The Triplex Screw Co.

National Labor Relations Board - Board Decisions

Jul 31, 1940

25 N.L.R.B. 1126 (N.L.R.B. 1940)

In ' the Matter of THE TRIPLEX SCREW COMPANY and AMALGAMATED
ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA,
LOCAL No. 1583
Case No. C-1034.-Decided July 31, 1940
.Jurisdiction: hardware manufacturing industry.
Unfair Labor Practices
Intel ference, Restraint, and Coercion: anti-union statements; interrogation con-
cerning union membership ; declaration of union preference ; inducing employees
not to become or remain members of a labor organization by wage increases.
Company-Dominated Union: employer's participation in formation of; permitting
employees to engage in activities on company time in behalf of. -
71 isc, inaination: discharges for union membership or activity;, charges of, dis=
missed as to 34 persons.
Collective Bargaining: charges of refusal to bargain collectively dismissed.
Remedial Orders : reinstatement and back.pay awarded; company-dominated
union disestablished.
Mr. Max Johnstone, for the Board.
Thompson, Hine c6 Flory, by Mr. Charles W. Sellers, of ,Cleveland,
Ohio, for the respondent.
Mr. Wendell P. Kay, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by Amalgamated
Association of Iron; Steel and Tin Workers of North America, Local
No. 1583, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Eighth
Region (Cleveland, Ohio), issued its complaint on March 22, 1938,1
against The Triplex Screw Company, Cleveland, Ohio, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaninn of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
1 The complaint was inadvertently dated March 22, 1937. The correct date is that
stated above
25 N L R B, No. 119.
1126
THE TRIPLEX SCREW COMPANY 1127
With respect to the unfair labor practices the complaint alleged,
in substance (1) that from July 1, 1937, and at all times thereafter,
the respondent fostered, encouraged, donminated, and interfered with
the formation and administration of a labor organization' of its
employees known as Independent Employees Association of Triplex
Co., Inc., herein called the Association, by certain enumerated, and
by various other, acts and practices; (2) that from `August 15, 1937,
and thereafter, the respondent discharged 49 named employees 2 be-
cause of their activities on behalf of the Union, thereby discrimi-
nating .in regard to their hire and tenure of, employment and
discouraging membership in the Union; (3) that at various times
since September 1, 1937, and at the present, the respondent refused
and refuses to bargain collectively with the Union as the exclusive
representative of all employees of the respondent in an appropriate
collective bargaining unit in that it refused and refuses to bargain
and negotiate in a bona fide manner with the Union, although the
Union was and is the designated representative for collective bar-
gaining purposes of a majority of the employees in said unit; and
(4) that by these acts, and by certain enumerated acts and practices
and by various methods and means, the respondent interfered with,
restrained, and coerced, and is now interfering with, restraining, and
coercing ,its employees in the exercise of the rights guaranteed, in
Section "7' of the 'Act. Copies of the complaint, accompanied by
notice of hearing, were duly served upon the respondent and upon
the Union. On March 24, 1938, the respondent filed its answer,
denying that it had engaged in the unfair labor practices alleged;
and averring with respect to the employees named in the complaint _
that it, discharged or laid them off "for-cause-and economic reasons."
Pursuant to notice a -hearing was held at Cleveland, Ohio, on
April 11, 12, 13, 15, 16, 18, 19, 20, 21, 22, and 23, 1938, before Joseph
L. Maguire, the Trial Examiner duly designated by the-Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded the parties. During the course of the hearing
the Trial Examiner made various rulings on motions and on the
2 In some instances names were misspelled As corrected at the hearing the employees
named are as4ollows • Jessie Antkiewicz , Lody Aukustin , Ben Barckowiak , Leonard Bogacki,
Alfred Brophy , Margaret Bujnak, Alex Choromanski , George Damasiewicf :, Joseph Dedon,
Pauline Dedon , Joseph Dietrick , Robert Fuller, Chester Genius , Bruno Graczyk, Anne
Gurdea , John Holt , Allen Januszewski, Chester C . Kinkelaar, Grace Koberna, Helen Kolasa,
Stanley Ksepko , Josephine Kubit , John Kwiatkowski , Leo Labuda, Mary Latawiec , Stella
Markowski , John Matuszewski , Stanley Michalski , John Miller , Stanley Paryzek, Otto
Pilney, Rudy Pilney, Chester Pokropski , Jessie Polaccynski , Frank Price, Henry Sadano-
wicz, Joseph Selva, Josephine Seremak , Laddie Sindelar , John Stachura , Stella Stanek,
Sam Staniszewski , Lottie Stojek, Edward Stylinski , John Szczygielski, Helen Trawinski,
Frank Vorechovsky , Barbara Wesolowki , Florence Zenda.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admission of evidence. He denied motions by the respondent to
strike certain allegations of the complaint and to dismiss the com-
plaint as a whole. He granted a motion of the Board that the
complaint be amended to add the names of four employees of the
respondent to the names of those allegedly discharged for union
activity,' and to strike the names of 11 persons from the complaint.'
The Trial Examiner also granted a motion by the Board's counsel
to amend the complaint in order to set forth correctly the names
of certain persons 'therein named, and to conform the complaint to
the proof in respect to variances as to names, dates, and places. The
Board has reviewed all these rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On November 7, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent and
the Union, in which he found that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8, (1), (2), (3), and (5) and Section
2 (6) and (7) of the Act. The Trial Examiner recommended that
the respondent cease and desist from such practices; that it reinstate
13 named employees,' with back pay as to 12 of them; 6 and that it
take certain other affirmative action in order to effectuate the policies
of the Act and remedy the situation brought about by its unfair labor
practices. He recommended that the complaint be dismissed in so
far as it alleged that the respondent had discriminated against 29^
named employees within the meaning of Section 8 (3) of the Act.
On November 25, 1938, the Union filed exceptions to the Intermedi-
ate Report, and on November 28,1938, the respondent filed exceptions to
the Intermediate Report and the record and requested an opportunity
to submit briefs and present oral argument before the Board. In its
exceptions .the Union objected solely to the Trial Examiner's find-
ing that the respondent had not discriminated in regard to the hire
and tenure of employment of Lody Augustin, Alex Choromanski,
Chester Genius, John Szczygielski, and Florence Zenda, as alleged
in the complaint.' Although no exception has been taken to the
3 The names of these employees are : Stanley Boncella , James Bradley , Felix Orlik, and
Henry Przybylski
'The names of these employees are, Alfred Brophy , Maigaret Bujnak, Joseph Dedon,
Pauline Dedon , Anne Gurdea, Allen Januszewski , Stella Markowski, Stanley Michalski,
Lottie Stojek , Helen Trawinski , and Barbara wesolowski -
6 These employees were* Stanley Boncella , Joseph Dietrick , Bruno Graczyk , Chester
Kinkelaar, Grace Koberna , Stanley Ksepko , John Kwiatkowski , Chester Pokropski, Henry
Przybylski , Josephine Seremak , Laddie Sindelar , Stella Stanek , Sam Staniszewski.
O The Trial Examiner recommended that back pay be given to all those named in foot-
note 5 above except Joseph Dietrick
'The Union , mistakenly , filed exceptions as to Josephine Seremak , although the Trial
Ex,uninei had recommended her reinstatement
THE TRIPLEX SCREW COMPANY 1129
Trial Examiner's findings that the respondent engaged in no unfair
labor practice with respect to the hire and tenure of employment of
Jessie Antkiewicz, Ben Barckowiak, Leonard Bogacki, James Brad-
ley, George Damasiewicz, Robert Fuller, John Holt, Helen Kolasa,
Josephine Kubit, Leo Labuda, Mary Latawiec, John Matuszewski,
John Miller, Felix Orlik, Stanley Paryzek, Otto Pilney, Rudy Pil-
ney, Jessie Polaccynski, Frank Price, Henry Sadanowicz, Joseph
Selva, John Stachura, Edward Stylinski, and Frank Vorechovsky, of
any of them, as alleged in the complaint, we have reviewed the evi-
dence bearing upon their discharges or lay-offs and concur in- the
findings made. These findings are affirmed, and the order will pro-
vide for a dismissal of the allegations of the complaint pertaining
to them."
On February 28, 1939, a hearing was held pursuant to notice before
the Board at Washington, D. C., for the, purpose of oral argument.
The respondent appeared and presented oral argument. A brief has
been submitted by the respondent. The Board has considered the
respondent's and the Union's exceptions to the Intermediate Report
and to the record and, except in so far as they are consistent with
the findings, conclusions, and order below, finds them to be without
merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The .Triplex Screw Company is an Ohio corporation engaged in
the manufacture and sale of bolts, nuts, and screws. Its plant is
located in Cleveland, Ohio. During. 1936 and 1937 the number ,of
persons there- employed by the respondent varied between 127 and
350. All the raw materials used at the plant in the course of pro-
duction are purchased within the State of Ohio, and between 70 and
80 per cent of the finished products are regularly shipped from the
plant to points outside the State of Ohio. During the year 1937 the
respondent purchased raw materials costing $735,000 and its net
sales amounted to $1,461,093.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Local No. 1583, is a local branch of Amalgamated Asso-
ciation of Iron, Steel and Tin Workers of North America, at times
8Matter of National Supply Company and Steel Workers Organizing Committee, 16
N L R B 304
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Amalgamated, a labor organization affiliated with
Congress of Industrial Organizations, formerly known as Committee
for Industrial Organization, herein called - the C. I. 0., and with
Steel Workers Organizing Committee, herein called the S. W. O. C.
