A. Sartorius & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 3, 1942

40 N.L.R.B. 107 (N.L.R.B. 1942)

In the Matter of A. SARTORIUS & CO., INC. and UNITED MINE WORBERs
OF AMERICA, DISTRICT #50, LOCAL #12090
Case No. C-1465.-, ecided April 3, 1942
Jurisdiction : cosmetics manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; surveillance; lay-
offs; discriminatory treatment of union employees in contradistinction, to
non-union employees.
Discrimination: constructively and discriminatorily discharging returned unfair
labor practice strikers by compelling them to work under, unfavorable con-
ditions which constituted underlying reason for strike-failure to reinstate
and discharging other strikers notwithstanding their failure to report to
work after the strike, where such failure held to have arisen-from an un-
willingness to work under conditions constituting unfair labor practices. -
Testifying under Act: employee's departure from plant caused by employer's
discriminatory treatment accorded her because she had testified at Board
hearing, held in effect a constructive and discriminatory discharge.
Collective bargaining: (Millis) found a refusal to bargain collectively on date
employer denied union's request for recognition, which was prior to date
union was certified by the Board, since employer's purported doubts about
the unit and the designation of the union, as well as its request for delay,
were not genuine but based on a determination to evade its duty to deal with
the duly selected representative of its employees ; also found a refusal to
bargain collectively with the union after it had been certified by the Board -
by'refusing to accord certified union recognition both before and-after Board's
denial of its application for reconsideration of certification; (Leiserson-
dissenting) holding that the employer did not refuse to bargain at any time;
(Reilly-concurring in part) found no refusal to bargain prior to certification
of union by Board.
Remedial Orders : reinstatement and back pay awarded; no order entered with
respect to an unfair labor practice striking employee- who was reinstated
and who denied that employer had committed unfair labor practices ; rein-
stated unfair labor practice striking employee who was subsequently compelled
to quit by reason of employer's discrimination towards her awarded back
pay between date employer originally refused to reinstate her to date of
her reinstatement, deducting amount earned during the period of her em-
ployment ; employee not desiring reinstatement awarded back pay between
period of the discrimination to date she secured employment elsewhere;
unfair labor practice striker although not appearing at hearing ordered re-
instated and awarded back pay ; alleged misconduct of certain striking em-
ployees held not to warrant denying them reinstatement except in the case
of one individual who is denied reinstatement but awarded back pay to date
she engaged in the misconduct directed towards her superior;
Mr. Daniel Baker, for the Board.
Mr. Samuel M. Birnbaum and Mr. Simon L. Hiller, of New York
City, for the respondent. ,
40 N. L. R. B., No. 20.
107
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Herman Edelsbery, of New York City, and Mr. Alfred Karnin,
of Washington, D. C., for the Union.
Mr. Louis A. Roland, of counsel to the Board.
DECISION
AND
,-ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Mine
Workers of America, District #50, Local #12090, herein called the
Union, the National Labor Relations Board, herein called the Board,
by Elinore M. Herrick, Regional Director for the Second Region
(New York City), issued its complaint dated March 20, 1939, against
A. Sartorius & Co., Inc., New York City, herein called the respond-
'ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing thereon,
were duly served upon the respondent and the Union.
The complaint, as amended at the hearing, alleged in substance
(1) that the respondent refused on about June 25, 1938, and at all
times thereafter, to bargain collectively with the Union as the exclusive
representative of all its employees in the appropriate unit, although
the Union had been duly designated by a majority of the employees
in the unit as their bargaining representative; (2) that beginning
about June 15, 1938, and thereafter, the respondent warned its ' em-
ployees not to join or remain members of the Union, kept the Union's
meetings under surveillance, and discriminated against union members
and sympathizers by assigning them to disagreeable tasks in the plant;
(3) that because of the above acts of the respondent, its employees
went out on strike on about July 18, 1938; (4) that the respondent
refused on about November 23, 1938, and thereafter, to rehire or rein-
state 15 named employees who applied for reinstatement after the
discontinuance of the strike; and that (5) by all the above acts, and
by other acts, the respondent interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the
Act. On March 28, 1939, the respondent filed its answer denying that
it had engaged in the unfair labor practices and setting forth several
affirmative defenses.
Pursuant to notice a hearing was held from April 24 to June 3,'
1939, at New York City, before Earl S. Bellman, the Trial Examiner
A. SA'RTORIUS & C'O., INC. C 1091'
duly designated by the Board. The Board,, the respondent and the
Union were represented by counsel and all participated in the hearing..
Full opportunity to be heard, to examine and cross-examine witnesses,
and to 'introduce evidence bearing upon the issues was afforded. all
parties. During the course of the hearing the Trial Examiner made
various rulings, and reserved other rulings, on motions and on objet-,
tions to the admission of evidence. At the close of the Board's case,
the Trial Examiner granted a motion by counsel for the Board to
amend the complaint as to formal matters to conform to the proof
adduced during the hearing. The Board has reviewed the rulings .of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. Rulings reserved by the
Trial Examiner were passed upon by him at a subsequent hearing,.
noted below. Subsequent to the hearing, the respondent submitted'
a brief and supplemental brief for the consideration of the Trial
Examiner.
On July 17, 1939, the Union filed a supplement to charge, and on-
July 20, 1939, Alan Perl, Acting Regional Attorney for the Second'
region, duly filed, pursuant to Article II, Section 15, of National Labor-
Relations Board Rules and Regulations-Series 2, a motion to supple-
ment complaint with respect to the violations alleged in the supplement
to charge, and to provide for a hearing thereon. Copies of said!
motion were duly served upon the parties. On July 22, 1939, pur-
suant to Article II, Section 15, of the aforesaid Rules and Regulations,
the Trial Examiner issued an order authorizing the Regional Director
to issue a supplement to complaint, providing the time within which
the respondent might file an answer, and reopening the record for fur-
ther proceedings. Pursuant to this order, copies of the supplement
to complaint, accompanied by notice of hearing, were duly served upon,
the respondent and the Union.
The supplement to complaint alleged in substance (1) that the
respondent, on about June 27, 1939, forced to resign or discharged
Adeline Franco because she joined and assisted the Union, and more
particularly, because she testified on May 1, 2, and 3, and June 3,
1939, in behalf of the Union at the above-mentioned hearing, and
because she engaged in other concerted activities for the purposes of
collective bargaining and other mutual aid and protection; and (2)
that the respondent, from about May 1, 1939, until June 27; 1939, dis-
criminated against Adeline Franco-with respect to her terms and
conditions of employment, treated her with discourtesy, threatened'
her with loss of employment and personal injury, and physically
assaulted her because she joined and assisted the Union, and more
particularly because she testified in the aforesaid hearing. On August
3, 1939, the respondent filed its answer denying the allegations of the,
supplement to complaint with respect to the unfair labor practices.
110 DECIISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a further hearing was held from August 7 to
August 15, 1939, at New York City, before Earl S. Bellman, the Trial
Examiner duly designated by the Board. The Board, the respond-
ent, and the Union were represented by counsel and all participated
in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all parties.- During the course of the hearing
the Trial Examiner made various rulings on motions and on objec-
tions to' the admission of evidence, including rulings on matters
which the Trial Examiner had reserved at the first 'hearing. Near
the close of the hearing the Trial Examiner granted a motion by
counsel for the Board to amend the supplement to complaint as to
formal matters to conform to, the proof adduced during the hearing.
The Board has reviewed 'the rulings of the Trial Examiner and finds
that -no prejudicial errors -were committed. The rulings are hereby
affirmed.
On January' 11, 1940, 'the Board, acting pursuant to Article II,
Section 36, of National Labor Relations Board Rules and Regular
tions--Series ordered "the proceeding transferred to and continued
before the 'Board for action pursuant to- Article II, Section 37,' of
said' Rules • and 'Regulations. The Board further directed that no
Intermediate ,'Report • be issued - by: :the' Trial Examiner, - and that
Proposed' Findings of Fact, Proposed Conclusions of Law, and
Proposed Order be issued.
On August 26;- 1941, the Board issued, and served • upon all the
parties 'its Proposed Findings' of Fact, Proposed Conclusions bf
Law; and Proposed Order: Thereafter, the respondent and the
Union filed exceptions to the proposed findings, and the respondent
filed a brief.
Pursuant to notice, a hearing for the purpose of oral argument
was held before the Board 'in'Washington, D. C., on October 28, 1941.
The respondent and the Union were' represented by counsel and par-
ticipated 'in the argument.
The Board' has considered the exceptions and briefs and, save
as the exceptions are consistent with the findings, conclusions, and
order set forth below,'finds them to be without merit.
Upon 'the" entire record in the' case, the Board makes the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The, respondent, A. Sartorius & Co:, Inc., a New York corporation
having its' principal 'place of business in, New York City, is engaged
L _ •A. SARTORIUS & CO., INC. 111
in the manufacture, packaging, labelling, and preparation for sale
of artists' materials and cosmetics, such as nail polish and its
accessories.
The principal raw materials used by the respondent are chemicals
. and chemical" compounds. Approximately 75 percent of these are
purchased, outside the State of New York and transported to the
respondent's factory in New York City. Approximately 60 percent
of the finished products prepared by the respondent are sold and
shipped to points outside the State of New York. The respondent's
.annual • volume of business amounts to about $300,000. At the hear-
ing, counsel for the respondent conceded that it is -engaged in
interstate commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED - ,
United Mine Workers , of America , District #50, Local #12090,''is
a labor' organization affiliated 'with the Congress of Industrial
Organizations , admitting to its membership all persons, except clerical
employees and supervisory employees with ' power to influence hiring
and discharging ; engaged in the manufacture and-- preparation 'for
sale of cosmetics in New York City.`
III. THE UNFAIR LABOR PRACTICES
A. -Interference, restraint , and coercion
s 1
1. -Surveillance and coercive statements
On about June 15, 1939, the Union began its campaign to organize
employees of the respondent. For about a week thereafter Robert
Burke, organizer for the Union, urged various employees, at their
homes and in the vicinity of the building in which the respondent's
plant is located, to join the Union. A union meeting was scheduled
during that week, and was held on the evening of June 24, 1938. At "
this meeting, 15 girls, employees of the, respondent, signed member-
ship cards which authorized the Union to act as their collective
bargaining representative. Only one membership card had been
signed prior to this time; that card was signed immediately before
the meeting by an employee who was unable to attend. However, it
appears to have been generally'known even before the meeting was
held which of the employees were interested in joining the Union
and which were not; in any event, during the week before June 24,
several employees, including Maude O'Toole, Helen Witt, and Elsie
Cohen', actively solicited members for the Union.
112 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
That the respondent, during the week of June 15, was aware of
the Union's activities and of the proposed union -meeting is sub-
stantially uncontroverted. Helen Greene ,l secretary of the respondent
and general manager of the plant, admitted that when she learned
of the Union's campaign, she discussed it with her husband, Franz
Neuschaefer, president of the respondent, who thereupon telephoned
some of his business friends, including a Mr. French, for advice on
how to handle the situation.2 Paul E. Formont, a salesman of the
respondent and a former manager of a 5-and-l0-cent store, was like-
wise immediately consulted on this matter by Greene and Neu-
schaefer. On June 24 Greene told Elsie Cohen that she knew what
had been going on, that week and also knew that Maude O'Toole
and Helen Witt were among those "at the head of it," warned that
Neuschaefer "would never join up with any union, he would rather
move the whole place to Connecticut," and inquired where the union
meeting was going to be held that night. That same afternoon, Anna
Muirhead, forelady in general charge of production and employment
in the factory, listened to several girls discussing the Union in the
dressing room during lunch hour and immediately thereafter reported
what she had heard to Greene. Asked why she reported this ' to
Greene, Muirhead responded, "I don't know why. I just told her ;
that was all." Finally, when several of the employees were leaving
the plant that evening, Sara Cohen, bookkeeper in charge of several
clerical employees of the respondent, accosted them and warned them
that if they attended the union meeting there would be a "lot of
trouble," that they would be fired if Greene found out. As a• result,
several of these girls did not attend the meeting.3 Thus it is clear
that, even before the first union meeting of June 24 the -respondent,
through its supervisors and one of its officers, had sought to and did
learn of the Union's organizing efforts and proposed meeting, and
had begun to manifest to its employees the respondent's opposition to
unionization.
ii
3 Also designated as Helen Green in the record. Although generally known as Miss
Greene in the plant , she is bars . Helen Neuschaefer , wife of the president of the respond-
ent. She is herein referred to as Greene.
2 Thus, for example, Greene testified that she remembered Neuschaefer calling his
friends and saying : "The C. I. 0 or a union is trying to get into our shop Have you
ever had that experience and how have you handled it?"
' Greene denied that she even spoke to Elsie Cohen on June 24, and further generally
denied speaking to any employees concerning the Union or its proposed meeting. Sara
Cohen also denied warning employees not to attend the meeting . However, Greene ad-
mitted that Sara Cohen had told her of the proposed meeting on June 24 , and Sara
Cohen admitted that she encountered a number of employees as they were leaving the
plant that evening , and that they spoke to her about the meeting, but denied that she
said anything at all to the employees . In view of the above admissions , and biuirhead's
admission of her attempt to ascertain and report to Greene concerning union activities,
we do not credit the respondent ' s denials.
A. SARTORIUS & CO., INC. 113
On Saturday, June 25, 1938, after working hours, all employees
who had worked that morning were summoned to a meeting in the
plant. Only three union members were present, the others having
been laid off the previous day.4 At that meeting only Greene spoke.
She stated that she had known about the Union all week; that if the
girls had any grievances they should come to her with them instead
of sneaking around behind her back, as she had observed, to talk
to the union delegate; that unions would just take their money,
promise many things, but do nothing for them; that her advice was
not to join the Union; that she could, if she wished, close the entire
.plant. for a ,month; and that she, was the boss and was not going to
have any union run her business. Greene then singled out each of
the employees, asked each whether she had attended the meeting
the previous evening, and remarked that she was surprised that
Elsie Cohen and Alice Anton, two of the union members present,
should have joined the Unions -
Other remarks, similarly hostile to the Union, were shortly there-
after made to individual employees by Greene and Muirhead s
As already noted, witnesses for the respondent denied that most
of the foregoing statements were made. Because of the particular
reasons assigned above, the contrast between the general consistency
and mutual corroboration presented by witnesses for the 1 Board,
including at least one witness without any possible financial interest
in the case, and the vague and contradictory testimony of witnesses
for the respondent, -all of whom are officers, supervisors or present
employees of, the respondent; and upon a consideration of the entire
record, we do not credit the denials presented by the respondent.
