The National Seal Co.

National Labor Relations Board - Board Decisions

Jan 8, 1943

46 N.L.R.B. 861 (N.L.R.B. 1943)

In the Matter of THE NATIONAL SEAL COMPANY and THE UNITED
PAPER, NOVELTY AND Toy WORKERS (C. I. 0. )
Case No. C-2389.-Decided January 8,1913
Jurisdiction : sealing devices manufacturing industry.
Unfair Labor Practices
Interfe7ence, Restraint and Coercion-Company-Dominated Organization: im-
petus to formation provided by employer's anti-union statements and surveil-
lance; assistance and encouragement in formation by representatives of
management
Discrimination: charges of, dismissed.
Remedial Orders : cease and desist unfair labor practices; dominated organiza-
tion disestablished.
DECISION
AND
ORDER
On October 27, 1942, the Trial Examiner 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 that it take
certain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a brief in support of the exceptions.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C., on December 17, 1942, for the purpose of oral argument..
The respondent was' represented by counsel and participated in the
hearing; the Union did not appear.
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, conclusions, and recommendations of- the Trial
Examiner, with the exception noted below.
The Trial Examiner has found that William Holtsberry was dis-
charged by the respondent on May 25, 1942, because of his union activi-
ties. This finding rests in part on the Trial Examiner's prior finding
that Holtsberry's demotion from die-setter to punch-press operator
46 N. L. R B., No. 95. -
861
862 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on May 5, 1942, prior to the beginning of union activities in the re-
spondent's plant, was due to his alleged incompetence as a die-setter
and not to his continual absence from his work post. There is substan-
tial evidence in the record, however', and we find, that Holtsberry was
demoted on May 5, 1942, because of his failure to stay at his assigned
post and the consequent interruptions in his work and in the operation
of the presses serviced by him. There is also substantial evidence that,
subsequent to May 5 and prior to his discharge, Holtsberry persisted
in leaving his work from time to time in order to talk to employees
elsewhere in the plant. On May 22, 1942, Holtsberry admittedly left
his punch press and worked instead in the shipping department.
Other evidence in the record creates some doubt as to whether Holts-
berry's leaving his press on May 22 was unauthorized and as to whether
the respondent in fact discharged Holtsberry on May 25 because of 'his
absences from his work, but we'are of the opinion that the record as
a whole does not sustain the allegation that Holtsberry's discharge,was
due to his union membership and activity: The complaint will there-
fore be dismissed insofar as it alleges that the respondent discriminated
in regard to the hire and tenure of. employment of William Holtsberry,.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor ' Relations Board
hereby orders that the respondent , The National Seal Company, Van
Wert, Ohio, and its officers, agents , successors , and assigns , shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Associ-
ated Seal Workers of Van Wert or „with the formation or administra-
tion of any other labor organization of its employees , and front con-
tributing support to Associated Seal Workers of Van Wert or to any
other labor organization of its employees;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self -organization , to form,
join, or assist labor organizations , to bargain collectively through rep-
resentatives of their own choosing,.and to engage in concerted activi-
ties for the purpose of collective largaining or other mutual aid or,
protection , as guaranteed in Section 7 of the Act.
-2. Take the following affirmative ; action, which the Board finds will
effectuate the policies of-the Act :
(a) Completely disestablish Associated Seal Workers of Van Wert
as the representative of.any of its employees for the purpose of dealing,
with the respondent concerning grievances , labor disputes, wages, rates
of pay, hours of employment , and-other conditions of employment, and
refrain from recognizing Associated Seal Workers of Van' Wert
THE NATIONAL SEAL COMPANY _ 863
should it ever attempt to act as such representative of any of the
i espondent's employees;
(b) Post immediately in conspicuous places throughout its plant at
Van Wert, Ohio, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b) of
this Order; and (2) that the respondent will take the affirmative
action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the respondent discriminated in
regard to the hire and tenure of employment of William
Holtsberry.,
CHAIRMAN MILLis took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr John W. Coddaire, Jr, for the Board
Messrs. J Marcus Hardin and S. S. Beard, for the respondent.
