Colgate Manufacturing Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1949

85 N.L.R.B. 864 (N.L.R.B. 1949)

In the Matter of COLGATE MANUFACTURING CORPORATION 1 and BENJA-
MIN RUBENSTEIN, AS ATTORNEY FOR MATTHEW BELMONT, ET AL.
Case No. 12-CA-6.Decided August 26,1949
DECISION
AND
ORDER
On December 21, 1948, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel and the Respondent filed exceptions to the Intermediate
Report and supporting briefs.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and for the reasons set forth below finds merit in the Respondent's
exceptions.
The Trial Examiner found that, by failing to recall certain em-
ployees who went on strike in October 1946 to jobs that became
available on and after April 1, 1947, the Respondent discriminated
in regard to their hire and tenure of employment, in violation of
Section 8 (a) (1) and (3) of the Act, as amended. We do not agree.
The facts regarding the controversy are set forth in detail in the
Intermediate Report. Insofar as here relevant, they are as follows :
In October 1946, the Union, with which the Respondent had been car-
rying on bargaining negotiations since May 1945, called a strike to
enforce its bargaining demands. As a result, approximately 60 of
I Although the complaint designated the Respondent as the "Colgate Manufacturing
Company," it was amended without objection at the hearing , to indicate the actual name
of the Respondent as given above.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended , the Board has delegated its powers in connection with this case to a three -member
panel [ Chairman Herzog and Members Reynolds and Gray].
85 N. L. R. B., No. 149.
864
COLGATE MANUFACTURING CORPORATION 865
the Respondent's 90 production employees failed to report for work
on October 14. During the next 2 weeks, however, about 30 of these
employees voluntarily returned to work. On October 25, the Union
voted to terminate the strike. Meanwhile the Respondent had hired
1.5 new employees. It then decided that with these replacements, to-
gether with the employees who had not gone on strike and those who
had already returned, it had sufficient personnel for its immediate
production requirements. Accordingly, on October 28, 1946, when
the president of the Union notified the Respondent that the strike was
over and that the remaining strikers wanted to go back to work, the
Respondent replied that there was no work available. At a conference
on the following day, however, it promised that it would recall the
strikers when further help was needed. At this time, the Union ap-
parently conditioned the return of the strikers on the reinstatement of
all of them, approximately 30 in number; and when the Respondent
again said that there was no work available, one of the union repre-
sentatives said that so far as lie was concerned, the strike was still
on. Some picketing continued during November 1946. However,
during December 1.946 and January 1947, the Respondent was in-
formed' that the strikers were ready to return to work individually
and unconditionally.
For approximately 4 months after the beginning of the strike, the
Respondent retained all the strikers on its pay roll and continued to
make certain insurance payments on their behalf. Early in Febru-
ary 1947, however, it concluded that the strike was finally terminated,
and removed the names of the strikers from its pay roll and discon-
tinued the insurance payments.
From October 29, 1946, to February 19, 1947, the Respondent neither
recalled any of the strikers, nor hired any new employees except for
certain specialized types of work. On February 19, 1947, after it had
removed the strikers' names from its pay roll, the Respondent tele-
graphed offers of jobs to five of the strikers, including the secretary-
treasurer of the Union. One of these men was hired; one rejected
the offer; two did not reply; and the fifth offer was withdrawn be-
cause of a change in the production situation.
In March 1947, the Respondent obtained contracts for the manufac-
ture of household appliances, an entirely new undertaking. To se-
cure these contracts, it found it necessary to reduce the average wage
rate from $1.29 to $1.02 an hour. It decided to make the reduction by
hiring unskilled employees as "helpers" at 90 cents an hour, rather
than by reducing wages generally. After April 1, 1947, it hired a
substantial number of employees at this 90-cent wage rate through the
United States Employment Service; in addition, it hired a few skilled
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees at higher rates of pay. It did not call back any of the
strikers, almost all of whom had earned more than 90 cents an hour,
assertedly because: (1) it did not, at any one time, have enough jobs
available to reinstate all the strikers, as the Union had demanded in
October; (2) it did not consider the new "helper" jobs equivalent to
those formerly held by.the strikers; and (3) it feared the bad effects,
from the public relations and employee morale standpoint, if it should
rehire old employees at a rate lower than that they had previously re-
ceived.3 The Respondent also contends that it did not consider any
of the strikers competent to fill the skilled positions available after
April 1.
