Acme Air Appliance Company, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1939

10 N.L.R.B. 1385 (N.L.R.B. 1939)

In the Matter of ACME AIR APPLIANCE COMPANY, INC. and LOCAL No.
1223 OF THE UNITED ELECTRICAL RADIO & MACHINE WORKERS OF
AMERICA, C. I. 0.
Cases Nos. C-587 and R-632.-Decided January 25, 1,939
Air Appliance Manufacturing Industry-Interference, Restraint, and Co-
•ercion: dissuadi! g employees from joining union through promises of higher
pay and steadier work, advice that "nothing to be gained" from joining, sug-
gestion to bargain through employees' committee rather than union ; subjection
of union members to criticism, mistreatment, and derision ; characterizing union
as "racket"-Unit Appropriate for Collective Bargaining: all employees, ex-
clusive of superintendents, executives, salesmen, and office and clerical workers ;
no dispute-Representatives: proof of choice: application for membership in
union and authorization of union, as-Collective Bargaining: persistent refusal
,to recognize and meet with union as exclusive representative although majority
-claim not questioned ; making recognition subject of collective bargaining and
otherwise engaging in acts inconsistent with recognition ; offer of counterpro-
posals rejecting union as contracting party and negotiating with union com-
mittee in individual rather than representative capacity, not compliance with
duty under Act ; employer ordered to bargain with union and accept it as signa-
tory to any written agreement-Strike: caused by refusal to bargain ; solicitation
of individual strikers to return; granting increase to returning strikers; attempts
to break strike by threats of discharge of participants-Discrimination: re-
placing strikers with outsiders after application for reinstatement by former
constitutes discharge for union activity ; charges of, dismissed as to strikers not
ireplaced ; discontinuance of department no discrimination against strikers
'formerly employed therein, in view of special circumstances-Reinstatement Or-
udered: replaced strikers, dismissing, if necessary, employees hired since strike-
Back Pay: awarded: replaced strikers not yet reinstated and strikers belatedly
reinstated because of preference for outsiders ; special formula in absence of
seniority rule-Preferential List: strikers not replaced for whom no work avail-
able-Investigation of Representatives: petition for, dismissed in view of order
ito employer to bargain.
Mr. Mark Laufer, for the Board.
Mr. Horace G. Marks, of New York City, for the respondent.
Mr. David Scribner and Mr. Frank Schemer, of New York City,
for the United.
Miss Ida Klaus, of counsel to the Board.
10 N. L. It. B., No. 123.
1385
1386 NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE -
Upon charges and amended -charges duly-filed on behalf of Local
No. 1223 of United Electrical Radio and Machine Workers of Amer-
ica, herein called the United, the National Labor Relations Board,
herein called the Board , by Elinore M. Herrick , Regional Director
for the Second Region (New York City) issued its complaint dated
February 10, 1938, against Acme Air Appliance Company, Inc.,
Brooklyn, New York, herein called the respondent, alleging that the
'respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. In respect to the unfair labor prac-
tices, the complaint alleged, in substance, (1) that the respondent
had, by persuasion, warning, threats, surveillance of union meetings,
and by other acts, interfered with the right of its employees to self-
organization and collective bargaining ; (2) that the respondent had,
since October 12, 1937, refused to bargain collectively with the United
as the duly designated representative of its production employees;
and (3) that the respondent had discharged and refused to reinstate
24 named employees, participants in a strike occasioned by the re-
spondent 's unfair labor practices , because they had assisted the
United and had engaged in concerted activities for the purpose of col-
lective bargaining and other mutual aid and protection.
On October 25, 1937, the United filed with the Regional Director
for the Second Region a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
the respondent and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the Act. On January 24,
1938, the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended , ordered an investigation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice, and also acting pursuant to
Article III, Section 10 (c) (2), and Article II, Section 37 (b), of
said Rules and Regulations, ordered that the two cases be consolidated
for the purposes of hearing.
The complaint and accompanying notice of hearing thereon and
on the petition were duly served upon the respondent and the United.
On February 17, 1938, the respondent filed an answer to the com-
DECISIONS AND ORDERS 1387
plaint, admitting the allegations as to the nature of its business and
the appropriate unit but denying that it had committed the unfair
labor practices charged in the complaint.
Pursuant to notice, a hearing was held in New York City from
March 10 through March 15, 1938, before Harold Stein, the Trial Ex-
aminer duly designated by the Board. The Board, the respondent,
and the United were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was
afforded all parties. At the commencement of the hearing, counsel
for the Board moved to amend the complaint as to certain details of
spelling and to include an additional name among those alleged to
have been discharged. The motion was granted. During the course
of the hearing, the United moved to amend its charges to conform
with the complaint as thus amended, and the motion was granted.
At the close of the Board's case, and again upon the conclusion of the
entire case, the respondent moved to dismiss the allegations of the
complaint for failure of proof. The motion was denied as to the al-
leged refusal to bargain and as to the alleged persuasion, warning
and threats, but granted as to the charge of surveillance. Decision
was reserved by the Trial Examiner on that aspect of the motion re-
lating to the discharges and the refusal to reinstate. Subsequently,.
in his Intermediate Report, the Trial Examiner denied the motion
in all respects except as to the failure to reinstate the respondent's
male employees and the alleged discharges of December 22, 1937. At
the close of the entire case, the Board moved to amend the complaint
so as to strike therefrom the names of five persons, without prejudice
to their claim for back pay. The motion was granted. During the
course of the hearing, other rulings were made by the Trial Examiner
on motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner, made at the hearing
and in the Intermediate Report, and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On May 5, 1938, the Trial Examiner filed his Intermediate Report,
finding that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the Act, and recommending that the
respondent cease and desist therefrom and take certain specified
affirmative action to effectuate the policies of the Act. The Trial
Examiner found that the male employees named in the complaint had
not been discriminatorily discharged or denied reinstatement, within
the meaning of Section 8 (3) of the Act, but recommended certain
affirmative action as to them. Exceptions to the Intermediate Report
were thereafter filed by the respondent and the United. ' On Sep-
1388 NATIONAL LABOR RELATIONS BOARD
tember 29, 1938, oral argument was held thereon before the Board,
and a brief was submitted by the respondent and further exceptions
were filed by the United with the consent of the respondent. The
Board has considered the exceptions to the Intermediate Report and,
in so far as they are inconsistent with the findings, conclusions and
,order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a New York corporation, having its principal office
and sole plant in Brooklyn, New York, is engaged in the business of
manufacturing and selling air valves, air gauges and other air ap-
pliances used in connection with automobiles, bicycles, and related
products. It employs somewhat over SO persons. Gross sales for
the year 1937 amounted in value to about $200,000, of which 95 per cent
represented sales made to purchasers outside the State of New York.
dales agents employed by the respondent are located in various parts
of the country. Brass, brass rods, steel, nickel, and aluminum are the
principal raw materials used by the respondent in its manufacturing
operations, and 58 per cent thereof originate outside the State of
New York.