The Union admits to membership employees of the respondent other
than supervisory and salaried employees.
Independent Employees Association of Triplex Screw Co., Inc., is
•a labor organization admitting to membership all production em-
ployees of the respondent. Members who are supervisory employees
may not hold office or vote.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In 'April 1937 the S. W. O. C. opened an organization campaign
among persons employed in the respondent's plant, for the purpose
of forming a local branch of its affiliate, the Amalgamated, among
those workers. The campaign met with marked success, and, by
May 1, 1937, the Union was established with a membership comprising
a majority of the respondent's employees. The activity of the
S. W. O. C. and formation of the Union immediately aroused the
respondent's antagonism, an antagonism which was quickly translated.
into acts interfering with, restraining, and coercing plant employees
in the exercise of rights guaranteed by the Act. The president of the
respondent, one Weber, promised an employee a substantial increase
in his hourly rate of pay if the Union did not come into the plant.
Forelady Fit-,h, in charge of box fabrication, interrogab,d the em-
ployees under her supervision concerning membership in the Union,
and openly compiled a list of the names of those who joined and those
who did not. During negotiations in early May between the respond-
ent and the Union for settlement of a plant strike of several days'
duration which began on May 7, Weber suggested to the employees
acting as representatives of the Union that they abandon their organi-
zation and form an "inside" union at the plant, saying, "Why don't
you form your own union. You can get yourself a lawyer there for
fifty dollars and you can send him down to Columbus and get yourself
a charter."
Despite the afore-mentioned attitude and conduct of the respond-
ent, the Union persevered in its organization of the plant employees.
On May 12, 1937, about 174 of approximately 180 employees eligible
to affiliation with the Union were members. Also on that day, the
Union, as representative of these workers, succeeded in obtaining from
the respondent a collective labor agreement covering wages, hours of
service, and other working conditions of the plant employees, and
THE TRIPLEX SCREW COMPANY - 1131
providing a procedure for the adjustment of- grievances. Under the
contract wages were substantially increased , and working hours were
reduced from 50, and in some cases 60 hours a week, to a uniform
40 hours per week.
Execution of the contract, however, did not deter the respondent
from continuing its hostility to the Union. Anti-union statements to^
employees by management, along with other acts of interference,
restraint , and coercion within the meaning of the Act, were engaged
in. An employee's delay or apparent delay in production, his momen-
tary inactivity during working hours, or a request for assistance in
connection with some work at hand , was seized upon by the respond-
ent as proof of a deleterious effect of unionization upon its employees
and as an excuse for a severe reprimand., On such an occasion, the
respondent's president, Weber, told one employee, "That is what
I get for letting you fellows join the union. You just loaf around.
You seem to think you have the union back of you and you can run
things" ; told another employee, "Just because you joined the union
doesn't mean you are going to run this shop. I will show you, I will
fire you all"; and told another employee that "just because" she had
"joined the union" was "not a sign" she could not be discharged. The
record discloses no warrant for such conduct . At the hearing Weber
denied having made the first two of these statements,. but testified
to having "probably" made the third . Weber's testimony as a. whole
was frequently contradicted by other witnesses worthy of credence.
They related a, variety of anti-union statements and conduct on
Weber's part, as hereinafter found. The Trial Examiner who heard
the witnesses and observed their demeanor did not believe the-denials
of Weber regarding the anti-union statements, and found that "the
statements attributed to Weber were made ,by him substantially. as
attributed." We are satisfied that the Trial Examiner was right.
Upon the entire record we find that Weber made the statements
above-mentioned.
During this period and thereafter the respondent, likewise through
its president, by various statements to employees, often accompanied by
profane epithet , disparaged the Union , its members, leaders, and activi-
ties. To one employee Weber dubbed the Union a "bunch-of radicals
and Communists"; called a union member a "Communist " for having
"started" the " union"; accused another of "sticking up" for
the " union"; termed a union committeeman a. "Bolshevik";
and inquired of still another, if he thought the " union" would
obtain him reinstatement to his position after a lay-off. While,Weber
denied at the hearing having made these statements , we accord no
weight,'for reasons already stated, to such denials.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Late in August 1937 the respondent, through Weber, attempted to
induce one of the most active'members in the Union and its vice presi-
dent to resign from the Union. In consideration thereof, he offered
to promote this employee to a position as foreman and to compensate
him on a salary basis. When the employee evidenced hesitance in
the matter, Weber asked if the employee was "going to see Brother
Brophy [Union president] about it." The following day the employee
refused to accept. At that time the respondent's industrial engineer,
Bennett, who was second in authority, to Weber, told the employee
that he was a "damn fool," and stated, "If I were you, I would look
out for myself, not the union." Weber, in similar vein, inquired of
the employee, "Now supposing the union gets out of there some time
or other, what will you do?"
Although the contract between the respondent and the Union pro-
vided a procedure, as stated above, for the adjustment of employee
grievances, the grievance committee of the Union, one composed of
plant employees, consistently found itself unable to adjust grievances
without the intervention and assistance of the S. W. 0. C. At one of
the conferences between the Union and the respondent concerning
certain grievances, Bennett, the respondent's industrial engineer, told
the union committee, "Why don't you form your own union and we'll
get along a whole lot better and work in closer relationship." By
"own union" Bennett had reference to an "inside" union.
Shortly thereafter, the respondent hung from the ceiling in its plant
a large sign, painted on a board, stating, "This is an open shop. You
do not have to belong to a Union to work here." - There is no evidence
which would indicate that the Union at any time requested of or even
discussed with the respondent the introduction of a closed shop at
the plant. The record is ,equally. barren of any supposition, among
the employees that membership in the Union constituted a condition
of employment.
Between September 1, 1937, and February 1, 1938, a large reduction
in the working force at the plant took place, as more fully set forth
hereinafter. During this period the respondent utilized the circum-
stance of the dismissals to implant in and foster among the employees
a belief that it was selecting employees for lay-off upon the basis of
their activities in and loyalty to the Union. Indeed, in some cases,
the respondent did rest its selection upon that basis, as set forth here-
inafter.a In a conference with the Union concerning the dismissals,
Weber stated that he "had a right to lay off who he pleased, when
he pleased, and the C. I. 0., John Lewis, the New Deal or anybody
See Section III, D, infra.
THE TRIPLEX SCREW COMPANY 1133
else wasn't going to tell him how to run his shop." In reply to inquiry
by one employee as to the reason for his lay-off, Weber said, "Well,
since you guys got this union in here, you think you can run the place."
To another employee who asked a' similar question Weber stated,
"Well,- you joined the union . . . Why do you want me to help you
now ?" Another employee who returned to the plant after his lay-off
to seek reemployment, was brusquely told by Weber to ". . . get the
hell out of here . . . I don't need the C. I. 0. any more." When one
of the union committeemen was recalled to work after a 6-day lay-off
Weber made it apparent that the employee would be "making more
money" if he "didn't hang around with that gang [the Union]." The
respondent's above-mentioned acts in connection with the lay-offs and
dismissals materially affected membership and activities in the Union.
While substantially all of the plant employees were members of the
Union in September 1937, many of them thereafter ceased paying
dues to the Union and-absented themselves from union meetings.
The foregoing facts establish that the respondent, through its agents,
in complete disregard of its employees' right of self-organization and
their other rights under the Act, engaged in a course of action designed
and intended to destroy the labor organization of which they were
members and prevent its use as an instrumentality for furthering
their employee interests. As -is evident from what has been stated
above, the respondent's action, in which its president played a prin-
cipal role, covered a wide range of anti-union acts and statements.
The decisions of the Board and of the courts repeatedly have con-
demned such conduct as violative of the Act. As regards the state)
ments they clearly were not mere expressions of opinion and comment,
but constituted an interference, restraint, and coercion, within the
meaning of the Act 1°
10 Consumers Power Company v. N. L R B, 113 F. (2d) 38 (C. C. A. 6), enf'g
Matter of Consumers Power Company, a corporation and Local No. 740, United Electrical,
Radio G Machine Workers of America , 9 N. L R . B 701 ; Matter of Harry Schwartz Yarn
Co., Inc and Textile Workers Organizing Committee, 12 N. L. R. B. 1139 ; Matter of Nebel
Knitting Company, Inc. and American Federation of Hosiery Workers, 6 N L. R B 284,
enf'd as mod., N. L R B V. Nebel Knitting Company, Inc., 103 F. ( 2d) 594 (C. C A. 4) ;
Matter of American Manufacturing Company , et at. and Textile Workers' Organizing Com-
mittee, C. I.' O., 5 N. L. R B . 443, enf'd as mod., N. L. R. B. v. American Manufacturing
Company and Nu-Art Employees , Inc., 106 F. ( 2d) 61 (C. C. A. 2), aff'd as mod . 60 S. Ct.
612; Matter of Arthur L Cotten et at and Amalgamated Clothing Workers of America,
'6 N L R B 355, enf'd, N. L R B v Arthur L Colten and Abe J Colman, Co-partners
doing business as Kiddie Kover Manufacturing Company, 105 F. ( 2d) 179, 181 (C C. A
6) ; Matter of Virginia Ferry Corporation and Masters , Mates and Pilots of America, No 9,
8 N. L R . B. 730, enf 'd as mod, Virginia Ferry Corporation v. N. L. R B , 101 F. (2d)
103, 104-6 (C. C. A 4) ; Matter of Walter Stover, doing business under the trade name
and style of Stover Bedding Company and Upholsters Allied Crafts Local Union No. 501,
15 N. L. R B. 635 . 'Cf. Virginian Railway Co. v. System Federation No. 40, etc., 84' F.
( 2d), 641, 643-4 (C. C. A. 4 ), 300 U. S . 515, 644.
