Toledo Desk & Fixture Co.

National Labor Relations Board - Board Decisions

Feb 18, 1946

65 N.L.R.B. 1086 (N.L.R.B. 1946)

In the Matter of TOLEDO DESK & FIXTURE COMPANY and UNITED
WHOLESALE, WAREHOUSE & DELIVERY EMPLOYEES, LOCAL 363,
C. I. O.
Case No. 8-C-1678.-Decided February 18, 1946
Mr. Louis S. Belkin, for the Board.
Messrs. Marshall, Melhorn, Wall ct Bloch, by Mr. Leland L. Lord,
of Toledo, Ohio, for the respondent.
Mr. David A. Guberman, of Toledo, Ohio, for the C. I. O.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
O STATEMENT OF THE CASE
Upon an amended charge duly filed by United Wholesale, Ware-
house & Delivery Employees, Local 363, C. I. 0., herein called the
C. I. O., the National Labor Relations Board, herein called the Board,
by its Regional Director for the Eighth Region (Cleveland, Ohio),
issued a complaint dated January 17, 1945, against Toledo Desk &
Fixture Company, Toledo, Ohio, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
accompanied by notice of hearing thereon, were duly served upon the
respondent and the C. I. O.
With respect to the unfair labor practices, the complaint alleged in
substance : (1) that from on or about March 1, 1944, the respondent
urged, persuaded, and warned its employees to refrain from becoming
or remaining members of the C. I. 0.; threatened to close its plant and
go out of business if its employees did not withdraw their membership
from the C. I. 0.; and threatened to demote or discharge its employees
because of membership in the C. I. 0.; (2) that on or about April 29,
1944, the respondent discharged or laid off nine named employees;
on or about October 1, 1944, discharged or laid off-another employee;
thereafter refused to reinstate any of them; and that it did so because
65 N. L. R. B., No. 193.
1086
TOLEDO DESK & FIXTURE COMPANY 1087
they had joined and assisted the C. I. O. and had engaged in con-
certed activities ; and (3 ) that by the aforesaid acts the respondent
interfered with, restrained , and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
Thereafter, the respondent duly filed its answer, in substance deny-
ing the commission of the alleged unfair labor practices.
Pursuant to notice , a hearing was held in Toledo, Ohio, from
February 6 to 10, 1945, inclusive, before W. P. Webb, the Trial Ex-
aminer duly designated by the Chief Trial Examiner . The Board,
the respondent, and the C. I. O. were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing on the
issues was afforded all parties. At the conclusion of the hearing, the
motion of counsel for the Board to conform the pleadings to the
proof in respect to formal matters was granted without objection.
Ruling on the motion of the respondent's counsel to dismiss the com-
plaint in its entirety was reserved , and was subsequently denied in the
Intermediate Report. During the course of the hearing, the Trial Ex-
aminer made rulings on other motions and on objections to the ad-
mission of evidence. The Board has reviewed all the rulings of the
Trial Examiner , and finds that no prejudicial error was committed.
The rulings are hereby affirmed. At the close of the hearing, counsel
for the respondent and the Board argued orally before the Trial
Examiner, and subsequently filed briefs with him.
On May 11 , 1945, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all parties . In his Inter-
mediate Report the Trial Examiner found that the respondent had
engaged in and was engaging in certain unfair labor practices af-
fecting commerce , and recommended that it cease and desist therefrom
and take certain affirmative action. Thereafter, the respondent duly
filed exceptions to the Intermediate Report and a supporting brief.
No request for oral argument before the Board in Washington, D. C.,
was made by any of the parties , and none was held.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief , and the entire record in the case, and finds
that the exceptions are without merit insofar as they are inconsistent
with the findings , conclusions , and order hereinafter set forth.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF, FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, an Ohio corporation , has its principal office and
place of business in Toledo , Ohio, where it is engaged in the fabri-
cating of steel and wood . The raw materials used by the respondent
679100-46-vo1 65--70
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
annually exceed $100,000 in value, of which approximately 90 percent
is transported to the respondent's plant from points outside the State
of Ohio. The finished products manufactured by the- respondent
annually exceed $400,000 in value, of which approximately 90 percent
is transported to points outside the State of Ohio.
The respondent conceded at the hearing, and we find, that it is en-
gaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Wholesale, Warehouse & Delivery Employees, Local 363,
is a labor organization affiliated with the Congress of Industrial Or-
ganizations, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Since 1936 or 1937 the respondent has had continuous contractual
relations with a labor organization herein called the A. F. L.,1 cover-
ing most of its employees. On or about May 4, 1943, the respondent
entered into a union-shop agreement with the A. F. L. for the term
of 1 year and renewable for a second year, providing in part (1) that
all the employees covered by the agreement who were not over 65
years of age should be members of the A. F. L. after a 90-day trial
period; (2) that the "principle of seniority will be observed by the
employer [respondent] so far as reducing or adding to the working
force," and that pursuant to this provision a seniority list "shall be
kept on'file and up to date, and shall be available to interested parties";
(3) that the A. F. L. "shall have the right" to a grievance or shop
committee composed of three employees; and (4) that the respondent's
right to use the A. F. L. label on its finished products "may be re-
called at any time" by that organization. On or about February 22,
1944, the respondent and the A. F. L. met to negotiate a modification14
of this agreement.
In the latter part of February 1944, employee Ouida Ryan 2 and
other employees became dissatisfied with the A. F. L. At their re-
quest, No Erwin, a representative of the C. I. 0., began an organiza-
tional campaign among the respondent's employees. During the
following month a substantial number of the respondent's employees
joined the C. I. O. Erwin thereupon wrote the-respondent a letter,
claiming that the C. I. O. represented a majority and requesting that
' This organization was variously designated in the record as a local of United Brother-
hood of Carpenters and Joiners of America, affiliated with the A. F. L •, Carpenters' District
Council and Millmen ' s Local No . 1359 of Carpenters ( A. F. L.) ; and Maumee Valley Dis-
trict Council of Carpenters, Local No. 1359 (A. F. L ).
2 Three Ryans are involved in this case • Ouida, Verna , and Ruth.
TOLEDO DESK & FIXTURE COMPANY 1089
the respondent negotiate a contract with it. Not receiving a reply for
about 2 or 3 days, Erwin telephoned to Frank M. Crook, the respond-
ent's president, and repeated the request. Crook replied that the
respondent had a contract with the A. F. L. and therefore would not
bargain with the C. I. O.
About the middle of March 1944, the C. I. O. issued union buttons
to its members and they wore them in the plant. At about the same
time, Ouida Ryan was made C. I. O. shop chairman. Shortly there-
after, according to her uncontradictecl and credible testimony, Clare
Buck, who, the record shows and the Trial Examiner found, was re-
garded by the employees as a foreman, told her that he would quit
rather than work with the C. I. O. At about the same time, accord-
ing to her credible testimony, Crook told her that if she organized
the C. I. O. she would be sorry; and on another occasion when she and
other members of the C. I. O. grievance committee had occasion to
call on Crook in his office, he told them that he could not work with
the C. I. O. and that if the C. I. O. came into the plant he would lock
the door and throw the key into the creek or would move the plant
down South 3
Sometime during the second or third week of March 1944, the re-
spondent entered into a new, agreement with the A. F. L. On or
about March 20, 1944, the C. I. O. filed a petition for investigation and
certification of representatives, pursuant to Section 9 (c) of the Act.
In the latter part of March, according to the undenied and credible
testimony of Ouida Ryan, Lester D. Cope, the respondent's superin-
tendent and personnel and employment manager, told her that he
believed the respondent could work with either the C. I. O. or the
A. F. L., but that he could not get Crook to see it that way; that
Crook would not work with the C. I. 0.; and that the respondent had
bought a building in Perrysburg and was going to move its plant there.
