Amb-A-Tip Cigar Co.

National Labor Relations Board - Board Decisions

Nov 29, 1945

64 N.L.R.B. 1009 (N.L.R.B. 1945)

III the Matter of AMB-A-TIP CIGAR COMPANY, A PARTNERSHIP COMPOSED
OF ROSALIND WERTHEIMER, EMANUEL WERTHEIMER, AND MILTON
WERTHEIMER, JR. and UNITED CONSTRUCTION WORKERS, U. M. W. A.
Case No. 9-C-1997.-Decided November 09, 1945
DECISION
AND
ORDER
On May 22, 1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, on June 8, 1945, the respondents filed
exceptions to the Intermediate Report. On November 1, 1945, the
Board heard oral argument at Washington, D. C. The respondents
and the Union participated in the oral argument.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the respondents' exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and, modifications.
1. The Trial Examiner found that by the acts and statements of
management representatives, including statements of Secretary-Book-
keeper Mildred Hann, the respondents interfered with, restrained, and
coerced the employees in the exercise of rights guaranteed in Section;
of the Act in violation of Section 8 (1) thereof. We agree with such
finding of the Trial Examiner save as his finding is based upon Mildred
Hann's statements set forth in the Intermediate Report. In view of
our agreement with the Trial Examiner as set forth, we find it unneces-
sary to determine whether Mildred Hann's statements may be at-
tributed to the respondents. We find that the respondents violated
Section 8 (1) of the Act by the acts and statements of management
representatives, other than those of Mildred Hann, set forth in the
Intermediate Report.
2. In finding that the respondent violated Section 8 (1) of the Act,
the Trial Examiner relied, in part, upon the fact that Fred Hann, the
64 N L. R. B, No. 169. 1009
670417-46-vol. 64-65
0
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant manager, urged Martha Brady, a bunch breaker, not to support
the Union. In addition to that portion of Brady's testimony set forth
in the Intermediate Report that Hann had urged her not to support the
Union, Brady also testified that on the same occasion, Hann told Brady
that if she wished to work, she should not "take sides" with the Union.
Hann denied having made such a statement, but, like the Trial Exam-
iner, we find Brady to be a credible witness. Accordingly, we find that
Hann's complete statement, set forth above, constitutes an unfair labor
practice in violation of Section 8 (1) independently of the respondents'
remaining conduct inasmuch as such statement contained a clear threat
of discharge in the event that Brady continued her union adherence.
3. We agree with the Trial Examiner's finding that the respondents
discriminatorily discharged Faye E. Johnson on December 23, 1943,
and on July 28, 1944. However, the Trial Examiner stated in his
Intermediate Report that in the course of the offensive tirade in which
Hann effectuated Johnson's discharge on July 28, 1944, he made no
mention of her false statement to Iva McCormick, an employee of the
respondents, on the previous evening, that Hann had expressed criti-
cism of McCormick's competence to Forelady Olga Eisnaugla. Con-
trary to the Intermediate Report, Hann, testified without contradic-
tion, that during his conversation with Johnson on July 28, he did call
her attention to the McCormick incident. Notwithstanding Johnson's
false statement to McCormick, the respondents did not consider the
incident sufficient ground for discharge; indeed, they contend that
Johnson was not discharged, but that she left her job voluntarily on
July 28, 1944. Under these circumstances, and in view of the entire
record in the case, we are persuaded that Johnson's discharge was not
attributable to her false statement to McCormick, and we find, as did
the Trial Examiner, that the respondents discharged Johnson on July
28, 1944, because of her union activities.'
THE REMEDY
Having found that the respondents independently violated Sections
8 (1) and 8 (3) of the Act, we must order the respondents, pursuant to
the mandate of Section 10 (c), to cease and desist therefrom. We also
predicate our cease and desist order upon the following findings : The
respondents' illegal conduct discloses a purpose to defeat self-organiza-
i As set forth in the Intermediate Report, Johnson testified that several days after her
discharge, when she returned to the plant foi her wages, she offered to return to work but
Hann rejected her offer The Intermediate Report fails to state, however, that Hann,
in his testimony, denied that Johnson offered to return to work after July 28, 1944 Not-
withstanding Hann's denial, we are pe'•suaded, as was the Trial Examiner, that Johnson
was a credible witness, and w e find that Hann refused to reinstate Johnson at her request
several clays following her discharge By such refusal, the respondents further violated
Section 8 (3) of the Act.
0
AMB-A-TIP CIGAR COMPANY 1011
Lion and its objects among the employees. For example, shortly after
the Union's first organizational meeting, Reis Ousler, then the plant
manager, told the employees that the factory would be moved out of
town in the event of unionization. Thereafter Fred Hann, the pres-
ent plant manager, made a similar statement to the employees and told
them that he would not tolerate their union activities. Finally, the
respondents discharged two employees, one of them on two separate
occasions, because of their activities on behalf of the Union. Such
discrimination, in the language of the Circuit Court of Appeals for the
Fourth Circuit, "goes to the very heart of the Act." 2 Because of the
respondents' unlawful conduct and its underlying purpose, we are con-
vinced that the unfair labor practices found are persuasively related
to the other unfair labor practices hereinafter prescribed and that
danger of their commission in the future is to be anticipated from the
respondents' conduct in the past.3 The preventive purposes of the Act
will be thwarted unless our order is coextensive with the threat. In
order therefore to make effective the interdependent guarantees of Sec-
tion 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, we shall order the respondents to
cease and desist from in any manner infringing upon the rights guar-
anteed in Section 7 of the Act.
