American Rolbal Corp.

National Labor Relations Board - Board Decisions

May 6, 1943

49 N.L.R.B. 516 (N.L.R.B. 1943)

In the Matter of AMERICAN ROLBAL CORPORATION and INTERNATIONAL
UNION, UNITED AUTOMOBILE; AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA , LOCAL 698, C. I. O.
Case No. C-2552Decided May 6,19/x.3'
DECISION
AND
ORDER
On March 18, 1943, the Trial Examiner filed his Intermediate Re-
port in the above-entitled proceedings, findings that the respondent
had engaged in and, was engaging in certain unfair labor practices
affecting commerce, and recommending that it cease and desist there-
from and take certain affirmative action designed to effectuate the
policies of the Act, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a brief in support of the exceptions.
Oral argument was held before the Board on April 20, 1943. The-.
Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committeed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report,- the
respondent's brief and exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner. -
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, American R'olbal Corpo-
ration, Brooklyn, New York, its officers, agents, successors, and as-
signs shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, Local 698, C. I. 0., as. the exclusive representative of all
employees of the respondent, exclusive of supervisory, office 'and,'
clerical employees, foremen, assistant foremen, engineers, the chief
49 N. L. R. B., No. 72.
516
0
.,AMERICAN ROLBAL CORPORATION 517
inspector;, and,the confidential employees : Leibovitz, Grossman, and
Tarra, with respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) Discriminating in regard to the hire and tenure and condition
of employment of any of its employees because of their membership
in or activity on behalf of International Union, United Automobile,
Aircraft and Agricultural Implement Workers' of 'America, Local
698, C. I. 0., or because they gave testimony under the Act;.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of self-organization, to form, join, or
assist labor organizations to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid and pro-
tection,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 International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, Local 698, C. I. 0., as the exclusive representative of all
employees of the respondent, exclusive of supervisory, office and
clerical employees, foremen, assistant foremen, engineers, the chief
inspector, and the confidential employees : Leibovitz, Grossman, •and
Tarra, with respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) Offer to Abraham Friend immediate and full reinstatement
to his former or substantially equivalent position occupied by him
prior to his transfer from the inspection department, without preju-
dice to his seniority and other rights and privileges;
(c) Make whole said Abraham Friend for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal ^ to that which he
normally would have earned as wages during the period from the
date of his discharge to the date of the respondent's offer of rein-
statement, less his net earnings during such period;
(d) Post immediately in conspicuous places throughout its 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 re-
spondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2)
that the respondent will take the affirmative action set forth in para-
graphs 2 (a), (b), and (c) of this Order; and (3) that the respond-
ent's employees are free to become or remain members of International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 698, C. I. 0., and that the respondent
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will not discriminate against any of its employees because of member-
ship in or activity on behalf of that' organization ;
(e) 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.
INTERMEDIATE REPORT
Mr. Cyril W. O'Gomm-an for the Board.
Mr. Gustave B Garfield, of New York City, for the respondent.
Mr. Julius Droisen, of New York City, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on December 17,11942,' by International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, Local 698, C I. 0, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
Second Region (New York City), issued its complaint dated January 26, 1943,
against American Rolbal Corporation, Brooklyn, New York, herein called the
respondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices, within the meaning of Section 8 (1), (3), '(4), and (5)
of the National Labor Relations Act, 49 Stat 449, herein-called the Act. Copies
of the complaint togetherlwith notice of hearing thereon were duly served upon
the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) on and after April 18, 1942, vilified, disparaged, and
expressed disapproval of the Union, interrogated its employees respecting their
union affiliations; and urged, persuaded, threatened, and warned its employees
to refrain from assisting, joining, or remaining members of the Union ; (2)
of May 13, 1942, transferred Abraham Friend to more arduous or less agreeable
work and on June 25, 1942, discharged him because he testified on May 12,
1942, in a representation proceeding conducted by the Board, and because of
his union membership and activities, and (3) on and after July 28, 1942, re-
fused upon request to bargain collectively with the Union which was at all
such tines the exclusive representation of the employees, of the respondent
within an appropriate unit.
