Whitlock Corp.

National Labor Relations Board - Board Decisions

Mar 24, 1953

103 N.L.R.B. 909 (N.L.R.B. 1953)

WHITLOCK CORPORATION 909
such representative, these issues were fully considered by the Board
when it issued its Decision and Order herein, and we are satisfied that
the arguments presented now by the Association to support its objec-
tions do not warrant modification or setting aside of the Decision
and Order.
Order
For the reasons stated above, it is ordered that the petitions filed
by the Respondent and by the Association to set aside or modify the
Board's Decision and Order in this proceeding be, and they hereby
are, denied.
IT IS FURTHER ORDERED that the Board's Decision and Order in this
proceeding be, and it hereby is, clarified as follows :
1. By adding to section 2 of the Order the requirement that the
Respondent take the following affirmative action which the Board
finds will effectuate the policies of the Act :
Reimburse its employees for any association dues deducted from
their earnings and paid to, or being retained for, the Association, by
paying to each of them a sum of money equal to the total of such dues
deducted from his or her earnings.
2. By adding to the notice attached to the Intermediate Report,
marked "Appendix B," and ordered by the Board to be posted, the
following :
WE WILL reimburse our employees for any dues deducted from
their earnings and paid to, or being retained for, the Shedd-Brown
Plant Association, by paying to each of them a sum of money
equal to the total of such dues deducted from his or her earnings.
CHAIRMAN IIERZOG AND MEMBER PETERSON took no part in the con-
sideration of the above Supplemental Decision and Order.
WHITLocK CORPORATION and EDWARD H. BLAKE
DISTRICT 65, DISTRIBUTIVE, PROCESSING AND OFFICE WORKERS OF
AMERICA and EDWARD H. BLAKE . Cases Nos. 2-CA-2264 and
2-CB-700. March 24, 1953
Decision and Order
On January 28, 1953, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in unfair labor
practices in violation of the Act and recommending that they cease
and desist therefrom and take certain affirmative action, as set forth
103 NLRB No. 93.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that Respondents had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
dismissal of those allegations.
Thereafter, a single original copy of exceptions to the Intermediate
Report was received from the charging party, Edward H. Blake. On
February 24, 1953, the Executive Secretary of the Board informed
the charging party by letter that the exceptions did not conform with
the Board's Rules and Regulations and that unless 7 documents in
proper form were submitted within 7 days and proof of service on
the other parties furnished within 5 days, the Board, pursuant to its
Rules , will reject and return the documents. The charging party
made no response to this letter.
The Board 1 finds that no timely exceptions to the Intermediate
Report have been filed and accordingly adopts the findings, conclu-
sions , and recommendations of the Trial Examiner.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. Respondent Whitlock Corporation, New York, New York, and
its officers, agents, successors, and assigns, shall :
(a) Cease and desist from informing prospective employees that
they must obtain good standing in District 65, Distributive, Processing
and Office Workers of America, before beginning work, or in any like
or related manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, or to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities.
(b) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Post in conspicuous places in its offices and place of business
in New York City, including all places where notices to employees
are customarily posted, copies of the notice attached to the Inter-
mediate Report as Appendix A 2 Copies of said notice, to be fur-
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member
panel [Chairman Herzog and Members Styles and Peterson]
2 This notice shall be amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner" in the caption thereof. In the
event that this Order is enforced by a decree of a United States Court of Appeals, the
notice shall be further amended by substituting for the said words "Pursuant to a Deci-
sion and Order," the words , "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
WHITLOCK CORPORATION 911
nished by the Regional Director for the Second Region , shall, after
being duly signed by this Respondent 's representative , be posted by
it immediately upon receipt thereof , and maintained by it for at least
sixty ( 60) consecutive days thereafter. Reasonable steps shall be
taken by this Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(2) Notify the said Regional Director in writing , within ten (10)
days from the date of this Order, what steps Respondent has taken
to comply herewith.
2. District 65, Distributive , Processing and Office Workers of
America, its officers , representatives , and agents , shall :
(a) Cease and desist from :
(1) Attempting to cause Whitlock Corporation , its officers , agents,
successors , or assigns , to discriminate against its applicants for em-
ployment, or its employees , in violation of Section 8 (a) (3) of the
Act.
(2) Telling employees or prospective employees of Whitlock Cor-
poration , its successors or assigns , that they must pay dues to, and
achieve good standing in, District 65, Distributive , Processing and
Office Workers of America, in order to work for Whitlock Corpo-
ration.
(3) In any like or related manner restraining or coercing employees
of, or applicants for employment with, Whitlock Corporation, its
successors or assigns , in the exercise of the right to engage in, or to
refrain from engaging in, any or all of the concerted activities guar-
anteed in Section 7 of the Act.
(b) Take the following affirmative action , which the Board finds
will effectuate the policies of the Act:
(1) Post in conspicuous places in its business offices in New York
City, and wherever notices to its members are customarily posted,
copies of the notice attached to the Intermediate Report as Appen•
dix B .3 Copies of said notice , to be furnished by the Regional Direc-
tor for the Second Region , shall , after being duly signed by this Re-
spondent 's representative , be posted by it immediately upon receipt
thereof, and maintained by it for at least sixty ( 60) consecutive days
thereafter . Reasonable steps shall be taken by this Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(2) Mail to said Regional Director signed copies of the notice at-
tached to the Intermediate Report as Appendix B, for posting, the
8 This notice shall be amended by substituting the words "A Decision and Order" for
the words "The Recommendations of a Trial Examiner" in the caption thereof. In the
event that this Order is enforced by a decree of a United States Court of Appeals, the
notice shall be further amended by substituting for the said words "Pursuant to a Decision
and Order ," the words , "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Company willing, at the office and place of business of
the Respondent Company in New York City, including all places
where notices to employees are customarily posted. Copies of said
notice, to be furnished by said Regional Director, shall, after being
duly signed by this Respondent's representative, be forthwith re-
turned to the Regional Director for such posting.
(3) Notify the said Regional Director in writing, within ten (10)
days from the date of this Order, what steps this Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent, Whitlock Corporation, has violated
Section 8 (a) (3) of the Act, and insofar as it alleges that the Re-
spondent, District 65, Distributive, Processing and Office Workers of
America, has violated Section 8 (b) (2) of the Act by causing said
Whitlock Corporation to discriminate against Edward H. Blake in
violation of Section 8 (a) (3) thereof.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges having been duly filed, a consolidated amended complaint and notice
of hearing thereon having been issued and served by the General Counsel, and
answers having been filed by the above-named corporation and labor organiza-
tion, a hearing involving allegations of unfair labor practices in violation of
the National Labor Relations Act, 61 Stat. 136, herein called the Act, by said
corporation and labor organization, herein called the Company and the Union,
respectively, and jointly called the Respondents, was held upon due notice at
New York, New York, on various dates between November 3 and 21, 1952, in-
clusive, before the undersigned Trial Examiner. The allegations in substance
are that the company permitted the Union to require the complainant, Edward
H. Blake, to pay dues and fines to the Union as a condition of employment
with the Company and to threaten Blake with economic and other reprisals so
as to compel him to terminate his employment with the Company on September
13, 1951, that the Company thereafter refused to reemploy Blake until January
7, 1952, because Blake had failed to pay dues and fines demanded by the Union,
that the Company excluded Blake from participation in a general wage increase
during July 1952 because of his nonmembership in good standing in the Union,
and that the Company and the Union thereby violated, respectively, Section 8
(a) (1) and (3) and Section 8 (b) (1) (A) and (2) of the Act. The General
Counsel, the Company, and the Union were represented by counsel, were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to intro-
duce evidence pertinent to the issues, to argue orally upon the record, and to
file briefs and proposed findings and conclusions. A brief was received from
the Union and has been considered. The Respondents' motions to dismiss, made
near the close of the hearing and taken under advisement by me, are granted
in part as provided below.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
WHITLOCK CORPORATION
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
913
The Company, a New York corporation, has its principal office and place of
business in New York City where it is engaged in the wholesale hardware busi-
ness. During the year 1951, the Company purchased hardware supplies and
other materials valued in excess of $500,000, which were shipped to its place of
business from points outside the State of New York. During the same year,
the Company shipped hardware supplies and related products, valued in ex-
cess of $50,000, directly to points outside the State of New York. There is no
dispute, and I find, that the Company is engaged in commerce within the meaning
of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
District 65, Distributive, Processing and Office Workers of America, is a labor
organization admitting to membership employees of the Company.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
Blake, the complainant, worked for the Company as a locksmith. The first
period of his employment was 1945 to September 13, 1951. The second period
was January 7, 1952, to October 17, 1952 At all times material, the Company
and the Union have had a collective-labor agreement covering various employees,
including the locksmith. There is no contention that the agreement requires an
employee to pay dues to the Union or to obtain good standing in it as a condition
of employment.'