We shall also order the respondents to take certain affirmative action
designed to effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the respondents, Amb-A-Tip Cigar
Company, Jackson, Ohio, and Baltimore, Maryland, a partnership
comprised of Rosalind Wertheimer, Emanuel Wertheimer, and Milton
Wertheimer, Jr., and their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Construction Workers,
U. M. W. A., or any other labor organization of the employees, by
discharging, laying off, or refusing to reinstate any of the employees,
or by discriminating in any other manner in regard to their hire
or tenure of eniployment, or any term or condition of their em-
ployment;
N L R B v Entwistle Manufacturing Company, 120 F ( 2d) 352 , 356 (C . C. A 4) ;
see also, N L R B v Automotive Maintenance Macbcnery Company, 116 F. (2d) 350,
35; (C C A 7), where the Circuit Court of Appeals for the Seventh Circuit observed:
"No more effective form of intinudation nor one more violative of the N L R. Act can
be conceived than discharge of an employee because he joined a union. . . .
1 See N L R. B Y. Pxps ess Publishing Company, 312 U 8 426.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or coerc-
ing the employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist United Construction
Workers, U. M. W. A., or any other labor organization, 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) Offer to Faye E. Johnson immediate and full reinstatement
to 'her former or a substantially equivalent position without prejudice
to her seniority and other rights and privileges;
(b) Make whole Faye E. Johnson for any loss of pay that she
may have suffered by reason of the respondents' discrimination against
her, by payment to her of a sum of money equal to the amount that
she normally would have earned as wages during the periods from
December 23, 1943, to March 6, 1944, and from July 28, 1944, to the
date of the respondents' offer of reinstatement, less her net earningsZn-
during such periods;
(c) Make whole Nina Belle Davis for any loss of pay that she
may have suffered by reason of the respondents' discrimination against
her, by payment to her of a sum of money equal to the amount that
she normally would have earned as wages during the period from
December 23, 1943, to March 3, 1944, less her net earnings during such
period ;
(d) Post at its Jackson, Ohio, plant copies of the notice attached
to the Intermediate Report, marked "Exhibit A." 4 Copies of said
notice to be furnished by the Regional Director for the Ninth Region,
shall, after being duly signed by the respondents' representative, be
posted by the respondents immediately upon receipt thereof, and
maintained by the respondents for sixty (60) consecutive clays there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the respondents to insure that said notices are not altered, defaced,
or covered by any other material;
(e) Notify the Regional Director for the Ninth Region (Cincinnati,
Ohio) in writing, within ten (10) days from the date of this Order,
what steps the respondents have taken to comply herewith.
MR. GERARD D. REnLY took no part in the consideration of the
above Decision and Order.
4 Said notice , however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations Of A Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order."
AMB-A-TIP CIGAR COMPANY
INTERMEDIATE REPORT
1013
Mr. Robert Silagi, for the Board.
Mr. Jacob Blunt and Mr. Daniel C. Joseph, of Baltimore, Md., for the Respond-
ents.
Mr. Carl C. Schmidt, of Columbus, Ohio, for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed by United Construction Workers,
U. M. W A, herein called the Union, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Ninth Region (Cincinnati,
Ohio), issued its complaint dated March 12, 1945, against Amb-A-Tip Cigar Com-
pany, Jackson, Ohio, and Baltimore, Maryland, a partnership, comprised of Rosa-
lind Wertheimer, Emanuel Wertheimer, and Milton Wertheimer, Jr, herein called
the Respondents,' alleging that the Respondents had engaged in and were engag-
ing in unfair labor practices affecting commerce within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint and notice of hear-
ing thereon were duly served upon the Respondents and the Union.
With respect to the unfair labor practices, the complaint in substance alleges
that the Respondents: (1) discouraged membership in the Union by discharging
Nina Belle Davis and Faye E. Johnson on December 23, 1943, both of whom they
reinstated on March 3 and 6, 1944, respectively, and by subsequently discharging
Johnson again on July 28, 1944, and refusing to reinstate her; (2) interfered
with, restrained, and coerced their employees in the exercise of the rights guar-
anteed in Section 7 of the Act beginning in February 1943 and continuing until
the date of the complaint, (a) by the aforesaid discouragement of union member-
ship, (b) by questioning their employees concerning their union affiliation and
activities, (c) by warning and dissuading their employees against membership
in the Union, (d) by expressing disapproval of their employees' joining the
Union, (e) by vilifying, calumniating, and maligning the Union and its represent-
atives, (f) by threatening reprisals against employees who became or remained
members of the Union, and (g) by threatening to remove the plant from Jackson,
Ohio, if the employees unionized
The Respondents on March 16, 1945, filed a Demand for Particulars which was
referred to a designated Trial Examiner who ordered Board counsel to specify
the names of the Respondents' officers and agents who committed the alleged
unfair labor practices and the approximate dates when they occurred ; in com-
pliance with the order, the specified matters were provided the Respondents.