On February 5, 1943, the respondent filed its answer admitting certain of the
allegations of the complaint with respect to the nature of its business and
denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at New York City from February 25
to 27, 1943, before the- undersigned, Josef L Ilektoen, the Trial Examiner duly
designated by the Chief Trial Examiner Tile Board, the respondent, and the
Union were represented by counsel and participated in the hearing Full oppor
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded to all parties On the first day of
the hearing, the motion of counsel for the respondent to amend its answer so
that it alleged that Friend was transferred "because it became apparent 'from
all" of Friend's testimony in a prior Board hearing that he was not an efficient
inspector, was allowed by the undersigned without objection At the close of
the hearing, the undersigned allowed the !notion of counsel for the Board, in
which counsel for the respondent joined, to conform the pleadings to the proof
in respect to formal matters; counsel for the Board and for the respondent
AMERICAN ROLBAL CORPORATION 519
argued orally before the undersigned, and counsel for the respondent thereafter
filed a brief with him. -
Upon the entire record in the case, and from his observation of the witness,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, American Rolbal Corporation, is a' New York corporation
having its plant and principal place of business at Brooklyn, New York. It is
wholly engaged in the manufacture and sale of anplane and precision parts
and related products for use in prosecution of the war effort. During the six
months prior to May 11, 1942, it used over 30 tons of metal valued at more than
$50,000 all of which was shipped to it from States other than New York. During
this salve period, it produced finished products weighing in excess of 5 tons, all of
which were shipped to States other than New York' At the time of the Bearing,
the volume of its operations, the nature of which remained, unchanged, had
substantially increased.
The respondent admits that it is engaged in commerce, within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 698, is a labor organization affiliated with the Congress
of Industrial Organizations. It admits employees of the respondent to mem-
bership.
III. THE UNFAIR LABOR PRACTICES
A. Ch?onology of events
On April 14, 1942, the Union requested, and the respondent refused it, recog-
nition as the exclusive bargaining representative of the respondent's employees.
The Union thereafter filed a petition for investigation and certification of rep-
resentatives with the Board. The Board conducted a hearing thereon from
May 11 to 14 Employee Abraham Friend testified at the hearing on May 12.
On May 13, the respondent transferred him from his position as inspector to
another job in its plant. On June 11, the Board issued its decision and direction
of election' On June 25, the respondent discharged Friend On July 7, the
Board conducted an election by secret ballot among the respondent's,employees.
The Union won, receiving 110 of the 116 valid ballots counted.' On July 31, the
Board certified the Union as the exclusive representative of the respondent's em-
ployees for the purposes of collective bargaining.'
B. Interference, restiaint, and coercion
During the latter part of April 1942, Production Foreman Leo Cooper, of the
day shift, addressed 8 or 10 night shift employees at their 10 p. in. lunch period.
As employee Norbert Nussbaum testified, Cooper informed the group which grew
to 30 to 40 while he was speaking, that President Leo L. Lowy of the respondent
' See 41 N L. R. B. 907, 908.
241N I, R B 907
121 ballots were cast.
42 N. L. R. B. 1207.
520 DEIIISIONS OF NATIONAL LABOR RELATIONS BOARD
would never countenance or consent to an outside union in.the plant but would
have no objection to an inside union. Cooper, as he testified, further told the
employees that in his opinion "it was wrong for them to join up with the union
and that the smartest thing would be if they would form their own union without
any affiliations on the outside whatsoever."' °
On May 13, during the lunch period in the plant, employee Friend told 15 to
20 employees of the preceding day's developments in the representation bearing.
Saul Weiss, vice president of the respondent, as he himself testified, told those
present that he had had disagreeable experiences as a union member and that
"the [union] leaders were nothing else but a bunch of racketeers."
During the latter part of June, at a time when he knew that an election was
..to be conducted among the employees by the Board, Production. Forema n Cooper,
as he testified, drafted a petition to the effect that those signing it did not desire
"to be associated with any outside union" and personally circulated it in the plant
among 75 percent of the respondent's employees.'
'During July 1942, Nussbaum, who was discussing piece work rates with Lowy,
Cooper, and Night Superintendent Freund, informed them that he was a member
of the Union. He testified that Freund thereupon left the room, immediately
returned with a union application card which he tore up, and told Nussbaum,
"That's what I think of the union." He further testified that Lowy told him,
"You boys want to form a union . . . I'll take the whole union and all of you
fellows and throw them out of here " Lowy denied the statement attributed
to him and was not asked regarding the acts ascribed to Freund. Cooper testified
that he did not see or hear the acts and statements attributed to Freund and
Lowy. Freund was not called as a witness. Lowy, whom the evidence reveals
to have been extraordinarily hostile to unions, testified that in 1933, when he was
managing another factory, he became incensed at a union representative and
"threw out the steward, the union and the whole bunch . . . And I kept the
factory closed for three years" Upon the entire record, and the credible testi-
mony of Nussbaum, the undersigned concludes and finds that the events transpired
as testified by him
During the early summer of 1942, Production Manager Gerson Ziltzer, as he
-testified, informed 10 or 15 employees who inquired of him respecting the coming
election to be conducted by the Board on July 7,' that he "didn't think it advisable
for them to join an outside union" and advised them to form their own inside
union.