Our principal questions are whether the Company discriminated, and whether
the Union caused or attempted to cause it to do so, against Blake in the termina-
tion of his employment on September 13, 1951, and in the Company's refusal to
reemploy him earlier than the following January 7. There is no issue concern-
ing the termination of his employment on October 17, 1952. With respect to
the termination of employment on September 13, the General Counsel contends
that the Company, by permitting the Union to require Blake to pay dues and
fines to the Union as a condition of employment and to threaten Blake with
economic and other reprisals, allowed a situation to exist which became so un-
bearable to Blake that he relinquished his job rather than continue at work
under the Union's threats. With respect to the refusal to rehire Blake sooner
than the following January 7, the General Counsel contends that the Company
was motivated by Blake's failure to pay dues and fines to the Union. On the
other band, the Respondents, while acknowledging that Blake was indebted to
1 The Company's answer admits, and the Union's answer denies , the jurisdictional allega-
tions of the complaint. During the hearing, all counsel stipulated that those allegations
are not in dispute. The transcript does not set forth the complete stipulation, however.
It is hereby ordered that the transcript be corrected as follows : Page 28, line 22, the
hyphen appearing between the numeral "6" and the word "being" is deleted. Same page,
line 23, to read :
"directly" inserted in front of the word "transported," are not in dispute. Is
2 While the contract was not offered in evidence , counsel for the Company denied that
it required the payment of dues. The General Counsel does not assert that it contains
such requirement. Although counsel for the Union, who was retained by it after the open-
ing of the hearing, had not read the contract and therefore did not state his position at
the time the point arose, his later questions of witnesses establish that his position
coincides with that of other counsel.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, deny that there was discrimination against him and that the Union
caused or attempted to cause the Company so to discriminate. They assert
that Blake quit his job on September 13 to accept a better position elsewhere
and that, upon his discharge from that position, he was not immediately rehired
because he had been replaced and the Company did not have a vacancy for a
locksmith. Essential to the determination of these questions is the probative
value of Blake's testimony. As will appear, I am unable to credit Blake's testi-
mony in many instances. It is often set out in footnotes.
B. Chronology of events
Prior to December 1950, the Company's employees were members of a labor
organization which is not a party to this proceeding, the full name of which is
not set forth in the record. During late 1950, the employees designated the
Union to represent them. Blake, according to his testimony, was "the instru-
ment of bringing" the Union into the Company's place of business. On December
6, 1950, the Company and the Union executed a collective-labor agreement which
was retroactive to October 1, 1950. During the first 4 months of 1951, Blake
attended meetings and paid dues to the Union. Soon thereafter, he ceased those
union activities e and developed hostility toward the Union'
During the summer of 1951, Pete Halley, an organizer for the Union, called
upon Blake at the plant on two or more occasions. The evidence concerning
Halley's remarks to Blake consists of the testimony of Blake and Harry Haber,
the only witnesses for the General Counsel. My findings are based upon the
testimony of Haber and for reasons set out in the footnote, I am frequently
unable to credit the testimony of Blake." Halley told Blake that his delinquent
3 Blake testified that he visited the Union' s offices during May for the purpose of paying
dues for that month, but that the payment was refused because he would not pay 2 fines
for failure to attend meetings, plus assessments for the months of December 1950 and
January 1951. While it is true that a member is assessed a fine of $1 for failure to
attend meetings during any month, in the absence of an acceptable excuse, and that Blake
failed to attend during May, no fine had been assessed against Blake during May or
earlier. Moreover, while it is also true that there had been a question whether em-
ployees of the Company who were members of the Union should pay dues for the last
quarter of 1950, the retroactive period of the contract, and that this question was re-
solved during April 1951 by a decision that dues should be paid only for December, it
does not appear from the Union' s records that there was an assessment , other than dues,
for the months of December and January. Blake's dues for January had been paid on
the 5th day of that month.
° The Respondents assert that Blake became disgruntled because of a belief that the
Union was not appreciative of his efforts in its organizational activities at the Company's
plant, but this assertion is without support in the record. Whatever the basis of Blake's
hostility toward the Union, however, it did exist. Martin Lentz, an employee who was
a witness for the Union, testified that Blake frequently said that he would "try to get
the Union out of" the plant Blake also testified that he wanted "to get rid of the
Union ." He elaborated by saying that he was unwilling to attend the Union 's meetings
which "consisted of subversive activities against the American people," but was willing
to continue his membership and to pay dues, and that he did not wish to eliminate the
Union as the representative of the employees.
5 At the time of the hearing, Haber was employed by the Company as a salesman. At
the time of the conversations between Halley and Blake, Haber was a clerk for the Com-
pany and shop steward for the Union. In the latter capacity, he had listened to the
conversations Halley was not a witness According to counsel for the Union, Halley's
whereabouts at the time of the hearing was unknown. The record does not disclose, how-
ever, what, if any, efforts were made to locate Halley and to produce him as a wit-
ness. Blake also testified concerning the conversations with Halley, and his testimony
is in substantial accord with that of Haber. In a number of other instances, however,
Blake's testimony is contradicted by reliable documentary evidence or testimony. Blake's
demeanor as a witness, coupled with certain portions of his testimony, as shown for in-
stance in footnotes 16 and 23, and in his conversation with Attorney Julien detailed below,
WHITLOCK CORPORATION 915
dues, and "maybe possibly" fines for failure to attend meetings , would have to
be paid in order for Blake to continue at work and that in time a registered
letter would be sent to Blake concerning the delinquency, after which he would
not be allowed to work.
The last Saturday of July was the Union's "Inspection Day," a time for the
quarterly examination of records showing the amounts of money owed by mem-
bers. On August 2, mimeographed form letters were mailed to delinquent mem-
bers informing them of their indebtedness. Blake received a letter in which he
was told inter alla that he owed dues for 13 weeks plus a fine of 25 cents. The
fine had been assessed because of the delinquency.'