On April 28, 1944, as discussed below, the respondent laid off most
of its employees for lack of work. On the following day, according
to the undenied and credible testimony of employee Henry Lau, who
had not yet been laid off, Crook told him that he, Crook, had a nice
home on the south side and enough money to live on, and that because
of the way the C. I. O. acted he would close the plant before having
anything to do with that organization; Crook thereupon laid Lau off.
On May 29, 1944, the Board issued a Decision and Direction• of
Election in the representation proceeding instituted by the C. I. O.'s
petition.4 The Board therein found that the unit appropriate for the
purposes of collective bargaining consisted of all the respondent's
3 Crook admitted that be observed the C I O. buttons and that he disliked having the
C. I 0 in the plant, but denied that he had made these statements Upon his observation
of the witnesses the Trial Examiner did not credit Crook ' s denials , nor did we.
4 6 N. L. R. B. 1022.
1090 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
employees with the exclusion of working foremen and certain other
classes of employees, and that the agreement between the respondent
and the A. F. L. did not constitute a bar to the proceeding. The
Board directed that an election be held among the employees in the
appropriate unit to determine whether they desired to be represented
by the C. 1. 0., the A. F. L., or neither.
The election was duly scheduled for June 21, 1944. A short time
before the election, according to the uncontradicted and credible testi-
mony of employee Helen Swartz, who had succeeded Ouida Ryan
as the C. I. O. shop chairman, Frank Diaz, a working foreman on the
third floor of the respondent's main plant, told her that she should
vote for the A. F. L. On the day of the election, Diaz, according to
employee Laverne Wright's undeniedoand credible testimony, told
her that if she knew what was good for her, she would vote for the
A. F. L. and not for the C. I. O. On the same day Production Man-
ager Schmidlin stopped Wright as she was returning to work after
acting as an official observer for the C. I. O. at the election, she
credibly testified without contradiction, and said to her, "Well,
Laverne, you know you can't work for two concerns at one time.
You can't work for the C. I. O. and for the Toledo Desk & Fixture
at the same time. You had better take the day off." Accordingly,
Wright was laid off for the day. Several days after the election,5
Schmidlin told Wright, according to her undenied and credible testi-
mony, that several of the girls would have voted for the A. F. L. if
she had told them to do so; that she could have "swayed" the election
if she had wanted to; and that the C. I. O. should give her a life-time
pension. '
Sometime in the summer of 1944, Superintendent and Employment
Manager Cope reiterated to employee Helen Swartz, as she credibly
testified without contradiction, that he was willing to cooperate with
the C. I. 0., but that he could not persuade Crook to see it that way.
On August 11, 1944, the Board issued a Supplemental Decision and
Certification of Representatives in the representation proceeding,6
overruling the objections and exceptions filed to the election by the
A. F. L. and the respondent, sustaining 29 of the 33 challenges in
view of the agreement of the parties to that effect and without con-
sidering the merits thereof, finding it unnecessary to rule on the
° The election results were as follows :
Approximate number of eligible voters_____ ________________________________ 108
Valid votes counted----------------------------------------------------- 25
Valid votes cast for the C. I. 0___________________________________________ 16
Valid votes cast for the A F. L9
Valid votes cast for "Neither"0
Challenged ballots----------------- -------------------------------------- 33
Void ballots
--------------------------------------------- 0
e 57 N L R B 1294.
TOLEDO DESK & FIXTURE COMPANY 1091
remaining 4 challenges, and certifying the C. I. O. as the statutory
representative of all the employees in the appropriate unit.
Immediately after the C. I. O.'s certification by the Board, C. I. O.
Representative Erwin and employees Fahlbusch and Swartz, repre-
senting the C. I. 0., met Crook and Henry Bloch, the respondent's
attorney, to discuss a proposed contract. However, Crook refused to
recognize the C. I. O. as the exclusive representative of all the em-
ployees in the appropriate unit, and would only agree to bargain with
the C. 1. 0. for its members, on the ground that the respondent's peace-
time products required installation by A. F. L. labor and would not
be installed if the respondent's right to use the A. F. L. label were
recalled by that organization.7
In September 1944, a few days after the respondent had laid Swartz
off, Working Foreman Gilbert DeCort told her, according to her un-
denied and credible testimony, that Crook had remarked that her
lay-off was the "end of the C. I. 0." At about the same time, according
to the uncontradicted and credible testimony of employee Margaret
Fahlbusch, who had succeeded Swartz as chairman of the, C. I. O.
shop committee, Working Foreman Diaz asked her how they had
`.made out" at a C. I. O. meeting on the previous evening, and warned
her that Crook could move the plant to another location and adopt a
new name and thus get rid of the C. I. O. and its adherents among
the employees.
The respondent contends that the statements and conduct of its
president, Crook, merely posed the problem arising from the fact
that its peacetime products would become virtually worthless without
the A. F. L. label, and that it would then have to go out of business
and its employees would lose their employment. However, as we held
in rejecting a similar argument in the Showalter case,8 such statements
`,unmistakably warned the employees that the security of their em-
ployment" depended upon the continuance of the A. F. L.'s majority
and the defeat of the C. I. 0., and the coercive nature and effect of such
statements are "self-evidence" and are not removed from the "ambit
of the Act" by any fear of loss of business which Crook might have
anticipated and from the C. I. O.'s successful organization of the re-
spondent's employees.9
Several further meetings were held between representatives of the C I. 0 and the
respondent , without change insofar as the recognition question was concerned. In No-
vember 1944 , at the suggestion of a representative of the Conciliation Service of the
United States Department of Labor , the matter was referred to the National War Labor
Board, and a hearing was subsequently held. At the time of the hearing before the Trial
Examiner , however , no decision had been issued by that tribunal.
Matter of A. J. Showalter Company, 64 N. L. R. B 573.
s In this connection , we observe that Cope , the respondent 's superintendent and employ-
ment manager , did not share Crook 's fear that the selection of the C. I O. as the employees'
bargaining agent would result in the destruction of the respondent 's business.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent further contends that Diaz and DeCort, although
conceded to be working foremen, "were" C. I. O. members and that
the respondent should therefore not be charged with their statements.
However, as set forth "above, prior to the time when the'statements
were made the Board had issued a decision in the representation pro-
ceeding, excluding working foremen from the appropriate unit.
Moreover, we find, as did the Trial Examiner, that the C. I. O. then
dropped Diaz and DeCort from membership.
The respondent also contends that Buck was not its foreman, but
an independent contractor for whose statements it should not be
charged. However, we find, as did the Trial Examiner, that, regard-
less of Buck's actual relationship to the respondent, the respondent
had acted in such manner as to lead its employees reasonably to re-
gard Buck as one of its foremen 10 Under such circumstances, the
respondent is chargeable with Buck's anti-C. I. O. statements."
For the reasons indicated above, we find the respondent's conten-
tions without merit. On the entire record, and particularly in view
of the foregoing coercive and' anti-C. I. O. statements and conduct of
Crook, Cope, Schmidlin, Diaz; DeCort, and Buck, we find, as did the
Trial Examiner, that the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
B. The alleged discriminatory lay-offs
The Board's complaint alleged that the respondent discriminatorily
laid off or discharged nine named employees 12 on or about April 29,
'1944, and a tenth employee, Margaret Fahlbusch, on or about
October 1, 1944.
With respect to the first nine named employees, counsel for the
Board conceded at the hearing before the Trial Examiner that their
lay-off was not discriminatory. In his Intermediate Report, the Trial
Examiner, although stating that he entertained some doubt as to the
respondent's good faith in making the lay-offs, found that the lay-off s
did not constitute an unfair labor practice. The C. I. O. filed no
exceptions to this finding.