The respondent admits that, in the course and conduct of its busi-
ness, it has continuously caused a substantial amount of materials and
finished products to be shipped in interstate commerce.
II. THE UNITED
Local No. 1223 of United Electrical Radio and Machine Workers of
America, affiliated with the Committee for. Industrial Organization,
is a labor organization admitting to membership all production work-
ers of the respondent exclusive of superintendents, executives, and
office and clerical workers.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On the morning of October 11, 1937, the six tool makers of the re-
spondent and two of its other production workers, at that time con-
stituting the entire membership of the United, went out on strike in
protest against the dismissal of two tool makers and the respondent's
refusal to reinstate them. A picket line was set up outside the re-
spondent's plant, and the strikers solicited the respondent's employees
to join the United and participate in the strike. A number of em-
DECISIONS AND ORDERS 1389
ployees refused to pass through the picket line and others walked out
of the plant and joined the strikers. At 9 o'clock that morning, at the
invitation of the respondent, a union committee met with the man-
agement and presented the United's demands. The management
promised to reply after the pickets were removed. At 4 o'clock that
afternoon, the picket line was withdrawn and the respondent ac-
ceded to the United's demands. By evening a 'majority of the re-
spondent's production employees had signed application cards for
membership in the United. The following day' all the strikers re-
turned to work.
Meanwhile, do October 11, news of the strike and of the solicita-
tion of members had spread through the respondent's plant. Several
of the girls who had remained inside the plant on that day testified
that the respondent's foremen and foreladies urged them throughout
the day, by means of -promises of higher pay, steadier work, and pro-
tection against violence, not to join the United and the employees
"on the sidewalk." Two of the girls testified that, while they and
a group of employees were preparing to leave the plant during the
lunch hour to investigate the nature of the activities outside and to
join the ranks of the United, Morris Pearlman, the respondent's
secretary, deterred them from fulfilling that mission by his request
that they remain at work until 4 o'clock that afternoon. They testi-
fied further that they were usually privileged to leave the plant dur-
ing the lunch hour. At the close of the working day, according to
the testimony of two other girls, the respondent's superintendent
exhorted them not to join the United, while Pearlman offered to
escort them in safety out of the building. The girls asserted their
lack of fear and stated, in reply, that they were merely anxious to
learn what was going on. One foreman, the foreladies, the superin-
tendent, and Pearlman denied having uttered any of the statements
concerning which the girls had testified. The other foreman, James
Lohr, admitted that he had, on that day and during the ensuing
week, advised one of the witnesses and four of the men that there
was nothing to be gained from joining a union. The Trial Examiner,
who heard the witnesses on both sides, found that, "on the basis of
the demeanor of the various witnesses on the stand," the superin-
tendents and executives of the respondent urged and persuaded the
respondent's employees on October 11 not to join the United and not
to engage in concerted action. We find that the respondent did,
through its supervisors and executives, so urge and persuade its
employees.
The period between October 12 and October 20 was uniformly
characterized by the respondent's witnesses as one of general excite-
ment and unrest among the respondent's employees. The record
1390 NATIONAL LABOR RELATIONS BOARD
shows that this situation stemmed directly from the respondent's
interference with and obstruction of organizational efforts of its
employees . Although the United had been designated on October 11
as the collective bargaining agency of the respondent 's employees, it
had sought unavailingly on several occasions between October 12
and the 8 days which followed to obtain recognition from the re-
spondent as exclusive representative and to bargain collectively with
it on behalf of all the production einployees . 1 The testimony of two
employees is that, after they had replied in the , affirmative to in-
quiries of their foremen as to whether they had joined the United,
they were subjected by their foremen to criticism , derision and mis-
treatment . Another employee testified that, after her foreman had
asked her why she had joined the United, he cautioned her that it was
a "racket" and that those who had joined were like "a bunch of sheep
following one another ." The foremen denied the specific instances
cited by these witnesses but one of them admitted that he had, on
several occasions during the period in question , advised at least one
,of the employees that there was nothin g to be gained from joining a
union and had suggested to that employee that he could obtain more
from the management through a committee composed of his fellow-
workers in the plant than through "outsiders ." This foreman ad-
mitted further that he had urged the employee to whom his suggestion
was addressed to take the initiative in forming such a committee of
fellow-workers . We find that the suggestion was an attempt to inter-
fere with the free choice of representatives . With regard to the state-
ments specifically denied, the Trial Examiner found "on the basis of
the demeanor of the various witnesses on the stand" that they had in
fact been uttered. We find that the denials are unworthy of belief.
We find that , by the foregoing acts of its supervisors , the respond-
ent has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act.
B. The refusal to bargain collectively
The complaint alleged that the respondent engaged in unfair labor
practices within the meaning of Section 8 (5) of the Act by refusing
to, bargain collectively with the United on October 12, 1937, and at all
times thereafter as the exclusive representative of certain classes
of the respondent 's employees.
1. The appropriate unit
The complaint alleged that ' all employees of the respondent , exclu-
sive of superintendents , executives , and office and clerical workers,
constitute an appropriate bargaining unit. The petition for investi-
1 The refusal to bargain is hereinafter dealt with in detail in subsection B infra
DECISIONS AND ORDERS 1391
gation and certification of representatives filed by the United claimed
that all production workers of the respondent , with the exceptions
described in the complaint , constitute such unit . At the hearing
counsel for the Board and counsel for the respondent agreed by stip-
ulation that the appropriate unit should conform to that alleged in
the complaint except that the classes of employees to be excluded
therefrom should be extended to cover salesmen . Counsel for the
United stated that the exclusion of salesmen was agreeable to his
organization and joined in the stipulation . The complaint was there-
after amended to conform to the stipulation . We see no reason for
varying the unit described in the complaint as amended and consid-
ered acceptable by all the parties.
We find that all employees of the respondent , exclusive of super-
intendents , executives , salesmen , and office and clerical workers, con-
stitute a unit appropriate for the purposes of collective bargaining
and that such unit insures to the employees of the respondent the
full benefit of their right to self -organization and collective bargain-
ing and otherwise effectuates the policies of the Act.
2. Representation by the United of a majority in the appropriate unit
The list prepared by the respondent and introduced in evidence by
the Board of all employees in the unit hereinbefore found appropri-
ate shows that, during the week ending October 13, 1937, 77 persons
were employed by the respondent in that unit . One of them appears
not to have earned wages during that week. On behalf of the United
there were offered and received in evidence applications for member-
ship in the United expressly authorizing and requesting it, in each
case, to represent the signer for the purpose of collective bargaining.