1134 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
We find that by offering employees an increase in wages or promo-
tion as a means of inducing anti-union action; 11 by interrogating
employees about their union activities; 12 by compiling a list of em-
ployees joining a labor organization which it opposed; 13 by attempting
to induce union representatives and members in its employ to establish
a form of labor organization which it favored and in effect to renounce
their affiliation with a union that it "opposed; 14 by attributing with-
out justification production delays and other similar work incidents
to unionization and reprimanding employees on that basis; 15 by
threatening directly and indirectly employees with termination of
employment or work because of membership or activity in a union
which it opposed; 16 by disparaging that union, its members, leaders,
and activities; 17 by acting with hostility toward union representatives,
because of its opposition to unionization; 18 by giving notification
to employees manifesting its desire that they renounce affiliation with
a union it opposed; 19 by fostering a belief among employees that
"See Matter of Brown Shoe Company, Inc . and its wholly owned .subsidiary , Moench
Tanning Company, Inc. and National Leather Workers Association Local #44, affiliated
with the Committee for Industrial Organization , 22 N L. R B. 1080 ; Matter of Patriarca
Store Fixtures, Inc and Morris Kaminsky, 12 N. L . R B. 93; Matter of Carlisle Lumber
Company and Lumber & Sawmill Workers ' Union, Local 2511, Onalaska, Washington,
2 N. L. R . B. 248 , 261, enf 'd as mod, N. L It. B. v. Carlisle Lumber Co ., 94 F. (2d) 138
(C. C A 9), cert. den, 304 U. S 575.
12 See Matter of Foote Brothers Gear and Machine Corporation and United Office and
Professional Workers of Amer lea , No. 24, 14 N. L . R. B 1045, 1054.
18 See Matter of Greensboro Lumber Company and Lumber and Sawmill Workers Local
Union No. 2688, United Brotherhood of Carpenters and Joiners of America, 1 N L. R. B.
629 ; Matter of The Boss Manufacturing Company and International Glove Workers' Union
of America, Local No. 85, 3 N. L R . B. 400, 405.
14 Matter of Yates-American Machine Company and Amalgamated Association of Iron,
Steel & Tin Workers of North America, Lodge 1787, 7 N. L. R . B. 627; Matter of Metro-
politan Engineering Company and Metropolitan Device Corporation and United Electrical
and Radio Workers of America, Local No. 1203, 4 N. L. R. B. 542. Cf. C. Nelson Manufac-
turing Company and Harry Semen and Willie Parker, complainants, 15 N. L. R. B 1051.
15 Matter of Walter Stover, doing business under the trade 'name and style of Stover
'Bedding Company and Upholsters Allied Crafts Local No 501, 15 N L R B. 634,
635; Matter of The Stolle Corporation and Metal Polishers , Buffers, Platers and Helpers
International Union, 13 N. L R. B 370; Matter of The Weber Dental Manufacturing Com-
pany and The United Electrical and Radio Workers of America, 10 N. L. R. B. 1439.
10 Matter of Nebel Knitting Company , Inc and American Federation of Hosiery Workers,
6, N. L -R B 284, enf ' d as mod, N. L It B . v. Nebel Knitting Co., Inc ., 103 F. ( 2d) 594
(C. C. A. 4) ; Matter of Fruehauf Trailer Company and United Automobile Workers Federal
Labor Union No 19375, 1 N L R B 68 , enf'd 301 U S 49.
17 Matter of Jones & Laughlin Steel Corporation and Amalgamated Association of Iron,
Steel & Tin Workers of North America, Beaver Valley Lodge No. 200, 1 N. L. R. B. 503,
enf'd 301 U S 1 ; Matter of Knoxville Glove Company and Textile Workers Organizing
Committee, 5 N. L. R. B. 559.
18 See Matter of Walter Stover, doing business under the trade name and style of Stover
Bedding Company and Upholsters Allied Crafts Local Union No. 501, 15 N . L R. B 635.
1' Matter of Roberts Brothers , Inc and Furniture Workers Union, Local 1561, 8 N. L.
R. B. 925; 929; Matter of Fanny Farmer Candy Shops, Inc. and Committee for Industrial
Organization, 10 N L R B . 288, 303 ; and Matter of Quality Shirt Manufacturing Company
and United Garment Workers of America , Local No 181.
THE TRIPLEX SCREW COMPANA 1135
lay-offs were determined by activities in such union and in some
instances by so determining,20 and by each of these and other acts, the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed under Section 7 of the Act.
B. Domination of and inner f erence with the formation. of, and
support to, the Association
As already set forth, during the course of its afore-mentioned con-
tinual opposition to the Union the respondent on at least two occasions
sought to induce persons in its employ to form an "inside" labor or-
ganization, that is, one unaffiliated with any national or other labor
organization and restricted in membership to employees of the respond-
ent. In May 1937 Weber suggested to members of the union nego-
tiating committee that they form their "own" union, and that the
method for doing so would be to employ ' an attorney and have him
take the necessary steps for settilig up an incorporated organization
under Ohio laws. Weber mentioned that a lawyer would do this "for
fifty dollars." In September 1937 Bennett, the industrial engineer,
inquired of another union committee with whom he was conferring
why the employee members thereof did not form their "own" union,
for the respondent would cooperate and have a "closer relationship"
with such an organization. These attempts of the respondent to induce
its employees to form an inside union were unsuccessful.
About the second week of November 1937 one Thomas,21 an individ-
ual first hired by the respondent a week previously, began organizing
an inside union at the plant. He inquired of various employees during
working hours if they would be interested in such a union, and those
who were, either signed or had their names listed upon a "petition"
which he carried for such purpose. The record shows that Thomas
was employed personally by Weber and was assigned to "stock-
chasing," a type of work which took him into every department of the
plant. He was able, accordingly, to meet large numbers of the em-
ployees. In speaking to them about the proposed inside.union Thomas
impliedly represented that he was acting with the knowledge and
approval of the respondent. He promised at least one employee that
interest in an inside union would be productive of a wage increase,
and another that he would receive 8 hours of work each working day
instead of the reduced number then being generally assigned. Thomas
himself at that time worked 10 hours a day. He frequently was ob-
served by employees in conversation after working hours with Weber.
20 Cf Matter of Nebel Knitting Company, Inc . and American Federation of Hosiery
Workers, 6 N. L R B. 284 , enf'd as mod . N. L. R. B. v. Nebel Knotting Co., Inc, 103 F.
(2d) 594 (C. C A. 4).
21 The full name of this person is William R . Thomas.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing Weber was interrogated • about these conversations.
He stated that he "had no more to say to Thomas than to any other
man that was working in a supervisory capacity ." When further
questioned about this matter at the hearing, Weber stated that by
"supervisory capacity" he did not mean that Thomas gave orders to
other employees , merely that he "was no laborer," that "he had some-
thing to do with expediting material."
Toward the end of December Thomas, in the course of his travels
through the plant, solicited employees to execute certain printed
forms which he exhibited to them and which recited that the sub-
scriber thereof did "accept of ... [his] own free will membership in
the Independent Employees' Association of Triplex Screw Co., Inc.,
of Cleveland, Ohio, and agree to abide by its Constitution, By-Laws and
Regulations , and ... [did] authorize said Association to act ... [for
the subscriber ] as the sole collective bargaining agency in all matters
pertaining to wages, hours , and conditions of employment ..." So
far as is shown by the record there existed at that time no employee
association or labor organization known as Independent Employees'
Association of Triplex Screw, Inc., let alone one which has adopted a
constitution , by laws , and regulations . As hereinafter set forth, the
Association was formed on January 8, 1940, and as of the time of the
hearing had not yet prepared or adopted a constitution , bylaws, or
regulations . Who paid for .the printed forms is not shown by the
record. Officers of the Association questioned at the hearing about this
mat ter, stated that they did not know. In soliciting employees to
sign the forms Thomas continued his implied representation that his
conduct had the approval of the respondent. He spoke of the respond-
ent's future labor policy and of working conditions as if informed
thereof, and threatened employees with loss of their jobs if they did
not sign. As heretofore set forth , during this period the respondent
was reducing substantially its plant force, and was creating in its
employees, with some warrant in fact, the belief that activities in and
adherence to the Union were determining factors in the selection of
those dismissed.
Shortly thereafter, Thomas, accompanied by two employees who
had shown interest in his project , sought assistance of a local attorney
in forming an inside union. A few days later, on January 8, 1938,
Thomas, the attorney , and some seven plant employees met and formed
the Association. Thomas and two of the employees became tempo-
nary "trustees " of the new organization , and executed an application,
previously prepared by the attorney , for issuance of a charter under
Ohio laws to the Association as a non-profit corporation . On Janu-
ary 17 such a charter issued. Subsequently in January , February, and
March meetings of this organization were held and permanent trustees
THE TRIPLEX SCREW COMPANY 1137
and officers elected. Throughout this period solicitation of employees
to become members of the Association proceeded unobstructedly on
company time and property. On February 16 the Association
claimed to have enrolled as members a majority of the 153' employees
then in the plant.