'
With respect to Fahlbusch, the record shows that her lay-off oc-
curred on November 15, 1944, and that it was due to lack of material,
as Fahlbusch admitted at the hearing. The Trial Examiner in his
10 This is especially apparent from the respondent ' s conduct with respect to the com-
plainants, hereinafter more fully set forth in Section III, C
"See International Association of Machinists v. N. L R. B, 311 U. S. 72, 80 See
also Triplex Screw Co v. N. L. it. B, 117 F ( 2d) 858 ( C. C. A 6 ), mod'g and enf'g 25
N L. R B 1126 ; Atlas Underwear Co. v. N. L. it. B, 116 F. (2d) 1020(C. C. A. 6),
mod'g and enf'g 18 N L. R. B 338.
12 Ouida Ryan , Arthur Kierstead , Doris Wheeler , Verna Ryan , Nellie Giberson. Paul
Heidtman , Ruth Ryan , Grace Morris , and Henry Lau.
TOLEDO DESK & FIXTURE COMPANY 1093
Intermediate Report did not find that this lay-off was an unfair labor
practice; and the C. I. O. filed no exceptions in this respect.
On the entire record, we find that the respondent did not violate the
Act by laying off any of the employees named in the complaint.
C. Discriminatory failure to reinstate the laid-off employees
The complaint further alleged, and counsel for the Board contended
at the hearing, that the respondent's refusal to reinstate the named
employees after their aforesaid lay-offs was discriminatory. The re-
spondent does not dispute that it failed or refused to reinstate them,
but alleges that it did so for cause.
(1) Chronology of events prior to April 08, 1944
Ouida Ryan answered a help-wanted advertisement of the respond-
ent on April 1, 1943, and was interviewed by Cope, the respondent's
superintendent and personnel and employment manager. Upon learn-
ing that Ryan had punch-press experience, Cope, according to his
own testimony, told her that Buck, who "operated the steel shop," was
"interested in a girl of her type" and that "we could use her back there."
(Emphasis added.) Cope thereupon told her that she was hired, took
her to an office where an employee made out a card for her, and then
brought her to Buck's department, located in an annex attached to the
rear of the respondent's main building, and said to Buck, "Buck, here
is a girl for you." 13 Buck then assigned her to work on a punch press,
and on subsequent occasions also assigned her to spot welding. About
the middle of April 1943, Cope told her that her wage rate would be
70 cents per hour at the start, would increase 5 cents per hour after 30
days, and would increase another 5 cents per hour when she joined the
A. F. L.'4 Shortly thereafter, Cope transferred her for a short time to
the second floor of the respondent's main plant. While the record is
not entirely clear, it appears that Ryan was retransferred to Buck's
department, where she continued until about the middle of June 1943,
at which time Cope again transferred her, on this occasion to Foreman
Heidtman's department on the first floor of the respondent's main
plant. After a number of weeks under Heidtman, Ryan asked Crook,
the respondent's president, for some time off or a release so that she
could be with her husband. Crook refused on the ground that she was
needed and could not be replaced; instead, he transferred her to
Foreman Diaz's department on the third floor of the main plant.
"Cope, according to his own admission , said nothing to Ryan to the effect that it was
Buck and not the respondent who was employing her
'" As related above, the respondent's contract with the A. F L required A F L member.
ship of all employees , with minor exceptions not here involved , who had been employed
by the respondent for more than 90 days.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About August 1, 1943, Production Manager Sch.nidlin, upon being
advised by Buck that he needed her again, transferred her back to
Buck's department. Shortly thereafter, she asked Buck for a wage in-
crease. Buck replied that she would have to discuss the matter with
Cope. She then asked Cope for a raise, and was told by Cope that she
would first have to join the A. F. L.15 Ryan accordingly joined the
A. F. L. and forthwith received a wage increase. Thereafter, she
acted as a member of the A. F. L.'s grievance or shop committee which
met with management, pursuant to the May 1943 agreement, and later
became a stewardess and finally the vice president of the A. F. L.
Early in the fall of 1943, as on several other occasions when a Govern-
ment contract was completed, the respondent held a celebration in its
office, at which Crook gave Ryan a flower and a card of appreciation
for her efforts in rushing the contract to completion. In November
1943, when part of Buck's department was moved from the annex to a
nearby building, on which the respondent erected a signboard reading
"Toledo Desk & Fixture, Metal Division, Plant No. 2," 16 Ryan was
taken along. In January 1944, Ryan, while vice president of the
A. F. L., asked Cope for a list of employees owing A. F. L. dues. Cope
gave Ryan such a list, which was received in evidence and contained
Ryan's name and also that of employee Kierstead, who was also work-
ing under Buck. '7 , Ryan proceeded to collect all unpaid dues from the
employees, including those working under Buck. Early in February
1944, Crook told the employees working under Buck to stop referring
to their department as "Buck's shop," but to refer to it as the weld or
steel shop. Ryan continued to work under Buck until her lay-off on
April 28, 1944, as discussed below.
In the latter part of February 1944, as set forth above, Ryan and
others commenced organizing the C. I. 0. Ryan joined the C. I. 0. in
March 1944, was one of its most active promoters among the employees,
and became chairman of its shop committee. In the latter part of
March or the first part of April 1944, Ernest Rieger, the A. F. L.'s busi-
ness agent, warned the employees, including those working under
Buck, against joining the C. I. 0. in view of the respondent's union-
shop agreement with the A. F. L. During this period Ryan fre-
quently represented the C. I. 0. in dealings with management and
was threatened by,various management officials with loss of employ-
ment because of her C. I. 0. activity, as discussed above.
Art/zur Kierstead was first employed by the respondent on Novem-
ber 9, 1943, having been hired by Cope. In February 1943, Kierstead
joined the A. F. L. In August 1943, Crook transferred him, at his
15 By this time , Ryan had completed the 90 -day trial period referred to in the respondent's
union -shop agreement with the A F L.
10 The respondent admitted that no emf 1oyees worked in this building except those under
Buck's supervision.
17 The Trial Examiner did not credit Cope's denials in this respect , nor do we.
TOLEDO DESK & FIXTURE COMPANY 1095
request, to the weld shop' under Buck. Buck and Cope admitted that
this transfer was made without a release such as would have been
required at that time under the rules and regulations of the War
Manpower Commission, hereinafter called the W. M. C., had Kier-
stead been changing employers. Kierstead continued working under
Buck until his lay-off on April 28, 1944, as discussed below. In
March 1944, Kierstead joined the C. I. 0., and thereafter wore his
C. I. O. button in the plant.
Doris Wheeler was first employed by the respondent on October 1,
1943. On that date, she was interviewed and hired by Cope, who
told her what her wages and hours of employment would be and
assigned her to work under Buck. The respondent's office girl then
took her out to Buck, who put her to work at spot welding. She
continued working under Buck from the time of her first employment
until her lay-off on April 28, 1944, as discussed below. In March
1044, Wheeler joined the C. I. O. Thereafter, she wore her C. I. O.
button while at work in the plant.
Verna Ryan was first employed by the respondent on March 21,
1944, when she was interviewed and hired by Cope. Cope told her
what her wages would be, and had her taken to Buck, who assigned
her to spot welding. She continued to work under Buck from the
time of her first employment until her lay-off on April 28, 1944, as
discussed below. Soon after going to work, Verna Ryan joined the
C. I. 0., and wore her C. I. O. button in the plant.
Nellie Giberson was first employed by the respondent on October
22, 1943, when she was interviewed and hired by Cope. Cope told
her what her wages would be and assigned her to work under Buck.
She continued to work under Buck from the time of her first employ-
ment until her lay-off on April 28, 1944, as discussed below. In March
1944, she joined the C. I. 0., and wore her C. I. O. button in the plant.