The respondent contended that the applications did not constitute
evidence of membership . The organizer for the United testified that
its usual procedure has been to accept all applicants as members in
the absence of an affirmative vote of rejection by the membership.
The record shows that no such vote had been taken as to any of the
applicants whose cards are in evidence . We hold that , regardless of
whether the applicants had in fact been considered members, their
authorizations properly designated the United as their representative
for purposes of collective bargaining.2
Four persons called by the Board identified as their own the signa-
tures on their application cards and testified that they were genuine.
All parties agreed by stipulation that the organizer for the United
and the persons whose names appear on the other application cards
would testify "that the cards were received in the regular order
by the union" and that such persons whose names so appear would
2 Matte? of The ,Se?? icl .- Cot hot atton and International Union , United A utoni oblle TVo? 1, eta
,of America, Local No 459 , 8 N. L R B 621.
1392 NATIONAL LABOR RELATIONS BOARD
further testify "that they signed them on or about the dates appearing
on the cards and that those persons were all employees of the re-
spondent . . . on October 21." On five of the cards the name
of the applicant did not appear in his own handwriting. As to these,
the parties stipulated that the five persons would have testified that
they had affixed their signatures to the cards. The respondent had
an opportunity to check the names appearing on all the cards against
the list submitted by it.
We have compared the cards with the respondent's list and find
that as of October 11, 1937, 59 employees of the 77 in the unit which
we have found to be appropriate had signed application cards. We
find further that, by October 12, 73 employees had applied for mem-
bership, and by October 25, 74 employees had applied. The respond-
ent's counsel admitted during oral argument that the United repre-
sented a majority of the employees in the appropriate unit at all
times in question in the instant proceeding.
- We accordingly find that on October 11, 1937, and at all times
thereafter, the United was the duly designated bargaining repre-
sentative of a majority of the respondent's employees in the unit
above found to be appropriate. Pursuant to Section 9 (a) of the
Act, the United was, therefore, the exclusive representative of all
the employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The refusal to bargain and other acts of interference
On October 12, 1937, a duly elected shop committee of the United
and one Gilbert, an organizer, met with representatives of the re-
spondent. Gilbert informed the respondent's representatives that the
United, having been designated by a considerable majority of the
employees as their bargaining representative, was, by operation of
the Act, the exclusive representative. He requested recognition of
the United, through the shop committee, as such representative and
the fixing of a time and place for a collective bargaining conference.
The respondent's attorney, acting as its spokesman, replied that,
while he did not question any of Gilbert's statements, the management
was not in a position to give the committee an answer as to either of
its requests. Later that day, Gilbert called the respondent's attorney
on the telephone and asked whether the management had considered
the requests made by the United earlier in the day. Again the reply
was that no answer could be given, and this time it was followed with
the comment that the United "would have to wait." The United
agreed, at its meeting -that evening to wait until October 14.
DECISIONS AND ORDERS 1393
Another conference was held on October 14, at which both sides
were represented as they had been two days earlier. The respondent's
attorney read aloud a prepared statement commencing as follows
This is our answer :
To the workers of Acme Air Appliance Co., Inc.
It summarized the events of October 11, including the settlement of
the strike of that date, and stated that it had been "the understand-
ing that any further grievances, including union recognition, would
be discussed in a friendly manner in the future." It then complained
that on the next morning "we were met with the demand for imme-
diate union recognition or else," and commented that "this was not
fair," that "we cannot accede to one demand today and tomorrow be
met with new demands and have the threat of a strike every day
over our heads." It concluded with the suggestion that "you people
get together, confer with whom you will . . . and then submit to us
your complete, concrete propositions in writing," and with the prom-
ise that, after the respondent had been given time to consider, dis-
cuss, and consult about, the propositions, "we can give you a reason-
able answer .and leave the door open to reasonable discussion." The
shop committee's immediate reply to the prepared statement was
that they could see no reason why the respondent had addressed its
answer to the "employees" rather than to the union committee and
union members and why it persisted in refusing to recognize the
United and to set a time and place for a collective bargaining con-
ference. The attorney's comment was that he had already stated the
respondent's answer "and so it will be." The answer was read be-
fore the membership of the United at a meeting that evening and,
while it provoked the general comment that the respondent' was
"stalling for time," Gilbert was authorized to prepare in writing
the demands of the United and submit them to the respondent.
Accordingly, Gilbert drafted a proposed agreement and on October
15 sent copies thereof to the respondent and to its attorney, accom-
panied by a letter suggesting that the proposed agreement be con-
sidered as "a point of departure for collective bargaining" and that
the United be informed during the early part of the following week
"when and where you are ready to start negotiations with the Union
Shop Committee and the Union representative." On October 20,
not having received a reply to or acknowledgment of his letter,
Gilbert called the respondent's attorney on the telephone and asked
whether, since he and the respondent had received copies of ihe" pro-
posed agreement, they were ready to recognize the United and sit
down to a collective bargaining conference with it. The attorney
replied that the respondent was still -not prepared to commit itself,
1394 NATIONAL LABOR RELATIONS BOARD
as it had to have time to look into its finances . Gilbert commented
that the United would give the' respondent more time to consider the
provisions requiring a study of its financial condition but that there
were other portions of the proposed agreement which required no
such research . The attorney insisted that there was no point in sitting
down to "piecemeal negotiations ." The conversation closed with
'Gilbert's statement that if the United was not accorded recognition
and an opportunity to exercise its right to bargain collectively there
might be difficulty in controlling the employees and with the at-
torney's reply that he "would have to take that chance."
That evening Gilbert reported upon his conversation with the re-
spondent's attorney at a meeting of the United and reviewed the
history of his attempts to obtain recognition of the United and an
appointment for a collective bargaining conference. Thereupon the
membership voted to strike on the following day. The strike vote was
carried out the next morning and a complete shut-down of the re-
spondent 's plant ensued.
Further attempts to be recognized as exclusive representative and
to bargain collectively were resumed by the United during the prog-
ress of the strike. A conference was held on October 29 at the
Regional Office of the Board in New York City, at which both sides
were represented . The principal item on the agenda of the meeting
was the United's proposed agreement. The respondent's attorney
declared at`the outset that the opening paragraph would have to be
revised to eliminate the United as a contracting party and to substi-
tute therefor the words "our employees ." Although Gilbert , in reply,
directed his attention to the fact that the United had been desig-
nated as collective bargaining representative by a majority of the
respondent 's employees , the attorney nevertheless persisted in his posi-
tion. The conferees then proceeded to discuss the substantive provi-
sions of the proposed agreement but reached no accord as to any of
them.
