Deena Products Co.

National Labor Relations Board - Board Decisions

Mar 1, 1951

93 N.L.R.B. 549 (N.L.R.B. 1951)

DEENA PRODUCTS COMPANY 549
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLusIONs OF LAW
1. District No. 27, International Association of Machinists, Louisville Build-
ing & Construction Trades Council, and Falls Cities Carpenters District Council
of the United Brotherhood of Carpenters and Joiners of America, AFL, are
labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment or any
term or condition of employment to encourage or discourage membership in any
labor organization of Robert L. Crutcher, James W. Douglas, Ralph W. Ohlman,
and R. G. Thompson, thereby encouraging membership in Falls Cities Carpenters
District Council of the United Brotherhood of Carpenters and Joiners of
America, AFL, Respondent Oertel Brewing Company has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By said conduct Respondent Oertel Brewing Company interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
4. By causing Respondent Oertel Brewing Company to discriminate against
Robert L. Crutcher, James W. Douglas, Ralph W. Ohlman, and R. G. Thompson
in violation of Section 8 (a) (3) of the Act, Respondent Falls Cities Carpenters
District Council of the United Brotherhood of Carpenters and Joiners of
America, AFL, has violated Section 8 (b) (2) 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.
[Recommended Order omitted from publication in this volume.]
DEENA PRODUCTS COMPANY and UNITED SERVICE EMPLOYEES UNION,
LOCAL 329 , OF THE BUILDING SERVICE EMPLOYEES INTERNATIONAL
UNION, AFFILIATED WITH THE A. F. L. Case No. 13-CA-241.
March 1,1951
Decision and Order
On October 31, 1950, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto? The Trial Examiner also found
1 The Respondent contends that the Trial Examiner is without authority to find a
violation of Section 8 (a) (3) of the Act as to certain employees named in the complaint
because they are not named in the original or amended charge . For the reasons stated
in Cat hey Lumber Company , 86 NLRB 157 , enfd. 185 F . 2d 1021 ( C. A. 5, Jan. 22 , 1951),
we find this contention to be without merit.
93 NLRB No. 77.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent had not engaged in certain unfair labor practices
as alleged in the complaint, and recommended that these particular
allegations in the complaint be dismissed 2 Thereafter the Respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
The Board 3 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
Intermediate Report,' the Respondent's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner to the extent
that they are consistent with the findings and conclusions hereinafter
set forth.5
1. We agree with the Trial Examiner and find that the Respondent
interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act by (1) interrogating its employees as to
their union activity, (2) threatening its employees with reprisals if
they engaged in union activity," and (3) promising and granting
a wage increase for the purpose of discouraging membership in and
activity by its employees on behalf of the Union.
The Trial Examiner further found that the Respondent, during the
months of March and April 1949, adopted and enforced certain rules
2 No exceptions were filed to so much of the Intermediate Report as recommends that
certain allegations in the complaint be dismissed . Accordingly , we shall adopt these
recommendations without passing upon the issues Involved.
S Pursuant to the provisions-of Section 3 ( b) of the Act , the Board has delegated Its
powers In connection with this case to a three -member panel [Members Houston, Reynolds,
and Styles].
4 The Intermediate Report contains certain misstatements of fact and inadvertences,
none of which affects the Trial Examiner 's ultimate conclusions or our concurrence
therein. Accordingly , we make the following corrections: (1) The Trial Examiner found
that the Union commenced its organizational activity among the Respondent 's employees
on February 14, 1949. The Union started its organizational drive on February 24, 1949.
(2) The Trial Examiner finds that Irving Taradash ' s statement to William Otis violated
Section 8 ( a) (1) of the Act . Taradash 's statement , as correctly related by the Trial
Examiner elsewhere in his Intermediate Report, was made to Otis Noble. ( 3) The Trial
Examiner found that Weiss' effort to recall the frame department employees were "feasible
and carried out In a half -hearted manner." We assume that the Trial Examiner meant
to characterize Weiss' efforts as "feeble " Instead of " feasible "
5 The Respondent asserts that the Trial Examiner ' s findings are erroneous because they
resolve conflicts of testimony in favor of the credibility of witnesses for the General
Counsel . The Respondent also contends that the Trial Examiner erred in refusing to
permit cross -examination of the witnesses as to their interest In the case . No presump-
tion or Inference may be drawn from the Trial Examiner 's crediting of the witnesses for
the General Counsel and discrediting the witnesses for the Respondent where, as here,
such credibility findings are supported by a preponderance of the evidence in the record.
See N. L R. B v . Pittsburgh Steamship Company, 337 U. S. 656. We believe , moreover,
that the limitation imposed by the Examiner on the cross -examination of certain witnesses
did not involve any abuse of discretion.
a Dee Kuchaba , assistant to Lois Scholl , supervisor of the art department , was not
among the supervisors named In the complaint In view of the General Counsel ' s state-
ment at the hearing that no violations of the Act were charged except by those persons
specifically named in the complaint , and the Respondent 's assertion that for that reason
Kuchaba was not called as a witness, we shall base no unfair labor practice findings upon
Kuchaba ' s conduct.
DEENA PRODUCTS COMPANY 551
governing working conditions for the purposes of interfering with
and discouraging its employees' concerted activities. There was evi-
dence in the record that in March and April 1949, the Respondent
imposed certain limitations upon talking by employees during work-
ing hours and upon the number of employees permitted to visit the
rest room at one time.7 While these limitations coincided with the
Union's organizational campaign, they also coincided with the abuse
of privileges theretofore enjoyed by the employees. We do not be-
lieve that it is established by the preponderance of the evidence that
the foregoing restrictions were designed to do more than merely
correct such abuses, or could reasonably have been construed as ex-
ceeding that purpose. Accordingly, we shall dismiss that part of the
complaint which alleges that the Respondent violated the Act by
changing, or enforcing dormant, working rules for discriminatory
purposes. -
2. The Trial Examiner found that the Respondent on March 24,
1949, shut down its frame department and laid off the frame depart-
ment employees e to discourage union activity in violation of Section
8 (a) (3) and (1) of the Act. We agree. The Respondent's con-
tention that it closed down the frame department and shipped it to
the plant of a subsidiary corporation in Arlington, Kentucky, for
economic reasons is not persuasive. It is true that the Respondent,
through its subsidiary, had erected a plant at Arlington, Kentucky,
and the Respondent's officials testified that the Respondent eventually
planned to move its entire Chicago operations to this plant. How-
ever, no plausible reason was given for precipitously moving the frame
department to the exclusion of the other departments. The frame
department was engaged in the construction of wire frames upon
which parchment or cloth was attached to make the finished lamp
shade. Inasmuch as the departments making and attaching the cov-
ering to the shades were retained at the plant involved herein, it seems
highly unlikely that any economic advantage would be obtained by
transferring the frame department equipment to Kentucky, making
the wire frames there, and then shipping the frames back for com-
pletion to the departments still retained at the plant in Chicago.
We also agree with the Trial Examiner, at the time of the shut-'
down of the frame department, the Respondent was fully aware of
' Contrary to the Trial Examiner , we find nothing in Supervisor Scholl 's testimony
which constitutes an admission that she changed , or more rigidly enforced, the working
rules during this time
The record does not support the Examiner 's finding that there was any change in the
employees ' privilege of smoking at their work tables during the lunch period.
"The Trial Examiner found that Bernard Piel, son of Ben Piel, was an employee in the
frame department . The record discloses that Bernard Piel , also called Ben Piel , was the
frame department foreman and that both names refer to the same person. Therefore,
unlike the Examiner, we attach no significance to the Respondent 's failure to lay off
Bernard ( or Ben ) Piel, a supervisor.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Upion's organizing activities and knew that most, if not all, of
the frame department employees were union members. We base this
conclusion upon the following circumstances : 9
Superintendent Weiss' statement in early March to Deibel, foreman
of the polishing and plating department, that Lacy was talking to
union organizers when he went out for coffee; Weiss' statement to
Deans on the morning of March 24 that "we know who is in the Union
and they will get theirs"; Supervisor Scholl's statements to various
employees on March 24, 1949, the day of the layoff in the frame de-
partment, attributing the layoff to union activity and threatening
like reprisals against any other employees who joined the Union; the
entire course of conduct by Weiner, the Respondent's president, in-
cluding his subsequent threats that he would not have a union in his
plant and that he would shut down the entire plant if the Union
came in.
3. The Trial Examiner found that the layoffs in the art department
in April 1949 were for economic reasons. He further found, however,
that the Respondent, in selecting the employees to be laid off, utilized
the economic layoff to rid itself of certain union members. We agree.
The antiunion animus of the Respondent's officials is demonstrated
by the threats and union interrogation we have found to be violative
of Section 8 (a) (1). That the Respondent intended to prevent union
activity in the plant is apparent from its discriminatory shutdown of
the frame department, its many threats to shut down the entire plant
before it would tolerate a union, as hereinabove related, and the
course of interrogation and observance of union activities 10 by which
its officials ascertained which of its employees were members of the
Union. Further, the Respondent disregarded seniority in order to
lay off every union member employed in the art department, but ad-
hered to seniority in laying off the nonunion employees. Thus, while
all the union members in the art department were laid off, only 25 per-
cent of the nonunion employees were terminated. Had the Respond-
ent applied seniority to both union and nonunion employees alike, 30
percent of those retained would have been union members.
0 Unlike the Trial Examiner , however, we do not attribute the Respondent ' s knowledge
of the identity of the members of the Union to any surveillance of union meetings. Such
surveillance , if it did occur , occurred on the night of March 24 , after the layoff in the frame
department , and not, as related by the Trial Examiner , on the night of March 22 In
any event, , we find that the testimony of Deans and Walker relative to the surveillance
on the night of March 24, upon which the Trial Examiner relies , too vague to support
a finding that Weiss and Kuchaba were engaging in surveillance of the meeting. Nor do
we find Walker ' s vague testimony regarding Kuchaba's following the employees in her
car on the night of March 24, sufficient to support a finding of surveillance.
10 As heretofore stated we do not rely upon the testimony of Deans and Walker in establish-
ing that the Respondent knew the identity of those employees attending the union meetings.
That the Respondent did, however , in fact, ascertain which employees attended the meetings
is apparent from the credible testimony of Willie Thomas that on the morning following a
union meeting, Supervisor Scholl told her that she had seen Thomas "leaving the Union
meeting last night."
DEENA PRODUCTS COMPANY 1 553
Upon the entire record before us in this case,1' including the Re-
spondent's disregard of seniority in order to reach every union member
employed in the department, we find that the Respondent discrimi-
nated against those union members laid off in April 1949 in violation
of Section 8 (a) (3) and (1) of the Act.12
4. We agree with the Trial Examiner and find, for the reasons,
stated in the Intermediate Report, that the Respondent discrimina-
torily laid off Louis Lacy 13 and Maggie Mitchell. 4
The Remedy
We have found that the Respondent has engaged in certain unfair
labor practices. Accordingly, we shall order that it cease and desist
therefrom and take certain affirmative action in order to effectuate
the policies of the Act.
We have found, as did the Trial Examiner, that the Respondent
shut down the frame department and laid off the frame department
employees, named in Appendix B attached hereto, for discriminatory
reasons. Although the Respondent recalled two of these employees
when it resumed operation of a frame department in January 1950,
the Trial Examiner concluded that the Respondent did not offer rein-
statement to the other seven employees.' 5 He therefore recommended
that the Respondent be required to offer reinstatement to these seven
employees with back pay.
Upon the record before us, we do not agree with the Trial Ex-
aminer's finding that the Respondent did not make a bona fide effort
to contact all the frame department employees. Superintendent
Weiss testified that he telephoned each of the employees who, accord-
ing to the Respondent's records, had a telephone, and that he sent
" The entire course of the Respondent 's conduct must be considered in determining
whether the selection of employees for layoff was a violation of the Act . N. L. R B. v.
Vail Manufacturing Company, 158 F. 2d 664 (C. A. 7).
12 The complaint alleges and the Trial Examiner found that Edna Mae Johnson was
among those discriminatorily selected for layoff . This employee worked on the third floor
(the art department is on the fourth floor ) in the floor wiring department . No evidence
was introduced concerning this employee , nor does it appear in what manner she may have
been discriminated against Under these circumstances we shall dismiss the complaint
as to her.
13 As found by the Trial Examiner , Louis Lacy was recalled to work on August 12, 1949.
14 The Respondent contends that Maggie Mitchell was laid off because of the general reduc-
tion in force We agree with the Trial Examiner that this contention is without merit.
Stanley Jembrzycki , under whose supervision Walker worked , told Walker at the time he
laid her off "don't blame me, that is the boss ' rule Lay off everybody that has joined the
Union ." Although Jembrzycki was not a supervisor , it is clear that the Respondent dele-
gated to him the duty of notifying Walker that she was laid off. Under these circum-
stances , including the fact that Respondent 's conduct substantially reflected the policy
stated by Jembrzycki , we regard the latter ' s statement as competent evidence of the
Respondent 's reason for laying off Mitchell.