Paul Heidtman was first employed by the respondent on March
20, ^ 1942. He was hired by Cope and was assigned to work under
Foreman DeCort. After 5 or 6 months, Cope sent Heidtman to help
the Toledo Showcase Company work on some cots which it was
making for the respondent. At the expiration of about 21/2 months,
Heidtman returned to work for the respondent. He was an experi-
enced "sticker" machine operator, a highly skilled job. On one oc
casion, Crook sent Heidtman to Detroit, Michigan, to look at a
"sticker" machine that the respondent contemplated purchasing. In
September 1943, when one of the respondent's foremen quit, Heidtman
was promoted to the vacated foremanship. Heidtman was a member
of the A. F. L. when first hired by the respondent,. and remained a
member until about March 1944. In the early part of April 1944,
Heidtman was demoted to a non-supervisory position, but continued
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the respondent's employ with a brief exception until his lay-off on
April 28, 1944, as discussed below. During this period, Heidtman
wore his C. I. O. button in the plant, acted on the C. I. O. grievance
committee, and participated in certain other concerted C. I. O. activ-
ities which came to the respondent's attention.
Ruth Ryan was first employed by the respondent on June 1, 1943.
She was hired by Cope and was assigned to work under Foreman
DeCort. Her employment by the respondent continued until her lay-
off on April 28, 1944, as discussed below. In March 1944, Ruth Ryan
joined the C. I. O. She was very active in the C. I. O. organizational
campaign, became a member of the C. I. O. grievance committee, and
wore her C. I. O. button in the plant.
Grace Morris was first employed by the respondent on May 28, 1943,
worked until June 12, 1943, was again employed by the respondent
on March 28, 1944, and continued to work for the respondent until
her lay-off on April 28, 1944, as discussed below. In March 1944,
Morris joined the C. I. O. In addition, she was related to two active
C. I. O. employees, being the step-daughter of Ruth Ryan, who in
turn was the sister-in-law of Ouida Ryan.
Henry Lau was hired in October 1943, as the respondent's only mill-
wright and machine repair or maintenance man. He worked at this
task throughout the respondent's plants, including the departments
supervised by Buck, until his lay-off on April 29, 1944, as discussed
below. In March 1944, Lau joined the C. I. 0., and became active in
its organizational campaign. On April 29, 1944, Crook laid him off,
after threatening to close the plant before having anything to do
with the C. I. O.
(2) Chronology of events on and after April 28, 1944
On Friday, April 28, 1944, the respondent posted copies of the fol-
lowing notice throughout its plants: 18
4-28-44
TO ALL OF OUR EMPLOYEES
AS YOU KNOW FOR OVER 2 YEARS WE HAVE BEEN
EXCLUSIVELY ENGAGED IN WAR PRODUCTION.
THROUGH THE LOYALTY AND FINE COOPERATION
OF ALL CONCERNED, WE MADE A FINE RECORD. WE
HAVE PREPARED AND SUBMITTED TO THE GOVERN-
MENT QUITE SOME TIME AGO DRAWINGS AND
1S A clerk in the respondent ' s office gave a copy of the notice to Buck, who had it duly
posted for the employees working under him. According to Ouida Ryan's credible testi-
mony , Buck did not explain the reason for the lay off other than by saying that it was
"Crook' s orders."
TOLEDO DESK & FIXTURE COMPANY 1097
SAMPLES FOR WHICH WE HAVE ASKED THEIR
APPROVAL.
WE HAVE ALL EXPECTED TO RECEIVE THIS OK
LONG BEFORE THIS, SO WE COULD PLACE PUR-
CHASE ORDERS FOR THE MATERIAL WE WILL NEED
TO FILL THESE ANTICIPATED ORDERS. TO DATE, IN
SPITE OF OUR PERSISTENT EFFORTS AND PERSONAL
CALLS, WE HAVE NOT RECEIVED ANY "GO AHEADS."
THIS IN TURN HAS PREVENTED US IN PLACING PUR-
CHASE ORDERS FOR MATERIALS WE HAVE NEEDED
TO FILL THE ANTICIPATED ORDERS.
AS A RESULT WE REGRETFULLY FIND IT NECES-
SARY TO LAY OFF OUR EMPLOYEES FOR REASONS
OVER WHICH WE HAVE NO CONTROL: ALTHOUGH
WE USED OUR VERY BEST EFFORTS TO AVOID ANY
INTERRUPTIONS OF OUR RECORD OF STEADY EM-
PLOYMENT. UNDER PRESENT JOB FREEZING REGU-
LATIONS, YOU WILL BE AT LIBERTY TO ACCEPT
EMPLOYMENT ELSEWHERE IF YOU SHOULD BE
LAYED OFF FOR MORE THAN 7 DAYS. MAY YOU
BEAR WITH US DURING THIS PERIOD OF UNEM-
PLOYMENT.
THE MANAGEMENT
The respondent thereupon laid off most of its employees, including all
those above named except Lau, who was laid off on the following day.19
On the following day, according to Ouida Ryan's undenied and
credible testimony, she returned to the plant and was told by Cope that
lie would let her know when she should return to work, probably in
a few days.
On the next working day, the C. I. O. employees who had been laid
off reported for work as usual, accompanied by C. I.'O. representatives
No Erwin and Ralph Aiello, and also by Robert Stewart, a I'epre-
sentative of the Conciliation Service of the United States Department
of Labor. According to uncontradicted and credible testimony given
both by Erwin and by several employees, Cope told them that the lay-
off was for lack of work, assured them that they would be called back
according to seniority, and said nothing about not recalling the em-
ployees who had been working under Buck. When Aiello asked Cope
to give a temporary release marked "subject to recall" to any laid-off
employee who needed employment before the respondent should • call
19 According to Crook ' s testimony , which we, like the Trial Examiner , find credible in
this respect , there were approximately 140 employees at the time of the lay - off. Approxi-
mately 21 employees were not laid off Heidtman was subsequently recalled to work for s
few days and was finally laid off on May 0
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOAIIYi
him back to work, Cope agreed to do so in order that the employee
could secure employment elsewhere within the rules and regulations
of the W. M. C. Further, according to Erwin's uncontradicted and
credible testimony, there were three or four subsequent discussions
about reinstating the laid-off employees, during which both Crook and
Cope stated that the respondent would recall them in accordance with
their seniority.
On or about May 6 and thereafter, pursuant to the statement in
the lay-off notice that "under present job freezing regulations" the
laid-off employees were "at liberty to accept employment elsewhere
if . . . laid off for more than 7 days," many of the laid-off employees,
including Heidtman, Ruth Ryan, Morris, Lau, and some of the em-
ployees who had been working under Buck, requested and received
releases from the respondent. Many of the releases bore Cope's addi-
tional notation, "subject to recall," in accordance with the promise he
had made to that effect at the May 1 meeting.20
On or about May 8, 1944, C. I. O. representative Lawrence N. Stein-
berg, went to the plant with Conciliator Stewart, Ouida Ryan, and
another employee, and conferred with Crook concerning the rein-
statement of the laid-off employees. According to Steinberg's un-
contradicted and credible testimony, Crook assured the group that as
soon as work was available the laid-off employees would be reinstated
on the basis of a seniority list which, Crook showed Steinberg, was
posted on a bulletin board. Crook admitted that the list contained
the names of all the complainants.'
In the latter part of May 1944, the respondent received a letter from
the Maritime Commission, approving the drawings and samples re-
ferred to in the lay-off notice and authorizing and directing the re-
spondent to proceed with the two or three contracts involved. The
respondent immediately began work on the contracts, necessitating
the employment of some 30 employees, and did not complete the con-
tracts until the following September.
On June 8, 1944, representatives of the respondent, the C. I. 0., the
A. F. L., and the Board attended a meeting at the Willard Hotel in
Toledo, Ohio, for the purpose of making arrangements for the afore-
mentioned representation election to be held on the following June 21.
Early in the meeting Henry Bloch, the respondent's attorney, claimed
that Ouida Ryan was not an employee of the respondent according
to information given him by Crook; that, on the contrary, she was an
employee of Buck; and that she was therefore ineligible to vote in
the pending election. C. I. O. representative Steinberg disputed
Bloch's claim, pointing out that Crook had never before refused to
0
20 Subsequently , however, some of the employees who had obtained such releases found
that because of the conditional nature of the releases they were unable to secure other
employment, and they therefore requested unconditional releases from the respondent.