The undersigned finds that the respondent by the acts and statements of Cooper,
Weiss, Freund, Ziltzer, and Lowy the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
'of the•Act.
' C. The discrimination against Friend
Abraham Friend was hired by the respondent as an inspector during February
1942 He began work at 50 cents per hour and during March or April, was raised
to 60 cents per hour. At the time he was given the increase in pay, Production
Manager Ziltzer, according to Friend's undenied testimony which the undersigned
credits, • told him that his work, which took him to all parts of the plant, was
Cooper, was one of a group including.Vice President, Saul Weiss and:Production Man-
ager Gerson Ziltzer who had been associated with President Lowy for many years. He
testified that he expressed Lowy's views respecting unions to the employees on-this occa'
sion , but that he did so without Lowy's knowledge
O The evidence does not disclose what disposition was made of the petition or the num-
ber of employees who signed it
I He testified that the employees "discussed with me what was coming, up." The under-
signed finds that he had reference to the imminent election.
- AME'RICAN' ROLBA'L CORPORATION- - 521'
"very satisfactory," that he would thereafter be "more' or less in- charge of
the . . . actual inspection work being conducted in the inspection department,"
and that he might in the future be given the title of chief inspector.
Friend joined the Union about April 15, and thereafter actively solicited mem-
berships therein among his fellow employees About May 1, Ziltzer told Friend
not to engage in union activity on company tune." On May 12, as related above,
Friend testified in the representation hearing. The evidence indicates that his
testimony, given as a witness for the Union, had to do with the question of the
appropriate unit and that he based it upon observations made by him in the
course of his work of the tasks performed by various employees in the plant. At
4 p m. the following day, Ziltzer called him to Lowy's office where Lowy, accord-
ing to Friend's testimony which the undersigned credits, told him that his testi-
mony of the preceding day' had exposed him as the previously unknown (to,
Lowy) employee who had been active in the plant on behalf of the Union Lowy
further stated that such activity revealed by his testimony constituted grounds
for his discharge for cause but that because Lowy did not wish to run afoul of
the Board, he would merely transfer Friend, who he characterized as a disturbing
"factor" in the plant, to another position rather than dismiss hun Lowy, as
he himself testified, thereupon ordered Ziltzer to give Friend a position' where
he "would be sitting at the machine all day and has no chance to roam around
,the factory."
Friend was thereafter 10 set to work in the bushing department without suffering
any diminution in pay, where he performed unskilled work breaking bushing
corners by means of emery cloth. The process created dust and exhaust blowers,
the only ones in the plant, were used on the machine devoted to it. Friend
subsequently suffered a finger injury and was assigned to buffing bushings, a task
requiring the use of a polishing paste which splattered the operator.
The respondent contends and Lowy testified that Friend's testimony revealed
him as being derelict in the performance of his duties as an inspector on vital
war materials upon the quality of which the lives of members of the armed forces
depended and that he was transferred when this fact was brought to light.ii The
evidence reveals, however, that Friend was an efficient inspector. Ziltzer so
informed him on the occasion of his raise in pay of some weeks before. Chief
Inspector Maurice Braude testified that Friend was "absolutely reliable.". He
protested Friend's transfer from the inspection department to Ziltzer, "because
it was, very difficult to work without him." Ziltzer replied that, Friend was a
"trouble maker," and refused Braude's request that Friend be returned to him.
Cooper, who testified that Friend was-an average inspector, also related that at
the,time of his transfer, Ziltzer told him that it was caused by Friend's "union
activities." '
8 Ziltzer, in answer to a leading question by counsel for the respondent , testified that he
also told Friend to refrain from such activity on company property. The undersigned;
upon the entire record in the case, and the credible testimony of Friend, finds that Ziltzer
did not so instruct Friend
0 Lowy attended the May 12 hearing - - - -
.10, Friend , testified at the evening session of the representation hearing on May 13 ,and
was absent from work on May 14 in order ,to, attend the hearing on its final day. He
began work at his new task on May 15.