On April 5. 1945, the Respondents filed an answer to the complaint denying gen-
erally the commission of any of the alleged unfair labor practices. Pursuant
to notice, a hearing was held at Jackson, Ohio, on April 10, 1945, before Melton
Boyd, the undersigned Trial Examiner duly designated by the Chief Trial Ex-
aminer. The Board and the Respondents were represented by counsel, and the
Union by its area representative. All parties participated in the bearing, and
each was afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues. At the conclusion
of the hearing, Board's counsel moved to conform the pleadings to the proof with
respect to formal matters, including the character and composition of the Re-
' The complaint originally named Amb -A-Tip Cigar Company , a corporation, as the
Respondents , by amendment of the complaint and other formal documents without objection
at the hearing , the character and composition of the Company was described as a part-
nership comprised of the above named partners.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondents, and without objection this motion was granted. The parties waived
oral argument, and subsequently counsel for the Respondents and for the Board
filed briefs with the Trial Examiner.
Upon the entire record in the case and from his observations of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Amb-A-Tip Cigar Company is the trade name of a partnership comprised of
Rosalind Wertheimer, Emanuel Wertheimer, and Milton Wertheimer, Jr. They
are engaged in the manufacture and sale of cigars, and have an office and factory
in Jackson, Ohio, and a principal office in Baltimore, Maryland. In the operation
of the Jackson factory, the Respondents use leaf tobacco as raw material, the
cost of which in 1944 was in excess of $15,000, all of which was received in Jack-
son, Ohio, through shipments from outside that State. The Respondents' sales
of manufactured cigars during 1944 was in excess of $20,000, of which substan-
tially all were shipped to destinations out of the State of Ohio.'
The Respondents concede that they are engaged in commerce within the mean-
ing of the Act.
H THE ORGANIZATION INVOLVED
United Construction Workers is a labor organization affiliated with United
Mine Workers of America, admitting to membership employees of the Respond-
ents.
III. THE UNFAIR LABOR PRACTICES
1. Unionization of the plant
The Respondents' operations began about the first of November 1 942. In
January 1943 , the Union began an organizing campaign among the employees.
This led to the conduct of an election by consent agreement on June 11, 1943,
in which a majority of the employees 'voted for representation by the Union.
Sometime thereafter , which Respondents ' counsel indicated was in August, the
international representative of the Union met with counsel for the Respondents
in Baltimore , Maryland, to open negotiations on a bargaining agreement. After
this first conference , negotiations were conducted at Jackson , Ohio , beginning in
September and extending through the fall months of 1943. The National War
Labor Board took jurisdiction over matters in disagreement , holding its last
hearing at Jackson, Ohio , on January 20, 1944. In February or March of 1944,
the Union and the Respondents reached an agreement , embodied in a written
contract made retroactive to January 27, 1944.
2. Events affecting unionization
Shortly after the first union meeting in January 1943, Ousler, the plant man-
ager, addressed the employees on the factory floor, telling them that the fac-
tory would be moved from Jackson if they unionized. At about this same time,
in talking with employee Katy Mae Kearns, he said the $1 dues paid to the
Union by the employees would be of more benefit to them if spent on their
children.
2 The facts relating to the Respondents' operations were embodied in a stipulation re-
ceived in evidence, and in admissions in Respondents' answer
AMB-A-TIP CIGAR COMPANY 1015
At a union meeting held early in April, application-for-membership cards were
given out to active adherents for distribution among the employees. Before
work hours on the following morning some were distributed at the plant After
work began, Ousler notified employee Faye Johnson she was being discharged.
She inquired whether her discharge was because of her work. Ousler replied
that it was not for that reason, but said he understood that she was heading
an organization to unionize the plant and that he would not tolerate either a
union or a union advocate in the plant. Johnson admitted she had attended the
union meeting held the night before, but said she was not the organizer. Ousler
then told Johnson she could remain in Respondents' employ if she had nothing
further to do with the Union Johnson continued in her employment. Later,
in May, she was gianted sick leave, and was absent from the plant until
September.'
On June 6, Fred D. Hanu became plant manager, succeeding a Mr. Schindler
who had replaced Ousler a short time before. On September 6, Faye Johnson
returned to her work, and resumed her duties as president of the local union'
As such, she served on its grievance committee and on its negotiating committee.
When negotiations for a bargaining agreement were resumed in Jackson in Sep-
tember, for the first time she dealt with Hann as a management representative
in labor relations These negotiations, extending for weeks, were interspersed oc-
casionally with efforts to adjust grievances
On an occasion in October, following arrangements made by Johnson with
Hann, the union representative Delano went through the plant on an inspection
trip accompanied by Hann. On the following day, Hann stopped Johnson in
the presence of her forelady at the table where employees secured their supplies,
and talked with her there for 25 or 30 minutes. He asked her what right
Delano had in coming to the plant, and what right Johnson had in being
there He said that Delano was a rabble rouser, and was trying to make
trouble in the plant; that the activities of unions generally were against the
interest of employees; that Delano's union existed only for the purpose of get-
ting the workers' clues, and would give nothing in return ; that production was
retarded by the employees' activities ; that lie would not tolerate such. activities,
and if they continued the plant would be moved from Jackson
3 The foregoing incidents were described by Adrian Eisnaugle Katy Mae Kearns and
Faye Johnson Eisnaugle is a present employee , Kearns left Respondents' employ in May
1944 , Johnson has not been employed by Respondents since her separation in July 1944,
discussed below Ousler, the plant manager when these incidents occurred , is no longer
in Respondents' employ, and his whereabouts appears to be unknown. The Respondents
offered no evidence relating to any of these incidents, although Ousler's speech in January
was in the presence of a number of employees, and his remarks to Johnson in April were
described by her as occurring in the presence of the forelady. These witnesses were
specific in their testbnony , and forthright in their manner on the witness stand. The
Trial Examiner finds these incidents occurred substantially as described by them.