Concerning the alleged discriminatory lay-offs which began on June 24 , see Section
III-A , 2, tn4'ra
6 Although a number of witnesses for the respondent , including Greene , admitted that
the meeting was called by the respondent and addressed only by Greene, they denied that
remarks antagonistic to the Union were made Greene testified that she called the meet-
ing because Muirhead had informed her that the girls in the factory were having disputes
and arguments, that she knew that the girls were arguing about the Union, and that she
merely told then, in her talk, not to argue or fight in the plant Muirhead, however,
allegedly the source of Greene 's information concerning the disputes , was herself, on
cross-examination , hesitant and self-contradictory as to whether disputes had occurred
in the plant on June 25, and finally stated that she did not know why Greene called the
meeting on that day Moreover , other witnesses for the respondent admitted that
Greene told the employees at the meeting to cone to her with their grievances, Seiler, a
supervisor , admitting that Greene said "something like" "why don ' t you bring your griev-
ances to me instead of sneaking around"' Under the circumstances , and in view of the
consistent testimony of witnesses for the Boaid on this matter, we do not credit the re-
spondent 's version of this event
Thus, for example, during the week of June 27, Muirhead told Helen Witt 'not to join
the Union "because Miss Greene will never give in," and Greene told another employee that
if she "knew what was right, [she] would stay on the right side." Likewise, about the
beginning of July, Greene came into the dressing loom where several employees were dis-
cussing the Union during lunch hour and said the Union "wasn't any good," that "God
helps them who help themselves ' Although Greene specifically denied making the latter
statement , we do not , on the entire record , credit her denial
455771-42-vol 40 8
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that by the above and its entire course of conduct the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
2. Discriminatory lay-offs 7_
Much evidence concerning alleged discriminatory lay-offs between
June 24 and July 18, 1938, was presented by both the Board and the
respondent. This evidence shows that in the afternoon of June 24,
1938, all but three of the girls who signed membership cards at the
union meeting that evening were laid off by Muirhead and told to
return either some time during the following week or upon notifica-
tion by the respondent. It does not appear that any who did not
join the-Union-were laid off, and at least one of these, Catherine
Mackiewicz, continued to work on Saturday, June 25, although she
had less seniority in the plant than many of the girls who were laid off.
The respondent's pay-roll records, as well as other evidence, reveal
that during the week ending June 30 at least 10 girls who had jpined
the Union prior, to June 28 were,, laid off and received no further
employment until they struck on July 18. Contrariwise, all eight
non-union girls 8 continued, to work during this period. Moreover,
at ,-least four union girls who were laid off 9' had greater seniority
than one non-union girl who" was retaine_ d.10 - These same records show
that of the union girls who continued to work all received less em-
ployment, on the average, than that received by non-union girls with,'
less seniority. And while most of the non-union girls were, during
this period, receiving more work, on an average, than they had been
receiving for the prior 6 months, all but one of the senior union girls
were receiving less.1
7 At the hearing ,' evidence relating 'to lay-offs between June 24 and July 18, 1938, was
presented by the Board to support allegations of interference , restraint , and coercion by
the respondent prior to , and as a cause of, the strike , and not specifically to support allega-
tions of violation of Section 8 (3) of the Act or an order for reinstatement or back pay
for those laid off during this period . Although the complaint does not specify the exist-
ence of discriminatory lay-offs prior to, and as one of the causes of , the strike , It does gen-
erally allege violations of Section 8 (1) of the Act Moreover, when counsel for the
respondent learned the purpose for which this evidence was introduced, he made no claim
of surprise or request for extension of time, and the issue was fully litigated by both the
respondent and the Board
8 "Non-union girls," in contradistinction to "union girls," herein refers to those employees
who were not , at the -particular time under discussion , members of the Union.
o Namely, Jennie O'Toole ( or Mulcahy ), Ann Calandriello , Marie Aglietti , and Anna
Andruk Although Anna Andruk is listed by the respondent as having begun to work for
the respondent in April • 1938, Andruk testified and the respondent 's pay roll shows that in
fact she was first employed in November 1937.
io Namely, Catherine Macklewicz
n Though it Is true that perhaps two older non-union employees also received less work
during this period, their respective decreases were far less than those received by the union
A. - SARTORIUS & CO., INC. 115
The conclusion that the respondent was discriminating against
union members in its lay-offs is reinforced by the fact that on June
27 Greene told two former employees who were seeking reemployment
with the respondent that she was going to lay off all employees who
belonged to the Union until they came to their senses and forgot
about the Union.112
In its defense, the respondent contends that it had no knowledge
arid, indeed, could not have known at the time of the lay-offs on
June 24 which of the girls were going to join the Union later on
that evening 13 However, as we have found above, it was generally
known even -prior to the union meeting which employees were inter-
ested in the Union; Greene told Elsie Cohen on June 24, and the
assembled. employees on June 25, that she was acquainted with the
union leaders and with the union activities that had been going
on that week; and Muirhead, on June 24, reported to -Greene the
discussions she had heard among employees concerning the Union.
Accordingly, we find that the respondent could have learned, sought
to learn, and in fact did learn, prior to the,June .24 lay-offs, which
of its employees were manifesting 'interest in the Union. ' In any
event, 'it, is clear that after June 29, at least, the respondent had
definite knowledge concerning which of its .employees had become
members of the Union.14
girls. The following table illustrates the average number of days of work per week of the
union and non-union girls employed during the stated periods of time :
Girls I Date hired
Average for week ending
June 30 to week ending
14 1938lJ
Average for'
January to
June 23,
Percent of
increase or
de re s,yu 1938 c a e
Luccarelli_____________ 6/8/33--- ------------- 5.67 --------------------- 5 25 +80
Opyr ----------------- 1/18/34--------------- 5 67--------------------
5 26 +78
Sierska________________ 1/18/34-------------- 5 00--------------------- 5 25
-4 8
-Cohen , Elsie_ _________ 4/34----------------- 3 33 or 3 67 =____________ 4 80 l
-30 6 or
2-23 5
1 '-49 4 or
"Witt------------------ 5/3/34----------------
2 67 or 300 ............. 5 28 2-43 2
Scder- --------------- 11/25/34______________ 5 67 ------------------- 5 34 +6 2
-O'Toole, Maude______ 2/13/35------- -------- 4 33--------------------- 5 26 -17.7
13uccas________________ 4/9/36---------------- 5 33-------------------- 5 42 -1 7
O'Neil, Patricia ------- 4/36---------------- 5 67--------------------- 5 04 +12-5
Kilgus---------------- 9/36----------------- 5 67------------------- 5 12 +10 7
Klevitz 3 ______________ 10/37 ---------------- 5 33-------------------- 4 50 +18 4
*Murphy-------------- 10/47---------------- 3 33---------------------
5 03 -33.8
•Anton ---------------- 11/37---------------- 4 67--------------------
4 42 +5 6
4Vito lo----------------- 3/38 4 ---------------- 2 67 5-------------------- 5 38 -50 4
Mackiewicz ___________ 3/38----------------- 4 00--------------------- 3 76 +6 4
I Union members are denoted by asterisks. '
1 Assuming she had not been absent one day because of illness.
3 Klevitz did not join the Union until October 1938.
4 Th„ugh according to Respondent's Exhibit 56, Vitolo was first hired in October 1937, the pay
roll introduced as Board Exhibit 5 shows Vitolo was not fired until March 1938
e Though Muirhead testified Vitolo was ill sometime between June 24 and July 18, Vitolo
denied this
12 Greene denied making this statement and even denied seeing these former employees
on that day. Upon all the evidence we credit the testimony of the two former employees.
13 Greene and Muirhead both denied knowing which girls were interested in the Union
at that time. / S
14 Greene admitted that at -a conference at the Board's Regional Office on June 29, a
Board agent read off to her a list of names of employees who had signed membership cards
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing, witnesses for the respondent denied generally that
discrimination against union members was exercised in leaking lay-
offs. Thus Muirhead, in charge of lay-offs, generally denied that
any lay-offs in June were discriminatory. However, in testifying
as to details, she proved to be vague and inconsistent, could not re-
member which girls she had laid off during that period, and could
not explain why, as the records showed, girls junior in employment
worked while senior girls were laid off. Greene similarly denied
discrimination, and, although admitting that she knew less about
the details of lay-offs than Muirhead, advanced two possible reasons
for the disparity in employment of union and non-union girls: (1)
that several union 'girls who were told to appear for work some-
time before July 18 did not appear, and (2) that the respondent
probably had no work that could be done by the, particular girls
who were laid off.15 However, only two union girls failed to ap-
pear for a day during this period, because they were ill; 16 such
voluntary absence of one day does not affect our conclusion con-
cerning the relative amounts of work given to union and non-union
girls in the period from June 24 to July 18.17 Moreover, the record
indicates that during periods when union girls were laid off, work
which they were. qualified to perform was being done by junior
non-union girls.
Finally, admitting that some union girls were laid off while junior
non-union girls were retained, the 'respondent in its brief urges
that the lay-offs were normal because' the respondent does not strictly
observe the principle of seniority in lay-offs. An analysis of the
pay-roll records for the period' from January to June 1938 indicates
that although there are instances in which certain girls received
'more work, on the average, than others with more seniority, the
amount of work on the whole roughly varied directly with sen-
iority 1s In any event, Greene testified that the general policy of the
respondent is to lay off girls with least seniority, with the exception
that junior girls with greater efficiency are retained in preference
in the Union, and that she thereafter communicated this information to Neuschaefer.
Prior to that, on June 27, four employees who, among others, represented the Union, met
in a conference with the respondent (See, infra.)
'6 Greene could not, however, positively state that this was the particular reason for the
lay-offs
'1 Namely, Elsie Cohen and Helen Witt, In addition to these, Maude O'Toole, who
Greene also claimed failed to appear, denied ever failing to report to work when she was
supposed to Greene's information on this matter proved uncertain and came from Muir-
head, who did not herself present this information at the hearing.
17 Assuming that Elsie Cohen and Helen Witt would have worked an additional day, their
average number of days of work per week during this period would yet have been lower
than that of the junior non-union girls and less than the average number of days worked
by Cohen and Witt during the preceding 6 months.
18 Individual discrepancies may of course have been due to other reasons, as, for example,
illness, unavailability, etc.
'= =* - : A: SAIRTORIUS & CO., INC. 117
to senior girls. However, Muirhead, more immediately in charge
of lay-offs, admitted that,her general practice is to lay off junior
girls and retain senior girls; that, since most. girls are able to per-
form almost -all operations, if work" being done by a senior girl
ceased, the senior girl would be transferred to the job being done
by a junior girl and the latter would be laid off Ys Anna Seiler, a
minor supervisory employee and a witness for the respondent, testi-
fied to similar effect. Under these circumstances, and in view of the
supporting testimony of other witnesses, we find that at all times
material herein the respondent normally observed the principle of
seniority in laying off its employees.20
We find that from June 24 to July 18, 1938, the respondent laid
off a number of its employees for varying periods because of their
union membership and activities. By these lay-offs, the' respondent
interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act.
3. Other discriminatory conduct
In addition to the above lay-offs, the respondent, during the period
from, June 24 to July 18, 1938, discriminated in various other ways
against those of its employees who had joined the Union. Thus,
Helen Witt, upon returning to work on June 29 after her lay-off
on June 24, was assigned to the job of filling bottles with nail polish
remover, work which was unfamiliar to her. Prior to that time,
Witt had packaged bottles; had for about 6 months, because of her
experience, been placed in charge of other girls doing that work;
had previously supervised other operations for about a year and a
half;- and had been consulted by Greene and Muirhead on matters
requiring business judgment. At no time, however, did she have
power with respect to the hire or discharge of employees.. On June
29 Patricia O'Neill, a non-union girl with less seniority, who had
previously filled bottles, was transferred to Witt's former position.
Witt was not thereafter placed in the position of supervising the
work of other`s, but instead was herself supervised closely and her
efforts on unfamiliar jobs constantly criticized.
i0 Muirhead testified to this effect on direct examination by the respondent's counsel.
Later on, in response to leading questions by the respondent's counsel, Muirhead modified
her testimony and stated that junior girls might in certain cases be retained. Thereafter,
upon examination by the Trial Examiner, Muirhead reverted to her original version, stated
in the text. Counsel for the'respondent thereafter again sought to nullify this admission.
20 In a previous representation proceeding involving the respondent, we held, on the
record then before us, containing only evidence concerning lay-offs on or after June 24,
1938, that "employees are laid off without regard to seniority." 9 N. L. R. B 19, 21. It
is interesting to note that in that proceeding, the respondent contended that "it is the
practice and rule of the Company [respondent] to lay off help in the inverse order of their
employment." Our finding in this case is based upon all the evidence in the more detailed
record before us.
118 DECISIONS OF NATIONAL. LABOR; iRELATIONS BOARD
In contradistinction.to-non-union girls, union girls were criticized
constantly during this period,. were closely supervised, were not per-
mitted to raise their eyes from their work, nor to sit while working-
Also, union girls were separated so that they could neither see nor
speak to each other.21
By these methods, as-well as by surveillance, lay=offs, and warn-
ings, the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the right to self-organization, to form,
join, or assist a labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
B. The refusal to bargain collectively, the alleged settlement, and
the strike
1. The appropriate unit
In a prior representation proceeding, the Board issued its De-
cision 22 in which it found that all the respondent's production and
maintenance employees and shipping clerks, excluding supervisory
and clerical employees, constituted an appropriate unit.
The respondent contends as it did in the representation proceeding
that clerical and, supervisory employees should be included and that
certain production employees who had been employed. for a short
period of time -at the time of the representation proceeding should
be excluded from the appropriate unit. The respondent has intro-
duced no additional evidence in this proceeding in support of this
contention. We find no reason for departing from our prior decision
concerning the appropriate unit.
Accordingly, we find that all the production and maintenance em-
ployees and shipping clerks of the respondent, exclusive of clerical
employees and supervisory' employees with power'to influence hiring
or discharging, at all times material herein constituted and that they
now constitute a unit appropriate for the purposes of -collective bar-
21 Witnesses for the respondent denied the existence of any discrimination during this
period and , while admitting the change in Witt's job and the separation of girls, con-
tended, contrary to the testimony of Board witnesses , that both of these actions were taken
because of disputes and arguments in the plant between union and non-union girls.
Greene testified that her information concerning the alleged disputes came from Muirhead,
but the testimony of Muirhead herself, on cross-examination, concerning these events is
vague and self-contradictory. Moreover in "separating the girls ," the respondent sepa=
rated union girls from one another, placing them among non-union girls , a procedure
hardly calculated to prevent disputes between union and non -union girls For these and
other reasons, similar to those noted above, we do not credit the respondent's testimony
concerning the above events.
22 Matter of A Sartorius & Co., Inc. and United Mine Workers of America, District 50,
Local 12090, 9 N. L. It. B. 19, 10 N. L. It. B. 493, 496.
A. SAR.TOIRIUS.,& CO.; INC. 119
gaining with respect to rates of pay, wages, hours of employment,
and.other conditions of employment, and that said unit insures to
the employees of the respondent the full benefit of their right to
self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges that on about and after June 25,- 1938, the
respondent refused to bargain collectively with the Union, although
the Union represented a majority of the appropriate unit.
On and after June 23 the respondent employed 30 employees -in
the appropriate unit. On June 24, 1938, 16 employees in the appro-
priate unit designated the Union as exclusive representative. On
June 27 two more employees in the appropriate unit designated the
Union as exclusive, representative.
The respondent contends that these designations of the Union
are invalid because Robert Burke, union organizer, and several union
members told employees of the respondent that those who did not
join would not be permitted to do so when the Union secured a
closed-shop contract and would therefore lose their jobs or would
be permitted to join only upon payment of fines or assessments; and
because the Union distributed a circular which announced that if
the employees did not join the respondent might force the Union
to call a strike which would keep the employees out of work, and
that if they did join the respondent would "probably settle peace-
fully." 23 Witnesses for the Board admitted the distribution of the
circular but denied that the other statements -were made. We need
not resolve this conflict since the representations in the circular and
the other alleged statements, if made, do not render the designations
invalid.24 In addition, Aglietti, a union girl who testified on behalf
of, and favorably to, the respondent, as well as witnesses called by
the Board, agreed that the persons whose designations we have
counted signed of their own free will and without any compulsion.