On August 3, Morris Rosenzweig, finance director of the Union, wrote to the
Company asking that the sum of $14.70 be deducted from the wages of Blake
pursuant to a checkoff authorization signed by Blake and dated September 8,
1950, a photostatic copy of which was attached to the letter to the Company'
Upon delivery of the letter, it was referred by a mail clerk to George Spirocostas,
a member of the Union who was then paymaster for the Company. Spirocostas
did not answer the letter or refer it to his superiors. Instead, he took it and
the photostatic authorization to Blake and asked Blake to take care of the
matter. Blake said that he would do so. There was no later discussion of the
matter between Blake and Spirocostas, nor was there any further effort by the
Union to obtain a checkoff of the indebtedness because, according to Rosenzweig,
Blake soon made a payment and it appeared that the matter would be settled.`
On August 22, the Union sent to Blake by registered mail another mimeo-
graphed form letter, saying that it was a final reminder of his indebtedness and
that a failure to meet the obligation would involve loss of membership with
resulting loss of the "rights and benefits" accruing therefrom. Blake testified
that he could not recall whether he visited the Union's offices to make a pay-
ment before or after receiving the letter. It was the following day, however,
that he visited the office and paid dues for May and June, along with the "arrears
impel the conclusion that Blake is prone to formulate his judgments upon little or no
evidence, to describe events according to such judgments, to be suspicious of the conduct
and motivations of others, and to see in such conduct that which he wishes to see. Con-
sequently, I am unable to credit Blake's testimony. Since the General Counsel's case
in many respects rests solely upon the testimony of Blake, I do not believe that in those
respects the evidence preponderates in the General Counsel's favor. My findings herein
are based primarily upon the testimony of the General Counsel's only other witness, Haber,
and witnesses for the Respondents.
6 The computation that Blake owed dues for 13 weeks was not challenged at the hearing.
According to my figures, his dues were unpaid for 12 weeks, rather than 13, these being
the weeks of May through July 1951.
7 Blake testified that he joined the Union "around" December 1950 The reverse side
of the checkoff authorization is a printed acceptance of membership in a labor organization,
predecessor to the Union, signed by Blake and dated September 8.
8 The findings concerning the conversation between Blake and Spirocostas are based
upon the latter's testimony. On the other hand, Blake testified that Matthew Krakower,
the Company's comptroller and office manager, told him of the communication from the
Union, that he said to Krakower that he forbade the checkoff, and that Krakower answered
that it was authorized by the photostatic authorization According to Blake, he told
Krakower that he was not concerned about the authorization, that he would not allow
the deduction, and that he would prefer to be discharged, and Krakower answered that the
deduction had to be made. At this point, according to Blake, he asked Krakower for the
communication, saying that he would go to the Union in an effort to "straighten it out,"
and received the communication from Krakower Blake testified that he did not thereafter
discuss the communication with Krakower. Blake's testimony is disputed by Krakower,
who denied that he was aware of the communication at times material. Like denials were
made by H Jerome Lasky, the Company's president, and Henry R. Stein, its vice president.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fine" of 25 cents. The contradictory testimony concerning the events on this
occasion is set out in the footnote .9
Within a few days, Blake visited the Regional Office of the Board and talked
with a field examiner , Clement Cull1° During late August, the charge against
the Union, alleging that by "threats, intimidation and by other acts" it had
violated Section 8 (b) (1) (A), was prepared for Blake's signature, and Blake
appears to have kept it in his possession until October 30, the date of filing.
Within a day after preparation of the charge, Blake called upon Lasky, the Com-
pany 's president, and showed it to him. According to Lasky, he was already
aware that "there was difficulty" between Blake and the Union because Blake had
told him during previous months that "the Union was Communistically inclined"
and also may have said that he, Blake, had ceased paying dues. Blake told
Lasky on this occasion that he was prepared to file the charge, and sought Lasky's
advice. Lasky did not discuss the matter, however, but made an appointment
for Blake with the Company's attorney, Julien" Within hours, Blake called at
Julien's office. The date of their conversation is in dispute,12 as are the details.
Julien testified, and I find, that Blake said that he had "brought" the Union
into the Com any's plant and was "ready to lead the fight to get rid of it."
Julien replied that he was not interested, and Blake then said that there was
a dispute about dues and that he had visited the Regional Office. Blake asked
what the Company's attitude would be toward the filing of a charge. Blake did
not, according to Julien, produce the charge. Julien responded that no one con-
trolled Blake with respect to whether he filed a charge, and Blake answered,
° Blake testified that he talked with Halley, the organizer , Bernard Eisenberg, another
organizer, and a cashier, who is unidentified. Although the letters of August 2 to Blake
and August 3 to the Company do not indicate that a fine for absence from a meeting had
been assessed against Blake, and the Union's ledger shows the indebtedness other than
dues as the 25 cents "arrears fine" and 35 cents registered mail charges, Blake testified
that he told Eisenberg that no fines, assessments , or closed shops were "allowed" and that
Eisenberg was violating "the law," to which Eisenberg replied that ". . . We make our
own laws." Blake appears to have construed the dues obligation for December 1950, men-
tioned in footnote 3, as an assessment, and he testified that he said he would pay it, along
with dues, but that he would not pay a fine. According to Blake, Halley asked if Blake
would like to pay a part of the indebtedness, at which point Blake paid dues for 2 months,
May and June, plus the "arrears fine" of 25 cents. As related, Halley was not a witness,
nor was the unidentified cashier. Eisenberg , a witness for the Union, recalled the con-
versation as having occurred during July, and testified that he did not tell Blake that
payment of the indebtedness was a prerequisite to the right to work for the Company
although he may have said that a loss of membership in the Union might result from a
failure to pay, and that he suggested that Blake try to make an arrangement with the
Union's finance department for partial payments.
10 August 23, the date of Blake's visit to the Union 's offices, was a Thursday. Blake
testified that he also talked with Halley in the plant on a Thursday and a Friday "around
the 23 or 24 . . . around the middle of August." According to Blake, on the Thursday,
Halley refused an offer of Blake to pay a portion of the dues and insisted upon full pay-
ment of dues plus a fine of $2, and on the next day Halley' s efforts to collect the indebted-
ness were renewed. Blake testified that he "was very badly upset" by Halley' s remarks
on that Friday and decided to visit the Regional Office, which he did on the "following
day, or . . . near the end of" August.
11 Both Blake and Lasky testified that Lasky refused to offer advice, and referred Blake
to Julien. Blake testified also that he told Lasky that he was "about to sign" the charge
because the Union had been threatening him and he could not work. While Lasky was
not asked specifically whether Blake made such remark, his testimony is subject to a
contrary inference.
19 Blake testified that he received copies of the charge from Examiner Cull on September
4 and that the conversation with Julien occurred on the next day. Julien testified that
the date of the conversation was 'August 30, and his testimony was given after he had
refreshed his recollection by use of a memorandum bearing that date, which he testified
he prepared after the conversation. Julien's testimony is to be accepted in fixing the date.
WHITLOCK CORPORATION 917
"Then you do not want me to" file a charge. Julien said that Blake had mis-
understood, that the Company could not control Blake's actions in filing a charge
because it was Blake's right to decide whether to file it, and to file it if he chose
to do so. Julien added that if Blake cared to know the Company's wishes,
it had no desire that a charge against the Union be filed because its relationship
with the Union was good. Several times Julien said that the question whether
to file a charge was for Blake to decide, and Blake answered, "Then you do not
want me to do it"" Blake said that he had no grievance against the Company
but sought to protect it from the Union" According to Julien, Blake did not
comprehend Julien's statement because, while Julien was talking, Blake was
"thinking of something else" so that Julien's remarks were recorded " in a dif-
ferent way in his [Blake's] mind," and Blake "seemed to be getting the idea"
that Julien opposed the filing of the charge because Julien did not say that he
favored it.