Members and leaders of the Association have shown no real interest
in their organization. Certain of its leaders have evinced a surpris-
ing ignorance regarding the purposes of unionization in general and
their own duties as labor leaders in particular. The first holding of
im',electibn for officers-of the Association was postponed because -of
poor attendance at the meeting at which the election was to be held,
and those who were elected at a subsequent meeting accepted office
only after several speeches by the attorney, whose services Thomas
had enlisted, "urging various members to accept nomination, show
an interest, and do the work." One of the three trustees of the
Association expressed the opinion at the hearing that the purpose of
the Association was to "have all kinds of money to spend for a good
time out of it"; the secretary of the Association was of the opinion
that its purpose was to serve as a "kind of social club," holding dances
and arranging for "good times." One of the employees who assisted
Thomas in recruiting signers for the printed forms thought the aim
of the organization. he, helped form' was to "collect?'. money from the
employees and "have a good time, throw a party, dance or stuff like
that." Various of the members of the Association who testified did
not know the name of the union. One of the trustees testified that
the name was "The Independent Manufacturing Association." An-
other trustee testified that he was unaware of his duties as trustee,
that he was unable to name his fellow officers, that he was of the
opinion it had been Thomas who administered the union.22 The
ignorance of leaders of the Association respecting the purposes of
unionization was reflected in the apathy of the Association, itself,
toward collective bargaining with the respondent. A written request
for recognition and collective bargaining in behalf of the Associa-
tion was made by the above-mentioned attorney on February 16, but
a reply thereto of the respondent to the attorney indicating a willing-
ness to discuss the matter was never brought to the attention of the
officers. or members of the Association, nor were further steps taken
by the Association in that respect: At the time, of the hearing no
collective labor contract had been prepared or submitted by the Asso-
ciation to the respondent, nor had the Association attempted to adjust
any employee grievances with it.
22 Upon establishment of the Association, Thomas did not become an officer.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are convinced from the foregoing facts considered in the light
of the entire record, and we find, that the respondent dominated and
interfered with the formation of, and contributed support to, the,
Association. The Association is not nor has it been a freely chosen
labor organization and collective bargaining representative of the,
plant employees. We find it incapable of being or acting as, such
organization and representative. ,
The respondent's domination, interference, and support respecting,
the Association assumed various forms. By continual and, unmiti-
gated- opposition to the Union and to membership -in the Union'23
and, contrariwise, by approval of inside unionization the respondent
diverted the desires of its employees for ' collective, bargaining from
fulfillment through the Union they selected for such purpose toward
a form of labor organization which the respondent favored.. Forma-
tion and organization of the Association were thus 'dominated and,
interfered with by the employer ; they did not result, from free and_
unfettered employee action.24 Favoritism -toward an inside- labor
organization and contemporaneous hostility to the Union, also con-
stituted. material support to the Association.
Moreover, we are satisfied that the establishment,of the Associa;
tion was altogether engineered by the respondent., We entertain no
doubt, and we find, that the respondent directed and authorized
Thomas upon,his employment to form an inside union at the plant,
and thereafter sponsored, authorized, and approved his action in that
respect.. Our finding in this connection is confirmed among other
things by the respondent's attempts,,twice unsuccessful, prior to the
employment-of Thomas, to induce other employees to form an inside
union; by the respondent's assignment- of Thomas upon his employ-
inent to a type of work which would enable him, a new employee,
readily to meet employees throughout the plant and carry on organi-
zational activities among them, and by its refraining from ever taking
any action to prohibit his use of, its time and property for such pur-
pose;25 by the alacrity and directness with which Thomas, proceeded
within a week after his employment to form an inside union upon
23 See Section III A, supra
24 See Matter of Crawford Manufacturing Company and Textile Workers Organizing Com.
mtittee, 8 N. L. R B. 1237 Our finding in this respect receives strong corroboration in
the indifference of the members and leaders of the Association toward that organization,
and their ignorance and lack of concern for their duties as labor leaders and the purposes
of unionization in general
2° We are unable to give credence to the respondent 's contention that it had no knowl-
edge of Thomas' organizational activity on behalf of the Association during the time of
its occurrence His activity was widespread and unconcealed. On December 23-the re-
spondent was expressly informed by the Union that an inside organization was being
formed in the plant ; yet Thomas' activity thereafter continued.
THE TRIPLEX SCREW COMPANY -1139
company time and property, without any apparent misgivings about
his, employer's attitude in that respect and with knowledge that so
far as his fellow workers were concerned they already were members
of a union which had won concessions from the employer; by the
iespondent's contemporaneous hostility to the Union as Thomas went
about organizing an inside union at the plant. Thomas did not testify
at the hearing. 'Shortly after the hearing was begun he abandoned
his job with' the respondent, and departed with his belongings from
his place of abode, for parts unknown to the respondent or to any
of the parties herein.26
The Trial Examiner -in his Intermediate Report found that
"Thomas was planted in respondent's factory incidental to the serv-
ices of the [Corporation Service] Bureau . . . for the purpose of
initiating a union." Corporation Service Bureau is a detective
agency located in Cleveland, Ohio, and renders services to, industrial
firms. The record shows that this agency's services were engaged by
the respondent in September 1937 and that thereafter from October
1937 until February 1938, the period in which Thomas organized the
Association, it received from the respondent by way of compensation
monthly amounts amounting respectively from $151 to .$251. We
agree with the Trial Examiner that the explanation given by the re-
spondent'concerning its transactions with Corporation Service Bureau
is not entirely satisfactory. Also the evidence tends to support a find-
ing that Thomas was a secret operative of the Bureau. However, since
in any event Thomas, upon his employment, was directed and author-
ized by the respondent to organize an inside union, and since his for-
mation of the Association was sponsored by the respondent, it is
unnecessary for us to decide whether Thomas was procured from
Corporation Service Bureau.
We find that the respondent dominated and interfered with the for-
mation of the Association, and contributed support to it; that by such
acts the respondent interfered with, restrained, and coerced its employ-
ees in the exercise of rights guaranteed by the Act.
26 The attorney for the Association testified that Thomas telephoned him on the date of
his disappearance and stated that "members of the C I 0 . group" had visited his home
and left word that he had "better get out of town " Although Thomas, according to the
attorney , was "in fear of his life," the record shows that the attorney did not advise
Thomas to telephone the police , but merely told him to "sit tight" and not "get unduly
excited " Thomas' landlady , from whom Thomas tented a' room at the time, testified
under subpoena that no - one threatened Thomas at her house. She also related that on
the day following Thomat ' telephone call to the Association's attorney several men
appeared at her home, declared they were " C. I 0 men" seeking Thomas, but'after some
discussion admitted they were "friends . . fiom the shop" The record shows that these
imposters were members of the Association, not of the Union, and were seeking Thomas
at the direction of the Association ' s attorney.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discriminatory discharges of Koberna, Kinkelaar, Graczyk,
Seremak, Pokropski, Ksepko, Kwiatkowski, and Sindelar, and
allegedly discriminatory discharges of other plant employees
Between September 1937 and February 1938 the respondent dis-
missed the following named persons employed in its plant, Joseph
Dietrick, Grace Koberna, Chester Kinkelaar, Bruno Graczyk, Jo-
sephine Seremak, Chester Pokropski, Stanley Ksepko, John Kwiat-
kowski, Laddie Sindelar, Henry Przybylski, Stanley Boncella, John
Szczygielski, Lody Augustin, Alex Choromanski, Florence Zenda,
Chester Genius, Stella Stanek, and Sam Staniszewski. During the
,same period it laid off, for business reasons, a majority of the plant
employees. The respondent contends that none of the above-named
persons was dismissed because of activities or membership in the
Union, or because of any antipathy on its part toward-the Union, but
-merely for the same reason, save in two instances,27 that it laid off
-the plant employees generally, viz, business conditions. However,
as we have said of a similar situation, "it does not necessarily follow
that the afore-mentioned dismissals, or any of them, were occasioned
'[by poor business conditions] . . . The question remains whether
the termination of the employment of those persons was in whole or
in-part caused by their union affiliation and activity." 28 The respond-
ent also contends that irrespective of whether it dismissed the above-
named persons because of their activity in and affiliation with the
Union, it cannot be held to have engaged in discrimination, within
the meaning of Section 8 (3), for'under the circumstances presented
-any dismissal or lay-off at that time, so far as the respondent then
-understood, necessarily would have been of a member of the Union;
-that from May 1, 1937, until the hearing the respondent acted upon
the representation of the Union that that organization had "100%
-membership" in the plant. However, even if the Union at all times
.enjoyed 100 per cent membership among the plant employees, that
fact alone could not preclude discriminatory conduct by the respond-
ent. If in selecting employees for dismissal or lay-off it chose the
leaders of the Union and others active and loyal to the Union, because
.of such leadership, activity, or loyalty, and preferred for retention
in its employ persons who were relatively inactive or disinterested in
the Union, the respondent would have engaged in an unfair, labor
practice, within the provision of Section 8 (3). The question in all
27 The respondent contends it discharged Joseph Dietrick for cause , and replaced Chester
Kinkelaar with another employee for purposes of plant efficiency.
23 Matter of Walter Stover , doing business under the trade name and style of Stover
Bedding Company , and Upholsters Allied Crafts Local Union No. 501, 15 N L. R. B. 635,
,642 See New York Handkerchief Manufacturing Company v . N. L. R. B, 114 F . ( 2d) 144
,(C. C. A 7).