21 The respondent also claims that two employees , Howard Weber and Anna Kilgus , signed
upon representations that all the other employees had signed , and that if they did not
join, they would be discharged when the Union secured a closed -shop contract; and that
both subsequently asked that their cards be returned . Board witnesses asserted that
Weber and Kilgus asked for the return of their cards , stating that they feared the loss of
their jobs, after Greene had addressed her anti -union remarks to the assembled employees
on June 25 The Union returned to Kilgus , and Kilgus destroyed , her membership card.
The Union did not return Weber's card because he was dissuaded from resigning We need
not resolve the conflict as to Kilgu "s' and Weber 's reasons for demanding the return of
their cards , since we have not counted the designations of either in determining whether
the Union was or is the statutory representative.
'A N. L. R . B. v. Dahlstrom Metallic Door Co., 112 F. ( 2d) 756 (C. C A. 2) enf'g Matter
of Dahlstrom Metallic Door Co. and United Electrical, Radio & Machine Workers of America,
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent, while conceding that the Union is a labor or-
ganization, contended at the hearing that the Union, Local 12090,
may not have been properly designated by the employees to act as
their bargaining representatives since the membership cards signed
by them designated only United Mine Workers of America, District
No. 50, and did not specify Local 12090.25 There is no merit in this
contention. Even if the employees who signed these cards had no
particular local in mind, nevertheless, they authorized bargaining
on their behalf by United Mine Workers of America, District No.
50, or by any local or agent which District No. 50 utilized, and Local
12090 was the local so utilized.26
We find that on June 24, 1938, the Union was the duly designated
representative of the majority of the respondent's, employees in the
appropriate unit, and pursuant to Section 9 (a) of the Act, the exclu-
sive representative of all the employees in such unit. Since a "state of
affairs once shown to exist is presumed to continue to exist until the
contrary' is shown," 27 the-Union was the exclusive representative of
the defined unit at all times after June 24, 1938, unless it is shown
that the Union lost this status.
On July 18, 1938, the Union declared a strike which lasted until
November 23, 1938. During this strike, which was part of a current
labor dispute, the respondent employed a number of persons to fill
vacancies caused by the strike. The respondent apparently contends
that the Union lost its status as exclusive representative because it
did not have a majority of the group which' includes the strikers and
the persons hired to fill the places left vacant by the current labor
dispute. Since, however, as we find below, the strike was caused by
unfair labor practices and the respondent must therefore displace the
strikebreakers, if necessary, to reinstate the strikers'28 there can 'be
no doubt that the strikebreakers are not entitled to participate with
the strikers in the selection of a bargaining representatve. To accept
the respondent's contenton in the face of its unfair labor practices
etc., 11 N L. R . B 408. The Court there stated , with respect to a similar contention by
the respondent:
The Board was clearly correct in holding the, statements of union organizers unavail-
able as a defense to respondent These "threats " were persuasive arguments ad-
dressed to the employees' self interest. We do not doubt their effectiveness, but
union organizers are quite free to explain the legitimate consequences of joining or
remaining aloof. Had the threats been of physical violence , the case would be differ-
ent, as the Board itself conceded But it would have been in no way improper for
the union to raise its dues or demand a closed shop ; consequently it could not have
been improper to "threaten " to do so.
The headings of the cards signed by the employees are as follows : "United Mine
Workers of America, Gas, By-Product Coke and Chemical Workers, District No 50,
Union No -", or "United Mine Workers of America, District #50, Affiliated with C. I. 0."
se Cf. N. L. R B v Bradford Dyeing Association , 310 U S 318 (1940)
27N. L It. B. v. National Motor Bearing Co, 105 F. ( 2d)
Is See cases cited in footnote 53, infra
652 (C. C. A 9)
A. SARTORIUS & CO., INC. 121
-against the Union prior to the strike, would be to allow the respondent,
by engaging in `unfair labor practices, to escape its obligations under
the Act.-
The respondent also urges that the Union lost its majority after
it was certified by the Board 30 because, following the termination of
the strike, a number of persons who had designated the Union left the
respondent's employment- or refused to return to work and other em-
ployees took their places. But we find below that the persons who
allegedly quit or who allegedly did not return to work were, in fact,
discriminatorily discharged and refused employment by the respond-
ent. Clearly, the respondent cannot affect the Union's majority. by
discriminatorily discharging and replacing those who have designated
the Union as their representative.31
The respondent's contention, that it should not be.'required to bar-
gain with the Union in the absence of an election by secret ballot in
view of the alleged doubts concerning the Union's majority, is simi-
larly without merit.32
We find that on and at all times after June 24, 1938, the Union
was the duly designated representative of the majority of the em-
ployees in the appropriate unit for purposes of collective- bargaining,
and, pursuant to Section 9 (a) of the Act, was the exclusive representa-
tive of all the employees in such unit for purposes of collective
bargaining.
'° See Matter of Acme-Evans Company and Federal Labor Union No . 21878, affiliated with
the A t F. of L , 24 N L R B 71 ; and cases cited in footnote 31, infra
3010 N. L. R. B 493 . In our Second Supplemental Decision , we considered the re-
spondent' s contention that certain employees had left the respondent 's employ prior to
the Board 's certification We found that , even if true , this did not destroy the Union's
majority 10 N L R B 496.
21 See Matter of Bradford Dyeing Association ( U S. A ) (a Corporation ) and Textile
Workers Organizing Committee of the C. I . 0, 4 N L. R . B 604 , enf'd, N L R B . v. Brad-
ford Dyeing Ass'n (U. S A ), 310 U S 318, rev'g 106 F (2d) 119 (C C. A. 1) ; I. A. M. v.
W. L R B , 311 U. S 72; N. L R B v Sunshine Mining Company , a corporation, 110
F (2d) 780 (C C A. 9) , N L. R. B v Highland Park Manufacturing Company, 110
F. (2d) 632 (C. C A 4). 1
81 Ibid In support of this contention , the respondent particularly cites the Cudahy and
Armour cases . Matter of The Cudahy Packing Company and United Packinghouse Workers
of America, Local No 21 , etc, 13 N L B B 526 ; Matter of Armour & Company and United
Packinghouse Workers, Local Industrial Union No 13, etc, 13 N L R B. 567 In those
cases , we held that in representation proceedings where dispute exists as to the wishes of
the majority of employees in an appropriate unit, the Board would henceforth, as a
matter of policy, not certify on the basis of testimony and documentary evidence in the
record but would direct an election by secret ballot to resolve the dispute. However, we
also stated in the Cudahy case-
It should be noted that we are not here confronted with the necessity of deciding,
upon the testimony and documentary evidence in the record , whether on the date of
an alleged refusal to bargain , the union represented a majority of the employees in
the appropriate unit That question could not be answered by an election , for the
result of a present election would not show the Union 's authority on the particular
past date in question - Were it necessary to decide in the present case whether the
testimony and documentary evidence in the record did or did not establish a majority
for the Union, we would find that it did.
Moreover , this change in Board policy cannot serve , of itself, to place in doubt prior certifi-
cations made on the basis of testimony and documentary evidence N. L. R. B v Black-
stone Mfg Co, 123 F. (2d) 633 ( C. C A. 2)
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain collectively, the alleged settlement, and
the strike
a. Sequence of events
On June 25, 1938, pursuant 'to authorization granted at the union
meeting of June 24, Burke, the union organizer, telephoned Greene,
stated that the Union represented a majority of the respondent's em-
ployees, requested a conference with the respondent on Monday, June
27, for the purpose of collective -bargaining concerning wages, hours,
and working conditions, and dispatched a letter to the respondent
confirming this conversation. Pursuant to this -request, a conference
between representatives of the Union ''and of the respondent was held
at the latter's offices on June 27, 1938.33 The Union again stated that
it represented a majority, and requested that it be recognized as the
exclusive bargaining agent for the employees. Neuschaefer, on behalf
of the respondent, expressly refused to grant exclusive, recognition to
the Union. Instead, the respondent requested a delay of a week or
8 days to think the matter over allegedly: (1) chiefly because it had
never had dealings with unions and did not know how they operated;
(2) because it doubted that the Union had secured signed cards from
a majority of the employees and it charged that the cards might have
been secured through coercion ; and (3) because it was suspicious of the
fact that, aside from employees of the respondent, the Union's members
consisted, only of employees of, and its only collective bargaining
contract was with, the respondent's largest competitor, the Northam-
Warren Company.
Concerning these respective reasons for delay :
(1) The respondent admitted, as stated above'34 that during the
previous week, upon learning of the. Union's campaign, Neuschaefer
had by telephone requested advice about unions and how to deal
with them from his business friends, including French, and had
also consulted Formont, the respondent's salesman and a former
manager of a 5-and-l0-cent store. Significantly, both French and
Formont were present at the conference on June 27, despite the fact
that French had no specific interest in the affairs of the respondent,
and sales aspects of the business, with which Formont dealt, were
not under discussion. Under the circumstances, it is a reasonable
inference, and we find, that French and Formont possessed special
knowledge concerning unions 35 and were consulted by the respondent
n Representing the respondent were Neuschaefer , Greene, Formont, and French
84 Section III A 1.
Under all the circumstances , we do not credit Formont's denial that he knew anything
about unions , particularly in view of his further testimony that it was because neither
Neuschaefer or Greene knew anything about the subject that he was also called into the
conference.
A.' SAdtTOR'IUS & CO INC. 123
'prior to'the June 27 conference, and brought to the conference by
the respondent, for this reason. Moreover, Greene admitted knowing
at that time that an employer was obligated to grant exclusive recog-
nition to a majority union. In any event, we find it difficult to be-
lieve that a business man would, in view of the widespread publicity
and discussion concerning organized labor and the Act, have re-
mained generally ignorant of the operations of unions and the
provisions of the Act.
(2) Although the respondent allegedly doubted the-truth of the
:Union's claim to represent a majority, Greene testified that both she
and Neuschaefer had no definite knowledge on the matter, and that
their doubt "was purely guess work." It is not clear whether the
respondent asked to see the Union's cards.36 In any event, the Union
offered to allow an impartial third party, an agent of the Board.
to check the cards against the respondent's pay roll. The respondent
rejected this offer, and questioned the manner in which the cards
had been obtained. The Union thereupon offered to call in all the
girls who had signed cards so that they might state whether they
had signed voluntarily and desired the Union to represent them.
The respondent likewise rejected this offer on the grounds that it
would disrupt production, that many of the girls were then laid off,
and that the girls would be frightened when they came in., The only
basis for the respondent's claim of possible coercion at that time
was the evidence presented above concerning the Union's alleged
"threats" that non-members would lose their jobs when the Union
secured a closed-shop.37
(3) Neuschaefer testified that he was suspicious of the fact that
employees of his chief competitor were the only other members of
the Union, that he feared for the respondent's secret processes, and
therefore thought this matter should be studied. At no point in the
hearing, however, did the respondent introduce evidence or show
any basis for a belief that there existed a plan or conspiracy, between
the Union and the Northam-Warren Company with respect to the
respondent's trade secrets. Furthermore, Neuschaefer admitted that
he had not felt at the time of the conference that the nature of the
Union's membership absolved the respondent from its duty to bar-
gain with a majority union. It is clear that under the Act an
employer is under the duty to grant exclusive recognition to a union
designated by a majority of its employees, regardless of whether the
16 Greene testified that she did not ask to see the cards . Neuschaefer testified that "we"
made this request. Formont , admitting he was not sure, thought that Neuschaefer made
such a request.
3' That these alleged "threats" could in no manner be construed as "coercion," see
Section III B 2, supra.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer approves' of the internal structure, membership or_ agents
of that union .38
The union representatives at the conference refused to wait the
week or 8 days requested by the respondent, claiming that it was
too long a time to wait, that the Union would be destroyed in the
meantime in view of the respondent's conduct in discriminatorily
laying off union members, making an anti-union speech to the assem-
bled employees on June 25, and otherwise coercing and intimidating
its employees. Contending that 2 days were ample for the respond-
ent to consider the question of recognition, the Union made the
counterproposal that it would await another conference, to be held
on Wednesday, June 29, before being accorded recognition. Despite,
the Union's contention that the respondent could learn as much about
the Union in 2 days as in 8, the respondent rejected the counter-
proposal and insisted upon an 8-day delay. The Union then refused
to show the respondent its proposed contract governing hours, wages,,
and conditions of employment contending that the Union had to be
granted exclusive recognition, before it would negotiate concerning
other demands.39
The specific outcome of the conference is in dispute. The re-
spondent claims that the Union would not wait a week but stated-
it would hold the matter in abeyance until Wednesday, June 29, when
it would telephone for another conference. Witnesses for the Board
deny that the Union agreed to call again on Wednesday; rather, they
testified that after the respondent refused the Union's counterpro--
posal that the Union await a final answer on Wednesday, the union
representatives left stating that they reserved decision as to their-
next course of action. The respondent's witnesses admitted that the
respondent did not, at they June 27 conference, agree to meet with
the Union on Wednesday. Under all the circumstances, we credit
the version presented by the Board witnesses and we find that after-
the Union's counterproposal was rejected, the conference ended in-
conclusively, without any agreement.
On the next day, June 28, the Union, after further. consulting
with employees of the respondent concerning the latter's anti-union
n See Matter of The Louisville Refining Company and International Association, Oil
Field, Gas Well and Refinery Woi hers of America , 4 N L R. R. 844 , 858, enf ' d in N. L.
R. B. v Louisville Refining Co., 102 F ( 2d) 678 (C C A 6), cert. den 308 U S 568, where
we stated :
Under the Act, it is respondent's duty to ban-min collectively with the representative-
selected by a majority of its employees for the purposes of collective bargaining. The
respondent cannot legally refuse to negotiate with the Union because it prefers that
another represent its employees . It cannot legally refuse to negotiate with the Inter-
national Association selected by a majority of its employees to iepresent them because
it prefers to deal with the Local of the Association Its duty is to negotiate in good
faith with whatever agent or agency a majority of its employees have selected.
This contract was, nevertheless , submitted by the Union to the respondent ' s counsel
on about July 11, 1938 , in the absence of exclusive recognition of the Union
A. SAR.TORIUS ' & CO., INC. 125
conduct, filed with the board charges, alleging violation of Section'
8 (1) and (3) of the Act, and a petition for investigation and certi-
fication of representatives. As a result of the charges and petition,
further conferences between the Union and the respondent were
held at the Regional Office of the Board on June 29 and July 6, 1938.
The conference of June 29 was attended by Burke on behalf of
the Union, by Greene, on behalf of the respondent, and by Frederic
Cromwell, a field agent of the Board. After the parties had dis-
cussed a consent check and the appropriate unit, a' proposed stipula-
tion was drafted by Cromwell which provided for a check of the
signatures on the Union's cards with the signatures in the respond-
ent's pay-roll book and for the granting of exclusive recognition
to the Union if the check revealed the Union represented a majority
of the employees in a unit consisting of production and shipping
department employees,, excluding office and supervisory employees.
The Union signed the proposed stipulation that day. Greene stated
that she knew no reason why the respondent would object to the
stipulation but since she did not have authority to bind the respond-
ent she would take it to Neuschaefer for his approval.40 The
respondent did not thereafter sign or agree to the proposed consent
check.