Another meeting was held on November 1 , at which the respond-
ent'submitted counterproposals rejecting the United as a contracting
party and signatory to any agreement that might be reached, vary-
ing the United's proposed wage schedule , and qualifying other pro-
visions of the United 's proposed agreement . The shop committee
and Gilbert an that they would recommend to the member-
ship a rejection of the respondent 's proposals and again asked to
have the United recognized as exclusive bargaining agent. The
request was again denied . After further conferences on November
11 and December 3, the respondent still ,refused to deviate from the
position represented by its counterproposals. The strikers notified
the respondent of their dissatisfaction with the terms offered by it
and of their consequent determination to remain on strike. After
DECISIONS AND ORDERS 1395
December 3, no further efforts were made by the United to deal
with the respondent. However, the strike continued.
On December-7 there was sent by registered mail to some of the
strikers, over the signature of the 'respondent's president, the follow-
ing communication : -
We have in our shop tools belonging to you, which were left
in•our,place when you left our employ. Please be advised that
unless you call for same and remove them by December 13, 1937,
we will be obliged to place same in storage for your account.
At about the same time the respondent 'posted on the outside door of
its plant a notice which, according to the respondent's witnesses, was
worded substantially as follows:
You are hereby requested to call to remove any personal
property belonging to you and left by you in our plant. Unless
removed on or before December 13, 1937, we shall be obliged to
place same in storage for your account.
Shortly after the posting of this notice, the respondent solicited indi-
vidual strikers to return to work. This it did by means of telegrams
reading, "Please Report to Work Immediately, Factory Is Open."
By December 21, 25 strikers had gone back to work. There is also
evidence that those who returned during the strike were favored with
wage increases.
4. Conclusions with respect to the refusal to bargain and the strike
There is no conflict in the testimony as to the attempts of the
United to obtain recognition and to bargain collectively prior to the
strike. The Trial Examiner found that the strike was. caused "solely
by the respondent's refusal to recognize the Union and to bargain
collectively with it." In its brief the respondent takes exception to
this finding on the ground that the United had unreasonably denied
the respondent sufficient opportunity to study the proposed agree-
ment and that, therefore, it cannot justifiably be found that the
respondent had been guilty of misconduct or that the strike resulted
from any misconduct on its part. , We find that the respondent's
contention is wholly without merit. When the United informed the
respondent on October 12 that it represented a majority of the
employees in the appropriate unit and requested recognition and an
appointment for a collective bargaining conference, the respondent
did not question the majority claim. It merely refused to give a
definite answer as to each of the requests. The refusal under such
circumstances was in violation of the Act. The, United did not
demand the immediate execution of a contract but merely desired an
unequivocal assurance that its status as sole bargaining agent would
1396 NATIONAL LABOR RELATIONS BOARD
be recognized and that it would be dealt with as such . Under these
circumstances , the granting of such assurance is a fundamental and
initial element of the duty to bargain collectively . a When it is with-
held, the correlative right of employees is vitally impaired and the
purposes of the Act are nullified . Instead of granting the United
the assurance to which it was entitled under the Act, the respond-
ent persisted in creating and heightening an uncertainty in the minds
of its employees by refusing to commit itself on October 12, by pur-
porting through its prepared statement of October 14 to take tinder
advisement the question of whether it would recognize the United,
and, thereafter, by delaying indefinitely the performance of its duty.
With respect to negotiations during the strike, the respondent did
not deny that it had taken the position described above. Indeed,
during the course of the hearing , its attorney admitted the facts
hereinbefore set forth in this respect . It alleges in its answer, how-
ever, and contends in its brief that it did not refuse to bargain col-
lectively with the United during the period of the strike, as it had
met with the organizer and the shop committee and had negotiated
with them concerning the terms, of an agreement . Its counsel ad-
mitted at the hearing'that'the organizer and the shop committee were
not dealt with as the designated representatives of the employees but
merely as individuals and that the respondent had so informed them,
during the course of the negotiations. We find the defense inade'
quate. A majority of the respondent's employees had authorized the
United to represent them in collective bargaining with the respondent.
It is clear from the authorization and from the acts of the employees
that they intended their designation to extend to all stages in the
bargaining process and to a culmination thereof in the execution of
an agreement . By indicating at the outset of negotiations that it
would not sign a contract with the, United and by presenting counter-
proposals rejecting the United as a- signatory, the respondent sought
to qualify and interfere with the clear choice of its employees. This
it was prohibited from doing under the Act.
We find that between October 12 and October 21 and on October
29, November 1, November 11, December 3, and at all times there-
after, the respondent refused to bargain collectively with the United.
We find further that the strike of October 21 was a direct conse-
quence of the respondent's refusal to bargain with the United between
October 12 and October 21, and that it was prolonged by the re-
spondent 's subsequent refusal to- bargain.
The respondent does not dispute the evidence as to the letters and
general notice to the strikers to remove their tools and as to the
solicitation of individual strikers to return to work. It contends
3 Matter of Federal Carton Corporation and N"iv Yore Pr ntinq P)es9men's Union, 10 51,
5 N L R B. 879
DECISIONS AND ORDERS 1397
that the strikers voluntarily left its employ and that, therefore, their
status` as employees had been terminated on October 21 'and their
belongings should have been removed. The clear language of the
Act is to the contrary. Their work having ceased as a consequence of
a current labor dispute and because of an unfair labor practice, the
strikers remained employees within the meaning of Section 2 (3)
of the Act. By indicating to the strikers, concurrently with its re-
fusal to recognize the United and to bargain with it, that it consid-
ered them as having severed their, employee relationship, the
respondent not only further defied the United's right -to recognition
but also attempted once more to discourage the collective efforts of
the strikers and to break down their concerted strength.
We find that,, by, the foregoing acts the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed' in Section 7 of the Act.
C.' The refusal to reinstate the strikers
1. The immediate reaction to the applications for reinstatement
On December 20, after a vote of the United to terminate the strike,
Gilbert sent a'letter to each of the' strikers authorizing a return to
work on December 22 and declaring that the United would carry
on its "struggle for Union recognition on the basis of the fact that
the Union has always represented the majority ." The following day
Gilbert wrote to the respondent ' informing it that the United had
deelaed `- a "truce" ' arid, had instructed all its members to return
to work on December 22. Stating that its action had been motivated
by the understanding of its members that the respondent had in-
formed an official ' of the New York State Board of Mediation of its
intention to reemploy all the strikers , the United, through Gilbert,
reminded the respondent that it expected the principles of seniority
and non -discrimination for union activity , agreed upon in the course
of negotiations during the strike, to apply to the reinstatements if
reemployment of all strikers could not be effected immediately. An
iriteRfiori' to' proceed with 'the charges which have given rise to the
instant proceeding was also expressed. The respondent 's vice presi-
dent admitted that the letter had been interpreted by him as con-
taining a request for reinstatement of all strikers.