Mr. Wilbur Sudbraclc, for the Union.,
STATEMENT OF TILE CASE
Upon an amended charge duly filed September 29, 1942, by The United Paper,
Novelty and Toy Workers (C I 0 ), herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the Eighth
Region (Cleveland, Ohio) issued its complaint dated September 29, 1942, against
The National Seal Company, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (2), and (3), and Section 2 (6)
and (7-) of the National Labor Relations Act, 49 Stat 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing, were duly served upon
the respondent, the Union, and the Associated Seal Workers of Van Wert
With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) on and after May,13, 1942, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act, by various acts, including surveillance of respondent's employees at a
meeting of the Union and by statements antagonistic to the Union; (2) on and
after June 3, 1942, dominated and interfered'with the formation and administra-
tion of, and contributed support to. the Associated Seal Workers of Van Wert,
a labor organization, herein called the Association; (3) on or about May 25, 1942,
discharged one of its employees, William Holtsberry. because of his union nmeni-
bership and activity; and (4) by the foregoing conduct violated Section 8 (1),
(2), and (3) of the Act: -
In its answer to the complaint, on Octobei,10, 1942, the respondent admitted that
it w,as engaged in commerce within the meaning of, the Act, but denied. that it
864 DECISIONS OF NAT•ION'IAL LABOR RELATIONS BOARD
had engaged in the unfair labor practices alleged The Association entered no
appearance and filed no answer ; it did not participate in the hearing.
Pursuant to notice, a hearing was held from October 12 to 14, • 1942, at Van
Wert, Ohio, before Ralph A. Newman,11 the undersigned Trial Examiner duly
designated by the Acting Chief Trial- Examiner. Tlie Board and the respondent
were represented by counsel and the Union by its representative. The Asso-'
ciation entered no appearance and did not participate in the hearing. Full
opportunity to be heard , to examine and cross -examine witnesses and to intro-
duce evidence bearing on the issues was afforded all parties. At the close of
the hearing, the Trial Examiner, without objection, granted motions by counsel
for the Board and for the respondent to'amend the complaint and answer 'ti)
conform to the proof In minor particulars . At the conclusion of the hearing,
the parties presented oral argument on' the record before the Trial Examiner.
No briefs were filed with the Trial Examiner by the parties, although they were
afforded an opportunity to do so.
Upon the record thus made, and from his observation of the witnesses, the
Trial Examiner, in addition to the above, makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, an Ohio corporation, having its principal plaht and place of
business at Van Wert , Ohio, is engaged in the manufacture , sale and distribution
of oil and grease seals for use inl tanks, trucks and any type of moving equip-
ment used by the armed forces, and in peace times in automotive equipment.
During the 3-month period from June 1, 1942, to August 31, 1942, approximately
'75 percent of the total amount of materials used by the respondent - at its Van
Wert plant, valued at about $119,000; was acquired by it from points outside
the State of Ohio. In the same period it sold and shipped approximately 100
percent of its total output of oil and grease seals, valued at about $160 ,000, to
points outside the State of Ohio. The respondent admits that it is engaged in
commerce within the, meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
United Paper, Novelty and Toy Workers (C. I. 0.), and Associated Seal Work-
ers of Van Wert are labor organizations admitting to membership employees
of the respondent.
III. THE UNF_\ IR,I aBOR PRACTICES
A. Interference, rests aint, and coercion
Sometime between May 5 and 15, 1942, William Holtsberry, an employee in the
respondent's, punch press department, discussed the organization of the union
with five or six of his fellow employees: In this period Holtsberry and two
of his fellow employees saw Wilbur Sudbrack, a C. 4. 0 organizer, obtained
membership application cards, and solicited various of their fellow workers to-
join. A meeting•was set for May 20'and:held on that evening af,the local C. I. O.
hall in Van Wert, Ohio. Holtsberry and other employees attended. Among
those invited was Elmer Oeschle, a fellow employee, who some 5-7 weeks later
became a foreman Oeschle declined the invitation, stating, as was testified by
Ioltsberry, that he "didn't want nothing to do with anything connected with
the C. I. 0." Early in the evening of the same day, however, Oeschle called
at Holtsberry's home and informed him that lie had changed his mind and
THE NATIONAL SEAL COMPANY 865
would like to go to the meeting. Oeschle attended the meeting but did not sign
a membership application card Oeschle explained his change of intention about
going to the meeting as due to the fact that he was requested to do so by
Edwin Stewart. Stewart was an employee in charge of the respondent's ship-
ping department. He had under his supervision one full-time employee, Hugh
Dull, and from ,time to time various other employees who were temporarily
assigned to the shipping department. He had charge of the discipline of his
department and was, the Trial Examiner finds, foreman of that department.'