During early September, Blake applied to an employment bureau for assist-
ance in obtaining other employment. He was referred to Rockefeller Center,
Inc., where he applied on September 5, saying that he wished to obtain a better
position than that which he had with the Company. He was considered for a
position as locksmith foreman at a weekly salary nearly 50 percent greater
than that being paid to him by the Company. At Rockefeller Center's request
of the Company for a recommendation, Krakower, the Company's comptroller,
replied on September 10 that Blake was "very capable." Blake was hired by
Rockefeller Center, to commence work on September 14.
On September 6, Blake had been suspended from membership in the Union,
but it does not appear that he or the Company was informed of the suspension
at that time.
About September 10, Blake gave notice to the Company of his intention to
quit" On September 13, his employment ended, and on the next day John Sloper
replaced him as locksmith.
On September 20, Blake was dropped from the membership rolls of the Union.
Morris Rosenzweig, director of the Union's finance department, testified that this
was done because the Union had received information that Blake was working
for a concern with which the Union did not have a contract, Rockefeller Center,
but the Union's ledger gives the reason as Blake's dues delinquency.
" Blake denied that Julien had said that only Blake could decide whether to file the
charge and that no one could control his activity. According to Blake, Julien directed
him not to sign the charge because he would hurt the Company, to which Blake answered
that he could not "work under the conditions there of the Union," that he was being
threatened and was afraid to work. Blake testified also that Julien answered that he,
Julien , was repeating himself "for the third or fourth time, not to sign those papers, because
you will be out of a job," and that when Blake said he had no alternative but "to quit the
job," Julien answered that that was "up to" Blake. I credit Julien's denial that he
threatened Blake with discharge if Blake signed a charge against the Union.
14 Blake filed the charge against the Company on the following December 13. He testi-
fied that he liked the Company "very much," that he had "fought for" it, that be did not
want to file the charge against it, but that he was told by Field Examiner Cull that the
Company had "violated the law" and that he "must file the charge." Counsel for the
Company expressly stated his disbelief that Cull had informed Blake that Blake must
file it.
15 Blake testified that he gave notice to Stein that he was "compelled to quit under
these threats from the Union of bodily harm and things of that sort.. . . 11 He was asked
how many times he had been threatened with bodily harm , and he answered, "Well, two
or three occasions, and there was two Union men also, which I had to turn over a report
to the F. B. I." In elaboration, Blake related an alleged incident in a restaurant during
the summer of 1952, long after he gave notice of intent to quit his employment on Septem-
ber 13, 1951. The report to the F. B. I., he testified, was made in a telephone conversa-
tion during which he declined a suggestion that he visit the F . B. L's offices.
257965-54-vol. 103-59
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blake was a capable locksmith. He was, however, incapable of performing the
administrative duties attached to the new job of foreman, and for that reason his
employment was terminated by Rockefeller Center on October 9. He was so
advised.16 Blake promptly sought reemployment with the Company, and it does
not appear that he sought employment elsewhere."' Soon thereafter, Lasky talked
with Sloper, the locksmith who had replaced Blake. The work of the locksmith
constitutes a small portion of the Company's business, and only one locksmith is
employed. Lasky told Sloper that Blake wanted to return to work for the Com-
pany, and asked whether Sloper was happy in the job and intended to continue
in it. Sloper replied that he had other interests which would take him to Florida
and that he intended to quit the job about the middle of December.Is
During the latter part of October, Blake called at the plant and talked with
Haber, the shop steward. As related, It does not appear that the contract between
the Respondents requires that an employee pay dues to the Union or obtain good
standing in it as a condition of employment. Haber believed otherwise, however.
He told Blake that under the provisions of the contract a member in bad standing
would not be allowed to work, but that he would inquire to ascertain if Blake
would be permitted to return. Thereafter Haber called Halley, the organizer
with whom Blake had spoken in previous months, and Halley told Haber that
"'This finding is based upon a stipulation of the parties concerning testimony which
would have been given by J. Baumann and John Mather, employees of Rockefeller Center,
had they been called as witnesses. On the other hand, Blake testified that the reason
given him for the termination was a lack of work , but he also testified to the contrary.
He testified further that he was not told that he was unqualified for the job, but he
testified also that "maybe" he was so informed, that he could not remember. With respect
to the probative value of Blake's testimony, he related that the Company did not want
him to quit his employment with it and that he believed that the Company arranged with
Rockefeller Center to have his employment with the latter terminated so that he would
return to work for the Company. Later Blake changed his testimony to say that he was
"not sure," but suspected, that the Company had done so. As already noted, Blake was
not working for the Company at the time of the hearing, his employment having ended a
second time on October 17, 1952. His employer at the time of the hearing is not Identi-
fled in the record, and Blake was unwilling to divulge the name because of a fear that
someone might take steps to have him discharged. He testified that it "could be" that
the Company would do so because of a desire to have him again in its employ. Blake's
anxiety, thus expressed at the hearing, is at variance with his actions when obtaining
the employment. He gave the name of the Company as a reference, and his employer com-
municated with the Company. During Blake's testimony, when counsel for the Company
informed Blake that lie knew the identity of the employer, Blake answered, "... Nat-
urally, you would find out."
11 Blake testified that he told Lasky that his employment with Rockefeller Center had
ended because of a lack of work, and that Lasky replied that he could return to work for the
Company when he had paid his obligations to the Union. On the other hand, Lasky said
that he told Blake to keep in touch with him, and denied that he had said Blake must pay
the indebtedness. While the circumstances of this case create considerable doubt about
the weight to be given to Lasky's denial, the testimony of Blake is the only evidence to
the contrary and cannot be credited.
18 The findings concerning this conversation are based upon the testimony of Lasky and
a stipulation of the parties concerning testimony which Sloper would have given had he
been called as a witness. At about the date of this conversation, Blake visited the plant
in response to a postal card of October 11 from the Company. Blake testified that on
this occasion Lasky asked how Blake had made out with the Union, to which Blake replied
that he had not visited the Union's offices, and that Lasky said that Lasky could do nothing
for Blake until the differences with the Union had been settled because the Union was "liable
to do a lot of dirty work , they may call a strike, they may slow down, and numerous other
things there." On the other hand, Lasky denied that he had made such remarks to Blake,
and testified that Blake was called to the plant to give advice and assistance to Sloper,
who was having difficulty with the work. Stein also testified that such was the purpose
of Blake's visit. Sloper was not a witness. I do not find that on this occasion Lasky
insisted that Blake settle his differences with the Union.