The Trial Examiner did not credit these explanations because :
(1) the Respondent had been informed, before April 1, 1947, that
the Union was no longer insisting on the reinstatement of all strikers
at once; (2) four of the strikers had received only 90 cents an hour
before the strike and therefore would not have been reduced in pay
if they had been recalled as helpers, and others would have suffered
only a slight reduction in pay; and (3) the skilled employees hired
after April 1 included a toolmaker hired on May 28, 1947, at $1.35 an
hour, and a spray painter hired on July 14, 1947, at $1.15 an hour,
although two of the strikers, Sredniawski and Newman, had been
employed in these classifications and at substantially the same rates
of pay before the strike.4
The Trial Examiner found unsatisfactory the explanations offered
by Respondent for its failure to recall any of the strikers after April
1, 1947, and inferred therefrom that the claimants' participation in
the strike was the real reason why the Respondent failed to rehire
them. But in determining the Respondent's motive, account should
also have been taken, as the Trial. Examiner did not, of other evidence
showing the Respondent's attitude toward the strikers and the Union.
The Respondent first recognized the Union in May 1945 and there-
after bargained with it in good faith. At no time in its dealings with
the Union did it reveal any bias against the Union or its members.
In fact, the evidence indicates the contrary. Thus, despite the strike,
the Respondent continued the strikers on its pay roll for approxi-
mately 4 months after the start of the strike and paid insurance
premiums on their behalf during that period. And in IF ebruary
1947, after it had removed the names of the strikers from its pay roll,
° In its briefs to the Trial Examiner and the Board, the Respondent also mentions the
poor results of its February attempt to recall some of the strikers as a reason for its
resort directly to the United States Employment Service for new employees.
' We note, however, that William Corrigan, the toolmaker hired in May 1947, was a
former employee of the Respondent, who appears to have been hired originally on Sep-
tember 23,. 1940, a week before Sredniawski was hired, and who had been laid off only about
a month before he was rehired in 1947.
COLGATE MANUFACTURING CORPORATION 867
it offered jobs to five of them, including the secretary -treasurer of the
Union. There is no evidence to indicate why this attitude should
have changed to one of discrimination less than 2 months later.
When account is taken of the change in the Respondent 's business
necessitated by the new contract it secured in March 1947, the 6
months that had elapsed since the strikers had last worked for the
Respondent , and the poor response it received to its February call-
in of five employees , the explanation offered by the Respondent for its
failure to recall the strikers , although unconvincing in many aspects,
is nevertheless not so unsatisfactory as to compel an inference of dis-
crimination . Whatever support the unsatisfactory character of the
explanation might give toward such inference is outweighed by other
positive evidence that the Respondent did not have any bias against
the Union or the strikers . Accordingly , we find, contrary to the Trial
Examiner , that the Respondent did not discriminate against em-
ployees in violation of Section 8 (a) (3) of the Act. As the Re-
spondent has not been found to have committed any other unfair
labor practices , we shall dismiss the complaint in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondent, Colgate Manufacturing Corporation, Amityville, Long
Island, New York, be, and it hereby is, dismissed.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
alr. Vincent 41. Rotolo, for the General Counsel.
:lii. Elliott E. Ruskin, of Greenbaum , Wolf and Ernst, of New York City, and
Ali. Stanley Fowler , of Riverhead , N. Y., for the Respondent.
Mr. Benjamin Rubenstein , of New York City, for the Claimants.
