Clerks when the Company
granted that Union exclusive recognition and a union-security agreement on Novem-
ber 4. Such employee testimony as that set out above and Senna's own frank state-
ment that his responsibility as to the cards was that he "assist in seeing that they were
signed," have convinced me that the assistant to the superintendent took an active role
in soliciting the employees to sign the cards. [Emphasis supplied.] Senna estimated
that on the day he talked with Mongelli about the matter he probably contacted five
other employees as well. Since there were only 10 employees at work prior to Novem-
ber 4, this meant that on 1 day alone Senna himself contacted a majority of them.
Yet it is this majority on which the Respondent must rely in urging that Local 21 was
entitled to recognition on November 4. It is well settled that high ranking manage-
ment personnel are not free to engage in the type of organizational activity which
Senna freely admitted. His conduct plainly constituted interference, restraint, and
coercion within the meaning of Section 8 (a) (1). I so find. Further, as a result of
Senna's role , Local 21 clearly did not have an uncoerced majority at the time the
Company so readily granted it recognition. Consequently, I conclude and find that
it was a violation of Section 8 (a) (2) and (1) for the Respondent to recognize and
bargain with the Retail Clerks on November 4 when the company officials knew that
the latter had obtained a majority of the signatures on the authorization and checkoff
cards through the coercive recruitment efforts of its assistant to the plant superin-
tendent. Robbie Shoe Corp., 113 NLRB 314.
On still another ground, the Respondent's conduct here was violative of the Act.
On June 1, 1955, the Bayonne plant had approximately 75 employees. On November
4, 1954, however, it had only 10 and the newly established factory had not yet gone
into production. Under these circumstances the latter complement could not be con-
sidered a representative working force. By extending the provisions of its contract
with Local 21 at the Middlesex plant to cover the Bayonne operation 6 at a time when
the latter was not yet in production and had only a handful of employees, while con-
currently authorizing Senna to carry on an organizational campaign for the Retail
Clerks, the Company presented its newly hired employees with a readymade bargain-
ing agent, thus effectively depriving them of that freedom guaranteed by the Act to
choose their own collective-bargaining representative. The Board has held that an
employer illegally assists and supports a union by granting it exclusive recognition be-
fore he has a representative complement in an appropriate unit in his employ. Safe-
way Stores, Inc., 111 NLRB 968; John B. Shriver Company, 103 NLRB 23, 38. Fur-,
ther, the Board has held that such illegal assistance and support is "aggravated where,
as here, the agreement that grants recognition also requires the covered employees as
a condition of their employment to join and pay dues to a labor organization they have
not freely chosen." Shriver, id. at 38. Consequently, by including such a requirement
in its agreement with Local 21, I find that the Respondent violated not only Section
8 (a) (1) and (2) but also Section 8 (a) (3) of the Act. Shriver, ibid.; Robbie Shoe
Corp., supra; Prirtz Leather Company, 94 NLRB 1312. It also appears evident from
the credited testimony of Rath and Driscoll, set forth earlier herein, that Mr. Senna
continued his recruitment campaign among the newly hired employees in the period
subsequent to November 4. Not only was this a further violation of Section 8 (a) (2)
and (1), but it was a similar and continuing violation for the Respondent to apply and
enforce the aforesaid agreement, to deduct dues and initiation fees from the wages of
the employees on behalf of the Retail Clerks, and to permit that Union to hold meet-
ings on the plant premises.
The General Counsel also alleges that Mr. Ferdinand violated the Act by his re-
marks to the employees at the close of their shift on December 7. Insofar as the plant
manager on that occasion sought to advise his men on the Company's preference in
the event of a picket line, he was unquestionably free to do so. He was similarly free
to offer advice on which union he and the Company preferred. On the other hand,
6 The Respondent did not argue that the Bayonne plant should be considered as an
accretion to the unit at Middlesex. That there would have been no basis for such an
argument appears from the fact that the 2 plants are approximately 40 miles apart and
that there was no interchange of employees, all the rank-and-file personnel working at
Bayonne prior to November 4 having been hired at that location and no hourly paid
employees having been transferred from Middlesex Local 404, tnternationat Brotherhood
of Teamsters, 700 NLRB 801, 810-811 ; Chicago Freight Car & Parts Co., 83 NLRB 1163,
1164-1165.