Although Oeschle first denied having made any report to anyone of what took
place at the meeting, when confronted with the sworn affidavit executed by
hum on June 24 he admitted that he reported to Stewart the number of employees
who attended,' but denied having disclosed their names. However, according
to the undemed testimony of Foreman Horsch, which is credited by the Trial
Examiner; Horsch himself had originally been requested by Howard Carlton,
who was supervisor in charge of the leather department, to attend the meeting
for the purpose of getting the names of those who attended, but had later been
told by Carlton that he should not go because he was a foreman, and that
Carlton would have Oeschle attend. Horsch testified that soon after the
meeting Carlton told him that he knew who had attended it. Because of the
foregoing facts the Trial Examiner does not credit Oeschle's testimony that
he reported to Stewart merely the number of employees who attended, and
not their names, and finds that Stewart's request to Oeschle had been instigated
by Carlton, and that Oeschle attended the meeting as the representative of
Carlton. The Trial Examiner further finds that Carlton subsequently to the
meeting secured either directly from Oeschle or through Stewart, a report of
what had occurred at the meeting and a list of those of the respondent's
employees who had attended.
The respondent made clear its opposition to the Union in many ways. On
various occasions Carlton expressed hostility. He warned Horsch that I-Iolts-
berry was an active organizer for the C. I. 0 and that he should be kept
under surveillance and his activities observed Horsch testified that Carlton
had told him that he, Carlton, was "out to get Bill (FIoltsberry) fired" His
testimony was corroborated by Hudson, the Board's Field Examiner, in whom
Horsch had confided. Further, it appears from Oeschle's affidavit that at a
time when the Union and the Association were both attempting to oigamze
the respondent's plant, Carlton expressed to Oeschle his preference for the
Association. 'At about the time of the Union meeting Carlton also told 'Stewart
that he preferred the Association. Stewart told Carlton that he himself was
getting along all right without a Union. Carlton did not testify. Stewart also
reported to H K. Pohlman, the respondent's vice-president and general manager,
That Iloltsberry solicited a union membership from Richard Dull, another
employee.
As a result of the foregoing facts the Trial Examiner finds that the respondent
by its surveillance of the efforts of certain of its employees to organize the Union,
by statements of hostility to the Union and expressing preference for the Asso-
ciation, has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (1) of
the Act.
1 Oeschle at first testified that it was Richard Horsch, at that time assembly line fore-
man, who asked him to attend the meeting and see what it was about In an affidavit
executed by Oesclile on June 24, he stated that it was Stewart who requested him to
attend Stewart testified that Oeschle asked him whether he should go to the meeting
and that lie had told hnn he could go if he wanted to The Trial Examiner is of the
opinion, and finds, that Oeschle meant to testify that it was Stewart who made the request.
504080-43-i ol. 40-55
866 DECISIONS OF NATION71AL LABOR RELATIONS BOARD,
B. The discriminatory discharge of Holtsberry
Holtsberry was employed by the respondent February 12, 1942 as a punch press
operator. He was soon afterwards made a die setter. In the early part of May,
Holtsberry, in the course of a conversation with Pohlman, mentioned that he had
heard that the C. I. O. was coming into the National Seal Company after they
finished with the Kennedy Kit, to which Pohlman. according to Holtsberry's
testimony, replied, "You don't want no union out here It's just a bunch of graft
and you have to pay more into the union than what you get out of it." Following
that conversation and sometime between May 5 and 10 Holtsberry went to see
Sudbrack, the C. I. O. organizer, received cards for signing up members, and
signed up some of the employees. He attended the meeting of May 20, of which
as found hereinafter, the defendant was appraised.
About May 5,' before union activities of any kind had commenced at the re-
spondent's plant, an argument took place between Holtsberry and Ezra Moser;
plant superintendent, about Holtsberry's work as a die setter. According to
Holtsberry's testimony Moser said that Holtsberry should set up two or three
presses at the same time. Moser told Holtsberry that this was the practice
in California. Holtsberry replied that Moser wasn't in California then, but in
Ohio, and there was no man living who could set up three punch ,presses at
one time.' Holtsberry was called into Pohlman's office and given the choice of
accepting two weeks' notice or going back'to his former job of punch press opera-
tor. He elected the latter choice, and was told to report to Pohlman in 2 or 3
days "to find out how things were going." Holtsberry attributed his transfer
wholly to the argument with Moser. He reported to Pohlman two days later and
was told that his work was satisfactory and that Pohlman wished him to stay
on at the plant as punch press operator. Pohlman's version of the reason for
Holtberry's transfer from die setting to operating a punch. press differed from
that assigned by Holtsberry. Pohlman in his testimony made no reference to the
incident of the argument between Holtsberry and Moser, but_ based Holtsberry's
transfer on the fact that Holtsberry "did not pay strict attention to his job,"abut
"would set up a press, start the operator on it, and then wander out of the depart-
ment to some other department." Pohlman testified further that on May 5 he
informed Holtsberry that he did not consider his work as a die setter satisfactory,
and that therefore it would be necessary to terminate his employment "as a die
setter," that Holtsberry had then asked whether that meant that he was through
with the company, and that he, Pohlman, had answered "yes." It was agreed,-
however, that Holtsberry might continue in the respondent's employ as a punch
press operator. Pohlman testified that Holtsberry was one of the best punch
press operators in the plant and an equal to any there at the time of the hearing.