Is The Trial Examiner found that the Respondent 's efforts to recall the laid-off employees
were "feeble and carried out in halfhearted manner," and he therefore rejects the Re-
spondent ' s contention that it attempted to recall all of the frame department employees.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telegrams to those for whom it had only their street addresses. The
record shows that two employees were reached by these means and
returned to work. Under these circumstances, we believe the Re-
spondent had made a prima facie showing of a bona fide effort to
offer reinstatement to all the frame, department employees, and we
find nothing in the record that adequately rebuts this showing. The
Trial Examiner's finding that, with the exception of one or two
employees, all the frame department employees had the same addresses
in January 1950 as they had in March 1949, is not supported by the
record. In fact, so far as the record discloses, only one employee,
other than the two employees recalled, had the same address; Of the
remaining three employees who testified, all had changed their ad-
dresses since March 1949. Accordingly, we find upon the record
before us that the Respondent did make a bona fide effort in January
1950 to offer reinstatement to all the frame department employees.
While we shall order the Respondent, to the extent that it has not
already done so, to offer to all the frame department employees im-
mediate and full reinstatement to their former or substantially
equivalent positions,16 without prejudice to their seniority and other
rights and privileges, we shall order back pay from March 24, 1949,
only to that date in January 1950 when the Respondent recalled or
attempted to recall the employees.
We have also found that the Respondent unlawfully discriminated
in regard to the hire and tenure of those employees named in Appendix
A, attached hereto. It is possible that some of the employees dis-
criminated against might have been affected in the reduction of
operations even absent the Respondent's unfair labor practices, but
the record furnishes no basis for determining the order in which they
might have been laid off or discharged. Under these circumstances,
we shall order the Respondent to offer the employees named in Appen-
dix A immediate and full reinstatement to their former or substan-
tially equivalent positions,17 without prejudice to their seniority and
other rights and privileges, and, in the event that there is insufficient
work for all such employees entitled thereto, to dismiss, if necessary,
all persons newly hired after the date of the Respondent's discrimi-
nation. If there is not then sufficient work available for the remain-
ing employees and those to be offered reinstatement, all available
positions shall be distributed among them without discrimination
against any employee because of union membership or activity, in
accordance with the system of seniority or other nondiscriminatory
11 The Chase National Bank of the City of New York , San Juan, Puerto Rico , Branch,
65 NLRB 827 . Such offer shall be made to those employees who were not reached by the
Respondent's prior offers No such offer need be made, of course , to those already reinstated.
17 See footnote 16, supra.
DEENA PRODUCTS COMPANY 555
practice heretofore applied by the Respondent in the conduct of its
business . The Respondent shall place these employees, if any, for
whom no employment is available after such distribution, on a
preferential list, with priority in accordance with such system of
seniority or other nondiscriminatory practice heretofore applied by
the Respondent in the conduct of its business, and thereafter offer
them reinstatement as such employment becomes available and before
other persons are hired for such work."'
We shall also order the Respondent to make whole those employees
named in Appendices A and B for any losses that they may have
suffered because of the Respondent's discrimination, by payment to
each of them of a sum of money equal to the amount that he normally
would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement'19 or , in the case of those employees
named in Appendix A for whom there is insufficient work available,
to the date of his placement on a preferential list as hereinbef ore set
forth, as the case may be, less his net earnings during said period,20
the back pay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289.
Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other such period. We shall also order the Re-
spondent to make available to the Board upon request payroll and
other records to facilitate the checking of the amount of back pay
due.21
As it is possible, however, that one or more of these employees named
in Appendix A might have been laid off in the reduction of the work
force, even if the Respondent's selection had been on a nondiscrimina-
tory basis, this possibility will be taken into consideration in deter-
mining the amounts of back pay due to these employees, in compliance
with our Order herein.22
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and of other unfair labor
practices may be anticipated. We shall, therefore, make our Order
herein coextensive with the threat, and order that the Respondent cease
and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act. 23
11 Carolina Mills, Inc., 92 NLRB 1141.
19 In the case of the employees named in Appendix B not reinstated in January 1950,
back pay, as already included, will run only to the date of the Respondent ' s attempted
offer of reinstatement.
20 Crossett Lumber Company, 8 NLRB 440 , 497-98.
21 F. W. Woolworth Company, supra.
22 Harold V. Utterback and David ; A. Schatz, d/b/a U. and S. Lumber Company, 92
NLRB 163; Sandy Hill Iron & Brass Works, 69 NLRB 355 ; Wright-Hibbard Industrial
Electric Truck Company, Inc., 67 NLRB 897.
21 See-N.^L. R. B. v. Express Publishing Company, 312 U. S. 426.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the basis of the entire record in the case and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Deena Products
Company, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Service Employees Union,
Local 329, of the Building Service Employees International Union,
affiliated with the AFL, by discharging, laying off, or refusing to rein-
state any of the employees because they have become members of or
have been active on behalf of any labor organization, or by discrimi-
nating in any other manner in regard to hire and tenure of employment
or any term or condition of employment.
(b) Interrogating employees concerning their own or other em-
ployees' union membership and activities, threatening employees with
economic reprisals if they join a union or engage in union activity, or
granting wage increases to its employees during the course of their
union or concerted activities for the purpose of discouraging member-
ship in the Union, or in any other manner interfering with, restrain-
ing, or coercing their employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist United
Service Employees Union, Local 329, of the Building Service Em-
ployees International Union, affiliated with the AFL, or any other
labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities except that such rights may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) To the extent that it has not already done so, offer to Louis
Lacy, Maggie Mitchell, and the employees named in Appendices A
and B, attached hereto, immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges, and make them whole
in the manner set forth in the section of this Order entitled "The
Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Order.
DEENA PRODUCTS COMPANY 557
(c) Post at its plant at 1130 South Wabash Avenue, Chicago,
Illinois, copies. of the notice attached hereto as Appendix C.24 Copies
of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the Respondent,
be posted immediately upon receipt thereof and be maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
The Respondent shall take reasonable steps to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminatorily revised its plant rules on or about
March 1949 for the purpose of interfering with and discouraging the
concerted activities of its employees or discriminated with regard to
the hire and tenure of employment of Phillip Uhl or Edna Mae John-
son in violation of Section 8 (a) (1) and (3) of the Act be, and it
hereby is, dismissed.
Appendix A
1. Amy Hunter
2. Mary Hinton Williams
3. Leora Cummings
4. Marietta Harris Reese
5. Pauline Newby
6. Lymustine Reece-Reinstated
July 18, 1949
7. Clare Parker
8. Hattie Moore
9. Georgie Moore
10. Nommie Monroe
11. Evelyn Jackson
12. Savannah Brown
13. Margaret Walker
14. Catherine Clark
15. Lennie Thomas
16. Willie B, Thomas
17. Willean Otis
18. Elizabeth Conner
19. Bennie Valentine
20. Carolyn Waller
21. Willa Conner Kennedy
22. Laura Jones
23. Amanda McLemore
24. Ethel Overton
25. Sovola Fair Ingram
26. Catherine Drye
27. J u l i a Hopkins-Reinstated
July 18, 1949
28. Mary Herron
29. Carrie Cowper
30. Leoner C o t t o n-Reinstated
July 18, 1949
31. Ruthalia Gray
32. Carolyn Bowman Brown
33. Addie Mae Weathers
2* In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words "A Decision and Order ," the words
"A Decree of the United States Court .of Appeals Enforcing."
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix B
1. Homer Pierson 7. Charles Holland-
2. James Jones 8. Henry C a r r o 11-Reinstated
3. William Ray January 13, 1950
4. Robert Cobbins 9. James Armstrong-Reinstated
5. James Cobbins January 1950
6. Otis Noble
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf
Of, UNITED SERVICE EMPLOYEES UNION, LOCAL 329, OF THE BUILDING
SERVICE INTERNATIONAL UNION, AFFILIATED WITH THE AFL, or
any other labor organization, by discriminating against employees
in regard to hire and tenure of employment or any term or con-
dition of employment.
WE WILL NOT interrogate employees concerning their own or
other employees union membership and activities, threaten" em-
ployees with economic reprisals if they join a union or engage in
union activity, promise or grant a wage increase for the purpose
of discouraging membership in and activity by our employees
on behalf of a union or coerce our employees in the exercise of
their right to self-organization, to form labor organizations, to
join or assist UNITED SERVICE EMPLOYEES UNION, LOCAL 329, OF
THE BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION, AFFILI-
ATED WITH THE AFL, or any other labor organization, to bargain
collectively through representation of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining, or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such a right
may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL OFFER to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority and other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination against them :
DEENA PRODUCTS COMPANY
Homer Pierson
James Jones
William Ray
Robert Cobbins
James Cobbins
Otis Noble
Amy Hunter
Mary Hinton Williams
Leora Cummings
Marietta Harris Reese
Pauline Newby
Lymustine Reece
Clare Parker
Hattie Moore
Georgie Moore
Nommie Monroe
Evelyn Jackson
Savannah Brown
Margaret Walker
Mary Herron
Carrie Cowper
Leoner Cotton
Charles Holland
Henry Carroll
James Armstrong
Louis Lacy
Maggie Mitchell
Catherine Clark
Lennie Thomas
Willie B. Thomas
Willean Otis
Elizabeth Conner
Bennie Valentine
Carolyn Waller
Willa Conner Kennedy
Laura Jones
Amanda McLemore
Ethel Overton
Sovola Fair Ingram
Catherine Drye
Julia Hopkins
Ruthalia Gray
Carolyn Bowman Brown
Addie Mae Weathers
559
All our employees are free to become or remain members of the
above-named union or any other labor organization, except to the
extent that the right to refrain may be affected by a lawful agreement
requiring membership in a labor organization as a condition of
employment.
DEENA PRODUCTS COMPANY,
Employer.
By -------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Edward T. Maslanka, Esq., for the General Counsel.
Carl H. Urist, Esq. and Edward R. Weinstein, Esq., of Chicago, Ill., for the
Respondent.
Mr. Walter A. Deane, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Service Employees Union,
Local 329 , of the Building Service Employees International Union, affiliated
with ' the A. F. L., hereinafter called the Union, the General , Counsel for the
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board 1 by the Regional Director of the Thirteenth
Region (Chicago, Illinois), issued a complaint and two amendments thereto,
dated respectively April 12, May 4, and May 8, 1950, against Deena Products
Company, Chicago, Illinois, herein called the Respondent, alleging therein that
the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) of National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of
the charges, complaints, and notices of hearing were served upon the Respondent
and the Union.
With respect to the unfair labor practices, the complaint and the amendments
thereto alleged in substance that the Respondent did terminate the employment
of the following employees on various dates during the months of March and
April 1949, the dates of which will be set forth in detail hereinafter : On or
about March 24, 1949, did terminate the employment of the following employees :
Homer Pierson, James Jones, William Ray, Robert Cobbins, James Cobbins, Otis
Noble, Charles Holland, Henry Carroll, and James Armstrong; between April 1
and April 30, 1949, did terminate the employment of the following employees:
Amy Hunter, Mary Hinton Williams, Leora Cummings, Marietta Harris Reese,
Pauline Newby, Lymustine Reece, Maggie Mitchell, Clare Parker, Hattie Moore,
Georgie Moore, Nommie Monroe, Evelyn Jackson, Savannah Brown, Margaret
Walker, Catherine Clark, Louis Lacy, Lennie Thomas, Willie B. Thomas, William
Phillips Otis, Elizabeth Conner, Bennie Valentine, Carolyn Waller, Willa Conner,
Laura Jones, Amanda McLemore, Ethel Overton, Sovola Fair Ingram, Catherine
Drye, Julia Hopkins, Mary Herron, Carrie Armor Cowper, Philip Uhl, Leona
Cotton, Ruthalia Gray, Carolyn Bowman Brown, Addie May Weathers, and
Edna Mae Johnson ; and has at all times since said dates failed and refused to
reinstate said employees for the reason that they, and each of them, became
members of the Union and engaged in concerted activities for the purpose of
collective bargaining, with regard to rates of pay, hours of employment, or other
conditions of employment, and that by these acts and the following acts: (a)
During the months of March and April 1949, by its supervisors, including Lois
Scholl, Ben Piel, and John Tederdash 2 questioned the employees regarding their
union activities; (b) during the months of March and April 1949, by its super-
visors, including Irving Taradash, Lois Scholl, and Stanley Jembrzycki, and its
president, George Weiner, threatened its employees with reprisals in connection
with or on behalf of the Union; (c) during the month of April 1949, by its
president, George Weiner, promised and granted wage increases for the purpose
of discouraging membership in and activity by its employees on behalf of the
Union ; (d) by discriminatorily revising plant rules on or about March 1949
for the purpose of interfering with and discouraging the concerted activities
of its employees ; and that by aforesaid acts of the Respondent, and each of
them, as set forth hereinabove, constitute unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the Act.
Among other allegations in the complaint the General Counsel alleged that the
Respondent is, and at all times referred to therein has been, an Illinois corpora-
tion having its principal office in Chicago, Illinois, with plants located in
Chicago, Illinois, and several cities in the State of Kentucky, and that it manu-
factured at one of its plants in Kentucky, pottery lamp bases which were shipped
1 The General Counsel and his representatives at the hearing are herein referred to as
the General Counsel, and the National Labor Relations Board as the Board,
2 General Counsel at the hearing moved to amend complaint by substituting the name of
Irving Taradash for John Tederdash . Motion was granted without objection.