THE ENGLANDER COMPANY, INC. 1043
from the testimony of the employees , which I credit , it is apparent that in his statement
to them , Ferdinand emphasized that the appearance of a rival to the Retail Clerks al-
most inevitably would result in violence and a resultant shutdown of the plant. In
view of the fact that at this time Local 21 did not represent an uncoerced majority
and had no valid collective -bargaining contract covering the Bayonne plant , it is my
conclusion that , in emphasizing the imminence of the factory 's closing in the event of
any difficulties arising out of a contest between the Retail Clerks and a rival , the plant
manager went beyond the limits of permissible free speech and that to this extent his
remarks were coercive and a violation of Section 8 (a) (1) of the Act.
B. The allegations as to discriminatory discharges and conclusions with
respect thereto
1. Wilbur Rath
This employee was hired in the maintenance department on November 11 and
worked until his discharge on December 7. The General Counsel alleges that Rath
was discharged because of his activities on behalf of the Machinists. The Respond-
ent denies any discrimination and avers that he was fired because he had threatened
James Brown, a fellow employee.
At the Retail Clerks meeting held on December 2 Brown was selected as the plant
steward for that Union. Rath's activities on behalf of the Machinists in the days
that followed have been described above. On several occasions during that period
he and Brown debated the relative merits of Local 21 and the Machinists. Accord-
ing to Brown, in one such conversation, 2 days after the meeting, on or about
December 4, Rath stated that "for two cents he'd wrap a pipe around the business
agent's neck, and that he would not hesitate to wrap one around mine." Brown
testified that he immediately reported this statement to his superior, Nick Menechino,
foreman of the shipping department. According to Ferdinand, Menechino first told
him of this incident on the morning of December 7 and that he promptly called
Brown into his office to verify the report and to tell him that he proposed to discharge
Rath because of it. Ferdinand testified that although Brown urged that Rath be
given another chance he considered the matter far too serious for temporizing and
decided that Rath's immediate dismissal was imperative. He further testified that
that afternoon he so informed Rath, after explaining to him that the Company would
not tolerate any employee's making threats of bodily violence to another worker.
The plant manager also stated that although he also told Rath that La Regina, his
foreman, had complained about his being a "loud mouth," the principal reason for
his dismissal was the threat made to Brown. The Respondent called La Regina
to testify as to other matters but asked him no questions as to Rath's ability, attitude,
or habits.
Rath's testimony as to the meeting with Ferdinand differed materially from that
of the plant manager. The employee's version, in substance, was as follows: In a
conversation with Brown during the lunch period on December 7, the latter told him
that Ferdinand "don't like the way you are shooting off your mouth about another
union," that he (Brown) had talked with Ferdinand that morning and in so doing
had saved Rath's job for him and, further, that this was the third time he had man-
aged to induce the Company not to let Rath go. The latter told Brown that if his
job was in such jeopardy he wanted to discuss his prospects with Ferdinand per-
sonally. As a result, Brown arranged for him to meet the plant manager that
afternoon. At this meeting Ferdinand informed Rath that he was "not fired [but]
laid-off. The job you have been hired for has been completed." 7 Rath denied
that Ferdinand mentioned any alleged threat to Brown during the course of the
interview. He further denied that La Regina or anyone else at the plant had ever
complained about his work habits or temperament.