TOLEDO DESK & FIXTURE COMPANY 1099
recognize her as an employee of the respondent in all his dealings with
her as an individual or as a representative of the A. F. L. or the
C. I. 0.; and the Board representative pointed out that her name
appeared on the last pay roll furnished by the respondent. Crook re-
plied that 1 or 2 days after the May 8 meeting, described above, the
clerks who had prepared the seniority list, which was posted at that
time by the respondent, told him that they had made an error in in-
cluding the names of the employees working under Buck and that
such employees were not on the respondent's pay roll. However,
Crook admitted at the hearing before the Trial Examiner that he
had never made-such a claim to the A. F. L. or the C. I. O.
Apparently at about this time, although the occasion is not precisely
dated in the record, Crook said to C. I. O. representative Erwin that
Ouida Ryan "would never work there again." At about the same
time, Cope, who in the latter part of May 1944 had sent Ouida Ryan to
the American Swiss Company for employment during her lay-off,
telephoned to that company and threatened to "turn [them] over to
the War Labor Board" .for employing her, unless she were to request
a release from the respondent. Ryan, on being advised by that com-
pany that because of Cope's threat it would have to lay her off unless
she asked the respondent to release her, telephoned to Cope to ask
him why he had done that to her, inasmuch as she had to work some
place during her lay-off. Cope's reply was that he was "told" to do
it, that it was not his fault, and that he depended on his employment
for a living just as she did. We find that the clear inference from
Cope's reply is that he was acting on Crook's order. When Ryan
refused to request the respondent to release her, the American Swiss
Company laid her off.
On or about June 25, 1944, the respondent received a letter from
the Regional Director, stating in part that the C. I. O. had filed
charges alleging that the respondent had discriminatorily refused to
recall Ouida Ryan, Heidtman, Ruth Ryan, Morris, and other laid-off
employees. The respondent was thus advised that such employees
still desired resinstatement, despite the releases they had obtained
from the respondent and their possible employment elsewhere.
On or about July 7, 1944, Ouida Ryan again went to the plant and
asked Crook for reinstatement. Crook replied that she was Buck's
employee and not the respondent's. She then asked Crook why em-
ployees of the respondent had been put to work at her former posi-
tion on the punch press. Crook's reply was that she should ask
Buck. When she did so, however, Buck replied that he could not
help it and that it was Crook who put the employees in her place.
Seeing the futility of hoping for reinstatement by the respondent,
she then asked the respondent to release her so that she could get back
her job with the American Swiss Company. However, Cope refused
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to sign a release for her and referred her to Buck. She then asked
Buck for a release, and Buck gave one to her. In reliance on Buck's
release, the American Swiss Company reinstated her, without objec-
tion by the respondent so far as the record shows.
On a day in July 1944, not further specified in the record, the
respondent discharged employee Helen Swartz, who at that time was
the shop chairman of the C. I. O. The C. I. O. immediately organized
a protest strike and picket line, in which Ouida Ryan, Giberson,
Wheeler, and other employees participated.21 Swartz was reinstated
as a result of this concerted activity.
Although the respondent had repeatedly agreed to recall its laid-
off employees in accordance with their seniority, its own evidence
clearly shows that it refused to do so in the case of the above-named
complainants. This evidence consists of a list prepared by the
respondent during the course of the hearing, ostensibly naming the
employees laid off in April 1944 and the date when each was first
hired and when he was rehired after the lay-off. Like the Trial
Examiner, we find this list incorrect and incomplete in some respects.
The respondent therein admits, however, that it rehired at least 4
laid-off employees in May 1944, 6 more in the following month of
June, 4 more in the month of July, and 11 more during the remainder
of the calendar year; and the record shows and we find that these
rehired employees had less seniority than the complainants. Thus,
of the total of 25 employees rehired, 6 had less seniority than Verna
Ryan; 8 had less seniority than Giberson; 10 had less seniority than
Lau; 12 had less seniority than Wheeler; 19 had less seniority than
Ruth Ryan and Morris; 21 had less seniority than Ouida Ryan; and
all, 25 had less seniority than Kierstead and Heidtman. Other evi-
dence in the record shows, and we find, that the respondent's em-
ployees generally did not have job classifications, that they were quali-
fied to perform most of the respondent's operations, and that where
necessary the respondent trained them to this end; there is no evidence
to show that the above-named complainants were unable to fill satis-
factorily the positions actually filled by the rehired employees. Ac-
cording to the uncontradicted and credible testimony of Marguerite
Fahlbusch, who had less seniority than 5 of the complainants but wa"s
nevertheless recalled on August 3, 1944, she estimated of her own
knowledge that about 10 or 15 employees, with less seniority than
she had, were working in the plant as regular employees on her
return.22
In addition to recalling employees with less seniority than the com-
plainants, the respondent hired new employees after the lay-off. On
August 7, 1944, according to the list referred to above, the respondent
21 Some of the participating employees were still laid off at this time
22 Marguerite Fahlbusch is the sister -in-law of complainant Margaret Fahlbusch
TOLEDO DESK & FIXTURE COMPANY 1101
hired a new employee on its regular pay roll. According to Cope,
the respondent employed at least 11 new regular employees since the
April lay-off. Further according to Cope, the respondent had even
sought on several occasions to employ prisoners of war, and had been
advertising for help with the same qualifications as were possessed
by the complainants. However, the respondent introduced no credi-
ble evidence into the record to show why it failed and refused to recall
the complainants or precisely when it would have done so if it had
fulfilled its agreement to adhere to seniority as the basis for recalling
them.
Margaret Fahlbusch, whom the respondent had laid off on or about
November 15, 1944, applied to the respondent for reemployment on
November 27, 1944. She had been hired by the respondent on August
10, 1943, and assigned to work under Foreman DeCort. In about
October 1943, Production Manager Schmidlin transferred her to work
under Buck.. After about 2 months she was retransferred to DeCort,
and was subsequently transferred to work under Foreman Diaz, where
she continued to work until she was laid off in the general April 1944
lay-off discussed above. Cope recalled her to work toward the end of
July 1944, and assigned her to Foreman Diaz. Thereafter she was
again transferred to work under Buck for a brief period, but was
working in the respondent's assembly line on November 15, 1944, when
she was laid off for lack of material, as related above.
Fahlbusch expanded her C. I. O. activity after she was recalled to
work in July 1944,23 by becoming a shop steward, spokesman for the
grievance committee, a member of the C. I. O. negotiating committee
which met with Crook after the Board's certification, and chairman
of the C. I. O. shop committee after the respondent laid off Swartz.
It was after Fahlbusch's recall that the respondent, through Foreman
Diaz, questioned her about the C. I. O. and told her it could get rid of
C. I. O. employees, as found above.
♦ On November 27, 1944, 12 days after her lay-off, she went to the
plant and asked Cope, whether there was any work for her yet.24 Ac-,
cording to her credible testimony, Cope answered in the negative, and
added that he did not know when there would be any work for her .215
Fahlbusch then told Cope that she had to have work, and asked for a
release so that she could get employment elsewhere. The respondent
readily gave her the requested release. Within the hour, however,
Cope telephoned Fahlbusch's sister-in-law, Marguerite Fahlbusch,
23 Fahlbusch was one of the original C I. 0 organizers in February 1944, joined the
C. I 0 in March 1944, and acted as a member of the grievance committee The record
indicates , however, that she was not exceptionally prominent on behalf of the C. I. 0. prior
to her recall
x4 Fahlbusch had previously telephoned to Cope on the day after her Iay-or and every
day or two thereafter, to ask when she should report back to work. Cope always gave her
a vague and indefinite answer
21 Like the Trial Examiner , we do not credit Cope 's denial of this testimony.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had also been laid off 12 days earlier, and recalled her to work.