DEENA PRODUCTS COMPANY 561
to its Chicago, Illinois, plants, for the purpose of assembling finished table and
floor lamps, the details which will be set forth more fully hereinafter.
The Respondent filed its answer to the original complaint on,May 2, 1950, and
to the amended complaints on May 15, 1950. In its answer the Respondent
admitted certain jurisdictional facts but denied the commission of any unfair
labor practices. As an affirmative defense the answer averred in substance that
the employees named above were laid off for economic reasons, and not because
of their union and other concerted activities.
Pursuant to notice a hearing was held in Chicago, Illinois, on various dates
between May 16 and May 24, 1950, before the undersigned, the Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel and the
Respondent were represented by counsel and the Union by a lay representative.
At the outset of the hearing the General Counsel moved that the undersigned
take judicial notice of the Board's Decision and Order in the case of Deena Art-
ware Inc., 86 NLRB 124, and to also take cognizance of the testimony adduced
at the hearing therein. The motion was denied. The undersigned of course
takes judicial notice of all Board Decisions and Orders, but to take judicial
notice of the testimony adduced involving a separate corporate entity is one
thing, especially in view of the fact that the Deena Artware Inc., was neither
named in the charge, complaint, nor a notice of hearing served upon it as such
a corporate entity, is something else. There is ample authority for the position
taken by the undersigned; for example Wigmore in his "Wigmore on Evidence"
at page 570, Volume IX-Section 2579-Same: (2) Records of Proceedings. "The
proceedings in a Court are constituted by the record, and this record originally
took its name from the judicial memory ('recordari') which could be invoked for
recalling those prior proceedings. Nevertheless, it seems to-day unreasonable,
having regard to the general principle of judicial notice (ante, § 2565), to predi-
cate an actual judicial knowledge of the proceedings in specific prior litigations
(for they are commonly neither notorious, nor within the judge's duty of
knowledge), or to expect the Court to make its own researches into the mass of
the records for the purpose of informing itself. Accordingly, it may be said
generally that a Court is not by any rule bound to take notice of the tenor of
any legal proceedings (other than those transacting at the moment in its pres-
ence). Indeed, this much is assumed in the conceded rules of law which require
the original of a judicial record to be produced in proof, and define the ex-
ceptions by which a copy is allowed to be used instead (ante, §§ 1215, 1216).
However, for reasons of convenience, where controversy is unlikely and the
expense of a copy would be disproportionate, Courts are often found taking notice
of the tenor or effect of some part of a judicial proceeding, without requiring
formal evidence. Since this dispensation is not obligatory on the part of the
Court, and since it must depend more or less on the practical notoriety and cer-
tainty of the fact under the circumstances of each case, little uniformity can be
seen in the instances. It is often done for a part of the record in the same pro-
ceeding, or in a prior stage of the same controversy; less often for the record
of a distinct litigation, especially when in another Court." [Emphasis supplied.]
Here we are dealing with the Respondent, an Illinois corporation, not with
Deena Artcraft Inc, a Kentucky corporation, and conceded by the General
Counsel to be a separate corporate entity. Regardless of how closely associated
are the various enterprises of the president of the Respondent, nevertheless under
the fifth and fourteenth amendments to the Constitution of the United States
they are entitled to their day in court as separate entities. Their close associa-
tion will be discussed in greater detail hereinafter. If the complaint herein
had named the various separate entities as parties the undersigned's rulings
a43732-51--37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this regard would have been to the contrary ; but they were not. All of the
cases cited by the General Counsel at the hearing herein involved situations
where the various enterprises and separate corporate entities were not only
named in the complaint and notice of hearing served upon them, but each had
the legal right and did participate at the hearings therein. Such was not the
situation herein.
At the hearing herein all parties were afforded an opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues. At the conclusion of the hearing the General Counsel moved
to have the pleadings conform to the proof as regards minor matters such as
names, dates, and the like. The motion was granted without objection. Re-
spondent then moved that the complaint be dismissed for failure of proof of the
allegations therein. Ruling thereon was reserved by the undersigned. The
motion is hereby denied. Also at the conclusion of the hearing all parties
though given an opportunity to do so waived oral argument. On or about
June 26, 1950, briefs were received from the General Counsel and the Respondent.
They have been carefully considered by the undersigned.
Upon the entire record of the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 3
The Respondent is an Illinois corporation having its principal office and place
of business in Chicago, Illinois. The Respondent is engaged in the manufac-
ture and sale of floor and table lamps and lamp shades. The Respondent
purchases pottery lamp shades from the Deena Artware Company, Paducah,
Kentucky, and the Sippi Products Company, Wykliff, Kentucky.4 The Respond-
ent also purchases from various suppliers, wire, parchment, and metal which
are used in the assembly of the Respondent's finished products. During the year
1949, the Respondent's purchases of raw materials exceeded $100,000 annually
of which in excess of 50 percent was received from, and transported in inter-
state commerce from and through States of the United States other than
the State of Illinois. The Respondent's sales of its finished products for the
same period were in excess of $100,000, of which more than 90 percent was
shipped to points outside the State of Illinois.
The Respondent concedes and the undersigned finds that the Respondent is
engaged in commerce within the meaning of Section 2 (6) and (7) of the Act
as amended.
U. THE ORGANIZATION INVOLVED
United Service Employees Union, Local 329, of the Building Service Employ-
ees International Union, affiliated with the A. F. L., herein called the Union, is a
labor organization within the meaning of Section 2 (5) of the Act.
9 The complaint alleges that the Respondent has "plants " in Kentucky and Illinois. The
proof shows that these plants are operated as separate corporate entities . Though closely
linked with the Respondent herein, and all have the same officers, they are as stated
separate corporate entities . In such a state of the record the undersigned will recommend
the dismissal of all allegations in the complaint in this regard.
4 See footnote 2, supra.
DEENA PRODUCTS COMPANY 563
IlI. THE UNFAIR LABOR PRACTICES
0
A. Interference, restraint, and coeroion
1. The Respondent's organization
The Respondent as indicated above is a closely knit corporation. Its president
is George H. Weiner, and its secretary, Bernice Kessler, who also acts as private
secretary for Weiner in his capacity as president of the corporation. There are
no other officers. In fact Weiner, Kessler, and Weiner's wife are the only stock-
holders. Kessler's holdings are small, she being a stockholder only for the pur-
pose of qualifying as an incorporator and as an officer of the corporation.
Weiner and Kessler are also the only officers, and hold the same percentage of
stock in the following corporations : Deena Artware Company,' Paducah, Ken-
tucky ; Deena of Arlington, Arlington, Kentucky ; and Sippi Products Company,
Wykliff, Kentucky. All of the above are Kentucky corporations ; Arthur Plating
Company, Deena Building Corporation, and Sher Corporation, all of which are
Illinois corporations with their principal places of business in Chicago, Illinois.
The Respondent herein operates two plants in Chicago, one is located at 825
South Wabash Avenue ; here are located its offices and the trimming department.
The main plant is located at 1130 South Wabash Avenue. At the time the events
herein occurred the Respondent had in its employ approximately 325 people,
the majority of whom were females. The operations at the plant, particularly
at 1130 South Wabash Avenue, are for convenience and efficiency divided up
into departments. Here we are concerned primarily with the frame art depart-
ments. Each department is presided over by a supervisor, and in some depart-
ments there are assistant supervisors.
The Respondent's supervisory hierarchy insofar as the events herein are con-
cerned consisted of President Weiner, Homer Weiss, plant superintendent, Ben
Piel, foreman of the frame department, Joel Deibel, foreman of the polishing
and plating department, Lois Scholl, supervisor of the art department, Dee
Kuchaba, assistant supervisor of the art department, and Irving Taradash, an
executive of the Respondent and its purchasing agent. He has one employee
under his supervision, a secretary.'
2. The Union's organizational drive and the events that flowed therefrom
On or about February 14, 1949, the Union started its organizational drive
among the Respondent 's employees . Walter A. ("Scotty") Deans, an organizer
for the Union , was placed in charge of the drive . One of the first employees he
contacted was Otis Noble , an employee in the frame department . Noble signed
an application-for-membership card, and agreed to solicit other employees to join
the Union . Shortly thereafter he succeeded in signing up all the employees in
the frame department.
" See Deena Artware Co , 86 NLRB 732.
e The complaint alleges that one Stanley Jembrzycki was at the time the events herelm
occurred a supervisor . The proof shows however that his duties are not of such a
nature that bring him within the pale of the Act as such. He ordinarily works alone,.
but on occasion when he has more work than he can handle alone he requests the plant-
superintendent, Homer Weiss, for additional help. Weiss then assigns employees from!
other departments to-assist him He directs their work and tells them what to do. He,
does not have the authority to hire or fire or transfer employees nor does he have any of
the other authorities of a supervisory employee as set forth in the Act as amended.
Consequently, the undersigned finds that Stanley Jembrzycki is not a supervisory employee
within the meaning of the Act. This finding however does not preclude the undersigned.
from finding that Jembrzycki on occasion acted as an agent for the Respondent. This
issue will be discussed in detail hereinafter.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about March 15, 1949, Irving Taradash, an executive ofIthe Respondent,
and its purchasing agent, told Otis Noble, in substance, that he had heard about
the union activity among the employees, and that he considered Noble a nice
fellow and that if he wanted to keep his job he would advise him to stay out of
the Union. Inasmuch as Teradash is one of the top executives of the Respondent,
the undersigned is convinced and finds that the Respondent is responsible for
his actions in this regard.' Taradash was not called as a `witness by the, Re-
spondent nor was there any showing at the hearing herein that he was un-
available as such. In such a state of the record the undersigned credits Noble's
testimony in this regard.
In addition to Noble's activities among the employees in the frame depart-
ment he gave several applications-for-membership cards to several employees
in other departments, particularly to those in the art department.
In the course of the organizational drive the Union followed the usual pattern
in its efforts to organize the plant, such as passing out pamphlets and the like
On one such occcasion, sometime around the middle of March 1949, Deans and
one Lens, another organizer, were passing out handbills at the 1130 South
Wabash Avenue plant to the employees as they were entering the plant to go to
work. While so engaged they were approached by Homer Weiss, plant superin-
tendent, who said to Deans, "We know who is in the Union and they will get
theirs." Weiss did not deny making this statement. Consequently the under-
signed credits Deans' testimony in this regard, and finds that Weiss made the
remark attributed to him by Deans.
Numerous witnesses called by the General Counsel testified in substance,
particularly those that worked in the art department, that Lois Scholl, super-
visor of that department, questioned them about their union affiliations, activi-
ties, affairs of the Union, and in addition advised them that the frame depart-
ment had been shut down and its machinery and equipment shipped to Arlington
because of the Union, and that all the employees therein had been discharged
for the same reason. Scholl also told the employees in her department that
President Weiner would not tolerate the Union, and that if it did "get in to the
plant he [Weiner] would close it down, and move it to Kentucky." The girls in
the art department work at tables, each table accommodating approximately six
girls. On at least one occasion sometime around the middle of March 1949, Lois
Scholl came to each table and queried each girl about the Union and at the
same time advised them of the dire consequences that would follow if any
of them joined the Union.
Scholl admitted that she had talked to a few employees about the Union, but
denied threatening any of the employees with discharge for engaging in union
activities From her demeanor on the stand and her contradicting testimony
both on direct and cross-examination she impressed the undersigned as an
evasive and incredible witness. For example, she first testified on direct ex-
amination that she never discussed the Union with any of the employees under
her supervision. Later on-howeveron direct examination she testified that she
had asked a few employees if they had been approached by a union man. Under
such circumstances the undersigned credits the testimony of the witnesses called
by the General Counsel in this regard and discredits that of Lois Scholl, and
the undersigned finds Scholl made the remarks attributed to her by the above
witnesses
Typical of Scholl's activity is found in the testimony of Clare Parker. Ex-
cerpts from her testimony are set forth below.
See Madix Asphalt Roo/ing Corp , 85 NLRB 26.
DEENA PRODUCTS COMPANY 565
Q. Now, around the date on which the boys in the frame department were
fired, did Lois Scholl come and talk to you?
A. Yes.
Q. What did she say to you?
A. She asked me, did I want to approach her about the union and I
told her no.
Trial Examiner SHAW. Read the answer.
(Answer read.)
The WITNESS. No, she said, have anyone approached me about the union,
and I said no.
Q. (By Mr. MASLANKA.) What else did she say?
A. She asked me did I know anything about it. I said only what I
heard from the girls here. She said, "What girls?" I said, "Well, Margaret
Walker told me that she and Savannah Brown were supposed to talk to
some union fellow downstairs" and I said I joined them to talk with
Scottie Deans.
Trial Examiner SHAW. That is what she told you. Did you tell Miss
Scholl that you joined the union?
The WITNESS. No, I didn't tell her that I joined the union.
Trial Examiner SHAW. I don't get the testimony. Read the answer.