The following morning, when the strikers ' arrived 'at the plant
ready to return to -work, they found its doors closed . Thereupon
Gilbert went to see the respondent 's vice president , stated that he
had sent the respondent a letter declaring a "truce," and asked for
the reinstatement of all strikers ready' to return to work . The vice
president informed Gilbert that the respondent 's position was enun-
ciated in, the reply of its attorney to ;Gilbert's letter of the previous
147841-39-vol 10-ss
1398 NATIONAL LABOR RELATIONS BOARD
day. When Gilbert returned to his office, he found the reply, dated
December 21. After advising Gilbert that his client was not inter-
ested in what the United had denominated a "truce," the reply letter
declared, in part, that the respondent "will hire such persons as it
requires to perform -this work, whether same were previously in its
employ or whether same are persons not previously in 'its employ."
Meanwhile, after Gilbert -had departed for his office to ascertain the
substance of the, respondent's reply, a committee of four strikers' an-
nounced'.to the respondent's superintendent that they represented all,
the strikers and requested-reinstatement on their behalf. The super-
intendent replied that all the strikers would be taken back, that he'
could, however, give them no assurance as to when he would reinstate
any or' all' of them, and that he would let them -know 'as soon as
there was sufficient work. ; ' '
The United interpreted the respondent's letter of December 21 and
the statement of its superintendent as evidencing an intention not
to reemploy its striking members, and considered the respondent's
failure to reinstate any of them after request as a lock-out. It ,there-
upon resumed the strike on December 23 and revised its picketing
signs to, state that the strike was being prolonged by the lock-out.
The picketing continued until January 10, 1938, when the strike was
officially terminated. I •
The complaint alleged that on or about December 22 the respond-
ent "refused to reinstate and did discharge the said striking- em-
ployees . . ." thereby engaging in an unfair labor practice within
the meaning of Section 8 (3) of the Act. ; The respondent's, witnesses
testified that, reinstatement of all strikers on the day of their applica-
tion could not be effected, as, time, was needed to restore to, normal
the operations of the plant which had been disrupted by the 2
months' strike. The respondent's records show that 10 strikers were
reinstated between December 22, 1937, and January 10, 1938. It was.
testified, on behalf of the United that the return, of these employees,
bore the tacit approval of that organization. In view of the,plausi- ,
bility of, the respondent's, explanation and of its reinstatement of
some of the strikers shortly after the cessation of the strike, we find
that the 'allegation of the complaint charging that the strikers were
dismissed on December 22 is not supported by the evidence.'
We find, however, that the respondent's letter of December 21 was
seasonably construed by the United as declarative of an intention
not to reemploy, the strikers and that such conduct on the part of
the respondent constituted a , retaliatory threat. of, discharge for,
participation in the strike. As pointed out above in connection-with'
the notices to the, strikers. to call for their personal property, the
strikers remained employees of the respondent and could not be dis-
charged or threatened with discharge during the progress of the
DECISIONS AND ORDERS 1399.
strike or upon its cessation . When 'the respondent indicated to the
strikers that reinstatement would be governed by its independent
wishes, it denied to them the reasonable assurance of reemployment.
to which they were entitled under the Act. Moreover, the position
taken by the respondent was in total' disregard of the United's re-
quest, as collective bargaining representative of the strikers, with,
regard.to the principles to be followed in effecting reinstatement of,
the strikers.' We find that the respondent's letter of December 21
constituted a further refusal to bargain and an interference with the'
right, of its employees to self-organization and collective bargaining.
The strike was thus prolonged by reason 'of the respondent's further'
unfair labor practices.
2. The ultimate denial of reinstatement
The strike was called off and the picket line was ' withdrawn by"
the United on January 10, 1938. The following day Gilbert wrote,
to the respondent informing it of the decision to withdraw the picket'
line and of the instruction to the strikers to accept their jobs when
offered to them by the.respondent. Shortly thereafter a large number
of" the strikers applied for reinstatement by letter, by telephone, or'
by personal visit to the plant. The respondent's superintendent
stated at the hearing that he regarded the application for reinstate-
ment made on December 22, 1937, by a committee of the United on
behalf of all the strikers as operative and outstanding on. and after.
January 10, 1938.
Between January 11 and March 2, the respondent had reinstated
15 of the strikers.. The complaint as amended alleged a discrimiria- '
tory refusal, within the meaning of Section 8 (3) of,the.;Act, ta'
reinstate 25 of the strikers. As of the date of the hearing; seven' of
those named in the complaint had'been restored to their. jobs and,
upon motion of counsel for the Board, the complaint was dismissed
as to four of them, without prejudice to any claim they might have'
for back pay. A motion by counsel for the Board, to dismiss the
complaint as to Louis Tyler was , also granted. The number of 'strik-
erscovered ,by the charge has, therefore, been reduced to 20. We.
shall, however, consider also the four persons as to -whom the com-
plaint was dismissed without prejudice, on the theory that-back P'ay'
is being asked for them and that they are therefore, to that extent,
included within the allegations of the complaint.
Anne. Burbulak, Genevieve Zilinski, Amelia Watson, Mary Van-
gone, Anna Vangone, Florence Carlson, Christine Colella, and'Helen
Garfinkel: These girls had ' worked for the respondent until October
21, the first day of the strike, and had remained on strike until the
conclusion thereof on January 16, 1938. All of them had applied
1400 NATIONAL LABOR RELATIONS BOARD
for reinstatement by letter or in person between January 13 and
January 17. The respondent's supervisors admitted that their
services had been found satisfactory and contended that the failure
to reinstate them was due solely to the unavailability of work for
which they were suited. The respondent's records show, and its
witnesses admitted, that the respondent hired 12 girls to perform the
work which these 8 strikers had done or were capable of doing. The
12 girls were hired during the period between January 17 and Feb-
ruary 9. The respondent urges that the 12 girls were not new em-
ployees or outsiders, as each of them had been in its employ at some
time in, the past. Its records show that none of them had been em-
ployed by the respondent at the commencement of the strike, that the
shortest interval between the last date of employment and the hiring
after the strike was 6 months, and that the longest interval was 41/2
years. There is no evidence that any of these persons had been or
could have been regarded by the respondent as an employee after the
termination of her previous employment. We find that these 12 girls
were new employees.