WHITLOCK CORPORATION 919
Blake could return if Blake obtained good standing . Haber later spoke with
Lasky and Stein , saying that Blake wished to return , and they said that they
would like for him to do so. Haber said to them, however , that he had talked
with Halley, that Blake was in bad standing in the Union and that this factor
prevented Blake 's return . Both Lasky and Stein replied that they did not know
of Blake's bad standing , and one of them said that he would lend to Blake the
amount of money owed to the Union . Neither Lasky nor Stein expressed agree-
ment with Haber that Blake would have to achieve good standing before being
rehired nor , on the other hand , did they inform Haber that his understanding
of the contract's provisions was erroneous'" To some extent, Haber there-
after related these events to Blake.S°
On October 23, Blake visited the Union's offices.' Henry Cannon, a union clerk,
testified, and I find, that he gave Blake a statement of indebtedness showing that
Blake owed dues for December 1950 and for that portion of 1951 in which he
had worked for the Company but had not paid dues, specifically, the months of
July and August and a portion of September , plus a fine of $2 for absence from
the May and July meetings,' plus a charge of 35 cents for registered mail, plus
a reinstatement fee of $5 which Cannon indicated by a question mark on them
statement might not be the actual fee. The total was $20.25. Blake's testimony
that Cannon made coercive statements to him, which I reject, is set out in the'
footnote.' His testimony concerning statements made to him by others upon'
the same occasion is disposed of in another footnote."
"The findings in this paragraph are based upon the testimony of Haber . On the other
band , Stein testified that he recalled the conversation as having occurred later and that
Haber said that "it would be to the best interests of the harmony of the relations between
the Company and the Union that Eddie's dues were paid up." Lasky testified that he
could not recall a conversation with Haber about Blake's desire to return to work.
" Haber testified that he could not recall whether he talked with Blake after talking,
with Halley , or later after having talked also with Lasky and Stein . He testified also that
be could not recall whether anything was said in his conversation with Blake about visiting'
the Union 's offices. On the other hand , Blake testified that he talked with Haber at the
suggestion of Lasky, and that Haber suggested that he call upon Eisenberg , a represent-
ative of the Union previously identified , who had already "left word" not to allow Blake
to work until he had paid the indebtedness.
"The date of Blake's visit to the Union 's offices is sharply disputed . The Union's rec-
ords fix it as October 23, as does the testimony of one of its clerks, Henry Cannon, with
whom Blake talked. Blake insisted , however , that the visit was on November 1, after he
filed the initial charge against the Union on October 30, although the transcript at one
point indicates that Blake also fixed the date as November 9. According to the Union,
Blake visited its offices to secure data about his indebtedness without intent to pay it, but
in order to bolster the charge he intended to file. According to Blake, he filed the charge
first and 2 days later visited the Union 's offices because he "tried hard" to obtain good
standing and "was willing to pay" the indebtedness in order to achieve reemployment by
the Company . Blake testified also, however , that on the occasion of this visit to the
Union 's offices he changed his mind about obtaining good standing . The record supports
the Union ' s contention that Blake visited its offices before filing the charge. The point has
materiality, however , only on the matter of credibility.
22 The record does not disclose why the Union failed to assess a fine for Blake 's absence
from the June meeting , if he was absent.
23 Blake testified that Cannon told him that he owed $3 in assessments , 5 months' dues
including a month for which Blake already had paid, $2 in fines, 35 cents for registered
mail, plus 5 cents "for something else." Blake testified also that Cannon told him that
before he could return to work the indebtedness had to be paid along with an additional
fine of $10 or $15 which would be assessed after an appearance by Blake before the Union's
executive board. Cannon 's testimony sharply contradicts that of Blake. Cannon testified
that he had no recollection of the conversation because it was one of many which he had
daily in the course of his work, and he relied upon entries in his handwriting to give testi-
mony. He impressed me as a credible witness. He testified that his duties consist solely
of handling matters in connection with the indebtedness of members and that he has noth-
ing to do with their employment. He denied that be told Blake that the indebtedness must
be paid and that Blake must appear before the Union 's executive board in order to work
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 1, the Company mailed to Blake a postal card asking that he
telephone Lasky. According to Stein, the card was sent in order to assure that
Blake would replace Sloper upon the latter's resignation. After receipt of the
card, Blake visited the plant and talked with Stein and Lasky. He told of
his visit to the Union's offices on October 23 and said that he objected to paying
the indebtedness to the Union. Stein offered to advance the sum needed to obtain
good standing, but Blake declined the offer. Stein also said, as he testified, that
it would be in the "best relations" of the Company for Blake to achieve good
standing, and Lasky testified that he or Stein said to Blake that Blake "would
have to straighten out with the Union before coming back to work." R6 Contrary
to the testimony of Blake, I find that Stein did not tell him to report for work
and that the Company "would take a chance." '°
for the Company, but testified that he said that Blake must appear before that board in
order to obtain reinstatement in the Union. He denied also that he told Blake that there
would be an added cost of $10 or $15 in reinstatement, but testified that he expressed an
uncertainty about the actual reinstatement fee by use of the question mark on the state-
ment of indebtedness. In my judgment, Blake misconstrued Cannon's remarks about what
was necessary to achieve reinstatement in the Union as what was necessary to achieve
reemployment with the Company.
24 Blgke testified that when he entered the Union' s offices a vice president of the Union
named Robinson said, "Hello, Blake. I heard you are in bad standing . You have been
suspended, and you are in trouble," to which Blake answered that he wished to speak to
Eisenberg. According to Blake, he told Eisenberg that he wished reemployment with the
Company, and Eisenberg answered. "You know you ha-.e been suspended, you lost your
seniority rights and you are automatically out. You can't work. You will have to come
in as a new member." Blake testified that upon his inquiry, "What will I have to pay?",
Eisenberg referred him to Cannon. On the other hand, Eisenberg's testimony differs from
that of Blake. Eisenberg testified that Blake visited him in early October and inquired,
not about indebtedness, but about obtaining employment with the Company, to which
Eisenberg said that he had probably forfeited "all rights to the job" because of having
quit According to Eisenberg, Blake returned later, after receiving from Cannon the
statement of indebtedness, and asked about the reinstatement fee, and Eisenberg answered
that the "chances" were that it would be $5 but that the executive board could fix a higher
amount. According to Eisenberg, there was no reference on this occasion to Blake's wish
to return to work for the Company. While I have doubt about the weight to be given to
Eisenberg's testimony, I do not believe that the evidence to the contrary, consisting of
Blake's testimony. preponderates in favor of the G^neral Counsel.
25 There is no dispute that Stein offered to advance the money. With respect to the
quoted remarks of Stein and Lasky that Blake should obtain good standing in the Union,
they testified that the point they sought to make to Blake was not that good standing was
a prerequisite to reemployment, but that there might be a strained relationship between
Blake and other employees in the bargaining unit if he did not achieve good standing be-
cause all other employees in the unit maintained such standing. According to Lasky, this
tras "the inference" to be drawn from the remarks to Blake.
2E Blake testified that Stein and Lasky conferred privately, following which Stein said,
"we will take a chance. Come in the following Monday .. ," and that he reported for
work but that Krakower, the comptroller, would not permit him to work because Lasky
had said "No." Blake also testified that later that month, Lasky told him over the tele-
phone to report for work, that he did so, but that again Krakower told him not to work.
I am unable to credit this testimony by Blake. In addition to other reasons given for
resection of his testimony, there are the following: First, Lasky denied that Blake had been
told that a chance would be taken. Second, Stein and Lasky testified that the Company
had need for only one locksmith and that Blake was not needed until Sloper departed.
Third, there is no probative evidence that the locksmith aspects of the Company' s business
justified the employment of both Blake and Sloper, although Sloper was not as able a
locksmith as Blake. There is testimony by Blake that be raised the question with Stein
whether there was work for both himself and Moiler, and that Stein answered, "Never mind
Johnnie ISloperl He can't do much here, and there's enough work for you as well." I
am unable to credit this testimony as determinative of the question. Fourth, Krakower
denied that he had told Blake not to work. Once before I have resolved a sharp conflict
in the testimony of Blake and Krakower in favor of the latter, that conflict dealing with
the circumstances under which Blake received the letter to the Company from the Union
asking that there be a checkoff of Blake's dues . I also resolve this conflict in Krakower's
favor.