Rath conceded having discussed organizational matters with Brown but he denied
ever having threatened him with violence. From his general demeanor at the hear-
ing it was apparent that Rath was a forceful personality. It was likewise clear from
the testimony of others, as well as Rath, that he openly expressed his determined
opposition to the Retail Clerks. Driscoll, found a credible witness earlier herein,
described a conversation between Brown and Rath during this general period at which
he was present. According to Driscoll, Brown suggested that since Local 21 was
already in the plant "there is nothing we can do about it but play ball " To this,
Rath replied, "Well they can't come in and just push a union on us . . and use
strong arm . . . tactics . . . If they try and use strong arm . . . I will wrap a
7 The quotation is from Rath's testimony
387644-5 6-vol. 114-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pipe around their heads or anybody that tries to use strong arm ." 8 At the hearing,
Brown was not a persuasive witness in support of the allegation that Rath had
threatened him. Consequently , in view of the foregoing , it is my conclusion, that
although these two employees may have had a heated argument, Rath never made
a direct threat of violence to Brown's person as the latter alleged . Neither am I
convinced that either Ferdinand or the plant management was as disturbed about
the alleged threat as the Respondent endeavored to prove at the hearing. Although
Brown testified that he had mentioned the matter to Menechino on December .4,
Ferdinand stated that it was not until 3 days later that the latter brought it to his
attention, At that stage, when the employee was called in to confirm the story,
even according to Ferdinand, Brown, the employee who was purportedly most con-
cerned about the matter, tried to dissuade him from using the incident as a giound
for discharging Rath.
On the basis of my appraisal of the respective demeanor of the witnesses while
on the stand and the testimony related above it is my conclusion that, as Rath
testified, the alleged threat to Brown was never even mentioned by Ferdinand during
the terminal interview. It is my further conclusion, in view of Rath's prominence
as a proponent of the Machinists, the Company's manifest preference for Local 2 i,
its opposition to any rival of that Union, the inadequacy of the reason offered for
Rath's dismissal , and the lack of complaints about him, that the real motive for his
termination was Rath's advocacy of the Machinists Consequently, I find that by
his discharge the Company violated Section 8 (a) (3) and (1) of the Act
2. Simon Sokol
As noted earliei, Sokol was among the early supporters of the Machinists. He
testified that shortly after this campaign began Ferdinand had a conversation with
him in which the latter sought to elicit information on the employees ' organizational
activities and in so doing endeavored to bribe him. According to Sokol, on an
occasion in mid-December, the plant manager questioned him as to why the em-
ployees seemed to be disturbed, asked for the names of those interested in the
Machinists, and then suggested that if Sokol needed any additional money he would
get it for him out of the petty cash fund -Ferdinand denied that he had inter-
rogated Sokol as to the union sympathies of any of his coworkers or that he had in-
timated that Sokol would be paid for supplying such information According to
the plant manager, he did have a conversation on the day in question which
was occasioned by Sokol's protest about not having been assigned certain over-
time work, that during the discussion Sokol complained on the ground that with the
Christmas season approaching he needed the money he might have earned on over-
time, and that when the employee made this remark he (Ferdinand) suggested that
in such event he would give him an advance. Ferdinand's testimony in this con-
nection was corroborated by Sokol's admission on cross-examination that he had in-
troduced the subject of his need for Christmas money. The plant manager 's version
of this meeting was far more persuasive than that of the employee I do not
believe that Ferdinand offered Sokol a bribe, and so find. Moreover, because of
the implausible coloration which Sokol sought to put on the conversation I am un-
willing to accord credence to his other testimony attributing unlawful interrogation
to Ferdinand.