According to complainant Margaret Fahlbusch's uncontradicted and
credible testimony, she and her sister-in-law were both on the assembly
line prior to their lay-off ; her own task was to hang doors on the cabi-
net, while her sister-in-law's task was to put the bottoms on the cabi-
net; and so far as she knew there was no reason why the respondent
refused to put her to work when it recalled her sister-in-law, inasmuch
as the respondent apparently had the material which enabled the as-
sembly line to resume operation. Moreover, the evidence shows that
complainant Margaret Fahlbusch's former task of hanging doors on
the cabinet was being performed by another employee at the time of the
hearing; that after November 27, 1944, the respondent reinstated at
least two other laid-off employees with considerably less seniority; and
that it hired a new employee by the name of Rieger as late as February
1, 1945, and assigned her to work on cabinets on the assembly line.
None of the 10 laid-off employees discussed above was-subsequently
reinstated by the respondent.
(3) The respondent's contentions
In its brief before the Board the respondent principally contends,
with respect to the first five-named employees,2S that they were not
its employees but were employees of Buck, allegedly an independent
contractor and not a supervisory employee of the respondent, and
that it was therefore "under no obligation or duty of any kind to recall
them to work." There is no merit to this contention. It is true, as the
respondent points out, that Buck has not been on its pay roll as an
employee since 1942, although he was on the pay roll for the preceding
10 years; that for the last 3 years Buck has, been performing metal
work for it, only on order or contract, at a fixed sum, out of which he
pays the wages of his alleged employees and other expenses; 24 and that
Buck made the necessary reports to the United States Government
respecting the Social Security and withholding taxes of the employees
working under him, and to the State of Ohio respecting workmen's and
unemployment compensation covering them. It is clear, however,
from the facts set forth above and particularly from our detailed
findings respecting Ouida Ryan's employment, and like the Trial
Examiner we find that, regardless of Buck's precise relationship to
the respondent, the above-named employees were and are employees
26 Oulda Ryan, Kierstead , Wheeler, Verna Ryan, and Giberson.
27 The respondent furnished Buck with telephone , loud speaker , washroom , and hiring
service , as well as occasional typewriting and office services , and permitted the employees
working under Buck to use its time clock and a section of its time -card rack , all free of
cost to Buck . In addition , Buck , although occupying premises rented by the respondent
and using some of the respondent ' s equipment , had no written agreement or sublease
covering.such premises and equipment.
TOLEDO DESK & FIXTURE COMPANY 1103
of the respondent.-" Thus, the record shows that prior to the April
1944 lay-off, the respondent clearly asserted the right of control over
the employees working under Buck in substantially the same fashion
as over the employees working under its admitted foremen; it hired
applicants for work and assigned then to Buck; it determined their
wages and when they should receive increases; it included then in
morale-boosting celebrations tendered to its own employees; and it
exercised the right to transfer them to its own admitted departments
and back to Buck's department without the W. M. C. release which
would have been required for transfers involving a change of employ-
ers. As further evidence that it considered such employees as its own,
it required Ouida Ryan and other employees working under Buck to
join the A. F. L. pursuant to its union-shop agreement with that organ-
ization, and it met on many occasions with an A. F. L. shop committee
which included Owda Ryan, although she was then working under
Buck and although the agreement limited the personnel of the shop
committee to the respondent's own employees.29 Still further evidence
to this effect is furnished by Cope's admission at the hearing before
the Trial Examiner that on April 25, 1944, at a prior hearing in the
representation case, he had included the employees working under
Buck in the total number of the respondent's employees whose repre-
sentation was in question. While there is some evidence tending to
show that Buck was an employer, Buck explained to the employees
working under him that the reason for trying to make the respondent
and himself appear to be separate employers was to enable the
respondent to obtain a greater number of government contracts, and
advised them to attach no significance to such matters.
Although the respondent sought to divorce itself from the enlplcyees
working under Buck after the April 1944 lay-off, as shown partieulaily
at the aforesaid meeting on June 8, 1944, we find that the respondent's
effort was an afterthought and did not operate to change the status of
28 See Matter of Butler Brothers, et al , 41 N L R B 84.1, enf'd (w ith immaterial niodi8-
cation) 134 F (2d) 981 (C C A 7) cert denied, 320 U S 789 See also Matta of Gen-
eral Motors Corporation (Pastern Aircraft Ditiision), 60 N L R B 81 . Matter of Piogress
Lithographing Compan y, Reading Machine Company Dii.ision, 59 N L It B 691 , Matter of
Bethlehem-Fairfield 87ripuard, Incorporated, and Al rC ill Restaerunt CpeiatwW Company,
Ine.-53 N I. R B 1428
'" We are not nnmindtul of certain testimony of witness Taylor, pointed out by the
reopondent in its brief, that the employees working for Buck were "out of our [the
A F L 1 rnn,iliction. because that was a metal trade at that time" But Taylor went
on to explain this testimony by adding that it was the A P L's intention to cover all
the eniplo'ces of the plant, whether they worked in Buck's department or any other
department "without any exceptions." and that the A F L insisted that the respondent
require all employees working under Buck to join that orcanization pursuant to its union-
shop agreement We are also mindful of other testimony of witness Link that the
agreement did not cover "any employees of Mr Buck" But Link went on to expl,nn
this testimony by adding that to the best of his knowledge Buck had no employees at the
time the agreement was negotiated ; and he further testified that from November 1943 to
1'ebi uarv 1944, inclusive. Ouida Ryan, one of the employees working under Buck, was a
membei of the shop committee, which by agreement was limited to employees of the
.ieepondent, and that the agreement did not "leave Mrs. Ryan out."
679100-46-vol 03---71
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of its employees. Nor can we credit the respondent's purported
explanation of the inclusion of the names of these employees on the
seniority list posted in the plant on May 8, 1944, as an "error," in view
of its inclusion of these names on an earlier list of employees for the
week ending March 23, 1944, and further in view of the respondent's
other testimony that it kept no record whatsoever of the persons
employed by Buck. Moreover, there is no credible evidence that
Crook disputed the statements of Steinberg and the Board's repre-
sentative at the June 8 meeting to the effect that the employees work-
ing under Buck had never before been dealt with by the respondent
other than as employed by it. We find further that the respondent's
failure and refusal to reinstate the complainants was not motivated
by any bona fide belief that they were employees of Buck and that the
respondent was therefore not obligated to reinstate them.
With respect to these five employees, the respondent also points out
in its brief before the Board that Buck virtually "ceased business" for
the respondent after the April 1944 lay-off. The facts set forth above
show, however, that the respondent had freely transferred employees
from Buck's departments to other work stations in the past; that on
several occasions it transferred Ouida Ryan and Kierstead in this
way; that the employees were generally able to fill several positions,
being so trained by the respondent if necessary; and that the general
practice of transferring employees was not rebutted with respect to
those of the five employees not shown to have been actually transferred
by the respondent in the past.30 Moreover, the record indicates that
some work was performed in Buck's departments after the lay-off.
Accordingly, we find no merit in this contention.
With respect to the remaining employees,sl the respondent in its
brief before the Board contends principally that, regardless of the
actual significance of the releases obtained by them after their lay-off,
it "felt it was prohibited by law from recalling these individuals"
under the W. M. C. rules and regulations then in effect, "unless" the
employees were first released by their new employer. This contention
as to the respondent's motive for not recalling these employees is un-
80 See N L R . B. v. Remington Rand, Inc , 94 F. (2d ) 862, 872 ( C C. A. 2), in which
the Court , in considering the question of the company ' s obligation to reinstate at its
Elmira plant unfair labor practice strikers formerly employed at another plant, stated
as follows :
. . . it seems to us certain that some at least of the old employees would have
been taken over [to the Elmira plant , had there been no illegal company hostility
because of the strike ] ; seasoned men are better than green hands , and we are
not to impute to the respondent [ company] the unlawful purpose of discriminating
against union men. The respondent [company] could indeed have shown that there
were good reasons-aside from the effort to rid itself of the union-for not taking
some of its workmen to Elmira ; but those reasons lay exclusively within its own
knowledge . That being true, it is surely reasonable to raise a presumption against
it, even though the burden remained upon the Board . For this reason the order was
right in including the Elmira plant.
ei 13eidtman , Ruth Ryan , Morris, Lau, and Fahlbusch.