WHITLOCK CORPORATION 921
During December, Blake called at the plant and talked with Lasky and Stein"
The testimony is conflicting concerning whether other persons participated in the
conversation." Blake was told that Stein and Lasky contemplated separating the
locksmith department from the other aspects of the Company's business and
having it operated by Blake as an independent contractor. Blake was asked
what he thought of the proposal, and the matter was discussed. According to
Stein and Lasky, the locksmith operations constitute, from a monetary stand-
point a negligible portion of the Company's wholesale hardware business although
an important portion because of the service rendered to customers in such mat-
ters as repair work and duplication of keys. They testified that the sale price of
an article of hardware was determined rather easily because there was involved
only a markup above the cost to the Company, but that the Company did not
have a method of ascertaining the cost to it of each item handled by the lock-
smith and of determining the correct amount to charge the customer. They
contemplated, so they testified, that Blake would replace Sloper and would
operate the locksmith department as an independent contractor, billing the
Company for each "piece of work," to which the Company would add a profit and
bill the customer accordingly.4° The discussion with Blake was fruitless. Stein
and Lasky testified, and I find, that Blake's remarks tended to complicate the
matter so that they concluded that adoption of the independent contractor rela-
tionship would be unwise.80 Blake was advised later of their decision."
I
27 Stein fixed the date as "probably early December." Blake testified that the visit to
the plant was made at the suggestion of Lasky in a telephone conversation initiated by
Blake. According to Blake, the conversation and visit both occurred on the same day, a
Wednesday "About the second week in December." The Wednesday of that week was
December 12.
as Blake testified that Krakower and one Beck, a vice president of the Company, were
present. Krakower denied having been present. Beck was not a witness. Stein testified
that he could not recall whether anyone other than Blake, Lasky, and himself was in
attendance
' An independent contractor relationship with Blake, had it materialized, would have
removed him from the bargaining unit, and presumably , presented a solution to his diffi-
culties with the Union. Lasky was asked if the Company's desire to ascertain the costs
of the locksmith's operations could have been achieved by changed methods of bookkeeping,
rather than by an independent contractor relationship. He responded that "probably"
it could have been done, but that the cost would have been excessive to the Company and
that the most inexpensive method would have been the independent contractor relationship.
There is no other evidence on the point.
10 Blake's version of the conversation with Lasky and Stein is quite different . He testi-
fied that Lasky proposed to "make believe" that the locksmith department had been put
in Blake's name, that Blake would not be on the Company 's payroll "officially ," and that
Blake would have to "take care" of his own income tax and social -security matters, but
that otherwise the relationship of employer-employee would be as it had been before Blake
quit his employment . According to Blake, Lasky described the proposal as a "subterfuge
to get around the Union." Lasky denied that he had so described it. I am constrained
to reject Blake's version. I do so, however, with doubt as to the accuracy of the Com-
pany's version. In my judgment, the evidence on behalf of the General Counsel, consisting
as it does entirely of Blake's testimony, does not preponderate in the General Counsel's
favor.
31 Neither Stein nor Lasky fixed the date when Blake was informed that they had decided
against the arrangement, although they agreed that their decision was made after the
conversation with Blake. They denied that Blake was told to come to work under the
arrangement. Blake testified, however, that Lasky told him to report for work on Wednes-
day, December 26, by which time Sloper had quit as locksmith, that he did so, that
Krakower told him to stop working, that he awaited Lasky's arrival, and that Lasky told
him that the arrangement would not "work out." Krakower denied having told Blake
to stop working. While the record is clear that Blake was at the plant on various occa-
sions during the latter part of 1951, I do not believe that his testimony that he was there
to work at the Company's direction preponderates in the General Counsel's favor. More-
over, if the conversation occurred on December 12, as set out in footnote 27, I find it dif-
ficult to believe that Blake, had he been told on that day to report for work , would have
filed the charge against the Company on the next day , December 13, the date of filing.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Thursday, December 20, Sloper quit work. Approximately 2 weeks later, of
January 4, 1952 , the Company telegraphed Blake to report for work. Blake was
not then, nor did he thereafter become, in good standing with the Union. In
defense of its failure to recall Blake until 2 weeks after Sloper 's departure, the
Company asserts that there was no need for his services near the end of the year
due to the taking of inventory. Lasky testified that the period of inventory is
generally 'l week, during which orders are not filled, employees are not hired, and
normal operations cease . Lasky testified further that inventory Is usually the
last week in December, although it may extend into January, and that he did
not know when the 1951 inventory ended. He testified also that during an
inventory the locksmith does not receive work orders, but uses the time to
perform any work on hand and, should it be completed, is assigned other work
to avoid idleness . According to Lasky, directly after the taking of inventory,
Blake was recalled." On Monday, January 7, Blake returned to work.
On February 1, the contract between the Respondents was extended with cer-
tain modifications. A wage increase of $3 was provided for each person em-
ployed in the bargaining unit on February 1, the increase to be effective the week
ending February 7. That increase was given to all employees, including Blake.
The extension agreement also provided that all employees within the unit on
February 1 should receive an additional increase of $2 to be effective the week
ending July 7, 1952, with the proviso that any such employee who commenced
his employment with the Company on or after September 1, 1951, should not
receive the additional increase until he had completed a full year of employ-
ment. Blake did not receive the additional increase during the week ending
July 7, and the General Counsel contends that the Company thereby discrimi-
nated against Blake because of his nonmembership in good standing in the Union.
On October 17, 1952, Blake's employment with the Company again terminated.
It is not alleged that this termination was an unfair labor practice.
C. The question whether Blake was discriminated against during September 1951
As related, the General Counsel contends that the Company permitted the
Union to threaten Blake with economic and other reprisals in an effort to col-
lect dues and fines, and that Blake's employment conditions became so intoler-
able that he relinquished his job. The result, it is contended, was a constructive
discharge of Blake. (See Chicago Apparatus Company, 12 NLRB 1002, enforced
N. L. R. B. v. Chicago Apparatus Company, 116 F. 2d 753 (C. A. 7), an early and
principal case involving the doctrine of constructive discharge.) On the other
hand, the Respondents contend that Blake quit his employment to accept a bet-
ter job with Rockefeller Center.
Martin Lentz, an employee who was a witness for the Union, testified that
"about two days before he [Blake] left," he complained to Lentz that "every-
body was pushing him around." ' It does not appear from Lentz' testimony
' During the late afternoon of January 4, at approximately the time when a telegram
was sent to Blake recalling him to work , representatives of the Company and the Union
met In Julien 's office for contract negotiations . The only evidence concerning this con-
ference is the testimony of Eisenberg , a witness for the Union . It will not support a find-
ing, sought by the General Counsel , that the Company asked the Union for permission to
recall Blake . It is to the effect , Instead , that Blake was mentioned incidentally before
negotiations got underway , and that Julien said to Eisenberg that Blake had been recalled
to work. The telegram to Blake is signed with the name of the Company, rather than that
of an individual , and the record does not disclose whether the telegram was sent by some-
one who attended the negotiations.
21 It is not established whether Lentz, in saying "about two days before " Blake left, was
speaking of Blake's termination of employment on September 13, 1951 , or October 17, 1952.