' When the Union organized at the first of the year, Johnson had been made the treasurer,
and subsequently had held the offices of recording secretary and corresponding secretary:
She did not state when she was elected president, but apparently held that office sometime
before her sick leave began
5 The Trial Examiner credits Johnson 's account of this incident Hann testified he did
not recall such conversation with her , although he remembered Delano ' s visit to the plant
and, in connection with the next related incident , he did accuse Delano of "rabble rousing."
Although not recalling when , he said, "I have made the statement that with the confusion
and the loss of production that was going on that I don ' t know whether I put it, that if I
owned the place I would move it, or Mr. Wertheimer [ one of the owners] might move it."
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On another occasion during the fall of 1943, Hann placed a stop-watch on
Johnson's work table during the morning work hours, with the remark that she
was not producing enough work. He requested that she time her production,
and the watch was left there until the end of the clay. There was no evidence
that Hann made any reckoning of the time required by Johnson in performing
her operations, although he testified he had been using the watch that moi ring
to ascertain the time required by other employees in rolling ten cigars John-
son testified, and Hann admitted, that this instance was the only one where
an employee was requested to pace hei e work with a stop watch
At the War Labor Board hearing in January 1944, the matter of whether
employees should htake a half hour or an hour for lunch period was left un-
settled; it had been agreed that the employees could take whichever period of
time they preferred. Hann one day instructed the employees to take only a
half hour for lunch. Nine of them, leading union supporters, elected to take
an hour for lunch. When work resumed after lunch that (lay, Hann called the
employees together and asked which one had reported to Delano, the union
representative, that a majority of them wanted an hour for lunch period.
Failing to get an answer, lie asked employee Adrian Eisnaugle if she had talked
with Delano, which she denied. Hann then accused her, or whoever it was that
made the report, of being a "damned liar." He then added that the women
employees in the factory who worked "by the sweat of their brow" were
keeping Delano in a fine hotel and feeding him fine food; that it was of no
consequence to either Delano or to himself whether the factory worked be-
cause each of them would eat; and that the employees should invest their money
in war bonds instead of turning it over to the Union. Later in the day, Hann
again called the employees together to announce that he had been mistakenly
informed that someone had made such report to Delano, and stated to Adrian
Eisnaugle that he apologized to her, or whichever girl it was that he had falsely
accused of making such report. Hann, in his version of this episode, admitted
the material parts, but varied and added some details that were unconvincing
when related to the status of bargaining between the Union and Respondents
at that time.
3 Discharge of Johnson and Davis on December 23, 1943; their subsequent
reinstatement
On December 23, 1943, at about 10 o'clock in the morning, IIann went to the
work table of Faye Johnson, a cigar roller, and loudly and without forewarning,
asked her why she was not putting out more work Unprepared for such en-
counter, Johnson offered no reason. Hann then told her that she would have
to "make 600 that day, or else." On the preceding day she had rolled 450 cigars.
During the preceding work week her output had varied from 300 to 600 cigars
a clay, having rolled 550 and 600 on December 20 and 21' On the last 2 days,
the quality of the ]eat-wrappers had been over-ripe and particularly difficult to
woik with, slowing her work and retarding her production. She began working
more rapidly, after receiving this warning, but, in doing so the cigars were
loosely wrapped and showed poor workmanship After about an hour, she
was summoned by Hann to the office. Hann showed her some of the cigars which
she had rolled, and told her that her work was not satisfactory and that lie was
6 Hann admitted this incident, but testified that Johnson requested that she be timed in
performing her work This explanation is incredible , and is rejected
P Rollers were paid by hourly rate for an S-hoar day, with a piece-rate-bonus for cigars
rolled in excess of 650 per day
AMB-A-TIP CIGAR COMPANY 1017
discharging her a He said lie had been too indulgent with her in her union
activities, that he no longer was going to permit such activities and intended
to straighten out the affairs in the plant, that there were 25 union girls in that
plant whom he could discharge, as well as Johnson, and that no union could
get the-in i einstated. Johnson left the plant shortly before noon.
At the goon lunch hour, Nina Belle Davis, employed as a bunch breaker, and
a member of the grievance committee with Johnson, sent word to a union repre-
sentative, Walters, to meet her at the plant at 3 • 30 that afternoon. At the end
of the clay, when she i eported her production, Hann questioned her about it,
then asked her if she had communicated with Walters She said that she had
done so, and Hann said, "Will you ever learn to mind your own business?" He
then discharged her.'
On March 3 and 0. 1944, respectively, Davis and Johnson were reinstated to
their former lobs Each had received a letter from Wertheimer, one of the
owners, instructing her to report to work and stating that all rights and privi-
leges enjoyed before her discharge were restored. When Davis reported, Hann
stated that he knew nothing of such arrangements, but, upon examination of
the letter each had received, he returned each to her ,job. Nothing wets said
in Wertheimer's letter, or by Hann, to either of them concerning her past pro-
duction or her expected production rate.10
Hann testifier) that his reason for du-charging both Johnson and Davis was
because of their low production rate He said that he had talked with Johnson
frequently about her not making the daily quota of 650 cigars fixed for rollers.