At the subsequent conference of July 6 at the Board's Regional
Office, the respondent's refusal- to sign the proposed stipulation for
a consent check was discussed. The; respondent was represented by
Greene and by its newly retained counsel, Samuel Birnbaum. For
the first time in its negotiations with the Union, the respondent,
through Birnbaum, disputed the appropriateness of the bargaining
unit proposed by the Union,41 claiming that in addition to production
and shipping employees the unit should include clerical and super-
visory employees and should exclude so-called "temporary" employees
who had been working for a short period of time. Birnbaum also
objected to a consent check, favoring instead a secret poll of the
employees, on the grounds that the Union might have secured signed
cards through coercive methods, and that the cards did not properly
40 Although admitting that after the stipulation was explained to her, she "didn't see
any objection to it", Greene thereafter testified , contrary to Burke, that at this confer-
ence she raised certain objections to a consent check, namely , the alleged coercion exercised
by the Union in securing signed cards , and the fact that certain recent or so-called "tem-
porary" employees should be excluded and office girls and supervisors should be included
in the appropriate unit. In-view of the fact that her credibility was clearly impaired, we
do not credit this testimony . Among other things, she testified that she consulted with the
respondent 's attorney , Birnbaum , prior to this conference . Neuschaefer , however, testified
that the respondent first retained Biinbaum as its counsel after this conference Like-
wise, although Greene claimed that she had no authority to "do anything without asking
Mr. Neuschaefer," Neuschaefer himself admitted that Greene had sole authority to bind
the respondent with respect to the Board case , did not need to secure his approval, and,
specifically , that she had sole authority either to reject or accept the proposed stipulation.
41 Concerning Greene's contention to the contrary , see the preceding footnote
126
I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorize the Union to act as bargaining representative. No,
voluntary agreement regarding these questions was reached either
at the July 6 conference or thereafter, nor did the respondent recog-
nize the Union as exclusive bargaining representative of its employees.
In the conferences of June 29 and July 6, 1938, the question of
settling the Section 8 (1) and (3) charges was discussed. The respond-
ent asserts that 'a Field Examiner of the Board stated that if a
certain notice were posted by the respondent, the unfair labor practice
charges would be dropped; that after the respondent objected to the
inclusion of the name of the Union in the notice, it was agreed that
the notice be modified to exclude the name of the Union; and that
some time after July 6 but, before the strike of July 18 discussed
below, the modified notice was posted in the plant.42 The evidence
in the record is conflicting as to whether or not the notice was actually
posted prior to the strike. A number of union girls testified that
they looked for such a notice after being told it would be posted, but
at no time prior to the strike did they see it in the plant. On the
other hand, witnesses for the respondent testified that it was posted
prior to the strike, although one witness contradicted herself as to
whether it was posted before or after the strike began. In any event,
the Union's charges were never withdrawn nor was the case based
on these charges closed.
The Union, at a meeting held on July 12, 1938, authorized a strike.
The reasons advanced at the meeting for striking included : the
respondent's alleged (1) dilatory practices. and refusal to grant
exclusive recognition to the Union, (2) discriminatory lay-offs, and
(3) discriminatory treatment of union girls, and (4) the alleged
necessity of protecting the Union during the representation pro-,
The notice claimed to have been posted reads as follows :
A. Sartorius & Co , Inc , having recognized the right of its employees to self-
organization , to form , join or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or protection , as guar-
anteed in Section 7 of the National Labor Relations Act, states that it and its officers
and agents:
1. Will not in any manner interfere with , restrain or coerce its employees in the free
exercise of the above rights - -
2. Will not discourage membership in labor organizations by discharging . or threat-
ening to discharge any of its employees for joining or assisting any labor organization.
3 Will not in any other manner discriminate against any of its employees in regard
to hire or tenure of employment 'or any term or condition of employment for joining
or assisting any labor organization.
A. SARTORIUS & CO., INC.
The,only difference between this notice and that originally proposed by the Field Examiner
was that the latter also included the words "the United Mine Workers of America, Dis-
trict 50 , Local 12090 , or any other" after the words "membership in" of paragraph 2
Neuschaefer -testified that the respondent did not desire the name of the Union included
because it might indicate that the respondent favored the Union He admitted however '
that no other labor organization was seeking the respondent's employees at that time.'.
1
A. SART'ORJUS &CO., INC. 127
ceedings then-pending before the Board 43 The strike became effective
on July 18, and lasted until November 23, 1938.
The respondent apparently contended, during the hearing, that
the strike was directly or indirectly sponsored and supported by its
chief competitor, the Northam-Warren Company, acting in collu-
sion with the Union. No evidence in support of this contention was
produced aside from the fact that employees of the competitor were
also members of the Union and that the Union had a contract with
the competitor44 Moreover, the respondent itself conceded that the
strike was caused by its refusal to grant exclusive recognition to the
Union, and in its brief appears to have abandoned the above con-
tention. We find no merit in it. Similarly the record does not
support the contention of the respondent that the strike was called
in contravention of an agreement or understanding reached at the
July 6, 1938, conference that the Union would take no action until
the Board determined the question concerning representation.
b. Concluding findings With respect to the refusal on June 27
It is well established that a refusal to accord exclusive recognition
to or negotiate with the representative designated by a majority of
the employees in an appropriate unit constitutes an unfair labor
practice within Section 8 (1) and (5) of the Act45 Chairman Millis
is of the opinion, upon the entire record, that the respondent engaged
in such unfair labor practice on June 27, 1938 .16
We have already considered the respondent's contentions of co-
ercion by and improper authorization of the Union and found them
to be without merit.46a We have similarly found no merit in the
0 The respondent , admittiig that the strike was called because of its refusal to recognize
the Union, claims in its brief that this was the sole reason for the strike . No direct evi-
dence in support of this claim was presented by the respondent. On the other hand, the
consistent testimony of Board witnesses , as well as of a witness for the respondent, all of
whom were present at the union meeting , demonstrates that other reasons, enumerated in
the text , also constituted reasons for the strike.
44 It may be noted , in this regard, that after the entire Union had voted on July 12 to
finance the strike if it were called , the union members w ho were employed by the respond-
ent held a separate meeting at which the strike was authorized
4E N L R B. v. Fansteel Metallurgical Corp ., 306 U S 240.
Since Mr Retlly in his concurring opinion, and Mr Leiserson in his partially dissent-
ing opinion agree that the refusal on June 27, 1938, was not unlawful, the contrary view
set forth in the text represents the separate opinion of Chairman Millar , rather than the
decision of the Board
4ea The respondent also contends that it was not obligated to bargain collectively with
the Union during the pendency of the representation proceeding We may note that the
respondent did not rely , at-the conferences , on the filing of the petition, as a reason for
refusing to bargain with the Union . Cf. Matter of Henry Glass and Co and United Whole-
sale d Warehouse Employees, etc., 21 N . L R. B 73; Matter of West Oregon Litmber Co
and Lumber & Sawmill Workers , etc., 20 N. L R . B. 1; Matter of Sheba Ann Frocks, Inc
and I L G W. U., etc., 5 N. L. R B. 12. But we do not find it necessary to determine
whether refusals to recognize the Union , occurring at conferences between the time of filing
the petition and issuance of the certification , constituted independent unfamr . labor prac-
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's contentions regarding the appropriate unit. That the'
respondent claimed, at the June 27, 1938, conference, to be ignorant
concerning unions and to be suspicious of the fact that employees
of its chief competitor were the only other members of the Union
cannot, at least under the circumstances of this case, excuse its
refusal. Moreover, that the respondent was not motivated in such
refusal by genuine or reasonable doubts concerning the appropriate
unit or the designation of the Union is amply demonstrated by the
record.47
With respect to the unit, the respondent raised no dispute at the
June 27 conference, nor even at the June 29 conference at the
Board's Regional Office. When the question of the appropriate
unit was first raised at the latter conference, Greene stated she had
no objection to the unit proposed by the Union. The respondent
thereafter retained Birnbaum as its counsel. It was only after
Greene had heard a list of union members read off by Cromwell,
and had communicated this information to Neuschaefer and Birn-
baum, that the respondent contended that the Union's proposed unit
was inappropriate. As all persons proposed to be excluded from the
unit by the respondent as so-called "temporary employees" were
union members, whereas all the clerical and supervisory employees,
whom the respondent desired to be included, were not, the respond-
,ent's proposed unit dissipated any possible majority for the Union.
Moreover, the unit proposed, by the respondent was an attempt- to
.substitute the respondent's judgment for that of its employees as to
tices The petition was 'not filed until June 28. The respondent 's refusal to bargain
subsequent to the Board 's certification is treated below The respondent's conduct during
this period between the petition and certification bears , of course, upon whether its prior
and subsequent refusals were predicated on bona fide and otherwise lawful reasons
97 In discussing the employer 's claim that a doubt as to the Union 's designation excused
a refusal to bargain by the respondent , the Court of Appeals for the Second Circuit has
stated that:
. . when there is a real doubt , we may assume aiguendo that the employer need
not decide the issue at his peril . . . but from that immunity it does not in the least
follow that he need be satisfied with no evidence except the Board's certificate ; it may
be entirely apparent from other sources that [ a union] really represents the majority
( N L R. B v Remington Rand, Inc ., 94 F. (2d) 862 (C. C. A 2), cert. den 304 U S.
576) ;
The contention that bargaining was not mandatory until the Board had accredited
Local No. 307 as bargaining agent is frivolous . An employer is under a duty to
bargain as soon as the union representative presents convincing evidence of majority
support . . . We do not mean that respondent had to bargain with any one claiming
to represent a majority , but adequate proof tendered by the claimant could not in good
faith be ignored . . . Respondent "made no effort to learn the facts and took the
chance of what they might be" ; (N. L. R. B. v Dahlstrom Metallic Door Company,
112 F. ( 2d) 756 (C. C A. 2)) ;
'
The employer took the risk of refusal, if the [union 's] claim turned out to be well-
founded (N. L R B. V. Art Metals Construction Co, 110 F. (2d) 148 (C C. A. 2)).
See also N. L. R. B. v. Piqua Munising Wood Products Co., 109 F. (2d) 552 (C C A 6) ;
N. L R B. v. Lund , et al, 103 F. (2d) 815 (C. C A. 8) ; N. L. R. B. v. National Motor
Bearing . Company, etc ., 105 F. (2d) 652 (C. C. A. 9). _
A. SARTORIUS & CO., INC. 129
The form of their organization, the Union's general -policy being to
exclude clerical and supervisory employees. Furthermore, the re-
spondent's contentions, presented by its counsel, that employees be
excluded merely because they had been employed for a short period
of time, and that clerical and supervisory employees be included with
the production employees, were not in general accordance with the
practice and precedents of this Board. In view'of the foregoing, we
do not believe that the respondent contested the appropriateness
of the unit proposed by the Union in good faith. Rather we are
convinced that the respondent's belated doubt as to the unit- was
based upon its desire to interfere with the self-organization of its
employees and further to delay their attempts to bargain collectively. 48
With respect to the designation of the Union by a majority in
the unit, it is clear that the respondent did not honestly and reason-
ably doubt that the Union possessed cards actually signed by a
majority of the employees. We have already noted that the re-
spondent admitted that any doubt on this score was based on no
definite knowledge and "was merely guess work," and that the re-
spondent rejected the Union's offer, on June 27 and again on June
29 and thereafter, to submit to an informal check by the Regional
Office of the Board of the signatures on the cards with those on the
respondent's pay roll. Nor can we perceive an honest and reasonable
doubt in the respondent's contention of coercion by the Union in
securing the signatures of the employees. As stated above, this con-
tention had no basis in fact; the respondent's information was of
the flimsiest nature; the alleged "threats" of the Union could in
no manner be deemed unlawful coercion; and, in any event, the re-
spondent rejected the Union's offer to have signers personally testify
to the respondent concerning their free designation of the Union.
Consequently, in the absence of a reasonable basis for its failure to
accord exclusive recognition to, the Union, the respondent's request
at the June 27 conference for a delay of a week or 8 days before
deciding whether to grant exclusive recognition cannot itself be
considered a reasonable request, particularly in view of the respond-
ent's rejection of the Union's counterproposal of a 2-day delay.
Our conclusion, that the respondent's purported doubts about the
unit and the designation of the Union, as well as its request for
delay, were not genuine but based on a determination to evade its
duty to deal with the duly selected representative of its employees,
is fortified by the fact that in November 1938 the respondent asked
"Hatter o f The Federbush Co , Inc. and United Paper Workers, Local Industrial Union
No. 292, affiliated with the C . 1. 0, 24 N L R. B. 829, en 'f N. L. R B . v. Federbush Co..
121 F. (2d) 954 (C. C. A. 2) ; Matter of Acme-Evans Company and Federal Labor Union
No. 21873, affiliated with the A. F. of L.; 24 N. L. R. B. 71.
455771-42-9
,130 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
the Union not only to concede that it had not been designated- by 'a
majority but also to drop the representation proceeding in which
the Board could establish the appropriate unit and ascertain whether
the Union 'was the chosen representative of the employees therein,
and by the further fact that before, during, and after its refusal to
recognize the Union, the respondent was -conducting `a campaign of
discouraging and interfering with union membership and activity
by surveillance, anti-union threats, and discriminatory lay-offs and
treatment; and finally -by the respondent's subsequent refusals, dis-
cussed below, to recognizes the Union, even after the Board issued
its certification. We conclude that the respondent unlawfully re-
fused to bargain collectively on June 27, 1938.
c. Concluding findings with respect to the alleged settlement and the
strike
Assuming that the respondent posted the aforesaid notice between
July 6 and 18, we find, nevertheless, that it 'would not effectuate
the policies of the Act to refrain from finding unfair labor practices
prior thereto. It has been our policy to give effect to an agree-
ment made in settlement of unfair labor practices allegedly engaged
in by an employer and to refrain from proceeding on the basis of
such alleged practices if an agent of the Board participated in the
settlement and if the employer did not thereafter continue to engage
in unfair labor practices.49 If a course of unfair labor practices is
thereafter continued, however, and the employer thereby fails to
observe his undertaking, we have held that it would.not effectuate
the policies of the Act to give effect to the settlement agreement.60
In the present case, the respondent, following the alleged posting,
continued to commit unfair labor practices by discriminatorily re-
fusing to reinstate employees, by unlawfully refusing to bargain on
and after December 14, 1938, and by other acts of interference, re-
straint, and coercion. Under these circumstances we shall pursue
the practice previously • expressed 51 and give no effect to the settle-
49 Matter of Shenandoah-Dives Miming Company and International Union of Mine, Mill &
Smelter Workers, Local No. 26, 11 N. L. R. B , 885. Also see Matter of Corn Products
Refining Company and United Cannery, Agricultural, Packing d Allied Workers of America,
Local No. 169, 22 N. L. R. B. 56, and cases cited therein
89 Matter of Harry A. Half, doing business as The Half Manufacturing Company and
International Ladies' Garment Workers ' Union, 16 N ` L. R B. 68; Matter of Picker X-Ray
Corporation, Waite Manufacturing Division, Inc and International Association of Ma-
ch4nists, 12 N. L R. B. 1384. See also Matter of Ingram Manufacturing Company and
Textile Workers Organizing Committee , 5 N. L R. B . 908; Matter of Godchaux Sugars, Ino.
and Sugar Mill Workers' Union, Locals No. 211?7 and No. 2188 affiliated with the American
Federation of Labor, 12 N. L. R. B. 568; and Matter of Emsco Derrick and Equipment
Company ( D & B Division ) and Steel Workers' Organizing Committee, 11 N. L. It. B. 79.
51 See footnote 50, supra
A. SARTOiRIUS & CO., INC. 131
ment agreement which allegedly disposed of the Union's charges of
June 28.