The WITNESS. I mean I went with the girls to talk to Scottie Deans.
Q (By Mr. MASLANKA.) You joined Margaret Walker and the other
girls-and Savannah Brown-
department?
A. Yes.
Q. What did she say?
A Later on she came back. She says, "You see what happened to those
fellows downstairs in the frame department." I said, "No, what happened?"
"They all get fired, and the same thing will happen to you girls" and she
said, "Mr. Weiner says he is not going to have a union and he will close
the damn joint down before he'd have a union."
According to the credible and undenied testimony of Johnie Lee Santee, Dee
Kuchaba, Scholl's assistant, and admittedly a supervisory employee, said to her
that before Weiner would see a union in the building, he would close the place
down.
On another occasion Kuchaba said to Willie Kennedy, "You better tell those
damn fools not to sign any cards because they will find themselves flying out
the front door." Kuchaba made this remark on March 24, 1949, the same day
that the employees were laid off in the frame department.
On another occasion Kuchaba told Mary Hinton Williams at a time when
Scholl was in Kentucky and she was in complete charge of the art department,
"Mary, the girls are trying to get a union in here . . . You better talk to the
girls."
Yes.
To talk to Scottie Deans?
Yes.
Is Scottie Deans the union organizer?
Yes.
And that is what you told Lois Scholl?
Yes.
All right, now, did Lois Scholl mention anything about the frame
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuchaba was not called by the Respondent as a witness at the hearing herein.
Nor was there any showing made by it that she was unavailable as such. In
such a state of the record the undersigned credits the testimony of Willie
Kennedy, Johnie Lee Santee, and Mary Hinton Williams, and finds that K uchaba
made the remarks attributed to her by them.
Numerous witnesses called by the General Counsel, at least more than 10,
testified credibly concerning 2 speeches made to the employees by President
Weiner, the first sometime in the latter part of March and the second on or
about April 20, 1949.
The gist of his remarks to the employees is best told in the credible testimony
of Margaret Walker, an employee in the art department. Her testimony as
regards the first speech, March 24, 1949, which was made to the employees in
the art department, was as follows :
Q. And did Mr. Weiner make a talk to the girls at that time?
A. Yes, he came to the fourth floor, called a meeting. Twice I believe
it was.
Q. And on this fourth floor meeting, do you recollect what Mr. Weiner
said?
A. Yes. The first floor-on the fourth floor-let's see-he usually came
and made speeches to the girls, "Hello, girls." He came in that one morn-
ing and didn't have anything to say following one of those meetings-.
Q. What meeting?
A. A union meeting.
Q. All right.
A. So later he comes around and he apologizes to the girls for not speak-
ing but he was a little burned up, he said. He wanted to apologize to his
friends and the rest of us he didn't care about. He didn't consider us as
friends because we were joining the union and that the union called him,
they called him a Jew, and called him a Communist, and by our experience,
being dark, we knew what they were calling us. We were constantly re-
minded of that, too.
Q. Do you recollect if he mentioned anything about moving the plant at
that time?
A. Yes, he did say something about it.
Q. What did he say?
A. He said that-let's see, about a plant in Paducah. He had a pottery
plant in Paducah, and he had moved it to Arlington and he was planning
on moving this place 1130 where I was to Arlington, too, and as a matter
of fact, he continued moving everything on that floor.
Q. Did he give any reason as to why he would move it?
A. Well, he just didn 't say nothing.
According to the credible testimony of Clare Parker, Weiner, in addition to
the remarks attributed to him by Walker, said the following:
Q. (By Mr. MASLANKA.) Clare, do you recollect sometime in the month
of March where Mr. Weiner gave a talk on the first floor? Were you there?
A. I was.
Q. Do you recollect what Mr. Weiner said?
A. Oh, some of the things he said.
Q. Will you tell us some of the things you remember?
A. Well, the most important that was, he said that we all would get a
raise and that there was a shortage as usual , and you always have a lay-off
about that time of the year, and there would be quite a few of the girls
DEENA PRODUCTS COMPANY 567
laid off, but they would be laid off according to seniority and that he didn't
see why the girls couldn't get along without a union.
Q. He didn't see why the girls what?_
A. Couldn't get along without a union, why they wanted a union.
Q. All right.
A. And then he said he wasn't going to have a union because he really
could do without the art department. He really didn't have to have that
one here because he had one some other place, in Kentucky.
As indicated above Weiner made a second speech to the employees on April
20, 1949.,8 The employees were called to the first floor at the 1130 South
Wabash Avenue plant to hear the speech. Here, as in the first speech, he ex-
pressed his animus towards the Union and in addition informed the employees
that due to economic conditions the Respondent would have to lay off several
employees. He also informed them that the selection of those to be laid off
would be based on seniority. Here likewise numerous witnesses called by the
General Counsel testified in general to the same effect. The gist of Weiner's re-
marks is best set forth in the testimony of Pauline Newby. It is set forth here-
in below.
Q. Now, Pauline, do you recall another gathering of the girls where Mr.
Weiner gave a talk?
A. It was the day I was laid off.
Q And do you recall if Mr. Weiner gave a talk at that time?
A. Yes, he did.
Q. Do you recall what he said?
A. Well, he said that he was going to lay us off because there wasn't
material or something, he couldn't get it and he would have to lay off some
of the girls, but he did say he would lay off according to seniority, which
he didn't do.
Q. Did he say when he was going to lay the girls off?
A. Did he say when?
Q. Yes.
A. No, he didn't. I don't think he said when he would lay them off.
Q. Do you recall if he said anything at that meeting about the union?
A. Oh, yes, he mentioned the union and about things they called Homer
on account of the union and he said that he wouldn't have a union in the
shop and that he had moved some parts of the plant or something and that
he would move out now before he would have a union there.
Weiner testified that he made the speeches, but denied that he mentioned the
Union. He admitted, however, that he granted a pay raise to the employees in
the art department. He also admitted that he suggested to the girls that they
set up their own grievance procedure, and suggested that if they had any trouble
to come to him about it in groups of three.
Weiner impressed the undersigned as an evasive witness. His demeanor on
the stand when testifying about the Union was not good. Likewise his testimony
in this regard was hesitant and vague. For example he denied having any
knowledge of union activities until Deans and Lens called on him on the after-
noon of March 24, 1949, to protest the layoff of the employees in the frame
department. Deans and Lens informed him at that time that all of the employees
laid off were members of the Union. However he did admit that he had seen
8 The record is not clear as to whether the speech was made to all the employees at the
1130 South Wabash Avenue plant or to only those in the art department.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union handbills around the plant. Inasmuch as his supervisory employees
Scholl, Weiss, Kuchaba, Deibel, and Taradash, purchasing agent, were aware
of the Union's organizational drive it is incredible that Weiner, an astute
executive as evidenced by his various business activities, should be so out of
touch with activities that were in progress right "under his nose." Moreover,
he admitted his animus toward unions in general, in relating his experience at
the Deena Artware Company, Paducah, Kentucky, with a union. Hence in
view of his admissions, the testimony of the Respondent's supervisory employees,
and the findings made above, the undersigned is convinced and finds that the
testimony of the witnesses called by the General Counsel as regards Weiner's
statements at the two speeches heretofore referred to was a true account of what
transpired. Consequently he credits their testimony in this regard and discredits
that of Weiner.
Further evidence of Weiner's antipathy toward the Union is evidenced by
the testimony of Joseph Deibel, foreman of the polishing and plating department
at the 1130 South Wabash Avenue plant, who testified under subpoena for the
General Counsel in his case-in-chief. The Respondent was well aware of the
union activities of its employees. This is evidenced by the fact that Weiss, plant
superintendent, instructed Deibel to stop Louis Lacy from going out after coffee
for the employees in his department, because he had been seen talking to the
union organizers outside the plant while on such trips, Deibel carried out Weiss'
instructions in this regard and selected another employee for this task.
Deibel further testified credibly that at the time he was hired by the Respond-
ent, Weiner told him that there were two things that he had no use for : namely,
drinks and unions. Weiner did not specifically deny Deibel's testimony in this
regard. Consequently the undersigned credits Deibel's testimony as regards
Weiner's remarks at that time and finds that Weiner made the remarks attributed
to him by Deibel.
As indicated above the complaint alleges that the Respondent discriminatorily
revised plant rules on or about March 1949, for the purpose of interfering with
and discouraging the concerted activities of its employees.
In support of this allegation in the complaint the General Counsel offered
the testimony of numerous witnesses who testified in substance that before
the Union's organizational drive they had been permitted to smoke during
the lunch period, and were permitted to go to the rest room in groups of four
or five. In'addition they were permitted to talk back and forth while at their
working places. Shortly after the Union's organizational drive began these
privileges were either taken away from them or were greatly curtailed. Scholl
admitted that this was true. , She testified on direct examination in this
regard as follows: -
Q. Prior to March and April 1949, did you allow the girls to talk freely
at their work tables?
A. Well, not any more than usual, except that after that they were
surely overtalking, I mean I couldn't-
Q. Do you mean there was more talking in March and April 1949 at the
tables than before?
A. There certainly was, that is right.
Q Prior to March and April of 1949, did you permit the girls to smoke
while they were working at their tables?
A. I permitted them to smoke only at the table during lunch time pro-
vided they had an ashtray.
Q. Did you permit smoking before lunch time at the work tables?
DEE\A PRODUCTS COMPANY 569
A. Oh, never.
Q. Prior to March, and April of 1949, did you allow the girls under your
supervision to go to the wash room at any time during the day?
A. Yes, I did, but each girl, according to the company rules, was allowed
10 minutes in the morning and 10 minutes in the afternoon where they could
have their little visit, their smoking and their hygiene.
Q. Did you enforce that 10 minute rule prior to March and April of 1949?
A. Yes, always. That has been a standing rule in the company.
Q. Prior to March and April of 1949, did you allow the girls to leave
in groups to go to the wash room during working hours?
A. Yes I did, until the department grew so large that too many girls
got going in there. It was overcrowded.
Q. Prior to March and April of 1949, what was the maximum number
of girls that you would' allow to leave to go to the washroom at one time?
A. Well, the facilities would accommodate about four or five people, so
therefore I allowed about four or five people to go at one time.
Q. Did you change any of your rules regarding smoking, talking, going
to the washroom, or leaving work tables?
A. No, I have never changed the rules. They were always the same.
Trial Examiner S$.vw. Speak up, Miss Scholl.
The WITNESS. The rules were always the same. I did not change any
rules.
In view of Scholl's admissions as regards the Respondent's rigid enforcement
of its plant rules during the course of the Union's organizational drive and the
undenied and credible testimony of the numerous witnesses called by the
General Counsel in this regard the undersigned is convinced and finds that
the plant rules were not only changed during this period but that those in
effect, [though loosely enforced) were during this period rigidly and strictly
enforced.
Concluding Findings
The undersigned has found above that Lois Scholl, supervisor of the Re-
spondent's art department, interrogated the employees under her supervision
as to their union activities, membership in the Union, and made threats of
reprisal to said employees if they continued to engage in such activities. Like-
wise the undersigned has found that Dee Kuchaba, Scholl's assistant, engaged
in the same type of conduct. He has also found that Irving Taradash, the
Respondent's purchasing agent, also engaged in such conduct. That-such con-
duct is violative of the Act, and constitutes interference with, restraint, and
coercion of the rights of employees guaranteed them by Section 7 of the Act,
has been so well established by the Board and the courts in a long line of de-
cisions,° that in the considered opinion of the undersigned no extensive ra-
tionale or comment is either necessary or desirable in this section of his
Intermediate Report. Suffice it to say however that he finds the above conduct
violative of Section 8 (a) (1) of the Act.
Irving Taradash's statement to William Otis as regards the dire consequences
that would result if he joined the Union was also violative of the Act, and falls
into the same category as those of Scholl and Kuchaba.
° See Standard -Coosa-Thatcher Company, 85 NLRB 1358 ; Shields Engineering h Mfq.
Co, 85 NLRB 168; Lloyd A. Fry Roofing Company, 85 NLRB 1222; Premier Worsted Mills,
85 NLRB 985.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to President Weiner's speeches, the undersigned has found above that they
contained threats of reprisal. Weiner threatened to close his Chicago, Illinois,
plants, unless the employees ceased and desisted from union activities. More-
over, he did so at the peak of the Union's organizational drive as will be
shown hereinafter under that section of this Report dealing with the discrimi-
natory discharge of the employees named in the complaint, particularly those
in the frame department. That such statements are violative of the Act is
also well established by numerous decisions of the Board and the courts,
and constitute the rankest kind of interference with, restraint, and
coercion.'° Clearly such threats of reprisal were made for the purpose of
causing the Respondent's employees to abandon their efforts to exercise the
rights guaranteed them by Section 7 of the Act.
The undersigned has found above that President Weiner promised to grant
a wage increase to the employees in the art department in his speech to them
on or about March 25, 1949. The record indicates that the wage increase was
actually granted shortly after Weiner's speech. It is significant that the Union's
greatest strength was among the employees in the art department. Of the 61
employees in the art department at that time 38 were members of the Union or
approximately 64 percent.