Two days later Holtsberry came back to Pohlman and, as Pohlman testified, was`
told that he was doing a fine job. In addition Pohlman testified that he advised
Holtsberry that he was definitely "on probation" and that if it should later.be
found that he didn't pay attention to his work, his employment would be
terminated.
On Friday, May 22, Holtsberry did not work' at his press, but went to the
shipping department, where he worked during that day, after securing permission
from Lloyd Ulrey, the foreman of the punch press departments Holtsberry
2 Later in the hearing Pohlman testified that Holtsberry, in his (Pohlman's) opinion,
must have misunderstood Moser,' and that Moser must have referred to keeping three
presses in operation at the same time. Pohlman testified that one die setter should be
able to keep four presses running at all times.
3 Johils, another punch press operator, testified that Ulrey- was his foreman. Pohlman
testified that Ulrey was not a foreman "at that time but admitted that- Ulrey had told
THE NATIONAL SEAL COMPANY 867
testified that he had strained his arm the previous evening and for that reason
had requested the temporary transfer to the easier work in the shipping depart-
ment On being told that same morning that Holtsberry was not at his press,
but was in the shipping department, Pohlman found Holtsberry and asked him
why he had left his press. Holtsberry explained that he had had a sore arm,
that his arm still hurt him and that he didn't feel that he' could, operate his
press. Holtsberry was permitted to finish the day in the shipping department.
On Monday, May 25, Holtsberry was called to Pohlman's office and told that
his employment was terminated because he left his work. Holtsberry their
stated that he didn't believe that he was discharged because' of his work, but
because he had participated in union activities. Pohlman testified that he had`
replied that Holtsberry's union activities had no bearing on the decision to,
discharge him,
Pohlman testified that he was unable to 'recall any specific instance of warning
Holtsberry, between the date of his transfer to,the punch press and prior to -
May 25, that his work on the punch press was unsatisfactory because of absences
from his machine In answer to a question from the Trial Examiner whether
the immediate occasion for Holtsberry's discharge was the fact that he had gone
to the 'assembly room' without permission of the foreman in the punch press
department, Pohlman answered, "I believe that that was the culminating circum-
stance of a good many other circumstances that I observed, that gradually had
made up my mind to take that action."
Holtsberry readily admitted having been absent from his walk on some occa-
sions, but explained this as due to the fact that ,he sometimes left his job to
solicit for the Y. M. C. A. and, at Pohlman's request, for the Salvation Army.
Pohlman admitted that Holtsberry was quite active in social activities such as
managing the baseball team and in soliciting collections for the Salvation Army
and the Y. M. C. A.
Holtsberry's dismissal was presaged by several statements made by Horsch
and Carlton. Horsch testified that shortly after the C I. O. meeting of May 20,
Carlton told him that he knew the people who attended the meeting and that
he was "out to get Bill fired." One Saturday afternoon, May 23, in Horsch's
department, Horsch conveyed to Holtsberry, when the latter started to discuss
unions, the information that "he had better watch his step, because they were
out to get him and he shouldn't be talking union in the shop." This was the
day after Pohlman found Holtsberry in the shipping department, when according
to Pohlman's own testimony he began to consider the question of Holtsberry's
final dismissal' Holtsberry testified to the same conversation in substantially
similar terms. Hudson, the Board's Field Examiner, testified without contra-
diction that Horsch had told him early in June that Carlton had warned Horsch
Holtsberry that it was all right with him for Holtsberry to go to the shipping room When
Holtsberry left his press , Ulrey put Johns to work on it. Holtsberry testified that Ulrey
took over his job as die setter on March 5 , that while he, Holtsberry, had been die setter
Pohlman had authorized him in the event of a press being out of operation, to put the
operator in some other place to work , and that he understood that , since Ulrey took
his place , the latter would "automatically " have the authority to tell the operator where
to go ; and that operators sent fiom the punch press department to the shipping depart-
merit did not "run in the office every time something was wrong and ask Pohlman or
Moser or Carlton what they should do " The Trial Examiner finds that Ulrey was
lloltsberiy ' s foreman on May 22
4 The shipping department was located at one end of the assembly room IIoltsberry
testified that he couldn 't tell the difference between'the shipping department , and the as-
sembly department , there being no partitions between them.