Sokol continued working for the Company until the afternoon of February 2,
1955 The General Counsel alleges, and the Respondent denies, that he was dis-
criminatorily discharged on that date and refused reinstatement thereafter for having
supported the Machinists. According to the Respondent, he voluntarily quit and
was never rehired because of his deficiencies
This employee was hired when the plant opened in August. He was initially
paid $1 10 an hour as a maintenance man under Foreman La Regina and received
a series of 10-cent raises so that at the time of his termination in February 1955
he was being paid $1 40 an hour Sokol testified that on the morning of February
2 he had an argument about his work with La Regina, during which his foreman
suggested that he was not paying attention to certain instructions given earlier The
discussion became loud and bitter. Sokol conceded, "I guess everybody in the plant
heard it." The employee's version of the subsequent events was as follows: He re-
turned to work after the argument and about 2.30 p. in received permission from
La Regina to take the rest of the day off. At the same time, while suggesting that
8 The quotations are from Driscoll's testimony
THE ENGLANDER COMPANY, INC. 1045
the Company was `.'scheming to get rid of [him]" 9 and might not want him around,
Sokol gave the foreman his key to the plant but retained his key to the maintenance
room. When La Regina suggested that he turn over that key as well, Sokol asked
if that meant he was being discharged. The foreman, however, replied in the
negative . The following morning Sokol telephoned La Regina to ask if he could
wait until the afternoon to report for duty because his wife was ill. His foreman
promised that he would let him know and in a subsequent conversation shortly there-
after told him, "Don't bother coming in. . . . Call up Personnel Monday." That
afternoon Sokol went to the plant, received his paycheck, and sought out Ferdinand
to ask what his status was. The latter told him he would be unable to answer that
question until he heard from company headquarters in Chicago. According to
Sokol, on the following Monday he visited the plant manager again but could
get no added information as to his employee standing other than that Ferdinand "tried
to convince me that I quit." 10 Sokol could not recall having any further con-
versation on the subject with Ferdinand.
There was considerable evidence that on February 2, Sokol told his foreman
he was quitting, despite his denials to the contrary. In substance, La Regina gave
the following testimony as to Sokol's departure. At the conclusion of their argu-
ment that morning the employee stated that he was quitting and La Regina then said,
"Look, Si, you said that to me on more than one occasion. If you want to quit,
go ahead and quit. As far as I am concerned, you are through." Early that after-
noon Sokol came to him and asked, "Who do I see about leaving?" La Regina told
him that he was the one. With that Sokol declared, "I am going," and threw his plant
key to the foreman. When the latter suggested that Sokol also give him his other
key, the employee ignored the request and left the premises, commenting as he did
so, that he was "going to the NLRB." 11 At 11 a. m. the next day Sokol telephoned
to ask if he could come to work. La Regina reminded him that the day before he
had declared that he was quitting and that, as a result, he (La Regina) had referred
the matter to the personnel department. He suggested that Sokol contact that office
if he had any further questions 12
La Regina testified that although Sokol was a competent worker, he had a very
contentious nature that frequently led to arguments and disputes over the way in
which a job should be done. This was corroborated by Ferdinand, who testified that
on the morning of February 2 La Regina told him that he had had another argu-
ment with Sokol because of his refusal to follow instructions and that the employee
had threatened to quit. According to the plant manager, he instructed La Regina
that if Sokol continued to work, despite his threat to leave, La Regina should submit
a memorandum on any occasion in the future when the employee caused him any
further trouble. Ferdinand likewise testified that when Sokol returned to the plant
the next day the only excuse he gave for leaving the day before was his statement
that he had to write a letter to the Board. La Regina's testimony as to Sokol's
threat to quit on February 2 was also corroborated by Anthony Mongelli, one of the
maintenance employees. According to the latter, at some time after the argument in
question, Sokol told him that he had become angry and disgusted with La Regina,
that he had told the foreman he would quit, and "that he was going to take the rest-
of the afternoon off." 13 Mongelli also testified that during that same morning
La Regina likewise told him that Sokol had become incensed at him and had stated
that he was quitting.