The Respondent contended at the hearing herein that the wage increase was
granted to correct certain inequities in the hourly rate of the employees. In
support of this contention the Respondent offered the testimony of President
Weiner. He testified in substance that during the course of the speech he asked
the girls if they were dissatisfied and if they had any grievances, and that sev-
eral girls complained about their wage rates. He further testified that he was
surprised when he heard their complaints and that this was the first information
he had as to just what the hourly rate of the girls was, and that he proceeded
to correct the situation at once. At the same time he berated Plant Superin-
tendent Weiss for not informing him of the hourly rate of the employees, and
promised them that he would censure Weiss for his dereliction of duty in this
regard. The record indicates that the wage increase averaged approximately
10 cents per hour to each employee.
In the considered opinion of the undersigned it is incredible that such an astute
businessman as Weiner would be unaware of the wage rates paid his employees.
Having found as above in this regard the undersigned is convinced and he so finds
that the Respondent's sole motive in granting a wage increase to the employees
in the art department was to discourage their union and concerted activities and
to impress upon them that their efforts in this regard were not only unnecessary
but futile. That the granting of a wage increase by an employer during the peak
of an organizational drive by a union among its employees is violative of the
Act has been well established by the Board and the courts."' Consequently, the
undersigned finds that the Respondent by the above-described conduct interfered
with and restrained its employees in their rights to engage in concerted activities
as guaranteed them by Section 7 of the Act.
Several witnesses called by the General Counsel testified that sometime during
March 1949, when the Union's organizational drive was at its peak, Lois Scholl,
supervisor of the art department, either changed certain plant rules or rigidly
enforced rules that had not been invoked before March 1949. For example,
before March 1949 the employees were permitted to talk among themselves dur-
ing working hours, smoke during their lunch periods, and go to the rest room
in groups of four or five. Shortly after the Union's organizational drive started
1o See N. L. R. B. v. American Pearl Button Co., 149 F. 2d 311 (C. A. 8), 52 NLRB 1113.
11 See Capital City Candy Co., 72 NLRB 411 ; Twin City Milk Producers Assn., 62 NLRB
282; Schram and Schunery, 67 NLRB 980.
DEENA PRODUCTS COMPANY 571
Scholl changed the rules as follows : She prohibited the employees from smoking
at any time including the lunch period, while at their working places, established
a rule that only two employees could go to the rest room at a time, and pro-
hibited them from talking while at work. Scholl admitted on direct examination
that she took the action described above because of the "commotion and nuisance"
among the employees. Her testimony in this regard was as follows :
Q. (By Mr. URIST.) During March or April 1949, Miss Scholl, did you make
any special effort to enforce these rules?
A. Some time in February and all through March and April there was
an unusual amount of talking going on among the girls, talking and
congregating in back of the spray booths and in the wash room, so I was
curious about this commotion and nuisance, it was interfering with my
production, so I asked the girls what was going on. They finally told me
they had a union-not a union, they had a club, a benefit club, for the girls,
and that they wanted to know if they could hold their meetings during the
factory hours, working hours, and I surely refused because that is not
regular. So later, during that same day, some of the girls came up and
told me they were forming a union in the factory.
In view of Scholl's testimony as regards the changes in certain plant rules
and her admissions as regards her knowledge of union activity among the em-
ployees in her department, the undersigned is convinced and finds that her action
in this regard was not motivated for the purpose of increasing production but
because of the union and concerted activities of the employees in her department.
That an employer may put in effect any rule that is reasonable at any time is
well settled. Moreover, it is likewise well settled that working time is for work,
and an employer may establish a rule against union solicitation and activities
during working hours. But on the other hand an employer cannot put into
effect an unreasonable rule and withdraw certain privileges which have been
established by custom and acquiescence over a long period of time for the purpose
of interfering with his employees' rights to self-organization. As the Board said,
in substance , in the Industrial Metal Fabrication, Inc., 63 NLRB 46, an employer
engaged in interference by a superintendent's statements to employees that
certain privileges accorded them in the past were being withdrawn in reprisal
for their organizational efforts.32
Having found as above that the Respondent's real motive in rigidly enforcing
dormant rules and promulgating new rules for its employees during the peak
of the Union's organizational drive was to interfere with the Union's organi-
zational efforts, the undersigned is convinced and finds that such conduct was
likewise violative of the Act and hence interfered with the rights guaranteed
employees by Section 7 of the Act.
The undersigned has found above that the Respondent committed numerous
acts that constituted interference with, restraint, and coercion of the rights of
employees to engage in self-organization as guaranteed them in Section 7 of the
Act. Such conduct likewise is clearly violative of Section 8 (a) (1) of the
Act and he so finds.
3. The discriminatory discharge of the employees in the frame department
The record clearly shows that the first employees contacted by Deans, the
Union's representative in charge of the organizational drive among the Re-
12 See Bryan Manufacturing Co., 68 NLRB 187; Deena Artware, Incorporated, 86 NLRB
732.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's employees, were those in the frame department Shortly after the
drive started 9 of the 10 employees in the department joined the Union. The
only employee who did not join the Union was Bernard heel, son of Ben Piel,
the foreman of the department.
Numerous witnesses called by the General Counsel testified credibly that on
March 24, 1949, at about 11 : 30 a. in., Homer Weiss, plant superintendent, came
into the frame department and told the employees that due to a shortage of wire
the Respondent was forced to lay off all the employees in the frame department.
He also told them that he thought the layoff would last but a short time and
that they would be called back to work as soon as an expected shipment of
wire arrived from New York. He then gave each of those present their check.
The following employees were affected by the layoff : Homer Pierson, James Jones,
William Ray, Robert Cobbins, James Cobbins, Otis Noble, Charles Holland,
Henry Carroll, and James Armstrong. Bernard Piel was not laid off but was
transferred to the stockroom. The Respondent's list of employees la as of
September 1, 1949, shows that Piet was transterred from stock to the Sher
plant on June 28, 1949.14 It is significant that Piet was the only employee in
the frame department that did not belong to the Union
On the afternoon of March 24, 1949, Deans and Lens, the union organizers
in charge of the drive, called on Weiner to protest the layoff of the nine union
members. Weiner told them that he would discuss the matter only in the
presence of his attorney, Edward R. Weinstein. He then called Weinstein, who
arrived shortly thereafter, to his office. Deans and Lens then lodged their
protest of the layoff of the union members in the frame department. They also
protested to Weiner the interference of certain supervisors with union activities
of the employees in the various departments. Weiner denied that the employees
in the frame department weie laid off because of their union activities but for
economic reasons. He informed Deans and Lens that he had contemplated
closing down the frame department for a long time and moving it to the Deena
of Arlington Co., at Arlington, Kentucky. He further told them that this plant
had just been completed, and that since the Respondent had no wire to make
frames with, it was a good time to close down the department and move the
equipment to Kentucky as prei iously contemplated. Weiner also told them
that he had no knowledge of any union activity among the Respondent's em-
ployees, and if there was any such activity hh would instruct the supervisors
to observe strict neutrality and not to interfere with the rights of the employees
under their supervision, which he proceeded to do forthwith by dictating a letter
to Weiss, plant superintendent, to that effect. According to the credible testi-
mony of Deans, a heated discussion arose about the Union during the course
of the meeting. His testimony in this regard was as follows :
Q. Did you have a conversation, or did you go to Mr. Weiner's office
sometime in March of 1949, with Mr. Lens?
A. That is right.
Trial Examiner SHAW. Who is Mr. Lens?
The WITNESS. Mr. Lens is the director of Local 329, AFL. I might add
that he is not here. He is currently making a tour of Europe, so will not
appear in this case.
la General Counsel ' s Exhibit No 4.
14 Weiner purchased a wire plant from Sher Brothers sometime in 1949 , and transferred
its equipment^to the Respondent ' s plant at 1130 South Wabash Avenue. This transaction
will be discussed in greater detail hereinafter.
DEENA PRODUCTS COMPANY 573
Q (By Mr MASLANZCA). Can you recall what was said at the time in Mr.
Weiner's office?
Mr. UxisT. Excuse me, can we place the meeting?
Trial Examiner SHAW. He said in March. Can you get the date?
Q (By Mr. MASLANKA.) Can you place the date closer to the exact time,
Mr Deans?
A. Probably March 24.
Q. And do you recall who else was there besides yourself and Mr. Lens
and Mr. Weiner?
A. As I recall, Mr Lens and I were alone for a short time with Mr. Weiner,
and then Mr. Weinstein, his attorney, arrived.
Q Do you recall what was said?
A. Prior to Mr. Weinstein's entry into the picture, there was a rather
general discussion by Mr. Weiner about activities, and so forth, in the plant,
and he pointed to a picture on the wall, evidently a drawing or plan of the
building that, at that time, was nearing completion as I recall the discussion,
in Arlington, Kentucky.
In the course of the conversations which followed later, he told us that
the entire plant-when. we brought up the matter of why the men in the
wire frame department, all members of our union, had been unceremoniously
fired at approximately 11: 30 in the morning, without any justification-
they told us that that was just the beginning of the closing, and transferring
of the entire operation.
The whole thing was going to be shipped to Arlington.
Q Do you recall anything else in that meeting?
A. Well, the meeting was very general, up to a point. It would be very
difficult to just pick out anything particularly specific until there was some
heat generated by the accusation, or the inference that was made by Mr.
Weiner, that unions were rackets, and that all we were after was the dues
from the members, and at that point, certain statements were made by Mr.
Lens in rebuttal and caused an uproar in the office for a moment, and at that
time it would be very difficult to remember what was said, but we were asked
to leave.
We were told that the meeting was over, and somebody was waiting out-
side. Mr. Weiner indicated there was another party waiting outside, and
he bruskly stood up and waved us towards the door.
The employees in the frame department had no intimation or warning that
the department was to be closed and moved to Kentucky. Nor were they aware
of the fact that there was a shortage of wire as contended by the Respondent.
In fact contrary to Weinei's testimony that there was a shortage of a certain
large wire, two employees, Ray and Cobbins, testified credibly that on the very
day of the layoff they had an occasion to go to the stockroom and there they
saw wire of this particular gauge sufficient to supply the department at least
until the frames then in production were finished.
Weiss and Piel testified that there had been a shortage of this particular
gauge for some time and that they had had it ordered from a New York firm
but had been unable to get it shipped to the Respondent's plant.
Weiner's version of what transpired at the meeting is substantially the same
as that of Deans, except that he testified in substance that he made no dis-
paraging remarks about the Union. In view of the undersigned's findings above
as regards Weiner's credibility, and the further fact that Deans impressed him
as a credible witness, the undersigned is convinced that Deans' testimony in this
regard was a true account of what transpired at the meeting, and he so finds.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, Weiner denied that he had knowledge of the employees'
organizational activities at the time Deans and Lens called on him. He did
admit however that he had seen union handbills on the street near the 1130
South Wabash Avenue plant, but "paid no attention to them."
The undersigned has carefully considered the record in the instant case, and
in his considerate opinion is convinced and finds that President Weiner not
only had knowledge of the employees' union activities, but he also knew who
were members of the Union. The following factors have persuaded him in
making his finding in this regard.
The undersigned has found above that top managerial hierarchy were fully
aware of the Union's organizational efforts. For example, the record is clear
that Weiss, plant superintendent, Deibel, foreman of the plating and polishing
department, Scholl and Kuchaba, supervisors in the art department, and Tara-
dash, the Respondent's purchasing agent, either admitted their knowledge in
this regard or failed to deny the testimony of the General Counsel' s witnesses
in this regard such as Taradash and Kuchaba.
Another compelling factor that persuaded the undersigned in making his
finding as regards the Respondent's knowledge of its employees' union activi-
ties was the testimony offered by the General Counsel as regards surveillance
of union meetings.
The record clearly shows that the Union held two meetings at the Y. M. C. A.
Hotel located at 826 South Wabash Avenue, which is located directly across
the street from the Respondent's office. The first meeting was held on March 22,
1949. The employees went directly to the Y. M. C. A. after quitting time,
4: 30 p. m. The distance from the 1130 South Wabash Avenue plant is approxi-
mately 3 blocks from the Y. M. C. A. The record is clear that the employees
walked in groups to the meeting. According to the credible testimony of Deans
and Margaret Walker, employees in the art department, they saw Weiss and
Dee Kuchaba, standing at the window on the second floor at the Respondent's
building at 825 South Wabash Avenue. Both testified that Weiss had a note-
book in his hand. They further testified that it was still daylight and that
they could see and identify both Weiss and Kuchaba. This incident occurred
a few minutes before 5 p. in. on the night of March 22, 1949. Neither Weiss nor
Kuchaba denied the testimony of Deans and Walker in this regard. In fact
Kuchaba was not even called as a witness for the Respondent.
Further evidence of the Respondent 's surveillance is found in the testimony
of Louis Lacy, an employee in the polishing and plating department. Lacy testi-
fied credibly that prior to the Union' s organizational drive it was the custom for
him to go out of the plant and get coffee and cakes for the employees in the
polishing and plating department . After the union drive started Joe Deibel,
Lacy's foreman, told him that he had been instructed by Weiss to stop Lacy from
going out for coffee because he had been seen talking to the union organizers.