Some of the 12 were admittedly unqualified for their jobs and,
according to one of the supervisors, were still being "broken in" at
the time of the hearing. The respondent's superintendent testified
that his failure to restore the strikers to their former jobs before
hiring non-strikers was motivated by a desire to favor the strikers
with more interesting and lucrative employment which he had "had
in', mind" for them in other departments, but which ; an unforeseen
business lull had prevented. Taking as-"an-lexa'mple Genevieve--Zilin-
ski, the superintendent pointed out in his testimony that she had
been cutting glass before the strike, which was "far from being a
nice job," and that he had planned a change for her to "sort of break
the monotony." The girls had applied for reinstatement to their
former positions and were desirous of returning to them or to similar
positions. Had the superintendent been seriously concerned with
the happiness of the eight strikers, he would have given them prefer-
ence of employment for whatever work was available until such time
as an opportunity presented itself for transfer,to the more attractive
jobs he had'planned for them. We find the respondent's explanation
to be wholly without merit.
When the eight girls went on strike, they remained employees of
the respondent, within the meaning of Section 2 (3) of the Act, for
their work had ceased as a consequence of a current labor dispute and
because of an unfair labor practice. After they had applied for
reinstatement, thereby indicating their willingness to return, the
respondent was under a duty to restore them to the jobs which they
had, vacated, or to `similar`jobs, and it could not with impunity give
preference to outsiders. The respondent deliberately sought 0 ter-
DECISIONS AND ORDERS 1401
minate the employee status of the strikers by favoring the non-
strikers with employment in the jobs formerly occupied by the strik-
ers, thereby displacing the latter who had engaged in concerted activ-
ity as a protest against the respondent's evasion of its duty to bar-
gain collectively. But for such activity, they would not have been
deprived of their employment. The object lesson to them and to the
other employees was clear.4
We find that, by hiring outsiders to fill, the jobs of the above-named
strikers after denying the applications of the latter for reinstatement,
the respondent had discriminated against the strikers in regard to
hire and tenure of employment, thereby discouraging membership in
the United.
Benn Bogenn and Nerses Partiken: Bogenn had worked as a tool
and die maker for the respondent until the commencement of the
strike. Partiken had been classified as a tool and die maker but had
performed limited supervisory duties immediately before the strike.
They were not restored to their jobs after the strike, although appli-
cation for reinstatement had been made on their behalf on December
22. The respondent admits that their services were satisfactory but
claims that the amount of work available for the toolroom does not
warrant their rehiring and that there is no need for the kind of
supervisory work previously done by Partiken.
The respondent's records show that it reinstated three tool and die
makers, who, according to the testimony of its witnesses, were senior
in service to Partiken and Bogenn. There is no evidence that any
outsiders were hired for the jobs performed by these two men prior
to the strike. The United contended during oral argument that these
men could have been reinstated to share the work with the three
tool and die makers whom the respondent had hired, and relies, in
support of its contention, on the share-the-work system that had
prevailed in the toolroom between October 12 and October 21, 1937.
It was testified on behalf of the respondent that its experience during
this period had demonstrated that work in the toolroom could not
effectively be shared as it required continuity of application and
mathematical precision. No evidence in opposition to the respond-
ent's claim appears in the record. ,
The record affords insufficient basis for a finding that the respond-
ent discriminated against Benn Bogenn and Nerses Partiken in re-
gard to hire and tenure of employment. We shall accordingly dis-
miss the allegations of the complaint, in this respect, in so far as
they relate to these two employees.
*Black Diamond Steamship Corp . v. National Labor Relations Board , 94 F. (2d) 875,
cert den. 304 U. S. 579; Matter of Black Diamond Steamship Corporation and Marine
Engineers ' Beneficial Association, Local No. 33 , 3 N. L. R B . 84; Matter of McKaig -Hatch,
Inc and Amalgamated Association of Iron, Steel , and Tin Workers of North America, Local
No. 1139, 10 N. L. R. B. 33; Matter of Western Felt Works and Tea,tile Workers Organizing
Committee, Western Felt Local, 10 N. L. R. B 407.
1402 NATIONAL LABOR RELATIONS BOARD
Leonard Jenkins and Leonard Petroff : Jenkins had worked in -the
screw-machine department as a set-up man and as an operator until
the commencement of the strike. He was the highest paid non-super-
-'visory production employee in the respondent's employ. His fore-
man testified that he had been "the best of the lot" among the screw-
'machine operators. He was, however, the youngest among them in
point of service. On January 3, 1938, he-made an oral application
for reinstatement. The respondent's records show, and its superin-
tendent testified, that it did not take on any new employees to do the
work formerly performed by Jenkins. Its superintendent testified
that the set-up" work, to which Jenkins had devoted part of his time,
is now being done by each operator for himself and that the amount
of-work at present available for the operators is not sufficient to
warrant the reinstatement of Jenkins.
Petroff had been employed by the respondent in the capacity of
millwright and general machinist until the commencement of the
strike. He was the respondent's only millwright. On January 14
'he wrote to the respondent applying for reinstatement. The re-
spondent admits the good quality of his work but claims that there
is no longer any need for his services, as its occasional millwrighting
-requirements are now filled by outside contractors and as the special
job on which he had been engaged as a machinist has been completed.
`The respondent's records show that no one has been hired by the
respondent since the strike to replace Petroff.
The record affords insufficient basis for a finding that the re-
spondent has discriminated against Leonard Jenkins or Leonard
'-Petroff in regard to hire and tenure of employment. We shall ac-
' cordingly dismiss the allegations of the complaint, in this respect,
in so far as they relate to Jenkins and Petroff.
`Alex Powell, William Jackman, Fred. Frauendor f , Jacob Buchs-
baum, and Herman Rosenberger: These men had worked in the re-
I'spondent's plating and polishing department before the strike of
October '21. Upon the termination of the strike, each made appli-
cation for reinstatement but was informed that the plating and pol-
ishing department had been discontinued and that consequently there
was no longer a need for the services of those who had been employed
in that department before the strike. No fault was found with the
quality of the work performed by any of these men.
The record shows that in January or February of 1938, the re-
spondent did in fact discontinue the department and sell all the
equipment used in connection therewith and that, at the time of the
.hearing, no attempt had been made to revive it. According to the
respondent's witnesses, all the plating and polishing formerly done
on the respondent's premises is now being' performed outside by inde-
DECISIONS AND ORDERS 1403
- pendent contractors. The testimony of the respondent's superin-
tendent is that a comparative cost study made by him at the request
of the respondent's officers before the abandonment of the department
showed that the work could be done by independent contractors at
an annual saving of about $4,400. Although all the respondent's
witnesses testified that the discontinuance of the department had been
considered from time to time during the 2 years preceding the sale
of the equipment, there was disagreement among them as to the
actual time of the decision, the superintendent testifying that it was
-made after the strike had been called and the three officers testifying
that it was made 4 months before the commencement of the strike
with the understanding that abandonment would be' effected at the
end of 1937. The Trial Examiner found, and there is evidence which
lead's us also to believe, that the decision was made dui•ing.the strike.