Sokol testified that he made this statement as it result of certain information Driscoll
had brought to him that inormng. When the latter was called to the stand he testified
that he had told Sokol about having overheard Angelo Paladino, plant supeiintendent, and
La Regina in a conversation, wherein Paladino had stated, " We have got to get rid of
him, but how can we) ftc's a good worker," and La Regina had ieplied, "Well, I Ill)(] the
opportunity this morning We had an argument, but T didn't know about it " Driscoll
further testified that in this brief portion of the conveisation which he had heard neither
Sokol nor any union was mentioned.
10 The quotations in this paragraph are from Sokol's testimony
11 The quotations in this paragraph are from La Regina's testimony
"Dlongelli testified that in it conveisation vvitli La Regina on February 2 the latter
stated that lie had given Sokol permission to leave the plant Although Mongelli in'-
pressed nie as it thoroughly sincere and honest witness throughout his appearance on the
stand, lie plainly had a hazy recollection as to this phase of the conversation. In view of
the additional tact that he gave this particular testimony in response to a leading question,
I have attributed little weight to it and have instead chosen to believe La Regina who
testified, in it manner most convincing to me, that on the afternoon of February 2, Sokol
abruptly stated that lie was quitting and thereupon left the plant.
13 The quotation is fiam the undenied testimony of a[ongelli
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of The General Counsel's position there are the following factors:
Sokol was admittedly a competent worker; he was an active proponent of the
Machinists, whereas the' Company openly supported the Retail Clerks and dis-
criminatorily discharged Rath for opposing the latter; and lastly Sokol's own testi-
mony that he never quit but that the Company terminated him. On the other hand,
despite the foregoing, the testimony of La Regina, corroborated in large measure by
that of Mongelli, tends to prove that, in the heated argument with his foreman, Sokol
threatened to quit, that he subsequently stated that he was leaving the plant.that
afternoon, that he did leave, and that he did not contact his foreman until about
11 a. m. the next day. La Regina's testimony about Sokol's argumentative disposi-
tion was corroborated by the employee himself who testified that "many a time" he
would volunteer to the foreman his opinion on how to do things. "If he would tell
me to do something in a certain way . maybe I would . . say `Well let's do it
this way, my way.' " Sokol estimated that he had criticized La Regina's judgment
about a dozen times. La Regina testified that he and Sokol had become "sharp
with one another" 14 in approximately a dozen arguments. In view of the fact that
all of these incidents took place during a short 5-month period of employment it is
not surprising that when Sokol declared that he was quitting and shortly thereafter
left the plant, the Company accepted his decision and made no effort to extend any
grace period within which he could change his mind. The Respondent may very
well have 'been happy to be rid of him because Sokol was also an advocate of the
Machinists., The evidence here, however, indicates that his difficulties arose from
carrying out a threat to quit and not because of his union activities.15
On this record, I find that the General Counsel has failed to prove by a pre-
ponderance of the evidence that Sokol was discriminatorily discharged or refused
reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations 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 unfair labor
practices, I will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Having found
that the Respondent discriminatorily discharged Wilbur Rath on December 7, 1954,
I will recommend that it offer him immediate and full reinstatement without preju-
dice to his seniority or other rights and privileges, and make him whole for any loss
of earnings that he may have suffered by payment to him of a sum of money equal
to that which he normally would have earned from the date of the discriminatory
discharge to the date of the Respondent's offer of reinstatement, less net earnings
during said period. The back pay provided for herein shall be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289; earnings in one particular quarter shall have no effect on the back-
pay liability for any other period.