He testified that Davis's production was low, although not as low as other less
experienced bunch-breakeis who were continued in employment Fore'ady Ola
E.snaugla, who was their immediate supervisor, testified that Hann frequently
discussed with her the production of various employees and at times had asked
why the production of Johnson and Davis was low, and what could be done to
improve it On December 23, he discussed with her their production, although
he did not disclose to her his intention to discharge them. She explained, how-
ever, that discussions about increasing the output of various employees was
usual She had observed that they were slow in some respects in handling
tob€^cco and knives. She rated Johnson as better than average m her work,
and said she "could snake good work " She testified that it was normal for
cigar rollers to vary in their pioduction according to the quality of tobacco
used, and according to the way they felt and were treated." She corroborated
Johnson's testimony that the leiif-wrappeis were inferior at the time Johnson
was discharged, and testified that othei rollers were then having trouble with
the tobacco. '
8 Hann admitted the foregoing details, but denied the subsequent remarks which Johnson
attiibutes to him Johnson testified this all occurred in the presence of Hann s wife,
employed in his office as the bookkeeper. the latter testified she did not remember what
he said, but denied lie made the substance of these list reniaiks
0 Hann testified lie discharged Davis because her production was poor He did not deny
the conversation relating to Walters
to In the forepart of January 1944, both Davis and Johnson had registered with the
United States Employment Service as available for employment, becoming eligible to receive
unemployment compensation fiom the State of Ohio which was paid them during the
inteival of unemployment that followed On January M. the Union filed its original
charge in this proceeding, alleging disciiimnation by the Respondents against Davis and
Johnson in their disehaige on December 23, 1943.
11 She testified that she constantly was talking with women employees in the plant about
increasing their production, as she did with Johnson, and made the remark "Sometimes if
on can speak kindly to them and ask them to do those things, they will try to improve '
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson's production records, covering a 2-month period before her discharge,
were put in evidence by the Respondent, and Johnson testified with reference to
her production during a period following her reinstatement. Before her dis-
charge, her production per day varied from 300 to 650 cigars, averaging in 8 suc-
cessive weeks 510, 570, 510, 4S0, 600, 600, 560, and 480 per day On December
22, which began her last work week, she produced 450 cigars ; and during the
four and one-half hours she worked on December 23, she produced 300 cigars.
No comparab'.e records of other cigar rollers were offered in evidence.
During April 1944, following Johnson's reinstatement in early March, her daily
product on varied from 600 to as many as 900 cigars per day. The evidence was
not sufficient to indicate the daily average between this minimum and maximum.
Forelady Eisnaugla testified that Johnson, at her own request after her return,
was assigned a different work table in a location where she was less likely to
be engaged in desultory conversations which interfered with her work. She
stated, however, that Johnson's comparative production, both before her dis-
charge and after her reinstatement , was about the same in comparison with
that of other cigar rollers employed there. Johnson attributed the increase to
additional experience.
Incomplete records of Davis's production, but no comparative records of other
hunch-breakers, were put in evidence. Her output varied from day to day,
and according to Forelady Eisnaugla, she was low at times, up in her production
at other times, and on some days would make more than others. She stated that
Davis's production after her reinstatement in March was about the same as it
had been before her discharge in December. Davis thereafter continued in the
employ of the Respondents until December of 1944, when she quit because of ill
health
4. Protest against employee Brady
In the last week of June 1943, shortly after Hann became the plant manager,
Martha Brady was employed as a bunch-breaker Brady had known Hann and
his wife over a period of 25 years, having previously worked for them in Well-
ston, Ohio, where Hann had owned a cigar factory and Mrs Hann had worked in
the ofli2e. In April 1944, Brady was notified while at work to go to the office
When she arrived, Mrs. Hann said to her, "Hattie, there has been an awful lot of
gossip on the floor up there concerning the Union " At that moment Hann came
in, told Brady that he and Mrs. Hann held her in high regard, and said, "We
wanted to talk to you and try to get you to not take sides with the Union."
Brady told them that she was then a member of the Union. Mrs. Hann remarked
that she "wouldn't belong to anything as dirty as that Union," at which time
Hann told his wife "to keep out of it." He said to Brady that he respected her
for her candor, but advised her "not to take sides," and to use her money in buying
war bonds instead of paying it into the Union where it was spent by union repre-
sentatives in having a good time.12
In June, Brady was made a member of the Union's grievance committee, and
in July this committee negotiated an agreement with Hann, supplementing the
contract, by which Hann was to provide someone to supply the cigar molds to the
bunch-breakers instead of requiring them to secure molds for themselves. This
practice was begun, but was carried on irregularly during the course of a week.
Union adherents observed that pro-union employees were being neglected, while
anti-union employees were being supplied Brady protested to Hann that she
72 The Trial Examiner was impiessed that Brady was an honest witness, and finds her
account of this incident credible when related to other events He rejects the flat denial
of this incident by Hann and Mrs Hann
AMB-A-TIP CIGAR COMPANY 1019
was not being supplied. Thereafter she was oversupplied. She was told by the
mold boy that Hann had directed him to pile them Lip around her so high that
she could not see out, when he stacked them there, she threw one of them at the
laboy.