In view, however, of the unrefuted claim that the'operations can-be
performed by a contractor at a considerable saving to•the respondent
and of the testimony showing that the discontinuance of the,depart-
ment had been discussed. long before the strike, we cannot find that
the final decision to abandon the department and its ultimate dis-
mantling were effected by the respondent with the intention of de-
priving the five strikers of their jobs. Nor can we find that the -re-
spondent would have acted otherwise had the strike not supervened.
The record affords insufficient basis for a finding that the re-
spondent discriminated against Powell, Jackman, Frauendorf, Buchs-
baum, and Rosenberger in regard to hire and tenure of employment.
We shall accordingly dismiss the allegations of the complaint, in this
respect, in so far as they relate to the five men.
3. The delayed reinstatements
Stephanie Kostiv, Angeline Racaniello, Edith Crawford, Helen
Sobitus, and Mary Olesko: These girls had been reinstated by the re-
spondent at the time of the hearing. They admittedly could have per-
formed the functions for which the respondent had hired outsiders
who, had not participated in the strike. Each had applied for re-
instatement upon the termination of the strike and before any of the
outsiders had been taken on. The- respondent's records show that
each of these -five girls could have been reinstated at an earlier date
had the respondent not given preference, in each case, to an outsider.
We find, for the reasons above discussed in connection with the eight
girls to whom the respondent refused reinstatement, that by hiring
outsiders in preference to the five strikers, thereby delaying the re-
instatement of the latter, the respondent discriminated against the
strikers in regard to hire and tenure of employment.
1404 NATIONAL LABOR RELATIONS BOARD
Margaret Moresca and George Berry: Margaret Moresca was re-
instated on January 17, 1938, the day on which the respondent hired
the first of the 12 new employees. Since it is apparent that her re-
instatement was not delayed by the hiring of any of the 12 new
employees, and since there is no other evidence that her reinstatement
was delayed because of her union activity, there is no basis for a
finding that she was discriminated against in regard to hire and
tenure of employment. Accordingly, we-shall dismiss the allegations
of the complaint in so far as they relate to her.
George Berry was reinstated to his job in the screw-machine de-
partment on January 18, 1938. Only three of the strikers who had
been employed in this department were reinstated by the respondent,
and Berry was the third. There is no evidence that his reinstatement
was delayed by the hiring of new employees or because of Berry's
union activity. The record, therefore, affords insufficient basis for a
finding that he was discriminated against in regard to-hire andaenure
of employment. Accordingly, we shall dismiss the allegations of the
complaint in so far as they relate to Berry.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
. We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent had engaged in certain unfair
labor practices, we shall order it to cease and desist from further engag-
ing therein. Moreover, we shall order the respondent to take certain
affirmative action which we deem necessary to effectuate the policies
of the Act.
We have found that the respondent has refused to bargain col-
lectively with the United, a labor organization representing a majority
of the employees in the unit hereinbefore found to be appropriate. We
shall, therefore, order the respondent to bargain collectively with the
United upon request and to accept the United as a contracting party
and a signatory, if an agreement is reached.5
Since we have found that five of the persons who were reinstated had
been discriminated against in regard to hire and tenure of employment,
For a related remedy see Matter of Federal Carton Corporation and New York Printing
Pressmen's Union No. 51, 5 N. L. R. B. 879.
DECISIONS AND ORDERS 1405
they are entitled to be made whole, for the loss of wages sustained by
them by reason of the respondent's delay in rehiring them, occasioned
by the preference accorded the non-strikers.
We have also found that eight of the strikers whom the respondent
has failed to reinstate were also discriminated against in regard to
hire and tenure of employment. We shall order the reinstatement of
each with back pay, such reinstatement to be effected, if necessary,
,by ,the dismissal of-persons -h'ir'ed since the strike who were not in
the respondent's employ on October 20, 1937. Since each of these
persons has applied for reinstatement and there is no evidence that
any of them is not desirous of being reinstated, there is no need to
condition reinstatement on a further application.
Although the respondent does not follow considerations of seniority
in connection with lay-offs and reemployment, we shall, with regard to
the five strikers who were belatedly reinstated, determine the amount
of back pay to which each is entitled in accordance with the order of
their reinstatement. The period for which we shall, in each case,
require back pay is measured by the delay in reemployment occasioned
by the hiring and retention of new employees.
The respondent's records show that on January 17, 1938, it hired the
first new employee and also reinstated the first striker. On January
18, it reinstated Stephanie Kostiv, another striker. On January 20,
it reinstated a third striker, Angeline Racaniello. On January 21,
it hired another new employee, and on January 24 it reinstated a fourth
striker, Edith Crawford, and hired a third new employee. Again on
January 25, two outsiders were employed, while the fifth and sixth
strikers, Helen Sobitus and Mary Olesko, were not reinstated until
February 25 and February 28, respectively. - As we have already
found, and as will be seen, the first striker reinstated had not been
displaced by any new employee and is, therefore, not entitled to back
pay. It will be observed that Stephanie Kostiv could have been rein-
stated on January 17 in the place of the first new employee. She is,
therefore, entitled to back pay from January 17. Angeline Racaniello
continued to be displaced by the first new employee from January 18
to January 20, for which period she is to receive back pay. Edith
Crawford, who was reinstated on January 24, could have been re-
employed on January 20 had the respondent not retained the first new
employee. She is, therefore,,entitled to back pay from January 20 to
January 24. By the same token, Helen Sobitus and Mary Olesko,
who were deprived of reinstatement because of the retention of two
new employees, are entitled to back pay from January 21 and January
24, respectively, to February 25 and February 28, respectively, the
date on which each was reinstated. The net earnings of each of these
1406 NATIONAL LABOR RELATIONS BOARD
persons for the period for which we have ordered back pay shall be
deducted from the amount to which each is entitled."
The determination of the amount of back pay which each of the
eight strikers whose reinstatement we have ordered should receive
is based on, a similar principle, in so far as practicable. Since the-
respondent does not observe a seniority rule, we cannot, without
conjecturing as to the order in which each would have been rein-
stated, calculate the amount which each striker could have earned.