6 The date of this conversation was fixed by Horsch as 1 or 2 days after the C I 0.
meeting of May 20 and by Holtsberry as Saturday afteinoon , May 22 Since Saturday was
May 23 , the latter appears to be the correct date of the conversation.
868 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD
that Holtsberry was an active organizer for the C. I. 0. and that he should be
kept under surveillance and his activities observed, and that Carlton had further
stated to Horsch (referring to Holtsberry's union activities) "When we get
something on him we will discharge hint." At about the same time, shortly
after the C. I. 0. meeting, Carlton began to avoid Holtsberry and commenced
to scrutinize him closely while he was at work.
The respondent's contention concerning Holtsberryy's discharge is in sum
that the discharge actually occurred on May 5 and' that the final dismissal on
May 25 resulted from a resumption of his alleged habit of absenting himself
from his immediate job, culminating in the temporary departure to the ship-
ping room on May 22. In the last analysis, the respondent's explanation of
Holtsberry'§ discharge is credible only if his demotion of May 5 was due to an
old alleged habit of leaving his post, advanced as the reason for, his final dis-
missal, and if the last of these, incidents, the "culminating circumstance," 'in
Pohlman's words, was another unauthorized absence. Neither of these essen-
tial premises to the respondent's contention is credible. Pohlman testified, in
-explaining the presence of the word "incompetent" on Holtsberry's discharge
papers, that this had "particular reference, to his ability as a die setter." 6
That Holtsberry's absences from his post prior to May 5 were of no particular
concern to Pohlman is obvious from the fact that he himself requested Holts-
berry to solicit for such causes as the Salvation Army and the Y. M. C. A.,
and permitted him to act as manager of the baseball team, all ofd which func-
tions obviously necessitated frequent absences from his post. It is therefore
,reasonable to believe, and the Trial Examiner finds, that Holtsberry's demo-
rion of May 5 was due to his alleged incompetence as a die-setter and to that
circumstance alone.
As to Holtsberry's conduct between May 5 and May 22, when he was found
absent from his press,? Pohlman could' recall no specific instances of having
spoken to him about absences from his post. Whether the final incident itself
was a violation of company rules turns on whether- or not the absence was
authorized. ' On this question Pohlman himself testified, in discussing the "suf-
ficiency" of the permission obtained from Ulrey, that although at first permis-
sion for operators to go to other departments to work had to be secured from
Moser, Carlton or himself, nevertheless "at a later date, instructions of the
various foremen in the,plant" were sufficient. As has already been found, Ulrey
was foreman of the punch press 'department, where Holtsberry worked. The
Trial Examiner finds that Holtsberry's original demotion was due not to absences
from his post but to a circumstance, namely his alleged incompetence as a die
setter, unrelated to his discharge, and that his absence from his press on May
22, the occurrence which is relied upon by the respondent'as the culminating
circumstances leading to his dischage, was not a violation of company-rules
but was fully authorized by the appropriate supervisor.
The absence of Holtsberry from his press, which according to Pohlman was
the immediate provocative cause of his dismissal, commenced May 22, 2 days
after the C. I. 0. meeting in which Holtsberry was the moving spirit.
The Trial Examiner fui then finds that Pohlman had knowledge on May 22 of
C The complete notation on the discharge papers read "incompetent and lack of coopera-
tion " Hudson, the Field Examiner, who had discussed the discharge with Pohlman on
June 24, testified that Pohlman had admitted to him that the word "incompetent" was
.erroneously put in the discharge papers.
T Even when Pohlman found Holtsberry inthe shipping department on May 22 he did
mot immediately order him back to the punch press department, but permitted him to
continue to work in the shipping department the rest of the day.
THE NATIONAL SEAL COMPANY 869
Holtsberry's union activities and of his membership in the C. I. 0.8 When the
foregoing circumstances are placed against the background of the respondent's
anti-union sentiments in general and Carlton's statement that he was "out to
get Bill (Holtsberry) fired ;" the respondent's opposition to. and, surveillance of
-the Union, it,becomes abundantly clear„and the TriaLExaminer finds, that Holts•'
berry was discharged, on May 25, not for the reasons advanced by the respondent
but solely because of his union activities. The respondent has thereby engaged
in violations of Sections 8 (1) and 8 '(3) of the Act.