THE TRIPLEX SCREW COMPANY 1141
cases must be whether the respondent in dismissing the above-named
employees, was guided, as it now claims, by matters of comparative
efficiency, and, other factors being equal, by seniority, or whether it
was guided by anti-union considerations.
1. Discriminatory discharges of officers and a committeeman of the
Union
During the period of the lay-off the respondent dismissed from work
at - the-phunt-the..presi(leut, ,vice president, secretary, and treasurer of
the Union.
Alfred Brophy, president of the Union, was laid off in December-
1937 but was reinstated after the respondent's attorney admitted to the
Union in a conference, concerned in part with Brophy's dismissal, that
Brophy had been improperly laid off. Shortly thereafter Brophy
again was dismissed, and the record indicates that this was occasioned
by his leadership and activity in the Union. However, at the hearing
the allegations of the complaint in so far as they related to this dis-
missal, were stricken, upon it appearing that Brophy was then em-
ployed in.California and unable to testify. Accordingly, we make no
findings herein concerning ai1y discrimination' in respect of Brophy's
second dismissal.
Joseph Dietrick, vice president of the Union and very active in its
affairs, was discharged by Bennett, the industrial engineer, on Octo-
ber 5, 1937. Some months earlier the respondent sought to persuade
Dietrick to, withdi,aw from the Union by offering to elevate him to a
foremanship. He refused because of loyalty to the Union. On the day
of his discharge Dietrick had an altercation with Bennett, and in that
connection was immediately discharged by Bennett. The Trial Ex-
aminer was of the opinion that the respondent, through Bennett,
seized upon the altercation as a pretext for terminating the employ-
ment of an employee it considered undesirable because of his union,
leadership and loyalty. While the entire record creates a suspicion
that•,this;was the case, we deem the evidence insufficient to warrant our
so finding. The allegations of the complaint relating to Dietrick will
be dismissed.
Grace Koberna, secretary of the Union, a union steward, and mem-
ber of the union negotiating committee, was laid off on December 20,
1937. In view of the fact that Koberna was then ,junior in point of
service among employees at work in her department we concur in the
Trial Examiner's finding that her lay-off was not discriminatory. Sub-
sequent to the lay-off, however, and prior to the hearing the respondent
recalled to work two employees in Koberna's department, theretofore
laid off. w-ho were less efficient workers than Koberna and less com-
283036-42-voi 2:1-73
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petent to, do the work.2° Koberna was not recalled. No satisfactory
explanation has been offered herein by the respondent for its failure
to follow in Koberna's case its policy of making work available first'
to those employees who were most proficient. We have heretofore
found that during this period the respondent was embarked upon a
course of conduct aimed at destroying the Union, and at the same
time was engaged in foisting an inside labor organization upon its
employees. Weber by then imputing the lay-offs to activity in and
loyalty to the Union, impliedly was threatening employees with loss of
livelihood if they did not conform to the respondent's views of union
ization, and Thomas similarly was threatening them with dismissal
if they did not join the Association. Indeed, some months previous
Weber had told Koberna that "just because" she joined the Union was
not "a sign" she could not be discharged. We are convinced from the,
foregoing facts and the record, and we find, that the respondent failed
or refused to recall Koberna to work, despite her superior competence .
as a worker, because of her union leadership and activity, and in order
to set an example for other employees who persisted in their loyalty to;
the Union. By refusing to recall to work this laid-off employee, the-
respondent evinced the intention which it had then and there to assign
her work no longer and to terminate her status as an employee, thereby
discharging Koberna.
Chester (Kinkelaar, treasurer of the Union, was discharged on Janu-
ary 18, 1938. He had been employed at the plant as a maintenance
electrician and wireman for over 2 years. Kinkelaar was very active
in the Union. He served as a member of the committee which negoti-
ated the contract with the respondent and otherwise had represented
the Union in transactions with the respondent. The respondent
strongly opposed Kinkelaar's activity in the Union, and through:
Weber made its opposition clear. On'one occasion in August Weber
berated Kinkelaar as a "Communist," and accused him of being the,
"one who started this union here." - Weber thereafter informed an-
other employee that the respondent desired to "get rid" of Kinkelaar.
Late in December 1937 the respondent began seeking an electrician
to replace Kinkelaar. It found one who, it thought, would be satis-
factory and on January 18 discharged Kinkelaar and substituted the
other man for him. At that time Kinkelaar was in the midst'-of in-
stalling a section of lighting in the plant. When hired, the new elec-,
trician was asked by Weber whether he ever was a member of the
C. I. O., the parent organization of the Union, and he informed
Weber that he was not.
°Althonnh tbev bad more Qeninrity than Koberna they had been laid off before she was,.
because of their comparative inefficiency.
k THE TRIPLEX SCREW COMPANY - - - ' 1143
The respondent does not contend that Kinkelaar's dismissal was
part of the general lay-off brought about by business conditions. The
work he performed had to be accomplished irrespective thereof. It
does contend, however, that it made the replacement because of an
alleged inability of Kinkelaar to perform some of the electrical work
required at the plant. It offered proof of its employment from time
to time prior to his discharge of an additional -electrician to check,
oil, and clean certain micromats, which work thereafter was done by
Kinkelaar's successor . But the record not only shows, as above-men-
tioned, that the individual who worked on the micromats was not
regularly employed at the plant but had engaged in such intermittent
work from some time prior to Kinkelaar's employment in 1935. Kinke-
laar testified that he was competent to work on the micromats. The
record shows that during his employment he transferred the electric
furnace of which the micromats were a part, from one point in tha,
plant to another and then wired them and put them in operation. The
respondent also claimed at the hearing that Kinkelaar could, not per-
form work on certain D. C. electric motors. Kinkelaar denied at the
hearing that-he was unable to care for any of the electrical apparatus
in the plant, including the D. C. motors. The record shows that the
D. C. generator which was placed in the plant during Kinkelaar's
employment had been installed by him,30 and that in fact he performed
all the electrical work required of him during the period'of his em-
ployment. The respondent states that Kinkelaar's discharge could not
be attributable to any opposition to the Union, inasmuch as its main-
tenance foreman, Tretara, had suggested to Weber a year previous,
and before formation of the Union, replacing Kinkelaar with an elec=
trician who could work on the micromats. Assuming that such sugges-
tion was made, a matter we do not determine, it does not necessarily
follow that Kinkelaar's discharge a year later resulted therefrom.
Finally, the respondent introduced the testimony of Kinkelaar's suc-
cessor which was to the effect that upon his employment he found
certain deficiencies in the plant electrical equipment. However, there
is no showing that these alleged deficiencies were known to the
respondent at the time it decided to replace Kinkelaar. -
We are not persuaded by the foregoing, facts or the record that
Kinkelaar was incapable of doing any of the electrical work required
to be performed in the plant. He had had 16 years' experience as an
so The respondent 's maintenance foreman, one Tretara, testified that on one occasion,
Kinkelaar , while wiring the D C generator , admitted he was "stuck" and asked for assist-
ance . However , it is clear from the record that this incident involved no reflection upon
Kinkelaar's ability. The evidence shows in connection with this matter that while Kinke-
laar was wiring the generator he discovered an omission on'the blueprint, and that Tretara
himself , when the omission was brought to his attention, suggested calling in the "com-
pany man" to correct it.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
electrician ,.and during his 2 years ' employment at the plant received
no complaints about his work. We are satisfied , and find, that lie was
an efficient workman capable of satisfying the respondent's needs, and,
in any event , that the true reason of his discharge did not concern his
competency . Upon the entire record we find that the respondent dis-
charged Kinkelaar likewise because of his union leadership and activ-
ity, and that the employment of his successor was merely incidental
thereto. The respoitdei i t's claim that the- dismissal foundits origin
in a suggestion of its maintenance foreman a year previous is particu-
larly unimpressive . We do not believe the respondent would have
waited that period of time to put into execution such a suggestion if
the matter really was of consequence . The true cause of the discharge
was the respondent 's determination to oust the Union from the plant
by getting rid of those employees upon whom contnuied existence of
that organization depended.
Bruno Graczyle was dismissed on January 3,1938. He NN as then told
by the respondent that his lay-off was occasioned by slack work.
Graczyk had been employed in the plant about 3 years and at the time
of the dismissal worked-on a machine in the tapping department.
He was one of the original members of the Union and served as union
shop steward as well as a member of the union committee which handled
employee grievances . Members of the Union who had complaints
about working conditions brought their grievances to Graczyk for
presentation to the respondent.
Graczyk had been dismissed by the respondent once--before:-- On-
No.'ember 29, 1937, the respondent laid him off allegedly for lack
of work. However, it immediately assigned to his tapping machine
an employee from another department who was wholly inexperienced
at such work . At a conference of the Union with the respondent's,
attorney , acting for the respondent in that behalf, the respondent's at-
torney conceded that Graczyk was entitled because of his relative effi-
ciency to the .position assigned the other employee , and agreed that,
Graczyk could return to work. When Graczyk thereafter reported
to Weber for-work, Weber^at first refused to reinstate him, inquiring
with respect to the union button Graczyk was wearing whether he,
Graczyk, "could use any more buttons ." Weber then offered to rein-
state Graczyk but with a reduction in pay. After considerable discus-
sion Graczyk was given his job.