11 The respondent introduced into evidence excerpts from . Friend ' s testimony, given May
13, after Lowy had ordered him transferred It also , as related above , amended its answer
to allege that he was transferred when it , became apparent from "all" of Friend ' s testimony
that be was not performing his duties properly . Because the transfer was clearly predi-
cated , solely upon his May 12 testimony , the undersigned does not consider his testimony
thereafter given to have bearing on the question of the respondent's motivation in making
the change.
,522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from all of the evidence that Friend was a competent worker. - In the
liglit of the respondent's hostility to the Union, its notion that Friend was a
"trouble maker," and his transfer immediately following his testimony on May
12, the undersigned is convinced and finds, that the respondent did not transfer
-Friend because his activities purportedly indicated inattention to his work, but
that it was motivated by his union membership and activities and his giving
testimony under the Act in doing so.
The undersigned finds that Friend's position as an inspector with its attendant
prestige and opportunity for advancement, shown by the nature of his duties
and Ziltzer's statement to him that he might be given'the title of chief inspector,
was more desirable, less arduous, and far more agreeable than the positions to
which he was subsequently assigned.
The undersigned finds that by transferring Friend from his job as inspector
pn May 13, 1942, the respondent discriminated against him in regard to the
condition of his employment, thereby discouraging membership in the Union, and
that it also discriminated against him because he gave testimony under the Act.
Friend thereafter continued to be active on behalf of the Union As related
above, on June 11, 1942, the Board ordered that an election be held among the
respondent's employees Counsel for the respondent testified, and the under-
signed finds, that the respondent refused to "cooperate" with the Regional Office
respecting the election and refused to furnish it the names and addresses of its
employees in the appropriate unit found 12 Friend, at the request of the Regional
Office thereafter obtained the naives and addresses of a number of the employees
in the unit.l3 On June 23, outside the plant, he asked employee Urbie Alafonso
for her address, but she refused him the information On June 24 he delivered
his list of names and addresses to the Regional Office and was absent from work.
On June 25, according to Forelady Ann Abolafia, Alafonso 14 excitedly told her
that Friend, had. asked her to join the Union, "or else," that when she refused
to divulge her address to him he. had told her, "I'll find out where you live," and
that she became apprehensive of her safety because her husband was away.
•Abolafia informed Ziltzer of the incident Ziltzer thereafter spoke to Alafonso
who told him of Friend's questioning.15 Ziltzer then approached Friend in the
plant and according to Friend, threatened "to beat him up" because he had been
"intimidating girls to join the union." Friend denied the accusation and stated
that he had asked for the addresses of the employees at the request of the
Regional Office, and testified that Ziltzer thereafter said he was discharged
because he was a "troublemaker" and might cause Ziltzer to lose his temper.
Ziltzer denied telling Friend that lie would attack him 1e and denied that Friend
told -him-of-,the Board's•request for the,-information he had; gathered: He,fui•-;
ther testified that he was greatly excited and demanded of Friend "what the idea
was," that Friend replied, "That's my business", and that he thereupon told him,
"Well, I'll see to it that you don't have any occasion to scare or intimidate any-
body else. . . . You're through." Friend thereafter received his pay and left
the plant.
12 The respondent based its refusal, according to'its counsel, upon the ground that by
furnishing such information at the, Board 's request it might waive its constitutional objec-
tions to the entire proceedings.
13 This information was necessary to the Board in order that it might properly conduct
the election.
14 Alafonso was no longer employed by the respondent at the time of the hearing and was
not available as a witness
15 According to Ziltzer, neither she nor Abolafia mentioned to him the "or else" threat
purportedly made by Friend to Alafonso.
is". . . but it wasn't because I wasn't mad enough to tell him that."
AME'R'ICAN ROLBAL CORPORATION 523
The evidence reveals that Ziltzer, after talking to Abolafla and Alafonso, but
before speaking to Friend, ordered the littler's pay to be made up by the office.
Ziltzer is thus shown to have determined to discharge Friend before speaking
to him or giving him opportunity to defend himself against the reports of
Alafonso to Abolafla and Ziltzer. Accordingly, the undersigned credits Friend's
testimony respecting his conversation with Ziltzer on the day of his discharge.