Deibel corroborated Lacy's testimony in this regard . In such a state of the
record the undersigned credits the testimony of Lacy and Deibel in this regard,
and finds that Weiss, plant superintendent, gave Deibel the above instructions.
Margaret Walker further testified credibly and without contradiction that Dee
Kuchaba, assistant supervisor in the art department, on the day of one of the
union meetings , trailed the employees in her car to the place of the meeting. In
such a state of the record the undersigned finds that Kuchaba followed the em-
ployees to the uzlion meeting as described by Walker, and that her purpose in
doing so was to find out which of the employees were union adherents.
DEENA PRODUCTS COMPANY 575
The undersigned has found above that Lois Scholl had full knowledge of the
employees' union activities, and will not be reiterated in this section of the In-
termediate Report.
Another example of Lois Scholl's activities in surveillance of the employees'
union activities is found in the credible testimony of Willie B. Thomas. Ac-
cording to Thomas, Scholl said to her inter alia on the day following one of the
union meetings, "I saw you leaving the Union meeting last night . . . I am sur-
prised at your joining . . . I didn't think you would go to anything like that .. .
why did you go . . . I hear you and your husband started it all."
As indicated the incidents set forth above and the record as a whole were the
persuading factors considered by the undersigned in making his finding that
the Respondent had full knowledge of its employees' union activities and who
were members of the Union. Scholl generally denied all the antiunion state-
ments attributed to her by the General Counsel's witnesses. The undersigned
has found above that Scholl was an unreliable witness ; Thomas impressed him
otherwise ; consequently he finds that Scholl made the remarks attributed to her
by Thomas.
Further evidence of the Respondent's knowledge of its employees' union activi-
ties and the activities of its employees in the frame department is evidenced by
the testimony of numerous employees in the art department concerning the
activities of Scholl and Kuchaba on the day the frame department employees
were laid off, March 24, 1949.
According to the credible testimony of Evelyn Jackson, Scholl came to the
table where she was working and, inter alia, told the girls at the table, ". . .
somebody in the wire department had joined the union and was on their way out."
Amy Hunter testified credibly that Lois Scholl came to her and said, "Amy,
are you bringing that old nasty union in here? Do you know what happened
downstairs today? Well the men in the wire department shipped out the front
door because of the union."
According to the credible testimony of Hattie Moore, Scholl came to her on
March 24, 1949, and said, "Mr. Weiner don't have nobody working for him that
belongs to the union and that you girls will be just like the wire boys, you will
go out the damned front door."
Clare Parker testified credibly that Scholl asked her about the Union and in
the course of the conversation she admitted that she had joined the Union.
Shortly after this conversation Scholl came back to her and said, "You see
what happened to those fellows down in the frame department . . . They all
got fired and the same thing will happen to you girls . . . Mr. Weiner says he
is not going to have a union and he will close the damn joint down before he'd
have a union."
While Scholl did not specifically deny that she made the above statements
she did deny generally of making any antiunion statement. The undersigned
has found above that Scholl was an unreliable witness. Jackson, Hunter,
Thomas, and Parker, the witnesses whose testimony in this regard has been
set forth herein above, impressed him as reliable and forthright witnesses.
Consequently the undersigned credits their testimony in this regard and dis-
credits Scholl's denial, and finds that she made the remarks attributed to her
by them.
As indicated above the Respondent purchased the wire plant of Sher Brothers
in Chicago, sometime in the late spring or the early part of the summer of 1949.
Weiner testified that the plant was purchased primarily to secure a patent
or a certain type of frame. Sometime in the later part of 1949, the equipment
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Sher plant was transferred to the Respondent's plant and the frame
plant reinactivated. At the time this was done Weiner requested Weiss to
recall the employees laid off on March 24, 1949. According to Weiner he at-
tempted to do this by means of telephone and telegraph. He made no other
effort to contact them Two employees were located and reinstated to their
jobs : Henry Carroll, on January 13, and James Armstrong, on January-1950.
On March 1, 1950, there were eight employees in the frame department
Several of the employees who were laid off on March 24, 1949, testified
credibly that they were still living at the same addresses in January 1950 and
that they never received any communication from Weiss.
Weiss' testimony in this regard was to say the least hazy and vague, and
he was forced to refer to an affidavit executed the day before the hearing herein
to refresh his recollection in this regard. In such a state of the record the
undersigned finds that Weiss' efforts in this regard were feasible and carried
out in a half-hearted manner, and that the Respondent had no intention of
making any real effort to locate the employees it discharged on March 24, 1949.
It is significant that following the closing of the frame department the Re-
spondent continued to purchase frames from other companies, as in fact it
always had done, but after the busy season started in August or September
1949, its purchases of frames doubled and tripled over what it purchased while
it was operating its own frame department.
Concluding Findings
As indicated above the Respondent's contention as regards the closing of
the frame department was for economic reasons and offered the testimony of
President Weiner in support thereof In addition to the testimony of Weiner
which has been set forth above he further testified that sometime in 1947 he
decided to build a plant in Paducah, Kentucky, across the railroad tracks from
the Deena Artware Company, of which Weiner was president and principal
stockholder, and thus concentrate his various enterprises ; the new company
was to be a separate corporate entity, with the same offices and stockholders as
Deena Artware Company and the Respondent herein. Construction on the new
plant at Paducah, Kentucky, was actually started but due to labor trouble at
Deena Artware Company" lie decided to change his plans and build the plant
in a nearby town, Arlington, Kentucky. Construction actually started on the
Arlington plant sometime in 1948, and was completed in the early part of March
1949. As soon as the plant was completed Weiner hired a superintendent, one
Adams, and brought him to Chicago, Illinois, to familiarize himself with the
manufacture of lamps Adams completed his training and returned to Arling-
ton sometime around April 20, 1949. As pointed out above Weiner decided to
move the frame department on the morning of March 24, 1949, when he learned
that there was a wire shortage. On the next day the equipment was moved to
Arlington, Kentucky. The Respondent contends that the mere fact that the
frame department was moved during the course of the Union's organizational
drive is merely coincidental, and in any event it could not have been for union
activities because Weiner as president of the Respondent, and who makes all
its important decisions, had no knowledge of any such activity.
The undersigned has found above that all of the top supervisors, and at least
one top executive, Taradash, had full and detailed knowledge of the union and
concerted activities of its employees.
11 See Deena Artware, Incorporated, 86 NLRB 732
DEENA PRODUCTS COMPANY 577
In view of the above findings and upon the record as a whole the undersigned
is convinced and he finds that the Respondent's contention as to the circum-
stances surrounding the closing of the frame department and the layoff of the
employees therein was mere pretext and that the true motive for the Respond-
ent's action in this regard was because of the fact that all of the employees in
the frame department except one, Bernard Piel, son of the foreman, were mem-
bers of the Union. The undersigned's finding in this regard is based on the
following factors: (1) Weiner's obvious animus towards union and other con-
certed activities of the Respondent's employees; (2) the acjivities of Super-
visors Scholl, Kuchaba, Weiss, Deibel, and Taradash, by interrogating the em-
ployees about their union affiliations and activities on its behalf; by surveil-
lance of union meetings by threatening its employees with discharge if they
engaged in or continued to engage in union activities ; by informing the em-
ployees that the employees in the frame department were fired and the depart-
ment closed down because of their union activities; by the charging and strict
enforcement of plant rules during the peak of the Union's organizational drive ;
and by threatening to close the plant down if the Union was successful in its
organizational efforts.
Moreover the facts found above fully support the undersigned's findings that
the Respondent closed down the frame department and laid off and/or discharged
its employees therein to discourage union activity. The very sequence of events
as set forth above evidences the justification for this finding The undersigned
finds that the Respondent was well aware of the union activity among its
employees almost from its inception. The reaction of the Respondent by Presi-
dent Weiner was swift and unmistakable The closing of the frame department
and the discharge of the employees therein occurred exactly 1 month after the
Union started its organizational drive, and 2 days after the Union's first formal
meeting. The decision to close the frame department was not communicated
to the employees. They were laid off and/or discharged without any warning
whatever. It is indeed significant that the testimony of Weiner, Weiss, and
Piel as regards the wire shortage was unsupported by any documentary evidence
such as inventories, correspondence with the suppliers of wire, and purchase
orders, which surely were in the possession of the Respondent in one form or
another, as is the custom in most businesses. Clearly the substantial evidence
adduced at the hearing supports the undersigned's finding as to the motive and
intent of the Respondent in closing down the frame department and discharging
its employees therein The undersigned is convinced and finds that the Re-
spondent's conduct as described above was designed to discourage the union and
other concerted activities of its employees 16
Nor is the undersigned convinced that the Respondent made an honest effort
to°recall its frame department employees when it reopened its frame department
in January 1950. The record clearly shows that its efforts in this regard were
half-hearted, and the undersigned finds that its meager action in this regard was
purely a face-saving devise to give some color to its defense that it acted in good
faith in closing down the frame department and discharging the employees who
worked therein. Consequently he rejects its contention in this regard, and
finds it likewise to be without merit. The record is clear that with the possible
exception of one or two employees all were still at the same addresses in January-
1950 as they were on March 24, 1949.
In view of the foregoing and upon the record as a whole the undersigned finds
the Respondent discriminatorily discharged Homer Pierson, James Jones, Wil-
16 See Goodyear Footwear Corporation , 80 NLRB 800 , and cases cited therein.
943732-51-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Liam Ray, Roberts Cobbins, James Cobbins, Otis Noble, Charles Holland, Henry
Carroll, and James Armstrong, on March 24, 1949, because they joined and as-
sisted the Union and engaged in other concerted activities for the purpose of
collective bargaining and other mutual aid or protection, and that by thus dis-
criminating against said employees the Respondent has discouraged member-
ship in the Union and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them by Section 7 of the Act, and is
violative of Section 8 (a) (1) and (3) of the Act.
4. The alleged discriminatory layoff of the employees in the art department
In the course and conduct of the operation of its business at its 1130 South
Wabash Avenue plant, the Respondent for convenience has divided the manu-
facturing and assembling of its products into departments. On March 1, 1949,
the Respondent had approximately 325 employees, of which 61 were employed
in the art department. The work in this department for the most part is done
by unskilled labor. The workers are classified as follows : sprayers, tapers,
and wipers. In addition there are 2 artists whom the undersigned has not
included in the 61 employees for the reason they are considered professional
employees.
The record clearly shows that the Respondent's business is seasonable. The
sale of its products is dependent upon the furniture market, the center of which
is Chicago, Illinois. It is a matter of general knowledge that the largest
furniture mart building in the country is located in Chicago. Since the Re-
spondent's business is dependent on the furniture market, it is its policy to carry
little or no finished lamps in its inventory. This is, of course, due to the fact
that designs in various articles of furniture change in accordance with the
whims of the public. Faced with this situation, the Respondent manufactures
its lamps only on advance orders. The Respondent's orders for lamps start
to increase about the first of September and production reaches its peak around
December and January. About the first of March, the orders fall off and the
slack season starts in April and continues until September.
It is in the light of this background that the events set forth in this section of
the Intermediate Report occurred.
As found above, the Union's organizational drive among the Respondent's
employees started on or about February 24, 1949. During the month of March
1949 approximately 50 employees had joined the Union. The record clearly
shows that it was in the frame and the art departments that the Union was
most successful in securing members. In fact, as far as the record is concerned,
the Union's entire membership consisted of employees in the frame and art
departments, with the exception of 4 or 5 in other departments. Of the 61
employees in the art department, 34 were members of the Union, or, in other
words, approximately 56 percent.
On or about March 24 or 25, and again on April 20, 1949, President Weiner
made speeches to the employees in the art department. The substance of what
he said has been set forth hereinabove and will not be reiterated in this section
of the Report. Suffice it to say, however, that the undersigned has found above
that they contained threats of reprisal and promise of benefits if the employees
abandoned the Union. In one of these speeches Weiner advised the employees
in the art department that due to a lack of orders there would be a reduction
in force, and that in selecting those to be laid off seniority would be followed.
In his speech of April 20, 1949, Weiner informed the employees that the Re-
spondent had developed a new lamp base in which the color of the base was
DEENA PRODUCTS COMPANY 579
"burned in" at the pottery, and that this new innovation would eliminate a
number of employees in the art department. He pointed out to them that the
process in use at the time required six steps, while the new base that the Re-
spondent had developed would eliminate several steps in processing the bases,
thus resulting in a reduction in force.
The selection of those to be laid off was left to Weiss and Scholl. According
to Weiss, he took a list of the employees in the art department to Lois Scholl
and since he was not familiar with the work of the girls, he left the actual selec-
tion of those to be laid off to her. In selecting the employees to be laid off,
Scholl was to take into consideration, seniority, ability, and attendance.
Scholl testified on direct examination that she took into consideration the
same factors as suggested by Weiss in selecting those to be laid off, and in
addition added another, "cooperation."