At the hearing the respondent sought to show that Graczyk's second
dismissal in January was attributable to the condition of slack work
in the tapping department , and that he was selected for dismissal
because of alleged inefficiency . This explanation, is not supported by
the record . Graczyk was at least as _ efficient a worker as two other
employees in lus;Clepartment , of substantially]e^s seniority , who were
THE TRIPLEX SCREW COMPANY 1145
retained.31 His foreman thought highly of his work, and in June 1937
had requested the respondent to make Graczyk his assistant. After the
lay-offs were begun, the foreman told Graczyk that because of his.com-
-petence he proposed to retain him "until-the -last man." -While the
foreman testified at the hearing that on several occasions Graczyk oper-
ated his machine in low rather than high gear, any inference therefrom
that the employee had been inefficient we think stands refuted by the
above-mentioned attitude and statements of the foreman made prior
to the time the respondent called him as a witness. Graczyk testified
that he did not operate the machine at low gear if the work was such
as to permit operation at high gear. Although the' plant superin-
tendent testified that Graczyk's production was slow, no convincing
proof was offered in support thereof, and the same witness denied any
testimony he may have given at the hearing that the dismissal was
occasioned by inefficiency.
We find that the respondent dismissed Graczyk in January as an-
other step in its plan•°for, destroying the Union and setting up-the
Association. As shop steward and a member of the union grievance
committee, Graczyk held an office important to the continued func-
tioning of the Union. We have had occasion to say in another pro-
ceeding involving the discharge of an employee who had engaged in
grievance committee work:
It is common knowledge that the availability of means for ad-
justing individual grievances through group representives, con-
stitute an important inducement to union affiliation . . . In
furloughing [an employee] . . . because of his activity as chair-
man of [the union grievance committee] . . . the respondent
struck at a vital union activity, and by such discrimination as
to employment, discouraged membership in the-Union, within
the meaning of Section 8 (3) of the Act.32
We think this language here applicable.
Some question has arisen as to whether Graczyk was laid off or
discharged. The issue is without substance, for in either event the
respondent discriminated in regard to hire and tenure of employment,
within the meaning of the Act. Upon the circumstances presented,
especially the reasons which induced his dismissal, we are of the
opinion, and find, that the respondent intended to rid itself perma-
nently of him and, accordingly, that it discharged him.33
31 One of these employees had been with the respondent only 5 months, and was then
engaged °in' assisting Thomas in organizing the Association.
32 Matter of The Kelly-Springfield Tire Company and United Rubber Workers of America,
Local No 20 and James if Reed and Minnie Ramp, 6 N L R. B 325, 331
33 Matter of Indianapolis Power & Light Company and Utility Workers Organizing Com-
mittee, Local 120, affiliated with the Congress of Industrial organizations , 25 N. L R B
193, and see cases cited in footnote 28
1'146 DECISIONS - OF NATIONAL LABOR ' RELATIONS BOARD
Wefind- that the respondent failed or refused to recall -to work
and: thereby discharged Grace Koberna some time prior to the hear-
ing, 'and discharged Chester Kinkelaar on January 18, 1938, and
Bruno Graczyk on January 3 , 1938, because of their activity and
leadership in the Union, thereby discriminating in regard to the
hire and tenure of employment of said employees, and each of them,
and discouraging membership in the Union; and that by said acts the
respondent interfered with, restrained , and coerced its employees in
the, exercise of rights guaranteed by Section 7.
2. Discriminatory discharges of certain employees and allegedly
discriminatory dismissals of others
Josephine Seremak was dismissed on December 23, 1937. She had
been employed in the plant for more than a year and worked on a
hand-shaving machine. Seremak was an active and loyal member of
the Union, and had assisted in enlisting members for that organiza-
tion. She joined the Union at its inception , and regularly wore her
union button at the plant.
On December 22, 1937, Seremak encountered trouble with her
machine and spent about an hour cleaning it and having it repaired.
She noted the incident on her time card. On the following day Ben-
nett informed Seremak that she was dismissed for idling on company
time. She explained to him what had occurred , but Bennett replied
that he could do nothing about the matter, that she might discuss it
with"Weber after January 1. Seremak thereafter did make inquiry
of Weber, and was told by him that he could not reinstate her because
she was married.
At the hearing the respondent sought to establish through testi-
mony of its plant superintendent that Seremak had been dismissed
because there was not "very much work, and she was very low in
her production ." The superintendent did not testify that upon the
dismissal any of the three hand-shaving machines ceased operation,
although Seremak had previously testified at the hearing that she
understood her machine was then'being operated . With respect' to
Seremak's production , Seremak and the two other women who oper-
ated the hand-shaving machines consistently maintained the same
level of production . Seremak had had no previous complaints about
her work. It is significant that at the time of the dismissal neither
slack work nor low productivity was assigned as the reason for the
termination of her employment . While the respondent called Ben-
nett as a witness at the hearing and questioned him at-length about
other dismissals , it did not interrogate him respecting Seremak's,
although the testimony of its plant superintendent previously taken
,- THE ;TRIPLEX ISCRER% COMPANY 1147
,was inconclusive about the matter in many respects because of his
unfamiliarity therewith.
We are convinced, and we find, that Seremak was- discharged
because of her activity in and loyalty to the Union., The record
does not establish that either slack work or low productivity was a
-factor. Her dismissal occurred at a time when the - respondent was
displaying marked antagonism to the Union, and against a back-
ground of flagrant violations of the Act. The circumstances sur-
rounding the' dismissal disclose that the respondent had been seeking
,some•.pretext for getting rid of Seremak, and, ,used ' the stoppage of
her.machine_ for that purpose.
,Chester Pokropski was dismissed on November 30, 1937. Like
Seremak, he was one of the first to join the Union, was active in its
affairs, regularly attended union meetings, and wore his union button
about the plant. He was hired in February 1937 and worked sub-
stantially all the time thereafter at threading bolts on the hand cutters.
The respondent states that it was compelled for business reasons to
lay off one of the employees engaged in this work, and that it selected
Pokropski for that purpose, rather than either of two other employees,
because of his alleged comparatively -low productivity. The two
mentioned employees who were retained either were not members of
the Union or were inactive in it. Neither had as much seniority as
Pokropski. -
We are not convinced by the testimony adduced by the respondent,
,or otherwise, that, Pokropski was less- efficient than the two other'
-employees who -were retained.-, Bennett, who directed Pokropski's
dismissal, testified-that he did so because in connection with certain
"time studies" 34 made in Pokropski's department, Pokropski "never
did try. to Come up- and make his time .... he was the lowest or-one
,of -the lowest of the department." However, Bennett also testified
that the respondent had "just started to put time study into the depart-
ment," and that he did not "have any records [he could] show .because
the time study had not been.in there long, enough." Bennett,- him-
self, made no time study of any employee. The evidence shows that
,one of his assistants who was making such a study of Pokropski told
Pokropski a few days before his dismissal that his rate of production
was very good. At the hearing Bennett was interrogated about this
matter and, after stating that he,did not know anything concerning
it, proceeded to explain that he had had - an assistant by the name
of Bulk who was very inefficient, whose "data" could not be used,
and who had been discharged. - -
34 Studies of employees while at work for the ` purpose of fixing methods and standards
to increase production.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are convinced , and we find, that the respondent's true reason
in selecting Pokropski for dismissal was his union activity and loyalty.
It was because of this reason that the respondent disregarded Pokrop-
ski's seniority , and preferred employees not associated with the activity
of the Union . We find that Pokropski Was not-ffiei•ely laid'°o`ff; but
discharged , because of his activity in and loyalty to the Union.
Stanley Ksepko was dismissed on January 3, 1938. He was em-
ployed about 3 years at the plant and worked on a pointer machine.
At the time of his dismissal Ksepko was informed by the respondent
that the reason therefor was that there was no available work for
him to perform . However, the record shows that in dismissing Ksepko
the respondent disregarded his seniority and retained another em-
ployee junior in service to work on a pointer machine. There is
no showing by the respondent that the employee who was retained
was more competent to do the work than Ksepko, and we do not so find.
Ksepko had been very active in the Union, and was identified by
the respondent as loyal to that organization . ' Ab`but , January 24
he returned to the plant seeking reinstatement , and there met Weber.
Weber told him, "Get the hell out of here . . . I don't need the
C. I. O. anymore ." On another occasion , shortly after the dismissal,
Thomas, who, as heretofore set forth , was engaged in setting up the
Association at the direction of the respondent , told Ksepko that if
he wished to keep his job he should join the Association.
We are of the opinion, and find, that Ksepko was discriminatorily
discharged because of his activity in and loyalty to the Union. Ordi-
narily, other things being equal , seniority would have determined
which of the two employees , Ksepko - or the one -who was retained,
should have been laid off . We do not presume, in the absence of a
showing, that some factor other than seniority , would have been
determinative in the selection . However, seniority was not operative,
for, as above set forth , Ksepko's greater seniority was disregarded.
We are convinced that the reason for the respondent 's ignoring of
Ksepko's seniority lies in the hostility it had generally for those
employees who, it thought , might prevent a successful installation
of the Association as successor to the Union. Weber's strong showing
of antipathy toward Ksepko and the Union when Ksepko sought
work at the plant confirms our finding . Thomas' statement also is
confirmatory . We also find , as already set forth , that Ksepko was
discharged and not laid off.