C. Domination of and interference with the formation and adininstration of the
Associated Seal Workers of Van Wert
In June, 3 or 4 weeks after the union meeting of May 20, Oeschle talked with
Carlton concerning the advisability of attempting to organize an independent
union. Oeschle testified that Carlton had replied merely that he was not
allowed to comment. However, in the sworn affidavit executed by Oeschle on
June 24, introduced in evidence, he declared that Carlton advised him, "I don't
care, for any labor union but if we have to have a union in here l would prefer
an Independent Social Organization." Stewart also testified, as has already
been stated, that Carlton about the time of the union meeting told Stewart that
lie preferred the Association to the C I O. In view of the contradictory state-
ments by Oeschle and the fact that Stewart's testimony tends tv corroborate
the statements which appear in the affidavit made by Oeschle, the Trial Examiner
finds that Carlton did advise Oeschle and Stewart of his preference for the
Association.
Immediately after the statement by Carlton as to the form of organization
preferred by him, Oeschle talked with Don Hipsley, then foreman of the steel
department, and Ivan Johns, one of the employees, about starting an independent
association. Johns had a brother who was an employee in a local cheese fac-
tory- where an independent union had been set up by Mr. Drury, an attorney!
Oeschle and Hipsley visited Drury shortly before June 24. Johns testified
that it was "part way" his idea to consult Drury. At the hearing Hipsley was
uncommunicative concerning the reason for his going to see Drury. He testi-
fied that he was Dever, interested in the formation of a union, and had gone
with Oeschle to see Drury merely because Oeschle was his friend and had asked
him to go. Hipsley remained throughout the conference but, upon being in-
formed by Drury that the fact that he was a foreman disqualified him from
participation, withdrew from any further connection with the organization of
the Association. Oeschle thereafter visited Drury accompanied by Johns Drury
8 Pohlman was evasive in his testimony on this point. When asked whether at the time
lie dismissed Holtsberry, be knew that the latter belonged to the C. I. 0., he failed to give
a direct answer, but replied that at the time of the discharge Holtsberry had told him
that he had not participated in Union activities, and was not then a member of the
C. I 0. Holtsberry denied having made such a statement , and testified that he told
Pohlman that he was a member of the C. I. 0. Pohlman admitted that at the time of the
discharge Holtsberry did make some mention of Union activities and that Stewait had
previously reported to him that Holtsberry had been doing some union work in the plant
Pohlman volunteered the statement that he had discounted what Stewart said "to some
extent," because Holtsberry had not very long before informed him, according to Pohl-
man's testimony, of his dislike for the C. I. 0 However, Pohlman had previously admitted,
in his answer to a question of the Trial Examiner, that he had had a feeling at the time
of that conversation that Holtsberry may not have been entirely sincere in his criticism
of the C. I. 0. The Trial Examiner credits Holtsberry's testimony that he told Pohlman
on the occasion of the discharge that he was a member of the C. I. 0.
O Ivan Johns, the respondent's employee, bad himself once worked at the cheese factory,
but had not joined the union there.
870 DECISIONS' OF NATIO\IAL LABOR .RELATIONS BOARD
prepared a petition whereby employees, might indicate their desire to form the
Association. Oeschle thereafter circulated the petition among the employees
during,recess and lunch periods. Fifteen employees signed. Oeschle testified
that one, employee, Pete Harvey, was signed up during working hours.
An organization meeting was arranged for June 24 and held that evening at
the X. -ill C. A.- On the evening before the meeting Oeschle gave the petition
to 'Christine G. Conn to circulate among the girls. Conn was forelady of the
re-work or salvage department and,. as she testified, was in charge of about 15
girls The evidence as to what Conn did with the petition is conflicting. Conn
testified that she put it in,ber pocket and left it there until she, gave it to Hudson
the following day, and that she did not ask any of the girls to sign, it. She
also testified that she knew nothing about the meeting set for June 24 and
that she never spoke to any, of the girls about going to the meeting When
shown a 2-page affidavit purporting to have been made by her for Hudson, the
Field Examiner, on June 24, she admitted that the signature on the affidavit
was hers, but insisted that Hudson had taken down what she had said, in penal.
Both pages of the affidavit were written in ink, in Hudson's handwriting, and
,Conn's signature was also in ink. Conn denied having said "a lot of things"
appearing in the affidavit. In particular, she testified that she did not remember
having stated to Hudson that she had asked the girls in her department, and
about three girls in the assembly line, to sign the petition that morning, and
specifically denied having stated to Hudson that the girls had told her that
they wanted to wait until the meeting that was to be held that evening, and that
she notified the girls of the time and place of the meeting and was told by some
of the girls that they would attend.