It is evident from the facts hereinabove found, that the respond-
ent's unfair labor practices were a substantial cause of the strike.
We find that the strike commencing July 18, 1938, was caused by
unfair labor practices of the respondent.
C. The refusal to reinstate the striking employees
The complaint alleges that upon the discontinuance of the strike
on about November 23, 1938 , each of the 15 employees listed.in Ap-
pendices A, B, C, and D, attached hereto , applied to the respondent
for reinstatement , but that the respondent refused to reinstate any of
them.
As found above , the strike which began on July 18, 1938, was caused
by the respondent 's unfair labor practices . Under Section 2 (3) of
the Act , the striking employees retained their status as employees of
the respondent .62 The strike having been caused by unfair labor
practices , these employees were entitled , upon application , to reinstate-
ment to their former positions with the respondent upon the termina-
tion of the strike.53
1. Application for reinstatement; negotiations; offer of reinstatement
On November 18, 1938, the Union sent a letter to the respondent,
stating that the Union and 17 named striking employees,s' all mem-
bers of'the Union, "have determined to discontinue the strike against
your company upon reinstatement of these employees without dis-
crimination or prejudice to their former jobs effective November 23rd,
1938," that the application was authorized by the named strikers
and made "as of November 23rd, 1938, and that it would be assumed
that the application was denied if the Union received no answer by
November 22, in which-event the strike would continue and further
charges would be filed with the Board. On November 21 and De-
cember 6, 1938, the respondent, through its counsel, sent letters to the
Union referring to an alleged agreement between counsel for the re-
spondent and the Union that the respondent could delay action on the
52 N. L. R. B. v. Mackay Radio & Telegraph Company, 304 U. S. 333.
'3
Black Diamond Steamship Corp. v N. L. R . B., 94 F. ( 2d) 875 ( C. C. A. 2 ), cert.
den 304 U S. 579; Jeffrey-DeWitt Insulator Co., Inc. v. N. L. R. B., 91 F. (2d) 134
(C. C. A. 4), cert. den., 302 U. S. 731; Remington Rand, Inc. v . N. L. R. B ., 94 F. (2d)
862 (C. C. A. 2 ), cert. den., 304 U. S. 576; Matter of Western Felt Works , a corporation,
and Textile Workers Organizing Committee , Western Felt Local, 10 N. L. R. B. 407;
Matter of McKatg-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin
. Workers of North America, Local No. 1139, 10 N. L. R. B. 33.
6f The named strikers included all persons alleged in the complaint to have been dis-
criminatorily refused reinstatement , except Jennie Blevitz, whose name, however, was
thereafter added to this application for reinstatement, before November 23, at the
request of Burke , the union representative.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's request for reinstatement pending a possible settlement, and
stating, in its letter of December 6, that no settlement having been
concluded, the respondent would "take suitable action in the premises."
At the hearing Burke denied, without contradiction, that the Union or
'its counsel had ever agreed to a delay by the respondent in acting
upon the request for reinstatement. After receipt of the -respondent's
letter of December 6, the Union immediately filed with the Board
amended charges alleging a discriminatorily refusal to reinstate the
strikers who had applied for reinstatement.
During November and December the Union discussed proposed
settlements with Birnbaum, counsel for the respondent. In a pro-
posed stipulation submitted by Birnbaum in November, some time
after the application for reinstatement had been made, it was pro-
vided that the Union's charges and petition, pending before the Board,
'be withdrawn, the strike be discontinued, and the Union concede
that it did not represent a majority of the production department
'employees. Of the 18 strikers who had by then applied for reinstate-
ment, the respondent proposed to, reemploy nine; four would not be
rehired because they were employed elsewhere and did not seek
reemployment; the remaining five were "not to be presently reem-
ployed, and their failure of reemployment shall not be considered an
act of discrimination by the said Company, the Company agreeing
to reemploy them at some future date should any opportunity for
employment with the Company arise." 55 Birnbaum explained that
the latter five girls were not, in effect, to be reinstated because "Miss
'Greene just ' didn't want them back, that's all, . . . she didn't like
'them," and because Greene "considered they would be an irritant to
the shop." 56 The Union refused to agree to the proposal, especially
since all five of the girls proposed, to be excluded were active on
behalf of the Union, and two were nion leaders. At the beginning
of December Birnbaum proposed another settlement, which also
had the approval of the respondent, by which the respondent again
objected to the reemployment of five named strikers 5" but agreed
that the question of their reemployment be submitted to arbitration.
No agreement was consummated on this basis either.
After amended charges were filed by the Union, the respondent,
on December 12, 1938, sent letters to the strikers 58 which stated: "We
The five strikers proposed not to be reemployed were Maude O'Toole, Elsie Cohen,
Jennie O'Toole, Anna Andruk, and Sylvia Moscowitz.
56Greene testified that she did not recall why she did not want to reemploy these
five girls , although she admitted that the proposed stipulation had the approval of
both Neuschaefer and herself.
a' These included three of the girls to be excluded in the proposed November settle-
ment stipulation and, in addition , included Helen Witt, another union leader.
5s All persons alleged to have been discriminatorily refused reinstatement in the
'complaint received such a letter, except Jennie Klevitz, concerning whom see Section V,
infra. -
A. SARTORIUS & CO., INC. 133
understand that you desire to be reemployed by our Company. Will
you therefore present yourself at our place of business on. [date] at
[time]." None of the strikers who 'appeared in; response to this
letter was reinstated ; instead, each was asked by, Greene or Neu-
schaefer whether she wished to be reemployed and upon answering
in the affirmative was told she would be informed of further devel-
opments. Greene testified that the purpose of these letters was to.
ascertain, despite the applications for reinstatement of November 18,
which of the strikers desired reinstatement.
After Burke had urged the Regional Office of the Board to pro-
ceed with the charges in view of the failure of the respondent defi-
nitely to offer reinstatement to the strikers, an agreement was reached
at the Regional Office on December 23, 1938, which provided that
the Union withdraw its charges and discontinue its strike, and that
the respondent reemploy 'the strikers named in the application for
reinstatement of November 18,69 including several who had not replied
to the respondent's letter of December 12. The girls .were to be
reinstated at the rate of two a day beginning on December 27,
"upon the same terms and conditions of employment existing at
the time that they went out on strike"; 60 if any of the girls failed
to report when requested to do so, the respondent would be under
no further obligation to reemploy them. This agreement was subse-
quently modified in respect to the employees to be reinstated on par-
ticular dates.
Pursuant to this agreement, the respondent sent letters to the
strikers, including the 15 girls alleged in the complaint to have been
discriminatorily refused reinstatement, directing them to report for
work at a specified time.
2. Discriminatory treatment of returned strikers
On December 29, 1938, four of the striking employees appeared for
work, namely, Adeline Franco, Bernice Mandell, Agnes Panzarella
and Gladys Murphy. Franco and Mandell were assigned to the job
of washing bottles under the immediate supervision of Anna Seiler;
Panzarella and Murphy to tightening caps on bottles by hand under
the immediate supervision of Patricia O'Neil. Seiler and O'Neil were
admittedly antagonistic to the Union and the union girls; each was
placed in charge of two strikers, although close supervision of this
type had not been exercised before. During that day, the union girls
50 The sole exception was one John Fialkowsky . The 15 girls named In the complaint
as having been discriminatorily refused reinstatement were included among the strikers
agreed to be reinstated.
eo Maude O'Toole, however , was, at the respondent 's option , not necessarily to be returned
to her former job of filling bottles.
134 DECISIONS OF -NATIONAL LABOR. RELATIONS BOARD
were continually criticized and called offensive names by' Seiler, O'Neil
and Greene; the other girls were not nagged and were permitted to
sing and to laugh at the union girls.
The work of washing bottles, to which Franco and Mandell were
assigned, involved the removal of labels from small, filled cosmetic
bottles which had been placed in a pail of water. This work was con-
sidered the most undesirable work in the plant. The girl performing
it had to keep her hands in cold water, resulting in roughening and
chapping, risk cuts from broken bottles, scrape off labels and, fre-
quently, chip off nail polish which had hardened on the outside of
the bottles. Previously the work had been divided among all the
girls in the factory and generally performed only during part of their
lunch hour, each girl washing a relatively small number of bottles.
On December 29 Franco and Mandell were assigned to this work-the
entire day; neither had done it steadily before. Moreover, although
the respondent customarily supplied sharp instruments to remove
`labels and to chip off caked nail polish, it refused to supply either girl
with a razor or scissors and told them to use their finger nails instead.
Seiler supervised them strictly, threatened on several occasions to
"beat up" Franco if she looked up from her work and directed both
girls to perform their work on the wet floor instead of on a table,
ordering them to "get down or I'll knock you down." Greene likewise,
for no valid reason, directed them to work on the floor. As a result,
Franco washed bottles while kneeling on the wet floor, and Mandell
who refused to kneel, worked on the floor by bending from her waist.
Since they had no sharp instrument to aid them, Franco and Mandell
cracked a number of their finger nails. In addition, Mandell suffered
a cut on her hand from a broken bottle. When she attempted to keep
her cut hand out of the water, fearing infection, Seiler and Muirhead
ordered her to use both hands, over her protest. ,
The task of Panzarella and Murphy was to tighten small caps on
cosmetic bottles with their fingers. This work was normally per-
formed with the aid of a tightening machine. As a result, the finger,,
of both girls became blistered. Panzarella began to cry and Murphy
complained. Greene told Panzarella it was too bad she had joined
the Union, that it had not done her much good, and subsequently
transferred both girls to-other work.
At the end of the day, all four union girls recounted their experi-
ences to Burke and stated that they could not continue to work under
those conditions. The next day Mandell, Panzarella and Murphy
visited physicians for treatment of their respective injuries.
On December 30 Burke, accompanied by the four union girls who
had worked the previous day and two others, went to the plant to
present the grievances of the four girls to the respondent. However,,
A. SAR'TOORI:US '& co., INC.' 435
the elevator-man , after telling Greene that Burke wished to see her,
refused to permit Burke to enter the respondent's plant, stating,
"Miss Greene said to tell you she has nothing to say to you." There-
after, at a conference between representatives of the respondent and
the Union in the Board's Regional Office, it was agreed that the
union girls should return to work on the understanding that there
would be no discrimination against them.
Accordingly, on the morning of January 3, 1939, six union girls,
appeared for work. At the entrance to the freight elevator they
were met by a group of non-union girls, including Seiler and O'Neil,
who cast insults at and threatened to throw the union girls out of
the elevator. Therefore, except for Marie Aglietti, the union girls
waited for the next elevator; when they reached the floor occupied
by the respondent, they found the outside door locked although it
was then only about 7: 55 a. in. and the door was customarily closed
at 8 a. in. They rang the bell. After about 10 minutes, Formont
appeared, said they were too late to go to work and directed them
to wait for Muirhead. When Muirhead did not appear after another
10 or 15 minutes, the girls left to consult Burke.61
Of the union girls, only Aglietti, who had entered the preceding
elevator with the non-union girls, worked that day. Thereafter
she telephoned Burke and told him that the respondent had discrimi-
nated against her, that she had been compelled to wash bottles all
day under back-breaking conditions in a pool of water, and that she
would not return to work under such conditions. 112
Following further conversations between representatives of the
respondent, the Union and the Board's Regional Office, five union
girls returned to work on January 4, 1939, namely Franco, Mandell,
Panzarella , Eileen Ryan and Maude O'Toole 63 Substantially the same
treatment-was accorded these girls by the respondent as had been
given the union girls who worked on December 29 and January 3.
The respondent again assigned Franco and Mandell to the task of
washing bottles, again directed them to work on the floor, without
any pads, in the midst of pools of water, and again subjected them
to constant criticism.64 Because the respondent had refused to supply
her with a razor on' December 29, Franco had brought a small,
61 On December 28, 1938, the respondent had also excluded Franco and Murphy from
the plant on the ground that they had not appeared early enough for work.
12 Marie Aglietti 's contrary testimony concerning this event , on behalf of the respond-
ent, is considered below.
63 Other union girls had been notified to return by this time but did not report for
varying reasons : Murphy, because her blistered hands were not yet in condition for work;
Aglietti , because she refused to return after her treatment on the previous day ; and
Helen Witt, because she was ill.
" Franco testified that she obeyed directions without protest because the union girls
had been told at a conference in the Board's Regional Office that they should be as nice
as possible when they returned to work.
1
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
souvenir knife with her on January 4 and used it in scraping nail
polish off the bottles. Greene, seeing the knife , took it from Franco
saying; "Do it with your fingers." For a short time Franco was
also assigned to tightening bottle caps by hand, despite the presence
of machines designed for that work, and consequently, as with Pan-
zarella and Murphy, who had performed the same labor on Decem-
ber 29 , her fingers became blistered.
The respondent also assigned Maude O'Toole to the task of wash-
ing bottles. The respondent contends that after the strike began
it had received complaints in July 1938 from customers concerning
improperly filled bottles and had traced the filling of these bottles
to Maude O'Toole; that therefore it had insisted in its agreement of
December 23 with the Union that the respondent need not reemploy
,her at filling. Although work cards were introduced which indi-
cated that Maude O'Toole filled bottles on July 1 and 2, 1938, the
respondent's witnesses were not able to explain how the particular
bottles complained of were traced to her, other employees having
been likewise engaged in filling bottles at the same time. In' any
event, despite her arthritis, Maude O'Toole was directed by Seiler,
for no legitimate reason to remove bottles singly from the pail of
water, although girls doing that work generally removed bottles
from the pail by handfuls, compelling her to wet, her hand much
more frequently. Meanwhile, she was being minutely supervised by
Seiler, who continually insisted that O'Toole keep her eyes on her
work.. Finally, at about 11 o'clock in the morning, Seiler told Muir-
head that O'Toole was looking around and Muirhead ordered her
not to do so. O'Toole protested that the other 'employees were
'permitted to do so, and stated she had merely moved her eyes, not
her head. When Muirhead responded, "You're not supposed to be
looking around," O'Toole became incensed and, with an irate remark,
walked out of the plant. She went to see Burke, and told him
what had occurred that morning.
Thereafter at noon, three other union girls came out of the plant,
told Burke that they had been discriminated against in various similar
ways, and that they did not wish to return. After consulting the
Union's attorney and a representative of the Board's Regional Office,
Burke advised the union girls not to return to work. Franco was
the sole union girl to work during the afternoon. She had not joined
the other union girls because she had been detained in the plant and
had not seen Burke at noon. That evening she related her experiences
in the plant to Burke and was likewise advised not to return. Burke
also notified all the striking employees who had not yet reported to
work of the discrimination exercised against the seven who had
returned and accordingly advised them to disregard the respondent's
notice to return.
A. SARTO'RIUS & Co., INC. 137
At `the hearing the respondent disputed many of the foregoing
findings. Witnesses for the respondent denied generally that the
respondent had discriminated against any of the returned strikers.