It is clear from the entire record that while the respondent desired to avoid
difficulty with the Board in May and therefore transferred Frieiid rather than
then discharging him, it nevertheless was merely awaiting a suitable occasion
on which to rid itself of hunt His continued union partisanship indulged in in
the face of the respondent's extremely hostile attitude toward the Union, and its
earlier discrimination against him convince the undersigned that the respondent
seized upon the Alafonso incident as a pretext to dismiss him. The undersigned
finds that it discharged Friend not because he allegedly intimidated Alafonso,
but because of his union membership and activity and because he gave testimony
under the Act.
D. The refusal to bargain
1 The appropriate unit
On June 11, 1942, the Board found a. unit consisting of all employees of the
respondent, excluding supervisory, office and clerical employees, foremen, assist-
ant foremen, engineers, the chief inspector," and the confidential employees :
Leibovitz, Grossman, and Tarra, to be appropriate for the purposes of collective
bargaining is
The undersigned finds that all employees of the respondent, excluding super-
visory, office, and clerical employees, foremen, assistant foremen, engineers, the
chief inspector, and the confidential employees : Leibovitz, Grossman, and Tarra,
at all times material herein constituted and now constitute a unit appropriate
for the purposes of collective bargaining with respect to rates of pay, wages;
hours of employment, or other conditions of employment, and that said unit
17 The unit alleged to be appropriate in the complaint was identical to that found by the
Boaid with the exception that in place of tlie voids "chief inspecLoi" appealed the words
"chief engineer " The undersigned finds the deviation from the unit found by the Board
to have been an inadvertent error corrected by the motion of counsel for the Board to
conform the pleadings to the proof which was duly allowed
"The respondent in its answer denied the appropi lateness of the unit and that the
Union represented the majority of the employees therein, but admitted that it refused to
bargain collectively with the Union as the representative of the respondent's employees
The respondent based its contentions as to the unit and iepicscntation-questions on the
ground that it was denied opportunity to aigue orally before the Boaid in support of its
contentions respecting the appropuate unit and that since it was thereby deprived of due
process, the Board's subsequent decision and direction of election, the election, and the
certification of representatives "were and are void and of no binding effect upon the re-
spondent" - The evidence shows that on May 16, 1942, counsel Poi the respondent re-
quested permission of the Boaid in writing to file briefs and present oral argument before
it. On May 21, the Board, basing its action upon "the substantial increase in the number
of representation cases and the crowded state of its docket", informed him that' it re-
gretted its inability to grant his request for oral argument, but granted him leave to file a
brief On May 26, counsel for the respondent wrote the Boa) d enclosing copies of his brief
and urged the Board s denial of oral argument to him as a deprivation of due process
The Board's Rules and Regulations-Series 2, as amended-effective September 6, 1941,
and in force at the times in question, did not provide for oral argument before the Board
in representation cases as a matter of right As the Board stated in its decision of'June
11, 1942 (41 N L. R. B. 907) " . . . the Company filed a brief which the Boaid has con-
sidered " There is no showing that the respondent was deprived of due process in the
representation proceeding and the undersigned accordingly finds the respondent's conten-
tion to be without merit.
,T524 DECISIONS OF NATIONAL LABOR RELATJONIS BOARD
insures to employees' of the respondent the full benefit of. their right to self-
organization and to collective bargaining and otherwise effectuates the policies
of the Act. '
2. Representation by the Union of the majority of the employees within the
appropriate unit
On July 7, 1942, the Board conducted an election by secret ballot among the
respondent's employees. As related above, the Union received 110 of the 116
valid ballots counted and on July 31, 1942, was certified by the Board as the
exclusive 'representative of the respondent's employees in the °appropriate unit
for the purposes of collective bargaining.19
The undersigned finds that on and at all times after July 7, 1942, the Union
was the duly designated representative of the majority of the employees in
the appropriate unit and that, by, virtue of Section 9 (a) of the Act, 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 in respect to
rates of pay, wages, hours of employment, or other conditions of employment.
3. The refusal to bargain
The complaint alleged and the answer admitted that the respondent on July
28, 1942, and, at all times thereafter refused to bargain collectively with the
Union upon request.
The undersigned finds that the respondent on July 28, 1942, and at all times
thereafter, has refused to bargain collectively with the Union as the exclusive
bargaining representative of its employees in an appropriate unit, and has thereby
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connectiog with the operations of the respondent set forth in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several states and tend to lead to labor disputes: burdening and ob-
strucing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged' in and is engaging in certain
unfair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of-the Act.