Hudson, called as a witness for the Board, testified that Conn had made the
statements contained in the affidavit. The affidavit received in evidence read as
follows :
I am the Forelady of the salvage department. I am paid on a salary
basis. There are about fifteen girls under me in this department. Last
night Elmer Oeschle gave me a petition to circulate in my department. I
asked for the girls to sign up in my department this morning and about three
gills in the assembly line. They all stated however, that they wanted to
wait until the meeting that will be held this evening at the Y. Al C. A. in
'Van Wert at 8: 15 p in
Oeschle came over to my department this morning and gave me the time
and place of the meeting and asked me to notify my girls. I have done this
and some of the girls said they would attend the meeting to-night.
I have not signed up any girls yet for the reason previously stated.
Subsequently to the reading of the affidavit at the hearing, in the presence of
Conn, she was recalled to the stand as the Trial -Examiner's witness. She again
denied having talked to anyone about the meeting, or having told Hudson 'that
she had done so .
In all of the circumstances the Trial Examiner does not credit Conn's denial
,of having circulated the petition and of having notified the girls of the meeting,
as recited in the affidavit, and further finds that she did circulate the petition
and notify the girls of the meeting,,as indicated in her affidavit.
Following the June 24 meeting of the Association, activity on its behalf lapsed.
About the middle of September, Johns, Oeschle and Pete Harvey took further
steps to establish the Association in the respondent's plant. ' They asked the men,
usually uptown, if they would like to join. Four meetings were held at the
Y. M. C. A., the last no later than two weeks, prior to the hearing. About four
i
THE NATIONAL SEAL COMPANY 871
employees attended the .meetings. Johns was appointed" temporary president and
Neil Geary,, temporary secretary. In addition, temporary committees were ap-
pointed, and the name "Associated Seal Workers of Van Wert" was adopted.
Cards were printed. No quarters were engaged, no records were kept, and no
minutes were preserved. The cards were left in the office of Drury, who, Johns
testified, is still the attorney for the Association. Eighteen employees have signi-
fied their, intention of joining. No arrangements were, made for financing the
organization, either by dues or otherwise No payment was made for the meeting
room at the Y. M C. A. nor for the cards. Johns testified that he knew of no
charges that had been made. No explanation of the shadowy nature of the Asso-
ciation's existence appears in Johns' testimony. He testified that he and his
associates "never got it organized," and that they "have just dropped "it and didn't
do 'anything more about it." Johns on the other hand stated that he had not
changed his mind about the undesirability of a C. I. 0. union in the plant, or
that an independent union was preferable. He testified that he "couldn't possibly
say now" at the moment, whether he intended to go on with it or not. The only
explanation vouchsafed by him for the cessation of organizational activities, when
asked "Have you been just too busy to go ahead with the oiganizational work, is
that why you sort of dropped the matter?" was "Well, this is a busy time; yes, and
with'the night schools that we take-."
The events surrounding the formation of the Association cannot, in the opinion
of the Trial Examiner, be adequately appraised except in the background of the
respondent's hostility to the Union. Expressions of such hostility were followed,
immediately after the union meeting of May 20, by management expressions of
preference for the Association, as an alternate method of employee organization.
Under the circumstances, the movement to form the Association cannot be viewed
as the uninfluenced preference of the employees. It is clear from the facts, and
the Trial Examiner finds, that the respondent, acting through Carlton, utilized
the services of Oeschle, through whom it had conducted its surveillance of the
attempts of the Union to organize the plant a month previous, to furnish the
impetus for the organization of the Association as a back-fire to the Union. In
connection with the attempts to revive the Association made by Johns, Oeschle
and Hipsley after the lapse following the incidents of June 24, the circumstances
of Hipsley's attendance at the first meeting in Drury's office and his immediate
withdrawal from further participation, and of the complete failure of Johns to
advance iiny credible reason for his equally sudden cessation of interest, are
difficult to explain had the Association been in fact the voluntary and uncon-
trolled expression of the desires of the employees to organize. Whether or not
the employees really preferred a union without national affiliation is, however,
impossible to ascertain as a fact, since they were prevented by influence exercised
by management from giving expression to their own untrammeled views. The
Trial Examiner is convinced, and finds, that the respondent, through expressions
of favor of the Association, through pressure to join the Association exercised
through Conn, its forelady, and through the participation in the organizational
activities of the Association by employees controlled by and acting under the
direction or with the indicated approval of management, dominated and inter-
fered'with the formation and administration of the' Association, and thereby
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE'EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The 'activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and with foreign nations and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has interfered with, restrained
and coerced its employees in the exercise of the. rights guaranteed in Section 7
of the Act, the Trial Examiner will recommend that it cease and desist therefrom
and take certain affirmative action which the Trial Examiner finds will effectuate
the policies of the Act.