Since I have found that the Respondent unlawfully assisted and contributed sup-
port to the Retail Clerks, the effects of this interference, as well as the Respondent's
continued recognition of that Union as the bargaining representative of its em-
ployees, constitute a continuing obstacle to the free exercise by its employees of
their right to self-organization and to bargain collectively through representatives
of their own choosing. I will, therefore, recommend that the Respondent withhold
recognition of the Retail Clerks and refrain from dealing with it at the Bayonne
plant unless and until it shall have been certified by the Board as the collective-
14 The quotation is from La Regina's testimony.
1E Although the General Counsel advanced no theory to support his allegation that Sokol
was discriminatorily discharged, having made no, oral argument and having filed no brief,
he apparently relied to some extent on Driscoll's testimony about the conversation between
Paladino and La Regina which that employee had overheard. Since the latter conceded,
however, that he heard no mention of either Sokol or any union in that discussion, under
the circumstances present here, I consider It too ambiguous to support the conclusion that
it was Sokol whom Paladino had in mind and, further, that the plant superintendent
proposed that Sokol be discharged because he supported the Machinists and for no other
reason.
THE ENGLANDER COMPANY, INC. 1047
bargaining representative of the Respondent's employees. Having found that the
agreement entered into between the Respondent and the Retail Clerks has been
a means whereby the Respondent has utilized an employer-assisted labor organization
to frustrate self-organization and defeat genuine collective bargaining by its em-
ployees, I will recommend that the Respondent cease giving effect to that agreement
between it and the Retail Clerks covering the Bayonne plant or to any modification
or extension thereof. Nothing in this recommendation should be taken, however,
to require the Respondent to vary those wage, hour, and other substantive fea-
tures of its relations with the employees themselves, if any, which the Respondent
has established in performance of this agreement.
Since I have found that Respondent violated the Act by coercing its employees to
become and remain members of the Retail Clerks and to authorize deduction of
membership dues from their wages, I shall recommend that Respondent make whole
to such employees the amounts deducted from their wages for that purpose from the
date when such deductions were first made to the date of compliance with this recom-
mendation.16
'I will also recommend that the Respondent, upon reasonable request, make avail-
able to the Board and its agents, all payroll and all other records pertinent to an
analysis of the sums due its employees pursuant to -the terms of this recommended
order.
Since I have found that the Respondent, by various acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in the Act and par-
ticularly because of the discriminatory discharge of Rath and the unlawful assistance
to the Retail Clerks, I am persuaded that the unfair labor practices committed are
related to other unfair labor practices proscribed and that the danger of their com-
mission in the future is to be anticipated from Respondent's conduct in the past.
Accordingly, in order to make effective the independent guarantees of Section 7 and
thus effectuate the policies of the Act, I will recommend that the Respondent cease
and desist from in any manner infringing upon the rights of employees guaranteed
by the Act. May Department Stores v. N. L. R. B., 326 U. S. 376, 386-392.
CONCLUSIONS OF LAW
1. The Respondent is and, at all times relevant herein, was engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Unions herein involved are labor organizations within the meaning of the
Act.
3. By discriminating in regard to the hire and tenure of Wilbur Rath, thereby dis-
couraging membership in the Machinists, by coercing its employees to become and
remain members of the Retail Clerks, and by the involuntary checkoff of union
dues from their wages for payment to the latter, thereby encouraging membership in
that organization, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
4. By assisting the Retail Clerks and contributing support to that Union, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (2) 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, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondent did not discriminatorily discharge or refuse to reinstate Simon
Sokol as alleged in the complaint; nor has it interfered with, restrained, or coerced its
employees by any acts or conduct other than those found herein to have been com-
mitted in violation of the Act.
[Recomme idations omitted from publication.]
ze The situation here is comparable to that in Hibbard Dowel Co , 113 NLRB 28, where
the Board found the reimbursement of checked-off dues an appropriate and necessary
remedy because, as it stated : ". . . the Respondent Company has given unlawful assistance
and support to the Respondent Union which it has foisted upon the employees as their
bargaining representative in disregard of their statutory rights. Moreover, by their
union-security agreement, implemented by a dues checkoff arrangement, the Respondents
have unlawfully required the employees to maintain membership in the Respondent Union
as the price of employment and thereby to support an organization not of their own
choosing " See also : Safeway Stores, Inc., 111 NLRB 968; Robbie Shoe
NLRB 314.
Corp., 113