Scholl on direct examination also testified in substance that the reason
seniority was not followed in the selection of employees to be laid off was
because several of the employees had "slowed up" on their production, had poor
attendance records, and were "uncooperative." She admitted that several em-
ployees were retained who had less seniority than those laid off, but justified
her action in this regard on the grounds that she retained them because they
were either better producers, more versatile, or had better attendance records.
Among those selected for layoff were the following : Willie B. Thomas and
Elizabeth Conner. In the first part of her direct examination she testified that
they were laid off because the finial department in which they worked was discon-
tinued . When queried by the Respondent's counsel later on direct examination
as to why other girls with less seniority were kept on, she testified as follows :
The WITNESS. We discontinued that department. They were in that
department for quite a while.
Q. (By Mr. URIST.) Were they the only two girls in that department?
A. There were others. I think that Lizbeth-Willa Conner was in there.
I am not sure, but she was helping in that department for awhile. May I
state the reason for letting those two girls go?
Q. Yes, that is the question.
A. They slowed up considerably. Their work slowed up. They just sort
of got to-they acted like they owned the place and didn't have to work. I
reprimanded them about it.
Trial Examiner SHAW. Please speak up.
The WITNESS. I reprimanded the two girls about it, they got slow after
they got back in the taping department after the finial department was
discontinued.
Q. (By Mr. URIST.) You mean, after the finial department was discon-
tinued, you transferred them to the taping department?
A. Taping and wherever the occasion arose.
Q. And they were in the taping department at the time of their layoff?
A. Yes, one may have been a wiper, I am not sure . I don't remember.
It is significant that both Thomas and Conner are listed on the list of
Respondent's employees dated March 1, 1950, as tapers. Moreover, this list
does not show a "finial" department. It is also significant that it was Thomas
who was seen leaving a union meeting by Scholl, and was reprimanded by her
for attending it. Another employee who was laid off was Margaret Walker.
She likewise had greater seniority than several employees who were retained.
The undersigned has found above that Scholl queried Walker extensively about
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her union activities During the course of Scholl's interrogation, Walker ad-
mitted that she was a member of the Union and had met with Deans along with
other employees in the department. Scholl's reasons for selecting her for
layoff was because she was "uncooperative."
The above is typical of Scholl's testimony as to why several employees with
greater seniority were laid off and others with less were retained. In such a
state of the record, the undersigned is of the opinion that it is unnecessary to
set forth in detail the testimony of Scholl as regards her reasons for selecting
employees with greater seniority for layoff and retaining employees with less.
It is clear from Scholl's testimony that the Respondent's policy for selecting
employees for layoff as stated by its president, Weiner, in one of his speeches,
that seniority would govern the selection of those to be laid off was not followed.
Moreover, due to Scholl's shifting reasons for selecting employees for layoff it
makes it difficult to determine whether the Respondent had any policy in selecting
employees for layoff.
The undersigned has found above that President Weiner, Taradash, Respond-
ent's purchasing agent, and Supervisors Scholl, Kuchaba, Deibel, and Weiss
were well aware of the Union's organizational drive, and knew not only those
who were the most active union adherents but also those who were members of
the Union, but who did not engage in any outstanding activities, such as Otis
Noble, Louis Lacy, and Margaret Walker. As found above, this knowledge of the
Respondent was gained by interrogating employees about their union affiliations
and activities.
In view of the foregoing and upon the record as a whole, the undersigned is
convinced and finds: (1) That the layoff of the employees in the art department
was in the first instance justified by the then existing economic conditions;
(2) but on the other hand, he, likewise, finds that Scholl discriminatorily selected
the employees for layoff, in that she selected a disproportionate number of
union members. The later finding is buttressed by the fact that of the 41
selected for layoff, 33 were union members or approximately 80 percent.
Sometime in the summer of 1949 the business of the Respondent picked up
and it recalled several of those laid off in April 1949, and in addition hired
several new employees in the various departments. Only three union members
were recalled to work in the art department: Lymustine Reece on July 18; Leona
Cotton on July 18 ; and Julia Hopkins on July 18, 1949 The record is clear that
several other union members who were laid off also requested reinstatement but
Scholl rejected their requests in this regard.
An examination of the documentary evidence which was admitted in evidence
at the hearing, meager as it is and in some respects admittedly inaccurate,
shows that on March 1, 1950, there were 28 production employees in the art
department, or approximately 47 percent of those employed as of March 1, 1949.
This fact buttressed the undersigned's finding that the layoff of employees in the
art department was in the first instance justified for economic reasons, and
corroborates Weiner's contention that the change in the manufacture of bases
would of necessity cause a reduction in force. The gravamen of the Respondent's
position is as pointed out above that it laid off a disproportionate number of
union members in April 1949, and failed and refused to reinstate but three union
members in the late summer and fall of 1949, when business picked up. The
record is clear that new employees were hired not only in the art department
but in others as well, especially the trimming department which like the art
department used unskilled workers.
In view of the foregoing and upon the record as a whole, the undersigned is
convinced and finds that certain of the employees named in the complaint, who
DEENA PRODUCTS COMPANY 581
were employed in the art department, and which are set forth in Appendix A,
attached hereto, were discriminatorily discharged, refused reinstatement, and
entitled to back pay less their net earnings. As to who is entitled to be reim-
bursed by the Respondent, the undersigned is convinced and finds that in view
of the inadequacy of the documentary evidence in the record that this problem
should be resolved by the compliance division from the Respondent's records, in
the event that the undersigned's findings, conclusions, and recommendations are
adopted by the Board.
As indicated above, the documentary evidence that was offered in support
of the General Counsel's contention that the employees named in Appendix A
clearly shows that the Respondent gave little, if any, consideration to seniority
in selecting those to be laid off. The record is also clear that Scholl, in justifi-
cation of her selection of those to be laid off, relied on seniority, in some in-
stances, but did not apply the same yardstick to the members of the Union, in
that she added to their qualifications for retention, "efficiency," "attendance,"
and "cooperation " In so doing, she completely disregarded the facts that long
service is in itself an indication that an employee has performed satisfactorily
and cooperated with management The reasons advanced by the Respondent
for the selection of those to be laid off in the art department which have been
set forth above are the same as those advanced by the respondent in the
Differential Steel Car Company, 75 NLRB 715. In that case, as in the instant
case, the respondent -offered no substantial evidence to show that the union
members selected to be laid off were inefficient, uncooperative, or had bad at-
tendance records. Certainly the Respondent's records would have shown the
latter, but it offered none to substantiate their contention in this regard.
Considering the disproportionate number of union members who were laid
off; that employees with 2 and 3 years seniority were laid off and those with
but a few months service retained ; Respondent's knowledge of the union activi-
ties of its employees in the art department; Respondent's interrogation of its
employees concerning their union affiliation and activities ; surveillance of
union meetings; threats of reprisal if the employees continued to engage in
union activities ; and Respondent's expressed animus toward concerted activi-
ties and in particular union activities, the undersigned is convinced and finds
that Respondent used a discriminating standard in selecting employees for
layoff and in reinstating them to their former or substantially equivalent jobs,
and that by such conduct interfered with, restrained, and coerced its employees
in the rights guaranteed them by Section 7 of the Act and violated Section 8 (a)
(1) and (3) of the Act. As indicated above, this finding is not applicable to
all of the employees named in the complaint except to the extent that they
constituted a part of the entire group of union employees which, as a group, was
discriminated against. The undersigned has found above economic justification
for a layoff, and that a change in the processing of the bases which are finished
in the art department which resulted in a reduction in force, it is reasonable
to assume that no matter how carefully the Respondent selected the employees
for layoff on a strict seniority basis, it would have been impossible to effectuate
the layoff without laying off some members of the Union, since 56 percent of
the employees were members of the Union. The record affords no accurate
basis for determining just who those employees are. This same reasoning is
likewise applicable to those employees who would have been reinstated on a
seniority basis.
As found above, the Respondent reinstated three union employees, Leona
Cotton, Lymustine Reece, and Julia Hopkins on July 18, 1949. The undersigned
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will recommend that the remedy be limited to payment of back pay from April
20, 1949, the date they were laid off, to July 18, 1949, the date they returned
to work.
5. The discriminatory discharge of Louis Lacy
Louis Lacy went to work for the Respondent on July 16, 1946. During the
tenure of his employment he worked in several departments. At the time the
events herein occurred he was and had been for some time employed in the
polishing and plating department. His foreman was Joseph Deibel.
Lacy was one of the first employees contacted by Deans (organizer for the
Union), and on March 7, 1949, signed an application-for-membership card. As
indicated above, before the Union's organizational drive, it was the custom for
Lacy to go to a nearby restaurant each day and purchase coffee and rolls for
his fellow employees. The restaurant was located about four or five doors from
the entrance to the 1130 South Wabash Avenue plant. It was also the custom
at that time for employees in other departments to congregate there. Deans
and Lens were aware of this custom and carried on much of their organizational
work therein. Lacy while on his trips to the restaurant would converse with
Deans and Lens about the Union. Sometime in the early part of March 1949,
Joseph Deibel, Lacy's foreman, came to him and said that he had instructions
from Weiss, plant superintendent, to the effect that Lacy could not go out any
more for coffee and rolls because he had been seen talking to the union organizers.
Lacy's testimony in this regard was corroborated by Deibel. Weiss, who testi-
fied at the hearing herein for the Respondent, did not deny the testimony of
either Lacy or Deibel in this regard Moreover, Weiss was not interrogated
regarding the above incident by counsel for the Respondent.
Since the testimony of Lacy and Deibel stands undenied in the record, the
undersigned finds that Weiss issued the above instructions to Deibel and that
his reason for taking such action was to restrain Lacy from talking to the union
organizers.
On or about April 1, 1949, Lacy was laid off by the Respondent without any
prior notice or warning. Joseph Deibel told him at the time that he was being
laid off on account of business conditions. According to the credible and un-
denied testimony of Lacy, there were at least four employees in the department
who had less seniority than he did. As a matter of fact one of these employees,
Mito Shimizer,-had only 5 months service with the Respondent.
Lacy further testified that on August 12, 1949, he was called back to work
by the Respondent. Upon his return he was told by Harold Froshieser, assistant
foreman in the department, that the reason he was laid off was because he had
been "seen at several union meetings." Lacy's testimony in this regard stands
undenied and uncontradieted in the record. Moreover, Froshieser was not
called as a witness by the Respondent, nor did it make any showing at the hear-
ing herein that he was unavailable as such. Consequently the undersigned
credits Lacy's testimony in this regard and finds that Froshieser and Deibel
made the statements attributed to them by Lacy.
Concluding Findings
The undersigned has found above that Louis Lacy was one of the first em-
ployees to join the Union. He has also found that Lacy was in touch with the
union organizers throughout the organizational drive in March 1949. His activi-
ties were well known to the Respondent. This is evidenced by the fact that
Superintendent Weiss instructed his foreman, Joseph Deibel, to stop him from
DEENA PRODUCTS COMPANY 583
going out after coffee and rolls for his fellow employees, as had been his custom
for some time, for the reason that he had been seen talking to the union
organizers.
Lacy's layoff must be considered in the light of the Respondent's animus toward
the Union and other concerted activities of its employees as found herein above.
Consequently, upon the record as a whole, the facts found above as regards
Lacy, and all the surrounding circumstances, the undersigned is convinced and
finds that Louis Lacy's employment was discriminatorily terminated on April 1,
1949, by the Respondent because of his membership in and activities on behalf of
the Union, and that by so doing the Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act, and violative of Section 8 (a) (1) and (3) of the Act.
Having found as above the undersigned will recommend that the remedy be
limited to payment of back pay from the date of Lacy's layoff, April 1, 1949,
to August 12, 1949, the date he was reinstated to his former position.
6. The discriminatory discharge of Maggie Mitchell
Maggie Mitchell was hired by the Respondent on August 10, 1948, and was
discharged on April 1, 1949. At the time of her discharge she was employed
in the dipping department. Her immediate supervisor was Stanley Jembrzycki.
Ordinarily Jembrzycki worked alone, but on occasion he would get behind in
his work and at such times he would ask Weiss, plant superintendent, for
assistance. The record is clear and the undersigned has found above that
Jembrzycki was not a supervisor within the meaning of the Act. On the other
band, however, even though he did not have the right to hire and fire, he never-
theless told the employees what to do and assigned and directed their work.
Moreover he was looked up to by the employees who worked under his direction
as a supervisor. Again, at times he had as many as five employees working
under his supervision. In such a state of the record the undersigned finds that
Jembrzycki., although not a supervisor, was held out to the employees as having
the same status as a regular supervisor and as will be shown hereinafter acted
as an agent for the Respondent and it is responsible for his acts and statements
to those employees assigned to work under his direction"
Maggie Mitchell attended the union meetings held at the YMCA, and according
to her credible testimony, was seen by Lois Scholl leaving the YMCA hall after
the union meeting on the evening of March 24,1949.
On April 1, 1949, she was discharged by the Respondent. The circumstances
surrounding her discharge are best set forth in her own testimony. Maggie
was a colorful, and the undersigned finds, an honest and forthright witness.
Her testimony as regards her discharge is set forth herein below.
Q. When did you join the union?
A. I joined the union in March, 1948.
Q., Did you ever talk to Stanley Jembrzycki on or about March 24, 1949?