TOLEDO DESK & FIXTURE COMPANY 1105
supported by any credible evidence in the record. The respondent
further contends that by requesting releases these employees "volun-
tarily quit" and thus terminated their status as laid-off employees
subject to recall. This contention is likewise withouth merit. As
we have previously held '32 the mere acceptance of a release by a laid-off
or striking employee does not sever his employment status, since he had
to have such a release in order to secure even temporary employment
elsewhere. Moreover, Cope admitted that the respondent had re-
called another laid-off employee whom it had previously released, and
that the employee then carne back to work for the respondent upon
getting a release from his new employer; and he further stated that
laid-off employees had a duty to "go to work somewhere," rather than
remain idle. In addition, whatever the respondent may have thought
originally about the significance of the releases secured from it, it
learned toward the end of June 1944 that the released employees had
not abandoned their claim for reinstatement, in view of a letter from
the Regional Director stating that the C. 1. 0. had filed charges alleging
a discriminatory refusal to recall Heidtman, Ruth Ryan, Morris, Lau,
and certain other laid-off employees. And at about the same time one
of the released employees, Ruth Ryan, telephoned Cope, specifically
asked for reemployment, and complained that the respondent had
already rehired a "lot" of laid-off employees with less seniority than
she had. Cope replied merely that the respondent was not hiring
"right now," asked Ryan why she was calling him if she knew that the
respondent had rehired employees with less seniority than she had, and
finally said that he would call her as soon as the respondent should get
work. As for Fahlbusch, she did not ask for her release until after
the respondent had refused her request for reinstatement on November
27, 1944; and the respondent's refusal thus cannot be attributed to her
request for a release. Accordingly, we find no merit in the foregoing
contentions. We find further that the respondent's failure and refusal
to reinstate the complainants was not motivated by any bona fide belief
either that W. M. C. regulations prevented it from recalling the com-
plainants or that the acceptance of releases severed their employment
relationship.
With respect to Lau, the respondent also contends that it refused
to recall him because it had no work available for him.. The evidence
shows that Lau, unlike the other employees here involved, was a
highly skilled maintenance worker and that his, relatively high wage
rate precluded his employment as an ordinary employee. According
to Crook's uncontradicted testimony, which we find credible in this
respect, the respondent did not hire anyone after Lau's lay-off to per-
form his duties; it had no need for such an employee up to the
32Matter of Republic Steel C?rporation, 62 N. L. R. B. 1008 ; Matter of Fairmont
Creamery Company, 64 N. L. R. B 824.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time of the hearing; and it did not contemplate hiring anyone for
such a purpose until it should "have more work than we have at
present ." We are satisfied that the work which Lau performed prior
to his lay-off did not thereafter become available up to the time of
the hearing . It follows that upon the present record the respondent
has not yet refused to recall Lau. Accordingly , we find merit in the
respondent 's exception to the Trial Examiner 's contrary finding, and
shall dismiss the complaint insofar as it alleges that the respondent
discriminated against Lau.
(4) Conclusions
The precise issue before us in this case is whether or not the re-
spondent discriminated with respect to the hire and tenure of em-
ployment of the complainants to discourage membership in the
C. I. 0.: (1) by refusing to recall Ouida Ryan, Kierstead, Wheeler,
Verna Ryan, Giberson, Heidtman, Ruth Ryan, and Morris, after
their lay-off in April and May 1944, although it. had agreed to do so
in accordance with their plant seniority and although at the same
time it was recalling other laid-off employees with less seniority and
was also hiring new applicants; and (2) by refusing to reemploy
Fahlbusch upon her application for reinstatement on November 27.
1944. The respondent does not contend that its refusal resulted from
a lack of work which the above-named complainants could perform
satisfactorily, or that it assigned such work only to laid-off employees
with greater seniority. On the contrary, the record shows that suit-
able work did become available for the above complainants, and that
the respondent nevertheless rejected them in favor of employees with
less seniority, new applicants, and prisoners of war. The record fur-
ther shows that in a collective bargaining agreement with the A. F. L.,
which was in effect at the time of the April 1944 lay-off, the respond-
ent undertook to recall laid-off employees in accordance with their
seniority, and that the respondent on several subsequent occasions
reiterated to various C. I. O. representatives and others that it
intended to recall them on this basis.
On the entire record, and in view of the respondent's effort to excuse
its refusal to reinstate the complainants by advancing alleged ex-
planations which we found in the preceding subsection were unsup-
ported by the record or otherwise without merit, we agree with the
Trial Examiner that the respondent failed and refused to reinstate the
complainants because of their C. I. O. membership and activities and
in order to discourage membership in the C. I. O. The respondent
was plainly hostile to the C. I. O. as the representative of its em-
ployees, and embarked upon a deliberate and sustained course of
action to defeat that organization by threats and other stratagems,
TOLEDO DESK & FIXTURE COMPANY 1107
as related above. All the complainants were C. 1. 0. members and wore
C. I. O. buttons at work; five of them were° among the C. I.O.'s original
organizers ; two of them were on the C. I. O. shop committee which met
with management ; and one, Ouida Ryan, was the most active of all
the C . I. O. adherents , thereby becoming the target, not only of sev-
eral threats of reprisal by various management representatives while
she was still working , but also of actual reprisal by the respondent in
assigning her work to other employees after her lay-off . Significantly,
President Crook had repeatedly stated before the lay-off that he would
close the plant if the C. I. O. were to come in. At the time of the lay-
off, Crook had told employee Lau that he was considering closing the
plant because of the C. I. O. After the lay-off Crook, in fulfillment of
his earlier threat that Ouida Ryan would be sorry if she organized
the C. 1 . 0., replaced her with other employees , told C. I. O. representa-
tive Erwin that she "would never work there again ," and went so far
as to induce another company , where Cope had secured employment
for her during her lay-off, to dismiss her until she asked the respondent
for a permanent release. When C. I. O. activity continued , despite
Crook's hostile campaign , and the employees selected the C. I. O. as
their statutory bargaining agent , Crook refused to honor the Board's
certification '33 and continued his fight against the C. I. O. by char-
acterizing the September 1944 lay-off of Swartz , the C. I. O. leader, as
the "end of the C. I. O."
The respondent contends that any possibility of a discriminatory
motive for its refusal to reemploy the complainants is disproved by the
fact that it did reemploy some C. I. O. employees after the April 1944
lay-off. We find no merit in this contention . Although five C. I. O.
employees ( Marguerite Fahlbusch , Wright, Wing, Swartz, and Mar-
garet Fahlbusch ) were recalled after the lay-off, the record does not
show that these five employees had been prominent in the C. I. 0.,
or that the respondent believed that they would continue to be active
in. that organization after its plainly expressed threats and reprisals.