John Kwiatkowski was employed at the plant as a laborer to,move "
stock and shelve bundles . He was laid off for 3 days in July or
August 1937, recalled to work, and again laid off on November 19, 1937:
He has not been reinstated . Some time prior to the hearing Kwiat-
THE TRIPLEX SCREW COMPANY 1149
kowski's job reopened, and the respondent hired a new employee to
fill it. No fault had ever been found by the respondent with
Kwiatkowski's performance of his job, and-there is no showing that
the other employee was better fitted to fill it.
Kwiatkowski was active in the Union. We have no doubt that the
respondent was aware of his loyalty to that organization. Although
Weber in April 1937 threatened Kwiatkowski with dismissal if he
-"stuck by" the Union, the employee remained a union member. At
the hearing the respondent contended that Kwiatkowski's lay-off, in
November, as well as his prior lay-off, was occasioned by slack work.
However, whether or not that fact be true, there is no satisfactory
explanation why the respondent, when Kwiatkowski's work became
available, ignored Kwiatkowski and hired a new employee to do it.
We are satisfied that the respondent 's failure or refusal to recall
Kwiatkowski to work was induced by his activity in and loyalty to
the Union, and we so find . We are convinced that had he not been
a loyal union member, the respondent in the ordinary course of its
busihess would'-have reinstated him when his job reopened. By failing
to do so the respondent indicated its intention to and did terminate
Kwiatkowski's status as an employee, thereby discharging him.
Laddie Sindelar was dismissed on November 17, 1937. He then
worked as a sheer man cutting stock for the hot headers. At the
time of the dismissal the respondent retained to perform this kind
of work three employees , two of them junior to Sindelar in point of
service. Sindelar was an experienced and competent worker, and
there is no showing that any of the three retained was better fitted
to do his kind of work.
Sindelar was an active and loyal member of the Union . He solicited
members for the organization, and wore his union button about the'
plant,.,_ Bennett, the industrial engineer , testified that Sindelar was
laid off because "there was not any particular work at that particular
time." However, as set forth above, there was work at that time
which Sindelar was competent to perform and which he should have
been retained to perform as against the two employees who had less
seniority. No satisfactory explanation of the respondent's ignoring
of Sindelar 's seniority right is shown. Some testimony was intro-
duced respecting an incident 3 weeks prior to the dismissal involving
a refusal by Sindelar, because of his concern that spoilage might
result, to shear certain bars in the manner directed by Bennett. How-
ever, this incident , we are satisfied , was unrelated to the respondent's
selection of Sindelar for dismissal . Bennett's testimony , above quoted,
attributed the dismissal to unavailable work. We find that the re-
spondent dismissed Sindelar, in disregard of his seniority right,
because of his activity in and loyalty to the Union.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent discharged Josephine Seremak on
December 23, 1937, Chester Pokropski on November 30, 1937, Stanley
Ksepko on January 3, 1938, John Kwiatkowski prior to, the hearing
herein, and Laddie Sindelar on November 15, 1937, and each of them,
because of their activity in, affiliation with, and loyalty to the Union,
thereby discriminating in regard to the hire and tenure' of employ-
ment of said employees, and each of them, and discouraging mem-
bership in the Union; and that by said acts the respondent interfered
with, restrained, and coerced its employees in the exercise of rights
guaranteed by Section T.
Henry Przybylski, Stanley Boncella, John Szczygielski, Lody Au-
gustin, Alex Choromanski, Florence Zenda, Chester Genius, Stella
Stanek, and Sam Staniszewski were dismissed at various times, respec-
tively, in November and December 1937 and in- January 1938. While
the circumstances surrounding some of these dismissals raise a sus-
picion that the respondent discriminated against certain of these per
sons in violation of the Act, we do not find the evidence sufficient to
establish that the respondent engaged in an unfair labor practice
with respect to any of such persons. We shall dismiss the allegations
of the complaint as they relate to these persons.
D. The alleged refusal of the respondent to bargain in good faith
In September 1937 the respondent authorized its attorney to act
as sole representative of the respondent for purposes of meeting and
negotiating with the Union in respect of terms and conditions of
employment at the plant. In the succeeding period of lay-off s and
discharges of plant employees, the Union, on various occasions, met
and conferred with the attorney, principally regarding employees'
grievances arising from the dismissals. It is-in connection with these
conferences that charges have been filed herein alleging that the
respondent did not bargain collectively with the Union in a bona lde
manner , as required by the Act. 85 There is no issue presented con-
cerned with negotiations for a collective labor agreement.
$6 The duty of the employer to bargain with the statutory representative of his employees
was stated by the Board in Matter of Highland Park Manufacturing Co. and Textile Work-
ers Organizing Committee, 12 N. L. R. B. 1238, 1248-1249, enf'd 110 F. (2d) 632
(C. C. A 4), as follows :
Collective bargaining , as contemplated by the Act is a procedure looking toward the
making of a collective agreement by the employer with the accredited renresentatives
of its employees touching wages, hours of service, and other working conditions of the
employees. The duty to bargain collectively, which the Act imposes upon employers,
has as its objective the establishment of such a contractual relationship . We have
held that'this duty is not limited to recognition of the employees' representatives qua
representatives , or to a meeting and discussion of terms with them. The duty en-
compasses an obligation to enter into discussion and negotiation with an open and
fair mind and with a sincere purpose to find a basis of agreement concerning the
issues presented , to make contractually binding the understanding upon terms that
are reached , and, under ordinary circumstances , to reduce that obligation to the form
of a signed written agreement if requested to do so by the employees ' representatives.
THE TRIPLEX' SCREW COMPANY 1151
The Trial Examiner in his Intermediate Report found and con-
cluded that the respondent "refused to bargain collectively with [the
Union] ... in a bona Fide manner ip regard to grievances and other
conditions of employment." We have considered the negotiations
involved , and while the respondent 's attack upon the Union and its
setting up of the Association cast doubt upon the good faith of its
negotiations with the Union, we are of the opinion that the record
made is insufficient to substantiate the charges . Accordingly , we will
dismiss the pertinent allegations of the complaint.
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
It is essential to an effectuation of the purposes and, policies of the
Act that the respondent be ordered to cease and desist from certain
unfair labor practices in which we have found it to have engaged,
and in aid of such order and as a means of removing ,and avoiding
the consequences of such practices that the respondent be directed
to take certain affirmative action, more particularly described below.
We have found that the respondent in many ways has interfered
with , restrained , and coerced ' its employees in the exercise of rights
guaranteed them by the Act. It is plain that the respondent must cease
and desist from such practices , and we shall so order.
We have also found that the respondent has dominated and interfered
with the formation of, and contributed support , to, the Association, and
that that organization is not nor has it ever been the employees'
genuine choice of collective bargaining representative . The Associa-
tion is incapable of ever serving as a true collective bargaining agency
of the employees . Its existence does and will constitute a continuing
obstacle to the exercise by the respondent 's employees of the rights
guaranteed them by the Act. Hence, not only shall we order the
respondent to cease and desist from its unfair labor practices in con-
nection with the Association , but' in aid of that order and to remove
the impediments thus established to the employees exercising freely
their rights under the Act, we shall direct the respondent to withhold
recognition from the Association as a representative of its employees,
and to disestablish that organization as such a representative.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also have found that the respondent terminated the employment
of Grace Koberna, Chester Kinkelaar, Bruno Graczyk, Josephine
Seremak, Chester Pokropski, Stanley Ksepko, John Kwiatkowski, and
Laddie Sindelar, because' of their leadership, membership, or activity
in, and loyalty to the Union. Accordingly, we shall order the respond-
ent to cease and desist from such discrimination. Moreover, to effectu-
ate the purposes and policy of the Act, we shall order the respondent
to offer these employees immediate and full reinstatement to their
former or substantially equivalent positions with the respondent, with-
out prejudice to their seniority and other rights and privileges, and to
make them whole for any loss of pay they have suffered by reason of
its discrimination against them. Our order also will direct certain
other action which we deem necessary to remedy the situation brought
about by the unfair labor practices we have found.
Upon the, basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Association of Iron, Steel and Tin Workers of
North America, Local No. 1583, and Independent Employees Associa-
tion of Triplex Screw Co., Inc., are labor organizations, within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (1) of the Act.
3. By dominating and interfering with the formation of, and con-
tributing support to, Independent Employees Association of Triplex
Screw Co., Inc., the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of its employees, and thereby discouraging membership in
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Local No. 1583, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not refused to bargain collectively with
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Local No. 1583; within the meaning of Section 8 (5) of the
Act, as alleged'in the complaint.
THE TRIPLEX SCREW COMPANY 1153 ,
7. The respondent has not engaged in unfair labor practices with
respect to Jessie Antkiewicz, Lody Augustin, Ben Barckowiak, Leonard
Bogacki, Stanley Boncella, James Bradley, Alex Choromanski, George
Damasiewicz, Joseph Dietrick, Robert Fuller, Chester Genius, John
Holt, Helen Kolasa, Josephine Kubit, Leo Labuda, Mary Latawiec,
John Matuszewski, John Miller, Felix Orlik, Stanley Paryzek, Otto
Pilney, Rudy Pilney, Jessie Polaccynski, Frank Price, Henry Przybyl-
ski, Henry Sadanowicz, Joseph Selva, John Stachura, Stella Stanek,
Sam Staniszewski, Edward Stylinski, John Szcygielski, Frank Vore-
chovsky, or Florence Zenda, as alleged in the complaint.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,,
the National Labor Relations Board hereby orders that the respondent,.