We have consequently adopted a method which we deem at once
equitable and practicable and in consonance with the policies of the
Act. The respondent's records show that, even if Stephanie Kostiv,
Angeline Racaniello, Edith Crawford, Helen Sobitus, and Mary
Oleska had been reinstated at the proper time, all the remaining
eight female strikers could nevertheless have been reinstated between
January 24 and February 2, had the respondent, during that period,
not retained the new employees and continued to hire additional
new employees. We shall therefore order the respondent to pay,
as back wages, to each of the eight strikers a sum equal to the total
amount earned by the eight new employees, hereinafter named, be-
t`veen January 24 and the date of the reinstatement of the last of
the eight female strikers. One-eighth of such total amount shall be
paid by the respondent to each of the eight strikers, less the net
earnings 7 of each of them during the period between January 24 and
the date of the reinstatement of such last striker. The eight new
employees whose average earnings during the prescribed period are
to be calculated in order to determine the amount due each of the
eight strikers to be reinstated were in the respondent's employ be-
tween January 24 and February 2, having been hired earlier than,
but retained during such period, or having been first hired between
these two dates. They are Anna De Vito, Rose Levitt, Clara De-
siderio, Susan Caputo, Margie Todesco, Anna Antoinello, Helen Cla-
vin, and Lillian Cook.
Although we have found that the respondent has not discrimi-
nated in regard to hire and tenure of employment against Nerses
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 his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crosset Lumber Company and United Brotherhood of Carpenters and Jotineis of Amertea,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440. Monies received for
work performed upon Federal, State, county and municipal or other work-relief projects
are not considered as earnings , but shall be deducted from the sum due the employee, and
the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which supplied the funds for said
work-relief projects
° See footnote 6 supra. Deductions from the amount otherwise due each of such em-
ployees of monies received for work performed on work -relief projects shall be made and
paid over as hereinbefore directed.
DECISIONS AND ORDERS 1407'
Partiken, Benn Bogenn, Leonard Jenkins, Leonard Petroff, William'
Jackman, Alex Powell, Fred Frauendorf, Jacob Buchsbaum, and
Herman Rosenberger, these men are still employees within the mean-
ing of Section 2 (3) of the Act, as their work ceased as a conse-
quence of, and in connection with, a current labor dispute and an
unfair labor practice. They are, therefore, entitled to preference
of employment, should the respondent have need in the future for
such services as each of them had performed before the strike or
for similar work. We shall order the respondent to place them upon
a preferential list and offer them employment in their former posi-
tions, or in substantially equivalent positions, as such employment
becomes available and before other persons are hired for such work.8
THE PETITION -
In view of the findings in Section III above as to the appropriate
unit and the designation of the United by a majority of the respond-
ent's employees as their representative, it is not necessary to consider
the petition of the United for certification of representatives. Con-
sequently, the petition will be dismissed.
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following : -
CONCLUSIONS OF LAW
1. Local No. 1223 of United Electrical Radio and Machine Workers
of America is a labor organization, within the meaning of Section
2 (5) of the Act.
2. All employees of the respondent, exclusive of superintendents,
executives, salesmen, and office and clerical workers, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (a) of the Act.
. 3. By refusing and continuing to refuse to bargain collectively
with the United as the exclusive representative of the employees in
the above-stated unit on October 12, 1937, and at all times thereafter,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Anne Burbulak, Genevieve Zilinski, Amelia Watson, Mary
Vangone, Anna Vangone, Florence Carlson, Christine Colella, Helen
Garfinkel, Stephanie Kostiv, Angeline Racaniello, Edith Crawford,
Helen Sobitus, and Mary Olesko, thereby discouraging membership
in a labor organization, the respondent has engaged in and is engag-
8 For a related remedy see Matter of Kuehne Manufacturing Company and Local No. 1711,
United Brotherhood of Carpenters and Joiners of America , 7 N. L. It B. 304.
1408 NATIONAL LABOR RELATIONS BOARD
ing in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
7. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act, with respect to Nerses
Partiken, Benn Bogenn, Leonard Jenkins, Leonard Petroff, Alex
Powell, William Jackman, Fred Frauendorf, Jacob Buchsbaum, Her-
man Rosenberger, Margaret Moresca, and George Berry.
. ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, Acme Air Appliance Company, Inc., Brooklyn, New
York, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local No. 1223 of United
Electrical Radio and Machine Workers of America as the exclusive
representative of all its employees, excluding superintendents, execu-
tives, salesmen, and office and clerical workers;
(b) Discouraging membership in any labor organization of its
employees, by discharging or refusing to reinstate any of its em-
ployees, including the strikers, or in any other manner discriminat-
ing in regard to their hire or tenure of employment or any terms
or conditions of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through 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 Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local No. 1223 of
United Electrical Radio and Machine Workers of America as the
exclusive representative of all its,' employees, excluding superin-
tendents, executives, salesmen, and office and clerical workers, and,
in the event an agreement is reached, accept the United as a con-
tracting party and signatory thereto;
DECISIONS AND ORDERS 1409,
(b) Offer to Anne Burbulak, Genevieve Zilinski, Amelia Watson,
Mary Vangone, Anna Vangone, Florence Carlson, Christine ColeIla,
and Helen Garfinkel immediate and full reinstatement to their former
positions or to substantially equivalent positions, without prejudice
to their seniority or other rights or privileges, including any general
increase in pay which may have been granted since the strike, dis-
missing, if necessary, all persons hired since January 17, 1938, who
were not in the employ of the respondent on October 20, 1937;
(c) Make whole, pursuant to Section V hereof, all persons named
in the preceding paragraph and also Stephanie Kostiv, Angeline
Racaniello. Edith Crawford, Helen Sobitus, and Mary, Olesko;
(d) Place Nerses Partiken, Beim Bogenn, Leonard Jenkins,
Leonard Petroff, Alex Powell, William Jackman, Fred Frauendorf,
Jacob Buchsbaum, and Herman Rosenberger upon a preferential list
in the manner set forth in Section V hereof, and thereafter, in said
manner, offer them employment as it becomes available;
(e) Immediately post notices in conspicuous places in its plant,
and maintain such notices for a period of at least sixty (60) consecu-
tive days, stating (1), that the respondent will cease and desist in
the manner aforesaid; and (2) that, upon request, the respondent
will bargain collectively with Local No. 1223 of United Electrical
Radio and Machine Workers of America for all employees in the
unit hereinbefore found appropriate and will, in the event an agree-
ment is reached, accept the United as a contracting party and signa-
tory thereto;
(f) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices, within the meaning of Section 8 (3) of the
Act, with respect to Nerses Partiken, Benn Bogenn, Leonard Jenkins,
Leonard PetrofF, Alex Powell, William Jackman, Fred Frauendorf,
Jacob Buchsbaum, Herman Rosenberger, Margaret Moresca, and
George Berry.
AND IT IS FURTHER ORDERED that the petition for certification of
representatives filed by Local No. 1223 of United' Electrical Radio
and Machine Workers of America be, and it hereby is, dismissed.