More specifically, they variously testified that in the period between
December 29 and January 4 bottle-washing was performed by non-
union as well as by union girls, and that the union girls were not
treated differently in this work; that the union girls used lukewarm
water, and were not denied the use of razors, or threatened, or com-
pelled to work on the floor or to dry the bottles singly rather than
in bunches; that the respondent did not know of Maude O'Toole's
arthritis; that the union girls who appeared for work on January 3
appeared after 8 a. m. and that, although requested to wait for
Muirhead, they had left when she came out to see them a few minutes
later; that on'January 4 Maude O'Toole was truculent, called others
offensive names, was impudent to Greene, and quit after throwing
a rag at Muirhead's face; and that on the same day, Franco's knife
was taken away from her because she had threatened to use it on
either Seiler or O'Neil. Aglietti, testifying on behalf of the respond-
ent, also denied that she had been discriminated against when she
worked on January 3, or that she had reported any discrimination
to Burke. Moreover, upon their subsequent reemployment by the
respondent between January 17 and March 24, 1939, Aglietti, Ryan,
Panzarella and Franco signed individual letters to Greene in which
they denied that they had left the respondent's employment because
of any discrimination against them. Finally the respondent contends
that the motive underlying the refusal of the strikers to work after
January 4 was their desire to file claims for back pay with the
Board rather than an unwillingness to work iri the face of the re-
spondent's discrimination against-strikers. In support of this gen=
eral charge, the respondent introduced letters and postcards sent by
Burke to several strikers in January, March and April 1939, request-
ing that they appear at certain conferences with Burke or the at-
torney for the Board in preparation for the hearing in this case, and
referring to the fact that such appearance would enhance their chances
of collecting back pay."
On the basis of a consideration of the entire record, however,
we conclude that the above testimony and contentions of the respond-
ent cannot be credited. In the first place, correspondence between
the Union and union girls referring to the fact that the Board might
award the girls back pay of itself cannot be considered to establish
66 Typical of the expressions used were the following : " If all the girls do their
part we will win an award of back wages from Nov. 22nd, 1938. That will amount
to several hundred dollars for each girl" ; "it is important if you want to bet back
wages . . . that you be there" ; "in the meantime your back pay continues to pile
up and you should come into a nice piece of money if we win."
138 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
that, the.. strikers were throughout motivated in what they did by
,a desire for back pay awards. The natural inference from such
correspondence is that the Union was attempting to protect the
interests of the employees arising from the respondent's unfair labor
practices. Secondly, the above testimony and contentions are in-
consistent with the picture presented by uncontroverted evidence.
The uncontroverted evidence shows that when they returned to work
after the strike, at least- Mandell, Panzarella and Murphy did their
work well and caused no trouble ; that on December 30, Mandell,
Panzarella and Murphy visited physicians and informed the respond-
ent that they had done so because of injuries sustained while working;
that the girls told their physician that their respective injuries had
been incurred in the course of work on December 29; that the phy-
sician who examined Mandell and Panzarella on December 30 was
of the opinion that their respective injuries, a cut and blistered
fingers, had been incurred quite recently or not more than 1 or 2
days previously; 66 that the union girls who worked on December 29
and those who worked on January 4 complained of discriminatory
treatment to Burke immediately after leaving work; and that the
respondent refused to permit Burke to present their grievances to
Greene although the Union had continued, at that time, as we find
below, to be the duly designated representative of a majority of
the employees in an appropriate unit. And Patricia O'Neil, who
supervised union girls on December 29 and January 4, testifying on
behalf of the respondent, testified that she was surprised to see any
of the union girls return to work on January 4.11
The respondent failed, moreover, to furnish reasonable explanations
for the absence of significant records,68 and the testimony of its wit-
"Another physician who examined Mandell and Panzarella thereafter on January 4,
testifying on behalf of the respondent , did not doubt that Mandell's injury was incurred
during the course of her work and, although of the opinion that Panzarella's injury
was incurred elsewhere , admitted that the physician who examined her earlier, imme-
diately ' after the injury was sustained , was in a better position to judge the cause
of the injury and that the injury might have healed before the witness saw it on
January 4.
a' O'Neil testified as follows :
"Q. (By Mr. BAKER .) And you were glad to see any of the girls back on
January 4th?
A. I don't know.
Q. Were you surprised to see any of the girls back on January 4th?
A. Yes.
Q You did not expect they would come back any more after the treatment they
got on December 29. Is that right?
A. I don 't know"
Although the respondent was able to produce its records relating to work done on
July 1 and 2, 1938, to support its charge of alleged incompetence on the part of Maude
O'Toole, it did not produce any of its records to 'support its contention that non-union
girls also washed bottles in December 1938 and January 1939. Muirhead admitted that
records were kept regarding the particular employees who performed each of the
respondent's factory operations and that she herself initially kept and frequently made
A. SARTOiRIUS & CO., INC. 139
nesses is contradictory,69 and is in substantial conflict with credible
and mutually corroborative testimony of witnesses for the Board.
Finally, the circumstances surrounding the respondent's -reemploy-
ment of four-union girls after January 17, 1939, bear on the bona fides
of the respondent's defense. On January 17, 1939, Marie Aglietti
was reemployed. Prior to that time her mother visited Greene and
requested that Marie be reemployed. Greene replied that Marie
would be taken back if she "behaved herself" and that Marie should
write a letter stating that she had not left because of any discrimina-
tion against her. As a result, Marie Aglietti wrote and delivered to
-Greene on January .17, 1939, the following letter :
JAN. 17, 1939.
DEAR Miss GREENE: After coming back to work recently I
caught a cold which was the reason why I left the position. I did
not leave it because of any discrimination against me as a result
of my having gone on strike. I would like to come back to work
now, anytime you say.
Very truly yours,
/S/ Miss MARIE AGLIETTI.
She also, in accordance with her mother's suggestion, turned over to
the respondent letters which had been sent her by Burke, the union
organizer. Aglietti was thereupon reemployed by Greene;
Adeline Franco was similarly reemployed on March 24, 1939. On
March 23 Aglietti visited Franco at the latter's home, informed her
that Greene was going to reemploy her, and urged her to return.
"Needing the money," Franco agreed and saw Greene the next day.
Greene asked her whether she was still "with the Union." When
Franco replied that she did not think so, Greene agreed to put her to
work, with a raise in salary, told her not to get in touch with Burke
any more, and stated that young girls like Franco did not need the
Union. She also questioned Franco concerning her picketing activi-
ties during the strike and, upon being told that Franco had not been
on the picket line, stated that girls who had been on the picket line
would not be reemployed. Later that day, Greene called Franco into
the office and told her to write, a letter, addressed to Greene, stating
that there had been no discrimination against her. Aglietti, who was
present at the time, told Franco to sign it if she wanted her job.
out such records, but she could not adequately, explain why the December and January
records were not available while the earlier July records were.
° For . example, witnesses for the respondent testified both that Franco did and did
not wash bottles on December 29 ; that prior to June 1938 employees did and did not
wash bottles during the lunch hour ; that washing of bottles does and perhaps does not
require supervision ; and that O'Neil did and did not supervise union girls on December 29.
,140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Franco complied 70 because she desired reemployment.71 Aglietti also
asked-Franco to turn over toher any letters from Burke so that they
could be given Muirhead, the forelady. Upon her return to work,
Franco was not given hostile treatment and Seiler became, quite
' friendly.72
Eileen Ryan and Agnes Panzarella, the other union girls who had
been reemployed on January 19 and March 9, 1939, respectively, and
who did not appear at the hearing, signed statements similar to those
signed by Aglietti and Franco.
Greene and Aglietti, testifying for the respondent, presented the
following version concerning the reemployment. of the four union
girls: that Greene did not demand of these girls; either a signed state-
ment or letters from Burke as a condition of reemployment; that
she made no remarks to Franco indicating bias against the Union; that
after Aglietti had written her letter to Greene and given her union
correspondence to the respondent, in accordance with the suggestion
of Aglietti's mother, Aglietti asked Greene to rehire the other three
union girls, took it upon herself to see that they too signed state-
ments similar to the one she had signed, and turned over to the
respondent letters they had received from Burke. However, at one
point in her cross-examination, Greene admitted that she, might have
told Aglietti's mother to have Marie state, in her letter, that Marie
"had not left because of any discrimination against her." She like-
wise admitted, as did Aglietti, that Eileen Ryan's statement, in her
,January 19 letter to Greene, that "I left as I was ill and not because
of any discrimination against me," was not true; that Ryan had not
in fact been ill and had not returned to work because Burke had ad-
vised her not to do so.73 Aglietti further admitted that her conduct
in this incident was motivated by a desire that the union girls not
"cause any trouble for Miss Greene or anything like that"; that she
wanted Greene to feel that she no longer had anything to do with the
Union; that she told Greene, before Panzarella was rehired, that
Panzarella was "through with the Union"; and that she thought
Greene might want her to attend union meetings in order to report
.what occurred. Moreover, the credibility of both Greene and Ag-
lietti was impaired; much,of their testimony was badly shaken on
70 Her letter to Greene stated : "I would like to be reemployed in your firm. I did
not leave because of any discrimination against me."
71 At the hearing , although she had by then been reemployed by the respondent , Franco
testified at great length to the discrimination that had been exercised against the union
girls and herself when they returned to work between December 29 and January 4.
72 For subsequent treatment of Franco , after she had testified on behalf of the Board,
see Section III E, infra i
73 Greene tried to explain this discrepancy on the ground that probably Ryan consulted
Aglietti as to the contents of Ryan's letter and merely incorporated substantially what
Aghetti had written in her own previous letter
A. SAI POiRIUS , & C'0., INC. 141
cross--examination, was self-contradictory, and improbable; Aglietti
admitted that she was testifying on behalf of the respondent because
she was thinking of herself and her job, that she wanted to work.
Upon all the evidence we-conclude that the respondent, by making
their compliance a condition of reemployment, induced four union
girls to sign statements, purporting to exonerate the respondent of
charges ' of discrimination, as well as to surrender correspondence
they had received from the Union, and thereby sought to bolster its
defense in these proceedings.
I
3. Concluding findings
Their strike having been caused by the respondent's unfair labor
practices, and being therefore entitled to reinstatement to their
former positions, the striking employees applied for reinstatement
on November 23, 1938. The course of conduct thereafter pursued
by the respondent convinces us that the respondent's subsequent
offer of reinstatement was not made in good faith, with the inten-
tion of fulfilling its obligations under the Act. To the application
for reinstatement the respondent delayed its response. Finally, by
a letter of December 6, it stated merely that the respondent would
"take suitable action in the premises." Moreover, in settlements ap-
proved by the respondent and proposed in, both November and
December by the respondent's counsel, the respondent indicated its
opposition to the reinstatement, of certain strikers who were among
the most active members of the Union and leaders of the strike.
When amended charges were filed with the Board by the Union,
alleging a discriminatory refusal to reinstate the strikers, the re-
spondent dispatched letters on December 12 to the strikers to inquire
whether they desired reinstatement, despite the fact that these per-
sons had already applied for reinstatement as of November 23. It
was only after a subsequent conference at the Board's Regional Office
that the respondent sent out its offers of reinstatement to the strikers.
Thus we find the respondent seeking in various ways to delay rein-
statement and" to prevent, if possible, the reinstatement of very active
members of the Union.
Finally, besides excluding a number of strikers from the plant on
the pretext that they had appeared too late for work, and preventing
an agent of the Union, which represented a majority of its employees
in an appropriate unit, from conferring with the respondent con-
cerning grievances, the respondent undertook to assign returned
strikers to the most undesirable tasks in the plant and to compel
them, in contradistinction to other employees, to perform these tasks
under conditions calculated to cause hardship and physical suffering.
This conduct undoubtedly constituted unlawful, discrimination.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After securing an assurance that there would be no further dis-
crimination , strikers again returned to work but were again accorded
the same type of treatment.
Because of this treatment, the strikers who had returned to work
refused to continue after January 4, 1939, under such conditions;
those who had not yet returned likewise refused to report for work
thereafter. It is clear that the reason underlying the strikers' re-
fusal to continue or to commence work after January 4, 1939, was the
respondent's unlawful harassment of returned strikers. The de-
parture of the returned strikers from the 'plant amounted in effect
to a constructive 'and discriminatory discharge of each of them; 7A
failure of the other strikers initially to report to work after the
strike arose from an unwillingness to work under conditions consti-
tuting unfair labor practices and was in effect caused by a construc-
tive and discriminatory refusal unconditionally to reinstate the
striking employees to their -former or substantially equivalent
positions.75 Moreover, an offer of reinstatement proceeding from a
background of delaying tactics and conduct manifesting hostility to
the Union and its active members, and followed by the assignment
of strikers to positions not substantially equivalent to their former
positions and by harassment of and discrimination against the re=
turned strikers, can hardly be considered to have been an offer pre-
sented in good faith. Reinstatement or an offer thereof under such
circumstances constitutes no reinstatement or offer at all.
We find that on and after November 23, 1938, the respondent denied
reinstatement to the striking employees listed in Appendices A, B,
C, and D because they joined and assisted the Union and engaged in
concerted activity in connection therewith, and that by these denials
of reinstatement, the respondent discharged them and has discrimi=
nated in regard to their hire and tenure of employment, thereby dis-
couraging membership in a labor organization. We further find that
thereby, and by its course of conduct following the strikers' applica-
tion for reinstatement, particularly by its tactics designed to delay
the presentation of an offer of reinstatement, by its proposals to ex-
clude from reinstatement active members and leaders of the Union,
74 That the departure from a plant of an employee , compelled to leave under compul-
sions that constitute unfair labor practices , is the equivalent of a discriminatory dis-
charge, see Matter of Sterling Corset Co ., Inc. and Universal Brassiere & Justrite Corset
Co., Inc. and International Ladies' Garment Workers' Union, Local 85, 9 N. L. R. B. 858,
868-71; Matter of Newberry Lumber & Chemical Company and Timber and Sawmill
Workers Union, Local No. 15, etc., 17 N . L. R. B. 795, enf 'd N. L. R. B. v. Newberry
Lumber Co., 123 F. (2d) 831 (C. C. A. 6).
' Cf Matter-of Carlisle Lumber Company and Lumber & Sawmill Workers ' Union, Local
3511, etc, 2 N. L. R. B . 248, 265-6, enf 'd N L. R. B. v. Carlisle Lumber Co., 99 F. (2d)
Ece (C. C. A. 9), cert. denied 306 U . S 646; Matter of Sunshine Mining Cpmpany and
International Union of Mine , Mall and Smelter Workers, 7 N. L. R. B. 1252 , 1268-9, enf'd
N. L. R. B. v. Sunshine Mining Co., 110 F. ( 2d) 780 (C. C. A. 9).
A. SARTORIUS & 'co., - INC. 143
and by its discrimination against returned strikers, the respondent
has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IL
D. Refusal to bargain collectively on and after December 14, 1938
As noted above, the Union, in response to the respondent's refusal
to recognize it and the respondent's interference, restraint, and coer-
cion, went on strike July 18 and remained out ' until November ' 23,
when it sought to obtain the reinstatement of the strikers; thereafter
in November, the respondent proposed that the Union concede that
it did not represent a majority of the production-department em-
ployees and, as well, withdraw its charges and its petition for investi-
gation and certification of representatives.
On December 12, 1938, the Board issued its certification of the
Union as exclusive representative of the employees in the appropriate
unit. Two days later, the Union sent the respondent a letter which
stated in part : "Acting upon the decision of the National Labor
Relations Board, we request again that a conference be arranged
between this Union and your Company for the purpose of negotiating
a collective bargaining agreement." The respondent replied, by letter,
that it had applied to the Board for reconsideration of the certification
and that it therefore "desires to await the'determination by the Board
before replying to your letter of December 14th." After the issuance
of our Second Supplemental Decision of January 5, 1939, reaffirming
the certification, the Union dispatched another letter to the respondent
on January 12, 1939, again requesting a bargaining conference and
stating that "Your failure to reply in the affirmative by January 16,
1939, will force us to proceed with charges against your company before
the National Labor Relations Board." The respondent never replied
to this request; as a result, a bargaining conference was never held
thereafter and the respondent never recognized the Union as exclusive
bargaining agent for its employees.