It has been found that the respondent has refused to bargain collectively
with the Union. It will therefore be recommended that the respondent, upon
request, bargain collectively with the Union as the exclusive representative of
its employees within the appropriate unit.
It has been found that the respondent has discriminated in regard to the
hire and tenure and condition of employment of Abraham Friend because of his
union membership and activities, and because he gave testimony under the Act.
The undersigned will therefore recommend that the respondent offer him imme-
diate and full reinstatment to his former or substantially equivalent position oc-
's See footnote 18, above.
I
AMERICAN ROLBAL CORPORATION 525
,cupied by him before his transfer from the ' inspection department , without
prejudice to his seniority and other rights and privileges . The undersigned will
further recommend that the respondent make him whole for any loss of 'pay
he may have suffered by"reason of the respondents discriminatorily discharging
him by payment to him of a sum of money equal to the amount which he normally
would have earned as wages from the date of such discrimination against-him
to the date of the offer of reinstatement , less his net earnings '0 during said period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, Local 698, C. I. 0., is a labor organization, within
the meaning of Section 2 (5) of the Act. -
2. All employees of the respondent, exclusive of supervisory, office, and clerical
employees, foremen, assistant foremen, engineers, the chief inspector, and the
confidential employees : Leibovitz, Grossman, and Tarra, constitute a unit appro-
priate for the purpose of collective bargaining, within the meaning of Section
9 (b) of the Act.
3. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, Local 698, C. I. 0., was on July 7, 1942, and at all
times thereafter has been the exclusive representative of all employees of the
respondent in such unit for the purpose of collective bargaining, within the
meaning of Section 9 (a) of the Act.
4. By refusing on July 28, 1942, and at all times thereafter, to bargain collec-
tively with International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, Local 698, C. I. 0, as the exclusive representative r
•of its employees in the appropriate 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, and condition of employ-
ment of Abraham Friend, thereby discouraging membership in the Union, 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 and discharging Abraham Friend because he gave
testimony under the Act, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning 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.
20 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 the respondent's
discrimination against him and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440.
Monies received for work performed upon Federal. State, county, municipal, or other work-
ielief projects shall be considered as earnings. See Republic Steel Corporation v. N. L R B ,
311 U. S. 7.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, American Rolbal Corporation,
Brooklyn, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, Local 698,
C. I 0., as the exclusive representative of all employees of the respondent,
exclusive of supervisory, office, and clerical employees, foremen, assistant foremen,
engineers, the chief inspector, and the confidential employees : Leibovitz, Gross-
man, and Tarra, with respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) Discriminating in regard to the hire and tenure, and condition of employ-
ment of any of its employees because of their membership in or activity on
behalf of International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, Local 698, C I. 0., or because they give testi-
mony under the Act;
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join,-or assist labor
organizations, to bargain collectively through representatives of their own.choos-
ing, 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 undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International. Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, Local 698,
C. I. 0, as. the exclusive representative of all employees of the respondent,
exclusive of supervisory, office, and clerical employees, foremen, assistant foremen,
engineers, the chief inspector, and the confidential employees : Leibovitz, Gross-
man, and Tai . a, with respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) Offer to Abraham Friend immediate and full reinstatement to his former or
substantially equivalent position occupied by him prior to his transfer from the
inspection department, without prejudice to his seniority and other rights' and
privileges;
(c) Make whole said Abraham Friend for any loss of pay he may have suffered
by reason of the respondent's discriminatorily dmschaiging him, in the manner
set forth in the Section entitled "The remedy" above, less his net earnings 21
during said period ;
(d) Post immediately in conspicuous places throughout its plant and maintain
for a period of at least sixty (60) consecutive days from the dale of posting,
notices to its employees stating: (1) that the respondent will not engage in the
conduct, from which it is recommended that it cease and desist in paragraphs
1 (a), (b), and (c) hereof;' (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c) hereof; and (3) that the
respondent's employees are free to become and remain members of International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, Local 698, C. I 0., and that the respondent will not discriminate against
any of its employees because of membership in or activity on behalf of that
organization ; .
21 See footnote 20, above.
AMERICAN ROLBAL CORPORATION 527
(e) Notify the Regional Director for the Second Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid. i
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942=any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the, Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other,part of the record
or proceeding (including rulings upon all motions or objections) as it relies upon;
togetlfer with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
JOSEF L. IIEI{TOEN,
Trial Examiner.
Dated March 18, 1943.