Thus , Marguerite, Fahlbusch had never taken an active part in the
C. I. O., and did not even begin to pay clues until after she was recalled;
the record is silent as to Wright's C. I. O. activity until after her re-
call, and thereafter the respondent laid her off for a day for acting
as a C. I. O. observer at the Board election; the record is silent as to
Wing's C. I. O. activity; Swartz. while one of the C. I. O.'s original
organizers , not only refused to stop her C. 1 . 0. activity after her recall,
but on the contrary expanded it by stepping into the role of the laid-off
Ouida Ryan as the C. I. O.'s leader, whereupon she was laid off with
Crook's remark that it would be the "end of the C. I.O." ; and Margaret
' The C I 0 did not charge and the complaint did not allege a refusal to bargain
collectively within the meaning of Section 8 (5) of the Act, and we make no such
finding
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fahlbusch, who like Swartz was one of the C. I. O.'s original organ-
izers, likewise, persisted in her C. I. O. activity after being recalled,
participating in the C. I. O.'s abortive attempt to secure from the re-
spondent the exclusive recognition to which the Board certification
entitled it, and subsequently succeeeding the laid-off Swartz as the
employee leader of the C. I. 0., whereupon she too was laid off and
refused reinstatement when work became available. Moreover, the
Act forbids an employer from discriminating against any of his em-
ployees, even if he shows that he knowingly refrained from discrimi-
nating against others.'
We find, as did the Trial Examiner, that the respondent discrim-
inated in regard to the hire and tenure of employment of Ouida
Ryan, Arthur Kierstead, Doris Wheeler, Verna Ryan, Nellie Giber-
son, Paul Heidtman, Ruth Ryan, and Grace Morris by failing and
refusing to recall them to work in fulfillment of its agreement to do
so in accordance with their plant seniority after their lay-off in April
and May 1944; that the respondent discriminated in regard to Mar-
garet Fahlbusch by refusing to reinstate her on November 27, 1944;
and that the respondent thereby discouraged membership in the
C. I. O. and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed 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 affecting commerce, we shall order the re-
spondent to cease and desist from engaging in such practices, and,
for the reasons hereinafter set forth, from in any other manner inter-
fering with, restraining, or coercing its employees in the exercise of
their statutory rights. The respondent disclosed a purpose to defeat
self-organization among its employees generally, by stating repeatedly
that it could not continue in business if the employees selected the
C. I. O. as their representative, by threatening them with reprisals
84 See, e. g. Matter of Stewart Warner Corporation, 55 N. L. R. B. 593, 610, where we
stated that "a complete house cleaning of union members and supporters is not essential
to a finding that some employees have been discriminated against."
0
TOLEDO DESK & FIXTURE COMPANY 1109
and loss of employment if they were to select the C. I. 0., by refusing
to reinstate nine of them because of their C. I. O. activity and to dis-
courage C. I. O. membership'35 and by refusing to accept the C. I.' O.
as the employees' exclusive collective bargaining representative after
the employees had chosen that organization to represent them. We
are therefore convinced that the unfair labor practices found are per-
suasively related to the unfair labor practices proscribed, that danger
of their commission in the future is to be anticipated from the re-
spondent's conduct in the past, and that the preventive purposes and
policies of the Act would be thwarted and the interdependent guar-
antees of Section 7 rendered ineffective unless our order were coex-
tensive with the threat 36
We shall also order the respondent to take certain affirmative action,
which we find will effectuate the policies of the Act. Having found
that the respondent failed and refused to reinstate Ouida Ryan, Kier-
stead, Wheeler, Verna Ryan, Giberson, Heidtman, Ruth Ryan, and
Morris, in accordance with their seniority after their lay-off in April
and May 1944, because of their C. I. O. activity and to discourage
membership in the C. I. 0., and having found that the respondent for
a similar reason-refused to reinstate Margaret Fahlbusch on November
27, 1944, we shall affirmatively order that the respondent offer them
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges. We shall further order that the respondent
make them whole for any loss of pay they have suffered by reason of the
respondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which he normally would have
earned as wages from the date of the discrimination against him to the
date of the respondent's offer of reinstatement, less his net earnings 37
during such period.
However, we expressly reserve the right to modify the back pay and
reinstatement provisions if made necessary by a change of conditions
not appearing in the record, and to make such supplements thereto as
a' Such discrimination , in the language of the Circuit Court of Appeals for the Fourth
Circuit, "goes to the very heart of the Act." N. L. R. B. v. Entwistle Manufacturing
Company, 120 F. ( 2d) 532, 536 . See also N. L. R. B. v. Automotive Maintenance Ma-
chtinery Company , 116 F. (2d) 350, 353 , (C. C. A. 7).
' See N. L. R. B. v. Express Publishing Company, 312 U. S. 426; May Department
Stores Co. v. N. L. R. B., 66 S. Ct. 203 (decided December 10, 1945), 17 L. R. R. 512.
81 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the respond-
ent's unlawful discrimination against him and the consequent necessity of his seeking
employment elsewhere . See Matter of Crossett Lumber Company , 8 N. L. it . B. 440.
Moneys received for work performed upon Federal , State, county, municipal , or other
work-relief projects shall be considered as earnings . See Republic Steel Corporation v.
N. L. R B., 311 U. S. 7.
11
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may become necessary in order to define or clarify their application
to a specific set of circumstances not now appearing.38
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. United Wholesale, Warehouse & Delivery Employees, Local 363,
affiliated with the Congress of Industrial Organizations, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Ouida Ryan, Arthur Kierstead, Doris Wheeler, Verna Ryan.
Nellie Giberson, Paul Heidtman, Ruth Ryan, Grace Morris, and
Margaret Fahlbusch, thereby discouraging membership in United
Wholesale, Warehouse & Delivery Employees, Local 363, C. I. 0.,
the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the. Act.
5. The respondent has not engaged in unfair labor practices with
respect to Henry Lau within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and the entire
record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that the respondent, Toledo Desk & Fixture Company, Toledo,
Ohio, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Wholesale, Warehouse
& Delivery Employees, Local 363, C. I. 0., or any other labor organ-
ization of its employees, by refusing to reinstate any of its employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
organizations, to join or assist United Wholesale, Warehouse & De-
31 See Matter of Fairmont Creamery Company, 64 N. L R . B. 824 . Cf. N. L. R B. v.
New York Merchandising Co., 134 F. ( 2d) 949 (C C. A. 2 ) ; Internatsonal Union v. Eagle
Picher Mm ng t Smelting Co, 65 S Ct 1166.
TOLEDO DESK & FIXTURE COMPANY
livery Employees, Local 363, C. I. 0., or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act : 39
(a) Offer to Ouida Ryan, Arthur Kierstead, Doris Wheeler, Verna
Ryan, Nellie Giberson, Paul Heidtman, Ruth Ryan, Grace Morris,
and Margaret Fahlbusch immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges;
(b) Make whole the nine persons named in Section 2 (a) of our
Order for any loss of pay they have suffered by reason of the respond-
ent's discrimination against them by payment to each of them of a
sum of money equal to the amount which he normally would have
earned as wages from the date of the respondent's discrimination
against him to the date of the respondent's offer of reinstatement, less
his net earnings during such period;
(c) Post throughout its plants at Toledo, Ohio, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Eighth Region, shall, after
being duly signed by the respondent's representative, be posted by
the respondent immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive clays thereafter, in conspicuous places,
including all places where 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;
(d) Notify the Regional Director of 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 iLEREBY 11URTIIER ORDERED that the complaint, insofar as
it alleges that the respondent discriminated against Henry Lau within
the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.
30The Board expresssly reserves the right to modify the back-pay and reinstatement
provisions if made necessary by a change of conditions not appearing in the record, and
to make such supplements thereto as may become necessary in order to define or clai ify
their application to it specific set of circumstances not now appearing
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist United Whole-
sale, Warehouse & Delivery Employees, Local 363, C. I. 0., or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection.
We will offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination.
Ouida Ryan Paul Heidtman
Arthur Kierstead Ruth Ryan
Doris Wheeler Grace Morris
Verna Ryan Margaret Fahlbusch
Nellie Giberson
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
TOLEDO DESK & FIXTURE COMPANY,
Employer
Dated------------- By-----------------------------------------
(Representative ) ( Title)
NoTE.-Any of the above-named employees presently serving in
the armed forces of the United States will be offered full reinstate-
ment upon application in accordance with the Selective Service Act
after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.