At the hearing, Neuschaefer admitted that he controlled the respond-
ent and so had authority to decide the issue, but that he had at no
time recognized and was still unwilling to recognize the Union, despite
the Board's certification and the Union's request.
Whatever color might have been lent to the respondent's claim of
good faith in disputing the unit and the Union's majority prior to
the certification was clearly dissipated thereafter. The certification
being a valid one, the respondent's subsequent refusals to bargain with
the Union constituted clear violations of the Act. By its failure to
reply to the Union's requests of December 14, 1938, and January 12,
1939, for a bargaining conference, the respondent made manifest its
I
i
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to recognize or negotiate with the duly selected representative
of its employees.
We find that by these refusals on and after December 14, 1938, the
respondent refused to bargain collectively with the Union as the exclu-
sive representative of its employees in an appropriate unit with respect
to rates of pay, wages, hours, and other conditions of employment,
and interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
E. Discrimination against Adeline Franco for giving testimony at
earlier hearing
The supplement to complaint alleged in substance that from about
May 1, 1939, until June 27, 1939, the respondent discriminated against,
Adeline Franco in various stated ways, and on about June 27, 1939,
forced her to resign or discharged her, because she joined and assisted
the Union and particularly because she testified in behalf of the Union
on May 1, 2, and 3, and June 3, 1939, at the earlier hearing in this case.
Franco had been one of the striking employees and union mem-
bers who returned to work in the period between December 29, 1938,
and Ja1uary 3, 1939, and who refused to work thereafter because of
discrimination against her. However, she was subsequently reem-
ployed on March 24, 1939, under circumstances disclosed above.
After that date and prior to the time she first testified for the Board
on May 1, Franco was generally treated in a normal manner by the
respondent and permitted to talk while working. Again she was
placed under the supervision of Anna Seiler, but in contrast to her
previous attitude and conduct toward union girls, Seiler was friendly
with Franco. The other girls with whom Franco worked were like-
wise friendly during this period.
On May 1, 2, and 3, 1939, Franco appeared at the hearing, in
response 'to a subpoena, as a witness on behalf of the Board and
testified at length concerning the respondent's unfair labor practices.
Upon her return to the plant, Muirhead remarked, "Why did you
come back?" Franco was then assigned to her former job, working
on brushes, under the supervision of Seiler. Thereafter conditions
changed and Franco was no longer treated like other employees.
Starting about May 20, Seiler began closely to supervise and con-
stantly to reprimand Franco although Franco's work continued as
before; both Seiler and Greene ordered her, but not the other girls,
to look down at her work and not to look around or talk to the other
girls; the respondent did not permit her to rest her foot, as formerly,
upon a nearby radiator pipe which was several inches from the floor.
One day, about this time, after threatening to "beat up" Franco,
A. SARFORIUS & CO., INC. 145
Seiler seized Franco by the neck, in the dressing room, and shook her,
for no valid reason, while Patricia O'Neil, a non-union girl,who also
supervised the work of others, called "Come on, Anna, beat her up."
On Saturday, June 3, 1939, Franco again testified at the hearing,
this time as a rebuttal witness on behalf of the Board. After she
returned to work on Monday, June 5, Muirhead asked Franco why
she had gone against Greene who had been good enough to reemploy
her, and stated that Franco ought to "love, honor and obey" Greene.
Franco was again assigned to work on brushes but, after a dispute
with Seiler, her superior, arising out of Seiler's transfer of Franco
from her customary place to a different, less convenient part of the
brush table, Franco was assigned to work under the supervision of
Helen Patricka on a machine which stapled individual cosmetic
1k bottles onto a card. There, Greene - and Muirhead continually
harassed her, complained that she was not doing her work properly
or fast enough, and told her that if she could not do the work cor-
rectly she should go home. Patricka, who at first found no fault
with Franco, likewise joined the chorus of criticism but only after
Muirhead had begun her criticism and after Greene and Muirhead
had conferred with her. The respondent likewise ordered Franco
to use only her right leg in operating the foot lever on the stapling
machine. The lever was located at the center of the machine and
the operators, including Franco herself in the past, customarily used
both legs alternately on that machine. As a result of using only her
right leg, Franco's ankle became swollen and her back ached at the
end of the day. Finally, each time that Franco broke a bottle at
this work, Muirhead and Greene joined Patricka in criticizing her,
though bottles were always broken at that machine and Franco
herself had on a previous occasion broken a larger number of bottles
without incurring comment or disapproval. In the evening of June 5
Franco complained of her treatment to Burke, but he advised her to
"try to stand it a little longer." Franco testified that she did not
wish to return the next day, but did so because she needed the job.
Despite the complaints of the preceding day, Franco was again
assigned to the stapling machine on June 6. However, later in the
day, she was reassigned to work on brushes under Seiler's supervision,
where she remained until June 27.
From June 6 to June 27, Franco continued to suffer the respondent's
discrimination. Seiler, who worked beside her, called her offensive
names, crowded her, stepped on her toes and prevented her from
moving away to secure more room, thereby interfering materially
with Franco's work and lowering her production. Similarly, Greene
ordered Franco not to move away from Seiler, and when Franco com-
plained of Seiler's behavior, said that Seiler was her boss and could
455771-42-vol. 40-10
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do anything she liked. Greene also vilified Franco, stating, inter calla,
that Franco was "stupid," "dopey," "crazy"' a "sneak," and "belonged
in a lunatic asylum," and instructed her to keep her eyes on her work
and refrain from looking up. One day during this period, Seiler
piled up a number of large boxes around Franco thereby completely
enclosing her, in order to prevent Franco from moving. When
Franco sought to push the boxes away, Seiler placed a piece of wood
with a projecting nail behind Franco, stating "now try to move."
Greene, as well as others who were watching the incident, laughed.
Finally, after Franco threatened to go home, Greene, ordered the
boxes removed. Employees who had been friendly with Franco prior
to the time she testified, no longer spoke or associated with her, and
at least one of them, Marie Aglietti, told Franco that she had to act
that way in order not to "get in trouble with Miss Greene."
On the morning of June 27, 1939, Franco, who was suffering from
a cold, inserted ephedrine into her nostrils and requested that a window
be opened further. Greene, informed of this by Seiler, grew angry,
criticized Franco for treating her cold on company time, stated that
Franco should have gone home with her cold, ordered that the window
be shut completely, and thereafter transferred Franco to the job
of capping bottles at another table. There, Franco worked next to
a defective filling machine which sprayed liquid upon her. When
Franco requested that she be moved, the respondent ordered her to
continue work at that place. Franco then stated that she wanted to
go home. Greene replied that she would have to write a letter stating
that she was quitting. When Franco refused to write such a letter,
Greene told her to remain until 12 o'clock. When Franco again asked
that an adjoining open window be opened further, Greene ordered
the window shut completely. Franco continued working, subject to
her supervisor's disparagement of her work, until noon, when she
told Muirhead that she was leaving. Muirhead stated,."If you go
home don't come back any more." Franco replied, "That suits me
fine" and, in response to the questions of other employees, Franco
stated that although she had no other job, she had to quit because
the respondent was compelling her to do so. Franco did not thereafter
return to the plant.
Witnesses for the respondent denied that discrimination was exer-
cised against Franco at any time, denied specifically that various
events which would indicate discrimination by the respondent had
occurred, presented versions of events differing materially from that
presented above, and claimed generally that Franco had misbehaved
so that she might be discharged and consequently might press a "claim"'
for back pay before the Board. We do not find that this testimony
is entitled to credit.
.-.A,. SA.RTO'RIUS & co., INC. 147
Thus; Greene testified that during May Franco did not attend to
her work and was, therefore, "told to do her work and behave as the
other girls." However, Greene thereafter admitted, as did both Muir-
head and, Seiler, that prior to the second time that Franco testified
at the hearing, on June 3, Franco's conduct in the plant was perfectly
proper and unobjectionable. Witnesses for the respondent testified
that on June 5 Franco began suddenly to misbehave in various ways,
such as pushing and kicking Seiler, putting brushes in her mouth,
deliberately dropping brushes on the fioor,iand wiping brushes full of
glue on the wall beside her. Franco denied that she misbehaved.
This denial is borne out,by the fact that several of the respondent's
witnesses admitted that some of Franco's acts, alleged by the respond-
ent to have been improper, such as the placing of brushes in her mouth,
and wiping glue onto the wall, had been repeatedly performed by
Franco prior to June 5, at, a time when h'er conduct was considered
entirely proper. Nor could Seiler, after presenting contradictory, rea-
sons, adequately explain why'she, who had been a supervisor for about
3 years, permitted Franco, a subordinate, to kick her on numerous
occasions. The respondent further admitted that Franco was ordered
to employ only one leg in operating the' stapling machine despite
Franco's complaints, but presented no satisfactory reason why both
legs could not be used. Furthermore, although Greene denied it, a
fellow employee of Franco, testifying for, the respondent, admitted
hearing Greene frequently order Franco,' but, not other employees,
to refrain from talking and to keep her head down and her eyes on
her work. Other girls were permitted by I the respondent to talk to
each other. Finally, witnesses for the respondent recounted incon-
sistent, varying accounts of several other incidents, including that in
if which boxes were piled behind Franco, and that concerning the closing
of the windows on June 27.' i
In view of the circumstances disclosed above, we do not credit the
versions of the above events presented by the witnesses for the respond-
ent. Nor are we persuaded of the truth of the respondent's contention
that Franco desired to be discharged in order to file a "claim" for
back pay. It is true that Franco admitted that on one occasion during
June, while Greene was passing, Franco stated to Seiler that Greene
was "a louse." But this remark was made only after Greene had cast
abusive epithets at Franco. Franco also admitted asking Muirhead
on June 5 "why don't you fire me?" However, this question was asked
only after the continual criticism of her work and after the respond-
ent's general conduct toward her led Franco to wonder why the re-
spondent nevertheless retained her. Botli of these remarks were
normal expressions under the circumstances and can hardly support
the respondent's contention. Moreover, Muirhead admitted that she
148 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
wanted Franco to quit, that to Franco's query why she was not being
fired, Muir-head responded, "I won't fire you. You quit," and that,
she "didn't want to fire her [Franco] because I [Muirhead] knew,
Miss Greene had enough trouble being down here in the court. I knew
she [Franco] would probably take us to court then." Finally, Franco's
denial that she desired to be discharged in order to secure back pay
is borne out by the fact that she was under the necessity of currently
earning her own support, and after leaving the respondent's employ
was not content to await a speculative future award but accepted imme-
diate employment elsewhere.
Upon all the evidence, we find that in accordance with the respond-
ent's intention, Franco left the plant on June 27, 1939, and failed to
return to work thereafter, because of the respondent's discrimination
against her. The respondent's conduct, induced by the fact that Franco
had engaged in activity on behalf of the Union and had given testi-
mony at the hearing, constituted unfair labor practices, within the
meaning of the Act. Franco's departure from the plant, compelled
by these unfair labor practices, was in effect the result of a constructive
and discriminatory discharge by the respondent.76
We find that the respondent has discriminated against Franco in
regard to hire and tenure of employment because of her activities in
behalf of the Union and because she had given testimony at the earlier
hearing, thereby discouraging membership in the Union, and has
interfered with, restrained, and coerced its employees in the exercise
Iof the rights guaranteed in Section 7 of the Act.
Although at the time of the hearing, Franco was employed "on and
off" making artificial flowers, she earned less at this job than she had
earned in the respondent's plant. She desires reinstatement to her
former position with the respondent under conditions as they existed
before the respondent began to discriminate against her. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and .desist therefrom and to
I
'10 See footnote 74, 8upra..
-, I A.` SART'OiRIUS & C'o , -INC: - 149
take certain affirmative action designed to effectuate the policies,of
the Act and to restore as nearly as possible. the conditions existing
prior to the commission of the unfair labor practices.
We have found that on and at all times after June 24, 1938, the
Union has been the exclusive representative of the employees in
the appropriate unit. Having further found that the respondent
refused to bargain collectively with the Union as such representative,
we shall order it, upon request, to bargain'collectively with the Union
as the exclusive representative of the employees in the appropriate
unit in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
We have also found that the strike which began on July 18, 1938,
was caused and prolonged by unfair labor practices and that on
November 23, 1938, the respondent discriminated against the striking
employees named in Appendices A, B, C, and D by denying rein-
statement to, and discharging them. i
Since the record shows that Eileen Ryan and Agnes Panzarella,
listed in Appendix B, were reemployed by the respondent on Jan-
uary 19 and March 9, 1939, respectively; we shall not order the
respondent to reinstate them or to award them back pay for the
period subsequent to the respective dates of their reemployment.
Helen Flaschberger, also, listed in Appendix B, testified that she
received steady employment elsewhere in i the first week of March
1939 and does not desire reinstatement to';her former position with
the respondent. We shall therefore not' order the respondent to
reinstate her or to award her back pay for the period subsequent to
the date of her employment elsewhere in March 1939. ' Marie Agli-
etti, who, was reemployed by the respondent on January 17, 1939,
denied in effect that the respondent had committed unfair labor
practices, thereby in effect indicating that she did not desire the
proceeding continued as to her. We shall; therefore, not enter any
order with respect to .77
Although Adeline Franco, listed in Appendix A, was also reem-
ployed by the respondent on March 24, 1939, she was, as we have
found above, subsequently discriminated against in the conditions of
her employment-and discriminatorily discharged on June 29, 1939.
Under these` circumstances.' we shall order the respondent to reinstate
her and to award her back pay from the 'date of the respondent's
discriminatory refusal to reinstate her on November 23, 1938, deduct-
ing, as usual, the amounts since earned in any employment including
the amounts earned from the respondent between March 24, 1939, and
June 27, 1939.
"See Matter of lsthmian Steamship Company and National Maritime Union of America,
22 N. L. It. B. 689.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jennie Klevitz, listed in Appendix A, was reemployed by'the re-
spondent on December 13, 1938, after she 'had untruthfully told
Greene that she did not belong to the Union., After; performing
about 6 days' work, despite the fact that work had not slackened in
the plant, she was laid off. No reason for the lay-off was given her
at the time and she was not told when to return. Moreover, the
respondent presented no reason for this' lay-off at the hearing, both
Greene and Muirhead testifying that they did not know why she
was laid off. Thereafter, along with the other employees who had
gone on strike, Klevitz received a notice to report for work in January
1939 but, like other striking employees, did not do so because of the
discrimination exercised against returned strikers from December
29 to January 4. We are not satisfied that Klevitz's reemployment
on December 13 for about 6 days constituted reinstatement to her
former or a substantially equivalent position, and shall,, therefore,
order her reinstated, and award her back pay from the date of the
respondent's discriminatory refusal to reinstate her to her former or
substantially, equivalent position on November 23, 1938, deducting
amounts since earned in employment at the respondent's plant and
elsewhere.