It has been found that the respondent has dominated and interfered with the
formation and administration of the Association and contributed support to it.
The consequences of such domination and interference would be to enable,the
respondent to utilize the Association as a matrix in which to cultivate among
its employees animosity against truly independent union organization, and to
create a barrier to a free selection by the employees, among various types of
organization, free from fear. of retaliation by management where such choice
might be, distasteful to it. Accordingly, the Trial Examiner will recommend that
the respondent disestablish and withdraw all recognition from the Association
as the 'representative,of any of its employees for the purposes of dealing"with
them concerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment.
Since it has been found that the respondent discriminated as to the hire and
tenure of employment of William Holtsberry because he assisted the Union, in
order to effectuate the policies of the Act it will be recommended that the
respondent offer William Holtsberry immediate reinstatement to his former or
a substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and that the respondent make him whole for any loss of pay
he has suffered by reason of the respondent's discrimination, by payment to him
of a sum of money equal to the amount he normally would have earned as wages
from May 25, 1942, the date of his discharge, to the date of the offer of rein-
statement, less his net earnings 10, during that period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case; the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1 United Paper, Novelty and Toy Workers (C. I. 0.), and Associated Seal
Woi,-kers of Van Wert are labor organizations, within the meaning of Section 2
(5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and• is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B 440. Monies re-
ceived for work performed upon Federal , State, county, municipal, or other work-relief
projects shall be considered as earnings See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
THE NATIONAL SEAL COMPANY 873
3. By dominating'and interfering with the formation and administration of
Associated Seal' Workers of Vail' Wert and by contributing support to it,'the
respondent 'has engaged in unfair labor practices , within the meaning of Section
8 (2) of the Act.
4 By discilininating in regard to the hire and tenure of employment of William
Holtsberry , thereby discouraging membership in United Paper , Novelty and Toy
Workers ( C. I. 0.), the respondent has engaged in and is engaging in unfair labor
practices , within the meaning of Section 8 ( 3) of the Act.
• 5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the Trial
Examiner recommends that the respondent, The National Seal Company, and its
officers, agents, successors, and assigns , shall:
1 Cease and desist from :
(a) Discouraging membership in United Paper, Novelty and Toy Workers
(C 1,0 :) or any other labor organization of its employees; by surveillance of
the activities of any of such organizations, by discharging any of its employees
,or in .any other manner discriminating in regard to their hire or tenure of
,employment or any term or condition of their employment :
(b) Dominating or' interfering with the administration of Associated Seal
Workers of Van Wert," or dominating or interfering with the formation or
administration of any other labor organization of its employees, and from con-
tributing financial or other support to Associated Seal Workers of Van Wert or
to any other labor organization of its employees;
(c) Recognizing Associated Seal Workers of Van Wert as the representative
of its employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment or any other
conditions of employment;
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing. onto engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish Associated Seal
Workers of Van Wert ;
(b) Offer to William Holtsberry immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any loss of earnings he may
have suffered by reason of the respondent's discrimination against him by pay-
ment to him of a sum of money equal to that which he would normally have
earned as wages from May 25, 1942, the date of the respondent's discrimination
against him, to the date of such offer of reinstatement, less his net earnings"
during said period ;
(c) Immediately post notices to its employees in conspicuous places through-
out its plant in Van Wert, Ohio, and maintain such notices for a period of at least
sixty (60) days from the date of posting, stating (1) that the respondent will
1 1 See footnote 10 supra.
874 DEICISIONS OF NATIONAL ! LABOR RELATIONS BOARD
not engage in the conduct from which it is recommended that it cease and desist
in paragraphs 1 (a), (b), (c), and (d) of these recommendations; (2) that it
will take the affirmative action set forth in paragraphs 2 (a) and (b)' of these
recommendations ; and (3) that its employees are free to become or remain
members,of United Paper, Novelty and Toy Workers (C. I. 0.), and that-it will
not discriminate against any employee because of membership in or activity on
behalf of said labor organization ;
(d) Notify the Regional Director for,the Eighth Region (Cleveland, Ohio) in
writing within ten (10) days from the date of the receipt of this Intermediate
Report what steps the respondent has taken to comply therewith.
It is further recommended that' unless on or before ten (10) days from the
receipt of this Intermediate Report'the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article,II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 14,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring'the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D. C., an original and four copies of a 'statement in writing setting forth such'
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as-he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said-Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of, the order transferring the case to the
Board.
I RALPH A. NEWMAN,
0
Trial Examiner.
Dated October 27, 1942.