The Triplex Screw Company, Cleveland, Ohio, and its officers, agents.,
successors, and assigns, shall:
1: Cease-and desist, from :
(a) In -any_ manner dominating or interfering with the administra-
tion of Independent Employees Association of Triplex Screw Co., Inc.,
or with the formation or administration of any other labor organiza-
tion of its, employees, and from contributing support to Independent
Employees Association of Triplex Screw Co., Inc., or to any other labor
organization of its employees;
(b) Discouraging membership in Amalgamated Association of Iron,
Steel and Tin Workers of North America, Local No. 1583, or any other
labor organization of its employees, by discharging or by laying off
any of its employees or in any-other manner discriminating in regard
to their hire and tenure of employment or any term or-condition of
their employment ;
• (c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties, for the purposes of collective bargaining or other mutual aid and
protection, as guaranteed in Section 7 of the Act.
_. 2. Take the following' affirmative action, -which the Board finds
will effectuate the policies of the Act : ' '
(a) Offer to Bruno Graczyk, Chester Kinkelaar,, Grace Koberna,
Stanley Ksepko, John Kwiatkowski, Chester Pokropski, Josephine
Seremak, and Laddie Sindelar immediate and full reinstatement to the
positions, respectively, which they formerly occupied at its plant, or
to positions, respectively, substantially equivalent thereto, without
prejudice to tbRir seniority-and other rights aid privileges:
'1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Bruno Graczyk, Chester Kinkelaar, Grace Ko-
berna, Stanley Ksepko, John Kwiatkowski, Chester Pokropski,
Josephine Seremak, and Laddie Sindelar, and each of them, for any
loss of pay they may have suffered by reason of the respondent's dis-
criminatory termination of their employment by payment to each
such employee of a sum of money equal to that which he or she nor-
mally would have earned as wages from the date of his or her dis-
criminatory termination of employment, viz., Bruno Graczyk, January
3, 1938 •,- Chester Kinkelaar, January 18, 1938; Grace Koberna, April
11, 1938;36 Stanley Ksepko, January 3, 1938; John Kwiatkowski,
April 11, 1938,37 Chester Pokropski, November 30, 1937; Josephine
Seremak, December 23, 1937; and Laddie Sindelar, November 17, 1937,
to the date-of offer of his or her reinstatement, less his or her net earn-
ings 36 during such period; deducting however, from the 'amount
otherwise, due to each of said employees, monies, received by him or
her during said period for work performed upon Federal, State,
county, municipal, or other • work-relief projects, and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, -county, municipal, or other government or governments which
supplied the funds for said projects;
(c) Withdraw all recognition from and refrain from recognizing
Independent Employees Association of Triplex Screw Co., Inc., as the
representative of any of its employees for the purpose of dealing with
the respondent in any manner concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of em-
ployment, and completely disestablish Independent Association of
Triplex Screw Co., Inc., as such representative;
(d) Post immediately in conspicuous places throughout its plant
in Cleveland, Ohio, and maintain, such notices for a period of at least
sixty (60) days from' the date of posting, notices to its employees
stating .(1) that the respondent will not engage in the conduct which
it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of
this Order;, (2) that the respondent will take the affirmative action
--;"in" those cases where the record 'does not fix the date prior to the, hearing when the
discriminatory termination of employment occurred , we have taken for purposes of the
Order April 11, 1938, the date when the hearing began
37 See footnote 36, supra. - '
,M BY "net earnin gs" is meant earnings less expenses , such as for transportation, room,
and board incurred by an employee in connection with obtaining work and woiking else-
where than for the respondent , which would not have been incurred but for the unlawful
termination of his 'employment and the consequent, necessity of his seeking, employment
elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N, L R B 440.
Monies received for work performed upon Fedeial, State, county, municipal, or other work-
relief projects are not considered as earnings, but, as provided, are to be deducted from
the sum due the employee, and the amount thereof paid over' to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government or governments which
supplied the funds for said work-reliet projects
THE TRIPLEX SCREW COMPANY 1155
set forth'in paragraphs 2 (a), (b), and (c) of this Order; (3) that
the respondent's employees are free to become and remain members
of Amalgamated Association of Iron, Steel and Tin Workers of North
America, Local No. 1583; and (4) that the respondent will not dis-
criminate against any employee because of membership in or activity
in or in behalf of said labor organization;
(e) Notify the Regional Director for the Eighth Region in writing
within ten ('10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, in so
far as it alleges that the respondent engaged in unfair labor, practices
with respect to the hire and tenure of employment of Jessie Antkie-
wicz, Lody Augustin, Ben Barckowiak,, Leonard Bogacki, Stanley
Boncella, James Bradley, Alex Choromanski, George Damasiewicz,
Joseph Dietrick, Robert Fuller, Chester Genius, John Holt, Helen
Kolasa, Josephine, Kubit, Leo Labuda, Mary Latawiec, John
Matuszewski, John Miller, Felix Orlik, Stanley Paryzek, Otto Pil-
ney, Rudy Pilney, Jessie Polaccynski,, Frank Price, Henry Przybyl-
ski, Henry Sadanowicz, Joseph Selva, John, Stachura, Stella. Stanek,
Sam Staniszewski, Edward Stylinski,, -John Szcygielski, Frank
Vorechovsky, and Florence Zenda; and= in; so far as it alleges that
the respondent engaged in unfair labor practices by refusing to
bargain collectively with Amalgamated Association of Iron, Steel
and Tin Workers of North America, Local No. 1583, be, and the
same hereby is, dismissed.
MR. EDWIN S. SMITH, concurring :
I concur in the findings and conclusions of the Decision, and in
the Order. However, while we have dismissed the allegations of,
the complaint with respect to the alleged refusal of the respondent
to bargain collectively with the Union in a bona file manner, I think
our findings and conclusions should not rest there. Because of the
loss of union membership occasioned by the respondent's unfair labor
practices, the Board, in my opinion, should find and conclude that
such, loss did not affect the status of, the Union as the statutory rep-
resentative of the plant employees and that the Union has continued
to be such representative. 39 , , ' 4
39 See my opinion in Matter of Joseph Levy , Jack Levy, and Isaac Levy, doing business
under the name and style of Leybro Manufacturing Company, and Leybro Manufacturing
Co. of New Jersey, Inc and Children 's D,ess, Infants, Wear, Housedress and Bathrobe
.Workers Union , Local f$91, International ` Ladies Garment Workers Union , 24 N. L R B
786, in ' which I ' expressed the view that where the Board dismisses allegations of a
refusal to bargain ' collectively, for reasons not 'related to, the status of the collective bar-
gaining agency as the statutory representative , the Board nevertheless should make findings
and conclusions regarding the appropriate collective bargaining unit and representation
within such unit.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Preceding and throughout the conferences of the Union with the
respondent, and at all times since, employees of the respondent em-
ployed in production at the respondent's plant, excluding supervisory
employees and office workers, constituted- a unit appropriate for
purposes of collective bargaining, and one which insured to the
employees of the respondent the full benefit of their right to self-
organization and collective bargaining and otherwise effectilated„the
policies of the Act. During the period of the conferences and prior
thereto a majority of the respondent's employees, within the above-
mentioned collective bargaining unit. designated and selected the
Union as their representative for collective bargaining with the
respondent, and, accordingly, at all such times the Union was the
exclusive representative of all employees in such unit for such pur-
pose. As such representative the Union was entitled to recognition
as the statutory representative by the respondent, and to performance
by the respondent of its obligation to bargain collectively in good
faith.
Although, as set forth in the Decision,}° the Association on or
about February 16, 1938, claimed to have enrolled as ,members, and,
consequently to have been selected as exclusive bargaining repre5eiit-
ative by, a majority of the plant employees, any such enrollment iii
or selection of the Association could not affect the designation of
the Union as statutory representative. A defection in -membership
to the Association from the Union, to the extent that it occurred,
resulted from the respondent's unfair labor practices in Initiating
formation of the Association, favoring membership in that organiza-
tion, and opposing the Union. It in no wise represented a, free
choice of the Association. as bargaining representative. The pre-
sumption is, and I should find, that the Union continued to ,be. c esig-
nated as collective bargaining representative by a majority of the
employees in the appropriate unit. I am satisfied, and would find,
that the true desires of a majority of the employees within the unit
have always been and now are for representation through the Union.
The desire of these employees that the Union serve as their statutory
representative could not be changed by the respondent's unfair labor
practices.4'
It is my conclusion that during and at all tunes since the negotia-
tions in question, and at the present, the Union was and is the exclu-
10 See Section III B of the Decision, supra
1° See N L R B v Bradford Dyetnq Association (U. S. A ), 60 S. Ct. 918; N. L. R. B.
v Some , set Shoe Company, 111 F. (2d) 681 (C. C A. 1) ; The M. H Ritzwoller Company
v N L R B. 114 F (2d) 432 (C C. A 7 ) ; N L R B V Highland Park Manufacturinq
Company , 110 F ( 2d) 632 (C. C. A 4) -
THE TRIPLEX SCREW COMPANY 1157
sive representative of all employees within the above -mentioned
collective bargaining unit, for purposes of collective bargaining with
the respondent regarding working conditions.
• MR. WILLIAM M. LEISERSON took no part in the consideration of I he
above Decision and Order.
283036-42-vol. 25-74