The morning following, about 2 hours after work began, several employees
went in a group to Hann to declare they would not continue at their work if
Brady was retained in the plant.' On Brady's request, Johnson called the union
committee together and went to Hann to intercede for Brady. After some dis-
cussion, all including Brady went back to their work. That evening, Johnson met
two of the women who had protested Brady's employment, and appealed to both
of them to support the Union. She told one of them, McCormick, that she had
overheard Hann criticize her work that clay when he was talking with Forelady
Eisnaugla, and warned her that because of having participated in the strike she
might have trouble with Hann over her work.
At noon the following day, Schmidt, the Union's area representative, appeared
at the plant and asked Hann for permission to read to the employees a report
lie was making on this strike. With permission, he began the reading of his paper,
wherein he named the women who struck in refusing to work with Brady, and.
stated that they had been incited by Hann. Immediately, the women named by
Schmidt protested his statement, and one of them, Mary Emmons, said, "One
man like you was hauled out of this town in a box" and added that the same
might happen to Schmidt." Hann likewise protested Schmidt's remarks, and
ordered him from the plant. A few minutes later, according to Ernestine Mc-
Coy, Mrs. Hann engaged Emmons in a conversation in which she told Emmons
she should have a medal for the remark she had made.18
5. Termination of Johnson on July 28, 1944
As Johnson left the plant on the evening of that day, July 28, Hann called
her aside. According to Hann, on that day he had been told by Forelady
Eisnaugla that employee McCormick had asked her whether Hann had criti-
cized McCormick's work the day before, telling her that Johnson had reported
he had done so. Eisnaugla, who impressed the Trial Examiner as being an
honest witness, denied that Hann had criticized McCormick's work on the pre-
ceding day, and confirmed that she had reported to him McCormick's state-
ments. Testifying to his conversation with Johnson as she was leaving, Hann
said, "I remember of telling her that I had told Mr. Smith or Schmidt-that
I intended to discharge her, but I had changed my mind and guessed I wouldn't
do it as I didn't want to have any Union discrimination, and-`I am just going
to tell you what I think of you, and that is all I am going to do."' Johnson
related his exact words as follows, "I told Mr. Schmidt at noon I intended to
fire you, but I am not going to fire you ; but I dare you to come in the plant."
According to both of them, Hann then told Johnson she was a liar and a
trouble maker. Johnson asserted she was respected in the community. Hann
responded that she had made trouble in her home, in her church, and in the
'-These incidents were disclosed in hearsay testimony, and implied in Brady's grievance
reported to Johnson. They were not denied or otherwise explained by other witnesses, and
are credible when related to the events that followed.
14 Out of approximately 80 in the plant, this group was comprised of 12 according to
Johnson, 20 or 25 according to Hann.
"The lefeionce was to Delado, who was killed in Jackson in February 1944.
10 The Trial Examiner credits this account by McCoy, whose testimony on other matters
was corroborated and who appeared to be an honest witness, rejecting the denial of it
by Mrs. Hann Emmons was not called as a witness.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, and that he had no more respect for her than a dog in the street. John-
son asked if she was to return to work on the following morning, and Hann
said, "I dare you to come back into the plant." She repeated her question, and
he said, "I hope you don't." Although denying the statements that he had
dared her to return, which the Trial Examiner believes and finds he did do,
Hann testified that he had expressed the hope that she not return to the plant,
and that he did not want her in the plant. Johnson understood that Hann did
not expect her to return, and that in effect he was discharging her. She did
not return to work. On two occasions that followed she did return to the
plant office to collect wages due her. Hann then declared that he had not dis-
charged her, whereupon Johnson offered to go back to work Hann said she
had no right then to go back to work and Johnson said in that event she con-
sidered that she had been discharged."
6. Findings and conclusions
A. Interference, restraint, and coercion
The Respondents undertook to discourage the nascent interest of their em-
ployees in joining the Union, by the plant manager's warning in January or
February 1943, that the business would be removed from Jackson if the em-
ployees unionized, and by his efforts to discourage any payment of dues to the
Union. He implemented his objection to the Union later, by openly threatening
to discharge Johnson, the one employee he believed to be the leading proponent
among them, and by endeavoring to exact from her a promise to renounce her
union affiliation.
When the Union was constituted the bargaining representatives through the
expressed choice of a majority of the employees, the new manager pursued a
comparable course, to encourage defection from the Union as well as to render
it ineffective in representing its members. By conspicuously singling out its
president, Jonson, to pace her work with a stop watch and to question her
right to be employed in the plant, the Respondent's manager gave notice to other
employees that discriminatory treatment awaited any who supported the Union.
He expressed the Respondents' hostility toward employees who adhered to the
Union, by charging that their activities caused a loss of production and would
result in the plant being moved to Jackson. In talking with the employees he
vilified and maligned the Union and its representatives, by denouncing Delano as
a rabble rouser and troublemaker, by asserting-that he was being "kept" by the
women employees whose dues were used for his hotel bills and entertainment,
and by doubting his integrity in representing them. The manager disuaded
the employees from supporting the Union, by appealing to them to invest their
money in war bonds instead of using it to pay union dues. In short, in a series
of incidents, he utilized the prestige of management, at the place of work, to
caution and to curb the employees in their exercise of rights which the Act
protects as inviolable. In furtherance of these tactics, the manager and Mrs.