Assuming arguendo that the record warrants a resolution of this doubt in the General
Counsel's favor, the record still does not support his basic position.
WHITLOCK CORPORATION 923
that Blake related the basis of his complaint , however . My impressions of Blake
are that he is an individual who would have become quite disturbed by the re-
marks of Organizer Halley during Halley's efforts to collect dues from Blake.
I do not believe, however, that the entire factual situation supports the General
Counsel's position. First, there is no probative evidence that the Company had
acquiesced in or approved Halley's remarks to Blake or was even aware of them.
Moreover, it was not so much the remarks of Halley as the alleged remarks of
Attorney Julien which prompted Blake, according to his testimony, to seek other
employment, and Julien's version of their conversation has been credited. Too,
Blake's testimony that he told Lasky, Stein, and Julien that he was being forced
to quit has been rejected. Second, when Blake quit, he said that he was doing
so to accept a better job. Haber, a witness for the General Counsel, testified
that Blake said that he was quitting "to better himself" and that Blake did not
say that he was motivated by conduct of the Union. Moreover, Krakower, the
comptroller, testified that Blake said that he was quitting to accept a foreman's
Job, and Stein testified that Blake spoke of the substantial wage increase which
he would receive at Rockefeller Center, saying that he would remain with the
Company if it would meet the Rockefeller Center offer, and that Blake did not
attribute his departure to pressures upon him . Blake's testimony that he had
not said he was quitting to better himself, cannot be credited. Third, in less than
a month after Blake left the Company's employ, he sought to return to it. He
did not, so far as the record discloses, seek employment elsewhere. This is not
the conduct of a man who had found working conditions so intolerable as to cause
him to quit.
I find that the Company did not discriminate against Blake in the termina-
tion of his employment on September 13, 1951. Consequently, I find that the
Union did not cause the Company to discriminate against him on that date.
Moreover, there being no substantial evidence that the Union attempted to cause
such discrimination, I find that there was no such attempt.
D. The question whether Blake was unlawfully denied reemployment before
January 7, 1952
As we have seen, Blake's employment with Rockefeller Center ended on Octo-
ber 9, 1951, and he promptly applied to the Company for reemployment. It
was not until January 4, however, that the Company offered reemployment, and
Blake returned to work on January 7. The General Counsel contends that
the Company refused to reemploy Blake prior thereto because he had failed
to pay dues and fines to the Union, and that the Union caused or attempted to
cause the Company thus to discriminate against Blake. On the other hand, the
Respondents assert that Blake was denied earlier reemployment by the Com-
pany because he had been replaced by Sloper and there was no need for his
services.
Essential to the General Counsel's case, with the burden of proof upon him,
are the following factors: (1) Before January 4 the Company had a job open-
ing which Blake was qualified to fill, and (2) Blake was denied reemployment
prior to that date because of his failure to achieve good standing in the Union.
Consolidated Builders, Inc., 99 NLRB 972; Pennwoven, Inc., 94 NLRB 175. With
respect to the first factor, Blake's qualifications for the job of locksmith are
conceded, but the evidence does not preponderate in the General Counsel's favor
that there was a job opening before Sloper quit. It is true that Sloper was
not as capable as Blake; indeed, Blake once was asked by the Company to give
assistance to Sloper . But the locksmith operations constitute only a small
portion of the Company 's business , and only one locksmith was regularly em-
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed . The testimony of Blake, set out in footnote 26, that Stein informed
him that there was adequate work for both himself and Sloper , has been re-
jected . There is no substantial evidence to establish a job opening during Sloper's
employment.
On December 20, Sloper resigned , and at that point the job opening came
into existence . It was not until 15 days later that notice was sent to Blake to
return to work, however , and the Company seeks to justify the delay by its
having taken inventory . I am constrained to accept this defense. I do not
believe that the record will support a contrary finding. There is no evidence
that representatives of the Company and the Union met concerning Blake's
return to work after Haber , the shop steward , talked with Lasky and Stein dur-
ing October . When Blake returned to work, he had not achieved good standing
in the Union , and while this factor is not controlling , it has probative value.
I conclude that the Company did not unlawfully deny reemployment to Blake
prior to January 7, 1952, and , consequently , that the Union did not cause the
Company to discriminate against Blake. There remain, however , the questions
whether the Union violated Section 8 ( b) (2) of the Act by attempting to cause
the Company to discriminate against Blake, whether the Union otherwise
violated Section 8 ( b) (1) (A), and whether the Company violated Section
8 (a) (1).
E. The Union 's violations of Section 8 (b) (1) and (A) (2)
We have seen that during the summer of 1951 , Halley, an organizer, told
Blake that delinquent dues would have to be paid in order for Blake to continue
at work . We have seen too that during October , Haber , the shop steward, told
Blake that Blake would have to achieve good standing with the Union in order
to return to work for the Company . Finally, we have seen that Haber said to
Lasky and Stein that Blake's had standing .precluded his return to work. The
questions are whether the remarks of Halley and Haber to Blake constitute, on
the part of the Union, a violation of Section 8(b) (1) (A ) and whether the re-
marks of Haber to Stein and Lasky constitute an attempt , on the part of the
Union in violation of Section 8 (b) (2), to cause the Company to discriminate
against Blake . In defense , the Union asserts that the remarks of Halley and
Haber were unauthorized by it and were contrary to its practices . We turn to a
recitation of their duties.
Halley, as an organizer , worked in a particular territory in which the Com-
pany's plant is located , and called at the plant at least once each 2 weeks. Ac-
cording to the Union , in the course of "servicing the [Company 's] shop" or
"servicing the contract ," Halley's duties included "handling grievances" and
"checking up on complaints ." As the record shows, he also requested the pay-
ment of delinquent dues.
Haber, the shop steward , testified that the "only job" given him by the Union
was to see that persons hired were "Union help." Eisenberg testified for the
Union that a shop steward is the person through whom information concerning
union activities is transmitted from the Union to employees in a plant, and
vice versa, that the steward attends meetings of the Union 's executive board
and "acts on policy questions * * * and activities of the Union , generally."
According to Eisenberg , the shop steward also requests of members the payment
of delinquent dues and "assimilates all the grievances" and brings them to the
attention of both the organizer who services the shop and the executive board.
I find that the remarks of Halley and Haber were within the scope of their
authority as an employee and agent of the Union, respectively , and that it is
immaterial whether the remarks were unauthorized or contrary to the practices
WHITLOCK CORPORATION 925
of the Union. Cory Corporation, 84 NLRB 972; Roane-Anderson Company, 82
NLRB 696. I find also that by Halley's and Haber 's remarks to Blake, the Union
violated Section 8 (b) (1) (A) of the Act. Local 404, International Brother-
hood of Teamsters, etc., 100 NLRB 801. I find further that Haber's remarks to
Stein and Lasky constitute, on the Union' s part , an attempt to cause the Com-
pany to discriminate against Blake in violation of Section 8 (a) (3) of the
Act, and that the Union thereby violated Section 8 ( b) (2) and (1) (A) thereof.
G. W. Thomas Drayage & Rigging Co., Inc., 97 NLRB 703; Carlyle Rubber Co.,
Inc., 92 NLRB 385.