A. Stanley?
Q. Stanley.
A. About what?
Q. About March 24,1949, did you talk to him at that time?
A. About the union?
Q. Yes.
A. No.
17 See Joy Silk Hills, Inc., 85 NLRB 138.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did he talk to you about the men in the frame department?
A. Well, I guess, laid off. They laid off the whole frame department,
the one who made the frame The next day I asked Stanley. I said,
"Stanley, why did they lay off all the frame work makers?" "Because they
joined the union," and the boss said , "you are not going to have no union
in there" Before you have a union in here he'd close it down and move
the machines to Ord! or somewhere.
Q. Now, Maggie, on or about April 1, 1949, were you laid off
A. I was laid off on the 1st of April 1949.
Q. Who gave you your check?
A Stanley.
Q. That was your-
A. My boss, Stanley, he told me he were. Lois transferred my check.
For a while she gave my check and she turned it over to Stanley. He called
me Mary, but my name is Maggie. He said, "Mary, I am your boss. Lois
turned your check over to me. I am supposed to give it to you."
Q. When you were laid off, did he give you any reason?
A. I'd always go to the washroom to wash the paint off of me five
minutes to quitting time, and I was in the washroom washing that paint
off and Stanley come to the door and knocked. He said, "Mary, I am sorry,
but I am giving you your check this evening." I said, "Why?" He said,
"Because you are supposed to be laid off." I said, "Oh, yes, well, I heard I
was supposed to be laid off." He said , "Don't blame me. That is the boss'
rule to lay off everybody that has joined the union."
Q. That joined the union?
A. Yes. That is what Stanley told me. He told me, "I am sorry, don't
blame me for it."
Jembrzyck ! denied all of Mitchell 's testimony insofar as the Union was con-
cetned and in effect denied that he had anything to do with the circumstances
surrounding her layoff and/or discharge. His testimony in the considered opin-
ion of the undersigned must be considered in the light of all the surrounding
circumstances, such as the admissions of Scholl, Weiner's attitude and admis-
sions, and the failure to call either Kuchaba or Taradash as witnesses for the
Respondent. As indicated above Mitchell impressed 'the undersigned as an
honest though colorful witness, hence he credits her testimony as set forth
above and discredits that of Jembrzycki.
Concluding Findings
Having found as above the undersigned is convinced and finds that Maggie
Mitchell was discriminatorily discharged by the Respondent on April 1, 1949,
because of her membership in and activities on behalf of the Union, and that by
such conduct the Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them by Section 7 of the Act, and
that by such action the Respondent also violated Section 3 (a) (3) and (1) of
the Act.
7 The alleged discriminatory discharge of Phillip Uhl
The complaint as amended alleges that Phillip Uhl was discriminatorily dis-
charged by the Respondent, but sets forth no date as to when it occurred. Since ,
Uhl was not called as a witness at the hearing herein, the undersigned is at a loss
to determine just what his duties were. The documentary evidence shows that
he worked in the trimming department as a tool maker They also show that
DEENA PRODUCTS COMPANY 585
while he signed a union application-for-membership card, it is undated. Hence in
the absence of any substantial evidence to support the General Counsel's allega-
tion in his complaint as regards Phillip Uhl, the undersigned has no alternative
but to recommend that it be dismissed, and he so recommends.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with the operations of the Respondent 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 ob-
structing commerce and the free flow of'commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor
practices affecting commerce, it will be recommended that it cease and desist
therefrom and take certain affirmative action which the undersigned finds is
necessary to effectuate the policies of the Act.
By interrogating employees about the Union and their union membership,
activities , connections , and sympathies , and by the surveillance of union meet-
ings of its employees , Respondent has evidenced a purpose and disposition to
thwart self-organization of its employees and deprive them of their rights under
the Act. In view of this, and of the other unfair labor practices herein found,
there is, in my opinion, a likelihood not only that such acts may be repeated
but that other unfair labor practices may be resorted to by Respondent in an
effort to prevent self-organization of its employees . To minimize the likelihood
of recurrent unfair labor practices and to assure the employees the enjoyment
of their statutory rights, it will be recommended that the Respondent be ordered
to cease and desist from in any manner interfering with, restraining , or coerc-
ing its employees in the exercise of their rights of self-organization.
Having found that Respondent has discriminatorily discharged Homer Pier-
son, James Jones, William Ray, Robert Cobbins, James Cobbins , Otis Noble,
Charles Holland , Henry Carroll , James Armstrong , Louis Lacy, and Maggie
Mitchell, it will be recommended that Respondent offer the employees named
above immediate and full reinstatement to their 'former or substantially equiva-
lent position without prejudice to their seniority or other rights and privileges,
and to make them whole for any loss of pay they may have suffered by reason
of Respondent 's discrimination against them .18 It is recommended that the
loss of pay be computed on the basis of each separate calendar quarter or portion
thereof during the period from March 24, 1949, as regards James Jones, William
Ray, Robert Cobbins, James Cobbins, Otis Noble, Charles Holland, and Homer
Pierson to the date of a proper offer of reinstatement ; Henry Carroll and James
Armstrong from March 24, 1949, to the date they returned to work on January
13, 1950, and January 1950, respectively ; Louis Lacy from April 2, 1949, to the
date of his reinstatement. August 15, 1949; Maggie Mitchell from April 1, 1949,
to the date of a proper offer of reinstatement ; the quarterly periods hereinafter
called "quarters " shall begin with the first day of January, April, July, and
October ; loss of pay shall be determined by deducting from a sum equal to that
which they would normally have earned for each quarter or portion thereof,
less their net earnings,19 if any, in other employment during that period ;
is The Chase National Bank of the City of New York, San Juan , Puerto Rico , Branch,
65 NLRB 827.
21 Crossett Lumber Company, 8 NLRB 440
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnings in one particular quarter shall have no effect upon the back -pay liability
for any other quarter.20 It is also recommended that Respondent be ordered
to make available to the Board upon request payroll and other records to fa-
cilitate the checking of the amount of back pay due.
The undersigned having found above that the Respondent used a discriminatory
standard of selection in effecting the layoffs of the employees in the art de-
partment on various dates during the month of April 1949, it will be recommended
that the Respondent offer reinstatement to, and make whole those who were
the subjects of discrimination. It is quite true that some of the employees
in the art department and named in the complaint would have been laid off
during March and April 1949, absent discrimination but it is up to the Re-
spondent "to disentangle the consequences for which it was responsible from
those from which it was immune" 21 and this the Respondent has failed to do.
In the considered opinion of the undersigned, in view of his finding that there
are certain inaccuracies in the payroll data furnished by the Respondent to
the General Counsel, and offered and received in evidence at the hearing herein,
it is impossible to recommend with the accuracy and preciseness which is neces-
sary and desirable than resort must be made to some particular devise which
will reasonably reach an equitable disposition of this problem. Had the Re-
spondent not injected its animosity toward the Union and the concerted ac-
tivities of its employees, it is quite possible that the percentage of union and
nonunion employees laid off would have been about 56 to 44. The undersigned
has found that there was a necessity for a layoff in the art department, due
to a lack of orders and a change in the process of manufacturing. Yet, though
conceding a necessity for a layoff, the undersigned has found that at the time
the layoffs were made there were approximately 61 employees in the de-
partment who could be classed as eligible for membership in the Union. Of
the 61 employees, 34 were members of the Union, or approximately 56 percent.
The layoff affected 41 employees, of whom 34 were members of the Union,
[clearly a disproportionate number] or approximately 83 percent of the total
number of employees laid off. In such a state of the record and in view of the
fact that there are admittedly certain inaccuracies in the lists of employees
furnished by the Respondent, the undersigned is of the opinion and lie has so
found that since the employees in the art department were laid off on various
dates, that the determination of the percentages of those who should have
been retained on a seniority basis is a matter for compliance to be arrived at
by statisticians. In order to effectuate this recommendation, it is also recom-
mended that the Respondent be ordered to make available to the Board upon
request to facilitate the determination of the proportionate number of union
members who should have been laid off, absent discrimination, and the pro-
portionate number who should have been offered reinstatement [based on senior-
ity] and in proportion to the needs of the Respondent on September 1, 1949,
and March 1, 1950; thus arriving at an equitable disposition of this perplexing
problem. Hence, it follows from the above approximate percentages that cer-
tain members of the Union should have been retained, and a large percentage
reinstated to positions which they could have filled, not only in the art de-
partment, but in other departments where unskilled workers are employed, such
as the trimming department, where the Respondent admittedly employed a
number of employees between September 1, 1949, and March 1, 1950. A further
20 F. W. Woolworth Company, 90 NLRB 289.
21 See N. L . R B. v. Remington Rand, Inc., 94 F. 2d 862 ( C. A. 2), cert. denied, 304
U. S. 576.
DEENA PRODUCTS COMPANY 587
reason for the above recommendation is that the undersigned has found above
that the Respondent discriminated against the union employees as a group in
selecting those who were to be laid off and those to be reinstated , and since
the record is inadequate in that certain employees , Leona Cotton , Julia Hopkins,
and Lymustine Reece, were reinstated on July 18 , 1949, it is simply impossible
for the undersigned to determine accurately when the Respondent 's business
picked up to the extent that it could offer reinstatement to the employees dis-
criminated against. In order therefore for the Respondent to -remedy as
exactly as possible the unfair labor practices both with reference to the union
members discriminated against as a group and as individuals , both as to layoffs
and reinstatement, can be accomplished only by requiring the Respondent to
go back to April 1949, and then to proceed to accomplish the necessary reduction
in its force on a nondiscriminatory basis. The undersigned recommends that
in order to remedy the effects of the Respondent 's unfair labor practices with
relation to the entire group of union employees , it be required to select from
a list of such union employees who were laid off in the art department in
April 1949, attached hereto as Appendix A in accordance with the actual per-
centage of union to nonunion members who were laid off and refused reinstate-
ment, in accordance with President Weiner ' s announcement that seniority
would govern in selecting those to be laid off, and which he testified was the
normal procedure for seasonal layoffs without discrimination against any
individual because of his union membership or activity, following a system
of seniority Ito such an extent as the Respondent had heretofore applied in
the manner expressed by the Respondent 's president , George Weiner. It is
further recommended that those employees named in the complaint who would
have been laid off, in accordance with their seniority regardless of their union
membership , be placed on a preferential hiring list, and that they be reinstated
to their former positions or substantial equivalent employment as of the date
they should have been reinstated according to their seniority , and that the
Respondent be ordered to replace employees , who have been hired by it since
July 1949, with said discriminatorily treated employees without loss of seniority
or other rights and privileges . It is also recommended that the Respondent
make whole said employees , who ordinarily would have been reinstated , absent
discrimination , for any loss of pay they may have suffered as' a result of said
discrimination , less their interim earnings , if any, in the same manner as set
forth above in this section of the Report as regards the 9 employees in the
frame department , and Maggie Mitchell and Louis Lacy. In his effort to re-
store the employees in the art department to the status they would have had,
absent the Respondent 's discrimination , the undersigned has been forced to
recommend that a considerable burden be placed on the compliance section of
the Board , but he sees no alternative in view of the record that was adduced
at the hearing herein. The undersigned also recommends that the Board
reserve the right to modify the back -pay and reinstatement provisions if made
necessary by a change of conditions , and to make such supplements thereto
as may hereafter become necessary in order to define or clarify their applica-
cation to circumstances that may arise in the future.
The undersigned has also found above that the Respondent did interfere with,
restrain , and coerce its employees in the rights guaranteed them in Section 7
of the Act by its supervisory employees and executives : (1) Question its em-
ployees about their union affiliation and activities; (2) threaten its employees
with reprisals if they continued to engage in such activities ; ( 3) grant wage
increases to the employees in the art department during the peak of the Union's
organizational efforts, for the purpose of discouraging their membership in
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and activities on behalf of the Union; and (4) by discriminatorily revising plant
rules in March 1949, for the purpose of interfering with and discouraging the
concerted activities of its employees. Having found as immediately set forth
above, the undersigned recommends that the Respondent be ordered to cease
and desist from such conduct.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1 Deena Products Company, an Illinois corporation, is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. United Service Employees Union, Local 329, of the Building Service Em-
ployees International Union, affiliated with the A. F. L, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. 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 (a)
(1) of the Act.
4. By discriminatorily discharging 11 employees, and by discriminatorily
selecting employees in the art department for layoff during the month of
April 1949, and by refusing to reinstate them when work was available, except
as to 3, who are named in that section of the Intermediate Report entitled
"The remedy," the Respondent violated and is violating Section 8 ( a) (1) and
(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The General Counsel did not establish by reliable, probative, and substantial
evidence that the Respondent discriminatorily discharged Phillip Uhl.
[Recommended Order omitted from publication in this volume.]
BETHLEHEM PACIFIC COAST STEEL CORPORATION, SHIPBUILDING DIVI-
SION, SAN FRANCISCO YARD and INTERNATIONAL ASSOCIATION OF
MACHINISTS, LOCAL LODGE No. 68, PETITIONER. Case No. 20-RC-
969. March, 1, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Eugene K. Kennedy,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
93 NLRB No 76