17 Johnson, 3 weeks after her discharge. rercgisteied with the United States Employment
Service, and independently sought other employment In November, the USES offered
to get her employment in a munitions plant in Chillicothe, Ohio, 28 miles away, as an
inspector of hieh explosive powder, working on a rotating shift Johnson refused this
because it would dislocate the accustomed performance of her household duties, and render
difficult or impossible her giving proper attention to the. welfare of her husband and a
14-year-old daughter The Trial Examiner believes and finds her refusal of this employ-
ment did not constitute a wilfully incurred loss of earnings See Moosessille Cotton Mills,
15 N L. R B 416 No abatement of back pay is made for the performance of accustomed
household duties. Empire Worsted M'7,ls, Inc., 53 N L R 13 683
AMB-A-TIP CIGAR COMPANY 1021
Ilann, whose activities are attributable to the Respondents," attempted to array
anti-union employees against pro-union employees. They urged Brady not to
support the Union, endeavoring to enlist her opposition by appealing to her
long-standing loyalty to them. And Mrs Hann approved Emmons' threat to
the union representative who denounced the strike against Brady. Finding
that these last incidents, and the termination of employment of Faye Johnson,
are related in their nature to the course of the manager's conduct, the Trial
Examiner believes and finds the Respondents were engaged in a deliberate plan
to divide the sentiment among the employees with reference to union repre-
sentation. This they did by manifesting an anti-union attitude which fostered
discord among the employees, prompting the formation of a dissident faction
and induced its concerted action in opposition to the orderly processes of collective
l'argaining.
By the conduct of their supervisors and agents, as found above, the Respondents
have interfered with, restrained, and coerced their employees in the exercise of
rights guaranteed them in Section 7 of the Act.
B. Discrammmation to discourage union membership
The discordant relations between the plant management and the unionized
employees, which occurred throughout the period of negotiations for a bargain-
ing agreement, did retard the employees' rate of production prior to December
23, 1943; the production was impioved when an agreement was consummated in
the early months of 1944 During both periods, Faye Johnson's production rate
was maintained at a comparative level with that of other rollers, and was in
fact better than the average. On December 23, she was singled out to produce a
given number of cigars "or else." The demand for speedy work with faulty
material, and the threat of discharge, impaired her workmanship The man-
ager immediately found pretext in the quality of her work to carry out his
threat of discharge, and to be rid of the leader of the Union toward whose pur-
poses he was hostile His discharge of Johnson on that clay stemmed from his
opposition to the action of the employees in unionizing to deal with the Respond-
ents. Later in the day, finding that -Nina Belle Davis had sent for the union
representative to come to the plant, as a reprisal be discharged her, although
discussing with her thitt day's production to make that appear as the cause for
her discharge
Johnson's reinstatement in iIarch reinstalled her as the leader of the Union.
Her continued activities again made her the focal point of the management's
opposition to the Union Goaded by the chaige that he had incited the protest of
anti-union faction against Brady in July, the manager decided to rid himself
again of the pro-union leader In his testimony he assigned Johnson's false re-
port to McCormick as the cause for his action, but on the day of accosting Johnson
he made no accusation of this being her dereliction His behavior permitted no
explanation. but disclosed he had no interest in ascertaining what had occurred
in fact to prompt Johnson to snake such report to McCormick. Instead as he
declared at the time of evicting Schmidt from the plant, his intention was to dis
19 Mrs Hann's relations to the manager, in her duties as the office employee and as his
inife and her piesence and participation in concert with him in his illegal acts, vested
her with the attributes of management in dealing with the employees Hann's reproval
of her remark' to Brady, when lie desired to do the talking and to use a more devious
appeal, wa, not a repudiation of Mrs Hann's authority Cf International Association
of Machinists v N L R B, 311 U S 72 ; N L R B v American Maunfacturing Com-
pany, 106 F (2d) 61 (C C A 2) N L R B v Aluminum Products Company, 120 P.
(2d) 567 (C C A 7)
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge Johnson His subsequent reflection did not change his mind, but cautioned
his methods. Calling her aside at the end of the day, he berated Johnson with
language intended only for insult and provocation, and bold her he did not want
nor expect her to return. Although reciting an incantation about not discharging
her, which he believed would avoid any charge of discrimination, his defamation
of her rendered her further employment under such conditions an indignity.
He effected her discharge by the clear implication of his remarks in daring her
to return to work, and subsequently confirmed the discharge in denying her the
right to return to work when she offered to do so i°
By discharging Davis and Johnson on Dec inber 23, 1943, and thereafter re-
fusing them reinstatement until March 3 and 6, 1944, respectively, and again by
discharging Johnson on July 28, 1944, the Respondents have discriminated in re-
gard to their tenure of employment, have discouraged membership in the Union.
and have interfered with, restrained, and coerced their employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
'V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring in
connection with the operations described in Section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondents have engaged in certain unfair
labor practices, it will be recommended that they cease and desist therefrom,
and take certain affirmative action designed to effectuate the policies of the Act.
With respect to discrimination by discharge of Nina Belle Davis and Faye E.