F. The Company 's violation of Section 8 (a) (1)
As found above, during November 1951, prior to Sloper 's termination of employ-
ment, Stein said to Blake that it would be in the "best relations" of the Company
for him to achieve good standing , and Lasky or Stein said to him that he "would
have to straighten out with the Union before coming back to work." When Stein
and Lasky talked with Blake they were aware that Blake had talked with Haber,
the shop steward , concerning reemployment with the Company. They knew of
Blake's indebtedness to the Union , and they had been told of its opposition to his
reinstatement unless and until he obtained good standing . As the Board held in
Consolidated Builders, Inc., supra , an employer who had "advised [applicants] to
get straightened up with the Union," although the employer did not have a policy
of hiring only union members, thereby violated Section 8 (a) (1) of the Act. I
find that the Company, by the quoted remarks of Stein and Lasky to Blake,
violated Section 8 (a) (1).
G. The question whether Blake was unlawfully denied a wage increase during
July 1952
We have seen that the Respondents negotiated an extension agreement of their
contract , effective February 1, 1952, which embodied certain wage increases.
We have seen too that Blake and other employees received one increase there-
under , but that Blake was denied an increase during July 1952. According to
the Company, Blake, having returned to work on January 7, had not been con-
tinuously in its employ for the period prescribed by the contract to obtain the
increase during July, and for this reason alone was denied it at that time. On
the other hand , the General Counsel contends that Blake's employment was un-
lawfully terminated on September 13, 1951, when Blake quit, and that under
Section 2 (3) of the Act Blake continued to be an employee during the next
several months when he did not work for the Company. The General Counsel
also relies upon Blake's testimony concerning the conversation with Stein and
Lasky during early November 1951, already detailed in part, which followed
Blake's visit to the Union's offices on October 23. Blake testified that in talking
with Stein and Lasky, he related
what they told me in the Union, that I lose my seniority , that I was to come
in as a new man and I would have to pay all this and that , and I would have
to appear before the Executive Board and would be fined an additional
$10 or $15.
Blake also testified that Stein, after offering to advance the money with which
to pay the Union, said that Blake should not "be afraid of the seniority," that
Blake would return to the Company 's employ "on the same basis" and would
not "lose seniority." Blake attributed substantially the same remarks to Lasky.
Stein was not asked about the alleged remarks, but Lasky denied that they were
made. As in other instances where Blake 's unsupported testimony is contra-
dicted, I reject it.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's position is basically that Blake retained the status of
an employee with the Company, without loss of seniority or other rights or
privileges, during the period of September 13, 1951, to January 7, 1952, because
of the alleged discrimination against him. It has been found, however, that
there was no discrimination against Blake. It follows that Blake's employ-
ment, for purposes of the wage increase, dated from January 7, and the addi-
tional contentions of the General Counsel concerning Blake's weekly rate of
pay and vacation period set out in the footnote,34 lack persuasion for the
reasons there given and also because there is no evidence that representatives
of the Company, after Blake's reemployment on January 7, gave any considera-
tion to Blake's lack of good standing in the Union. I find that Blake was not
unlawfully denied the wage increase during July 1952.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, E and F, above,
occurring in connection with the operations of the Company described in section
I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor
practices , I shall recommend that they cease and desist therefrom and that
they take certain affirmative action designed to effectuate the policies of the
Act. I shall not recommend broad cease-and -desist orders , however. G. W.
Thomas Drayage & Rigging Co ., Inc., supra ; Carlyle Rubber Co., Inc., supra.
Upon the basis of the above findings of fact and upon the entire record In
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union 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 Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
"When Blake returned to the Company's employ on January 7 , 1952 , he did so at the
same weekly wage rate he had received prior to quitting on September 13. This rate,
$63 50, exceeded the minimum rate provided in the extension agreement of the contract
for a beginning locksmith , $58, as well as for a locksmith of 1 year's employment, $62.
When Blake returned, as be testified , he did not request a higher wage than he had received
before quitting , nor was he asked to accept a lower one . The General Counsel contends
that the fact that when Blake returned to work he received a rate in excess of that pro-
vided in the extension agreement shows that the Company did not regard him as a new
employee . This contention is not persuasive . The fact that the Company rehired Blake
at the higher rate attests at the most only to Blake's ability as a locksmith , about which
there is no question. In further support of his position , the General Counsel points out
that, under the contract , length of service is a factor In the length of employees' vaca-
tions, "new employees" receiving a vacation of 1 week and "older employees" receiving an
additional week. He points out too, that during 1952 Blake received a vacation of 2 weeks.
The fact, however, is that a dispute arose about the length of vacation Blake should receive,
and thereafter he received the period of 2 weeks . The details of the dispute and the ulti-
mate reasons why Blake received the longer vacation period are not included in the record.
Under the circumstances . I find that this Incident does not substantially support the
General Counsel 's position.
WEaTLOCK CORPORATION 927
3. By attempting to cause the Company to discriminate against Blake in viola-
tion of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 ( b) (2) of the Act.
4. By restraining and coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act, the Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) 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 allegations of the complaint that the Company has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act have not
been sustained.
7. The allegations of the complaint that the Union has engaged in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act by causing the
Company to discriminate against Blake in violation of Section 8 (a) (3), have not
been sustained.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT Inform prospective employees that they must obtain good
standing in DISTRICT 65, DISTRIBUTIVE, PROCESSING AND OFFICE WORRIERS OF
AMERICA, before beginning work, nor will we in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of the right
to, self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities.
WHITLOCK CORPORATION,
Employer.
Dated------------------- By------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
Appendix B
NOTICE TO ALL MEMBERS OF DISTRICT 65, DISTRIBUTIVE , PROCESSING AND OFFICE
WORKERS OF AMERICA, AND TO ALL EMPLOYEES OF AND APPLICANTS FOR EMPLOY-
MENT WITH WHITLOCK CORPORATION
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT attempt to cause WHITLOCK CORPORATION, its officers, agents,
successors, or assigns, to discriminate against its applicants for employment,
or its employees, in violation of Section 8 (a) (3) of the Act.
WE WILL NOT tell employees or prospective employees of WHITLOCK CORPO-
RATION, its successors or assigns, that they must pay dues to us and achieve
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good standing in our labor organization in order to work for WHITLOCK
CORPORATION.
WE WILL NOT in any like or related manner restrain or coerce employees
of or applicants for employment with WHITLOC K CORPORATION , its successors
or assigns , in the exercise of the right to engage in, or to refrain from en-
gaging in, any or all of the concerted activities guaranteed in Section 7 of the
Act.
DISTRICT 65, DISTRIBUTIVE , PROCESSING AND OFFICE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.
THE BLACK-CLAWSON COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, U. A. W.-C. I. 0., AMALGAMATED LOCAL 176 . Case No.
9-CA--399. March 2 41953
Decision and Order
On February 4, 1952, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any unfair labor practice and
recommending that the complaint be dismissed, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel, the Respondent, and the charging Union filed exceptions to
the Intermediate Report, and supporting briefs. The Union's request
for oral argument is hereby denied because the record, including the
exceptions and briefs, adequately presents the issues and the positions
of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings and conclusions of the Trial
Examiner to the extent, and with the additions and modifications,
indicated below.
The sole issue in this case is whether the Respondent committed an
unfair labor practice when it instituted its companywide retirement
plan. The complaint alleges that the Respondent acted unilaterally
and thereby unlawfully bypassed the charging Union, which was the
recognized majority representative of a certain group of its employees.
In defense, the Respondent contends that the Union never requested
that the Respondent bargain with it, but instead agreed that the plan
103 NLRB No. 95.