Since Alice Anton is not named in the complaint as among those
discriminatorily refused reinstatement, and the record shows that she
received another position, which she does not wish to leave, on.Sep-
tember 23, 1938, before the striking employees applied for reinstate-
ment, we shall not award her back pay or reinstatement. -
The respondent contends that no relief should be granted to Pan-
zarella, Ryan, and Murphy, employees alleged in the' complaint to
have been discriminatorily refused reinstatement, since they did not
appear as witnesses on behalf of the, Board, and, there is no evidence
that they are seeking any relief. We can hardly assume from their
mere nonappearance at the hearing that they desire no relief. Since
the record sufficiently discloses that they were discriminatorily dis-_
charged, we shall follow our usual practice and accord them appro-
priate relief.78
The respondent asserts further that under the assumption that the
strike was caused by the respondent's unfair labor practices, the
unlawful and illegal conduct of the striking employees justified a re-
fusal to reinstate them. The record contains a huge mass of fre-
quently conflicting evidence concerning the conduct of the strikers,
particularly concerning the large number of pickets, the songs they
sang, the names they called, the alleged misleading nature of the
signs they carried and the circulars and .letters they distributed, and
Is Matter of Kvehne Manufacturing Company and Local No. 1791. United Brotherhood of
Carpenters and Joiners of America, 7 N L R. B. 304, 323.
A. SA,RTORIUS & Co., INC. 151
the alleged assaults they committed. With the exception of Aglietti,
none of the striking employees was arrested or convicted of any crime.
Aglietti was arrested on the charge of hitting a person on the head with
a picket sign while on the picket line. Despite this, Aglietti was; as
we have pointed out above, thereafter reemployed by the respondent;
-indeed, Greene admitted that Aglietti's arrest and conduct on the
picket line "never entered [her] mind" at the time she reemployed
Aglietti. The respondent made no attempt to discharge striking em-
ployees because of alleged misbehavior during the strike; indeed, as
described above, the respondent purported to offer reinstatement to all
striking employees who applied therefor. Since none of the striking
employees whom we proposed to order reinstated was arrested or cori
victed •of any illegal act, and the respondent reinstated the sole em-
ployee who was arrested and purported to offer reinstatement to all
others, the respondent may not now urge that any of the striking em-
ployees whom we propose to order reinstated is not a suitable employee
or that her reinstatement would tend to encourage violence in labor
•disputes.79 - -
Following the strike, however, on January 4, 1939, Maude O'Toole's
conduct toward her superior, in the plant and during working hours,
immediately before she finally left the plant, was such that, upon the
entire record, we do not believe that ordering her reinstatement would
effectuate the policies of the Act. We shall, therefore, limit her
back pay award to January 4, 1939, and omit her from our reinstate-
ment order.
With respect to the remaining employees discriminated against
and listed in Appendix A, we shall order the respondent to offer them,
along with Adeline Franco and Jennie Klevitz, immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges.
We shall also order the respondent to make whole the employees listed
in Appendices A and B for any loss of pay they have suffered by
reason of the respondent's refusal to reinstate them on and after
November 23, 1938: (1) by payment to each of those listed in Ap-
pendix A of a sum equal to that which she would normally have
earned as wages from November 23, 1938, to the date of the offer
of reinstatement or placement upon a preferential list, as described
79In any event , the alleged violent conduct of the striking employees comes within
the rule defined by the court in the Republic Steel case , .107 F. (2d) 472 (C C A 3).
cert. den. as to this issue , 60 8 Ct. 806, where it was held that the Board could properly
find, as it does here, that conduct such as is alleged to have occurred in the instant
case, which took place in connection with a strike caused by the respondent' s illegal
conduct, should not bar employees from reinstatment . See also N . L. R. B. v. Carlisle
Lumber Company, 94 F. (2d ) 138 (C. C. A. 9), cert . den. 304 U. S. 575; N. L. R. B. v.
Kiddie Kover Manufacturing Company, et al., 105 F. ( 2d) 179 (C. C A. 6).
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
below, less her net earnings 10 during said period; and (2) by payment
to each of those listed in Appendix B of a sum equal to that which
she would normally have earned as wages from November 23, 1938,
to the date of her reemployment by the respondent or employment
elsewhere, less her net earnings 81 during said period.
Since we have found that the strike beginning on July 18, 1938, was
caused by the respondent's unfair labor practices, we shall order the
respondent, upon application, to reinstate to their former or- sub-
stantially equivalent positions, without prejudice to their seniority
and other rights or privileges, any of its employees who went on
K
trike and whose cases are not otherwise specifically disposed of herein.
ur order will also provide that each of these employees be made
whole for any wages lost by reason of the respondent's refusal to
reinstate him for the period beginning 5, days after the date of applica-
tion pursuant to this order, to the date of offer of reinstatement or
placement upon a preferential list, as described below, less his net
earnings 82 during said period .113
Reinstatement of all employees to be reinstated shall be effected
in the following manner :
All persons hired after July 18, 1938, and who were not on the
pay roll as of that date, shall, if necessary to provide employment for
those to be offered reinstatement, be dismissed. If, thereupon, by
reason of a reduction in the force of employees needed, there is not
sufficient employment immediately available for the remaining em-
ployees, including those to be offered reinstatement, all available
positions shall be distributed among such remaining employees in
-accordance with the respondent's usual method of reducing its force,
without discrimination against any employee because of his union
affiliation or activities, following a system of seniority to such extent
as has heretofore been applied in the conduct of the respondent's busi-
ness. Those employees remaining after such distribution, for whom
no employment is immediately available, shall be placed upon a
preferential list prepared in accordance with the principles set forth
in the previous sentence, and shall thereafter,,in accordance with such
80 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
elsewhere than for the respondent, which would not have been incurred but for her
unlawful dischatge and the consequent necessity of her seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 1190, 8.N. L R. B. 440.
Monies received for work perfornred upon Federal, State, county, municipal, or other
work-relief projects shall be considered as earnings. See Republic Steel Corporation V.
N. L R. I3., 311 U. S 7. .
ai Ibid
82 See footnote 80, supra
83 See Matter of Oregon Worsted Company and United Textile Workers of America,
Local 21,45, 3 N L R. B. 36, enf'd, N L. R. B. v. Oregon Worsted Company, 96 F. (2d)
193 (C. C. A 9) ; Matter of Biles-Coleman Lumber Company and Puget Sound District
Council of Lumber and Sawmill Workers, 4 N. L R B. 679, enf d N. L. R. B. v. Bites-
Coleman Lumber Company, 98 F. (2d) 18 (C. C. A. 9)
I
I
A. SARTORIUS & C'O., INC. 153
list, be offered employment in their former or in substantially equiva-
lent positions, as such employment becomes available and before other
persons are hired for such work.
Upon the foregoing findings of fact and upon the, entire record
in the case, the Board makes the following:
CONCLusIONs OF LAW
1. United Mine Workers of America, District #50, Local #12090,
is a labor organization, within the meaning of Section 2 (5) of the
Act.
2. All the production and maintenance employees and shipping
clerks of the respondent, exclusive of clerical employees and super-
visory employees with power to influence hiring or discharging, at
all times material herein constituted and they now constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
3. The Union was at all times material herein and now is the
exclusive representative of all the employees in such unit for the
purposes of collective bargaining, within the meaning of Section
9 (a) of the Act.
4. By refusing to bargain collectively with the Union as the
exclusive representative of the employees in the above-stated unit the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of the 15 employees listed in Appendices A, B, C, and D
thereby discouraging membership in a labor organization, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
6. By discriminating against Adeline Franco in regard to hire,
tenure, and conditions of employment because she gave testimony
under the Act, the respondent has engaged in and is engaging in
unfair labor practices, within the nieaning of Section 8 (4) of the Act.
7. 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.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
154 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
Act, the National Labor Relations Board hereby orders that the
respondent, A. Sartorius & Co., Inc., New York City, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Mine Workers
of America, District #50, Local #12090, as the exclusive representa-
tive of all its production and maintenance employees and shipping
clerks, exclusive of clerical employees and supervisory employees
with power to influence hiring or discharging;
(b) Discouraging membership in United Mine Workers of Amer-
ica, District #50, Local #12090, or in any other labor organization
of-its employees by discharging or refusing to reinstate 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;
(c) Discharging or otherwise discriminating against any of its
employees because he has given testimony under the Act;
(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 choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Mine Workers
of America, District #50, Local #12090, as the exclusive repre-
sentative of all its production and maintenance employees and
shipping clerks, exclusive of clerical employees and supervisory
employees with power to influence hiring or discharging; ,
(b) Offer to the persons listed in Appendix A, and, upon applica-
tion, offer. to all other employees whose cases are not otherwise
specifically disposed of herein, who went out on strike on July 18,
1938, and thereafter, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, in the manner set forth
in the section entitled "The remedy" above, placing those employees
for whom employment is not immediately available upon a preferen-
tial list in the manner set forth in said section, and thereafter, in,
said manner, offer them employment as it becomes available;
(c) Make whole the employees listed in Appendices A, B, and D
for any loss of pay they may have suffered by reason of the respond-
^,- JA,,-SARTORIUS '&- CO., LNC:' 155
ent's refusal to reinstate them on and after November 23, 1938: (1)
by payment to each of those listed in Appendix A of a sum of money
equal to the amount which she would normally have earned as wages
during the period from November 23, 1938, to the date of the offer
of reinstatement, or placement upon a preferential list, ,less her net
earnings 84 during said period; (2) by payment to each of those
listed in Appendix B of a sum of money equal to the amount which
she would normally have earned as wages during the period from
November 23, 1938, to the date of her reemployment by the respond-
ent or employment elsewhere, less her not earnings 85 during said
period; and (3) by payment to Maude O'Toole named in Appendix D
of a sum of money equal to the amount which she would normally
have earned as wages during the period from November 23, 1938, to
January 4, 1939, less her net earnings 86 during said period;
(d) Make whole the employees ordered to be offered reinstatement
upon application therefor for any loss of pay they will have suffered
by reason of the respondent's refusal to reinstate them, upon appli-
cation, following the issuance of this Order, by payment to each
of them, respectively, of a sum of money equal to that which each
would normally have earned as wages during the period from five
(5) days after the'date of such application for reinstatement to the
date of the offer of employment or placement upon a/ preferential
-list, less his,net earnings 87 during said period;
(e) Post immediately in conspicuous places in the respondent's
plant, 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), (b), (c), and
,(d) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order;
and (3) that 'the respondent's employees are free to become or
remain members of United Mine Workers of America, District #50,
Local #12090, and that the respondent will not discriminate against
any employees because of membership or activity in that organization;
(f) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
81 See footnote 80, supra.
e5 See footnote 80, supra.
Be See footnote 80, supra.
87 See footnote 80, supra.
DECISIONS OF NATIONAL -LABOR -RELATIONS BOARD156
APPENDIX A
Anna Andruk Sylvia Moskowitz
Ann Calandriello Gladys Murphy
Elsie Cohen Jennie O'Toole
Adeline Franco Maude, O'Toole
Jennie Klevitz Helen Witt
Bernice Mandell
Agnes Panzarella
APPENDIX B
Helen Flaschberger Eileen Ryan
APPENDIX C
Marie Aglietti
APPENDIX D
Maude O'Toole
MR. GERARD D. REILLY, concurring :
I concur in the Decision and Order except that, in my opinion the-
respondent did not unlawfully refuse to bargain collectively with
the Union before December 12, 1938, the date on which the Board
certified that the Union was the exclusive representative.
The respondent in conference with the Union on June 27, 1938,
and thereafter, had expressed doubt -whether the -Union was the
exclusive representative, and the Board in its Decision issued on
October 4, 1938, found that a question had arisen concerning the
representation of employees of the respondent. The Board's Certi-
fication was intended to, and did, resolve the question concerning
representation. Under these circumstances, I conclude that the re-
spondent's refusal to bargain with the Union did not constitute an
unfair labor practice within the meaning of Section 8 (5) until after
the Board's Certification.
MR. WM. M. LEIsERsoN,; dissenting in part:
In a previous case, the record of which has been made part of the
present record, the Board found that on June,27, 1938, and thereafter
there was a question concerning representation of the employees of the
Company and it ordered that the question be resolved by holding an
election by secret ballot."' The Board stated :
88 9 N. L. R. B. 19.
A. snATORZUS & CO., INC. - 157
"III. The Question Concerning Representation
On June 27,- 1938, and on at least two occasions thereafter
conferences took place between the_ Union and the Company.
On each occasion, the Union stated that it represented a majority
of the Company's employees and demanded recognition as the
exclusive representative of all the Company's employees, but
the Company refused to grant it such recognition. The Union
and the Company finally decided that the, Board should deter-
mine if the Union represented a majority of the Company's
employees.
We find that a question has, arisen concerning the representa-
tion of employees of the Company."
In spite of this finding and the order for an election, the main
opinion would hold that on June 27 the respondent refused to bargain
collectively and thus violated Section 8 (5) of the Act. I cannot
agree with this view. The Act provides that questions of representa-
tion must be investigated and decided by the Board. It seems to me
contradictory for the Board to order an election because 'of the exist-
ence of a representation dispute and then hold that the employer
violated the law by not bargaining before the results of the election
were known.
Neither can I agree with the Decision in holding that the employer
refused to bargain collectively in violation of Section 8 (5) of the
Act on December 14, 1938, and thereafter. The election ordered by
the Board on October 4, 1938, was never held. The Board withdrew
the election order and on December 12, 1938, it issued a Supplemental
Decision certifying the Union as representative of the employees
without an election but on, the basis of membership application
cards.89 The Supplemental Decision and Certification were issued
pursuant to a request of the Union for reconsideration and further
hearing on the election order. , After the election order was set
aside and the Certification issued on December 12, the respondent
requested reconsideration; and on January 5, 1939, the Board in a
Second Supplemental Decision denied the request for setting aside
the Certification.
The-record is clear, therefore, that the question concerning repre-
sentation was not finally resolved by the Board until January 5,
1939. Nevertheless, the Decision in the present case finds the re-
spondent guilty of refusing to bargain collectively in violation of
Section- 8 (5) of the Act for the period between December 14 and
January 5, as well as after January 5. Although the Board itself
was uncertain as to how to resolve the representation dispute until
80 ION L. R B 493.
t
1.58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Second Supplemental Decision was made on January 5, never-
theless, the Decision here finds that the respondent was guilty. of
,refusing the bargain before the Board finally ruled on the matter.
The finding that the respondent refused to bargain collectively
after January 5, 1939, raises another question. Clearly the respond-
ent refused to honor the Certification made by the Board. Under
ordinary circumstances this would be a violation of Section 8 (5) of
the Act. The present case, however, presents very extraordinary
circumstances. In the Direction of Election of October 4, 1938, the
Board found, that 36 employees were within the appropriate bar-
gaining unit and that all, of them were entitled to participate in
selecting the representatives. The record shows that the Union had
18 membership application cards, 50 per cent but not a majority. Iii
the Supplemental Decision, however, the Board made a ruling that 6
of the 36 employees were ineligible to vote for representatives because
they were hired during a strike, although they were legally employed
and entitled to remain in employment, the strike not being caused
by unfair labor practices. With these 6 denied the right to partici-
pate in choosing, representatives there remained only 30 with the
right to vote; and since there were 18 union membership application
'cards, the Board deemed this sufficient to certify the Union without
an election and in spite of the fact that the'6 employees remaining
in employment would have to be represented by the Union.
In a recent decision the Board has reversed the doctrine that em-
ployees legally hired and entitled to remain in ,employment may be
denied the right to vote while other employees in the same bargain-
ing unit are selecting representatives for the whole unit 90 In other
words, the Board is now of the opinion that the Supplemental Deci-
sion certifying the Union as representative was in error. Under
these circumstances the Board must find that the Certification was
invalid and the refusal to honor such a certification does not justify
a finding of violation of Section 8 (5) of the Act.
90 Matter of The Rudolph Wurlitzer Company and Piano, Organ and Mueio l Instrument
Workers' Union etc., 32 N. L. R. B. 163.