Johnson on December 23, 1943, followed by their respective reinstatement on
March 3 and March 6, 1944, it will be recommended that each of them be made
whole for any loss of pay, less the net earnings 20 of cacti during such period
in the manner prescribed below With respect to discrimination by the subse-
quent discharge of Johnson on July 28, 1944, it will be recommended that she
be reinstated to her former position, and be made whole for any loss of pay fol-
lowing that date less her net earnings, in the manner prescribed below
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. United Construction Workers, affiliated with United Mine Workers of Amer-
ica, is a labor organization within the meaning of Section 2 (5) of the Act
19The Respondents contend that Johnson was not discharged, but quit on July 28.
Absent Ilann's language that indicated her discharge, his treatment of Johnson in these
circumstances was such to make continued employment unbearable and would in any
event have constituted a constructive discharge Cf. Reliance Manufacturing Company,
60 N L R B 946, Chicago Apparatus Company, 12 N. L. R. B. 1002, enf'd 116 F. (2d)
753 (C. C A 7).
-0 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Crossett
Lumber Company, 8 N L R B 440 Monies received for work performed upon Federal,
State, county, municipal. or other work-relief proiects shall be considered as earnings See
Republic Steel Corporation v N. L R B, 311 U. S. 7.
AMB-A-TIP CIGAR COMPANY 1023
2. By interfering with, restraining , and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents have en-
gaged in and are engaging in unfair tabor practices within the meaning of
Section 8 (1) of the Act.
3 By discriminating in regal d to the tenure of employment of Nina Belle
Davis and Faye E Johnson on December 23, 1943, and again with reference to
Faye E Johnson on July 28, 1944, the Respondents have engaged in, and are en-
gaging in unfair labor practices within the meaning of Section 8 (3) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act
RECOi1ENIENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondents, Amb-A-Tip Cigar Company, Jack-
son, Ohio, and Baltimore, Maryland, a partnership comprised by Rosalind Wer-
theimer, Emanuel Wertheimer, and 1\111 toll Wertheimer, Jr, and their agents, suc-
cessors, and assigns, shall .
1. Cease and desist from:
(a) D.scouraging membership in Unihid Construction Workers, affiliated with
the United Mine Workers of America, of any other labor organization, by dis-
charging or iefnsing to reinstate any of their employees, or in any other manner
discriminating in tegaid to hne, tenure, or any twin or condition of their em-
ployment ;
(b) In any manner inteifernic with, restraining, or coercing their employees
in the exercise of the right to self-organization, to form, join, or assist United
Construction Workers, U M W A, or any other labor organization, to bargain
collectively through representatives of their own ehoosine, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection
2 Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act ;
(a) Offer have E Johnson ininediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority or other
rights and privileges;
(b) Make whole Nina Belle Davis and Faye E Johnson for any loss of pay each
has suffered by reason of the discrimination a_ainst them by their discharges
on December 23, 1943, until their respective reinstatement on March 3 and
March 6, 1944, by payment to each of them of a sum of money equal to the
amount each would have earned as wares during said period, less the respective
net earnings of each; and make whole Faye E. Johnson for any loss of pay she
has suffered by reason of the discrimination against her by her discharge on
July 2S, 1944, until the date of the Respondents' offei of reinstatement, less her
net earnings during such period;
(c) Post at its plant at Jackson, Ohio, copies of the notice attached hereto,
marked "Exhibit A" Copies of said notice, to be furnished by the Regional
Director of the Ninth Region, after being signed by the Respondents' representa-
tive, shall be posted by the Respondents immediately upon the receipt thereof,
and maintained by them for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material;
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Ninth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the Respondents have taken to comply herewith
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondents notify said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondents to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations bf the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may, within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section
32 of Ai tide II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington 25, D C, an original and four copies of a statement in
writing setting forth such exception to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the othei parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case to
the Board.
MELTON BOYD,
Dated May 22, 1945 Trial Examiner
NLRB 577
(9-1-44)
EXHIBIT A
NoricE To ALT, Eitri OYAFs
Pursuant to the Recommendations of a Trial Examiner of the National-Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any mannei inletfere with, restiain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist United Construction Workers, U M. W A., or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in co'icerted actii sties for the purpose of collec-
tive bargaining of other mutual aid or protection
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and priilieges previously enjoyed, and make
them w hole for any loss of pay suffered as a result of the discrimination
Faye E Johnson, reinstated, with back pay following July 28, 1944, and
with back pay from December 23, 1943 to March 6, 1944
Nina Belle Davis. without reinstatement by reason of voluntary cessation
of enmployment, with back pay from December 23. 1943 to March 3. 1944
All our employees are free to become or remain members of the above-named
union or Orly other labor organization We will not discriminate iii regard to
AMB-A-TIP CIGAR COMPANY 1025
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
A-mB A-TIP CIGAR COMPANY, a partnership
comprised of RosALiND WERTHEIMER, EMIANU
WERTHEIMER, AND MILTON WERTIIEIMEr1, Jr,
Employer.
Dated---------------------- By---------------------------- ----------
(Representative) (Title)
NOTE.-Any of the above-named employees presently serving in the armed forces
of the United States will be offered'full reinstatement upon application in ac-
cordance with the Selective Service Act atter discharge from the armed forces-
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material
671)417-46 -Not (i4--- 06