STATEMENT OF THE CASE
Upon a second Emended charge filed on July 9, 1948,' by Benjamin Rubenstein,
as attorney for the 26 individuals whose names are set forth in Appendix A to
this report,' herein called the Claimants, the General Counsel of the National
Labor Relations Board' by the Regional Director for the Second Region (New
York City), issued a complaint dated June 16, 1948, against Colgate Manufac-
' The original charge was filed and duly served on September 5, 1947 and the first amended
charge was filed and duly served on September 11, 1947.
2 Several of the names of these individuals were misspelled in the complaint . The mis-
spellings were corrected by amendment of the complaint during the course of the hearing
and are spelled correctly in Appendix A.
3 The General Counsel and his representative at the hearing are herein referred to as the
General Counsel , and the National Labor Relations Board, as the Board.
857829-50-vol. 85-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turing Corporation, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) and (3), and Section 2 (6) and (7) of
the National Labor Relations Act, as amended," herein called the Act. Copies
of the complaint, the second amended charge, a notice of hearing, and an order
postponing the hearing were duly served upon the Respondent and the Claimants.
With respect to the unfair labor practices, the complaint alleges in substance :
(1) that the Claimants, employees of the Respondent, were laid off by the
Respondent on or about October 28, 1946; (2) that on and since October 28, 1946,
the Claimants applied for reinstatement to their former or substantially equiva-
lent positions and the Respondent promised to consider their applications when
work thereafter became available for them at the Respondent's plants in Amity-
ville and Lindenhurst, Long Island, New York; and (3) that, on and since April
1, 1947, the Respondent, in violation of Section 8 (a) (1) and (3) of the amended
Act, failed and refused, and has continued to fail and refuse to reinstate the
Claimants to their former or substantially equivalent positions as employees of
the Respondent, for the reason that the Claimants were members of, and assisted,
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 790, UAW-CIO (herein called the Union), and because
they participated in a strike called by the Union at the Respondent's plant on
October 14, 1946.
In its answer as amended at the hearing, the Respondent admits certain alle-
gations of the complaint but denies the commission of any unfair labor practices.
In its answer as amended, the Respondent also asserts in substance: (1) that,
due to a reduction in the Respondent's production staff necessitated by lack
of business, "there were no longer any jobs available" for the Claimants "when
they sought reinstatement upon the termination of the strike"; (2) that, since
April 1947, none of the positions nor any positions substantially equivalent to
those which had been occupied by the Claimants, have been available because
of a "complete change in the Respondent's operations and man-power require-
ments" and a reduction in the Respondent's average wage rate which was
necessitated by competition ; (3) that, in the only reinstatement requests which
were made by the Union on October 28 and October 29, 1946, the Union's repre-
sentatives "insisted throughout upon the reinstatement of all (not less than all)
the striking employees, and finally stated that they would negotiate a contract
with the Respondent only if the Respondent met their demand for reinstatement
of all the employees out on strike" ; and (4) that, "by reason of their own deliber-
ate wrongful act," the Claimants "have deprived themselves of whatever right
they may have had to reinstatement by the Respondent at the termination of
the strike on October 28, 1946 or any time since then" (a) by engaging in the
October 1946 strike in violation of a so-called interim agreement entered into
on May 18, 1945, by the Union and the Respondent; and (b) by engaging in, and
aiding and abetting, mass picketing of the Respondent's plants, picketing a
nonstriking employee's home, and ridiculing, threatening, and using physical
violence upon nonstriking employees.
Pursuant to notice, a hearing was held in New York City and Rockville Centre,
Long Island, New York, on various dates from August 24 to September 25,
1948, inclusive, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The General Counsel, the Respondent, and the Claimants
participated in the hearing and were afforded full opportunity to be heard,
4 49 Stat. 449, as amended by 61 Stat. 136.
COLGATE MANUFACTURING CORPORATION 869
to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues. At the beginning of the hearing, the Respondent moved to
adjourn the hearing until October 15, 1.948.` The undersigned granted an
adjournment until August 30, 1948. At the same time the undersigned denied
motions by the Respondent to dismiss the complaint on the grounds (a) that
the charges basic to the complaint were not filed and served within 6 months
after the unfair labor practices complained of as required by Section 10 (b)
of the amended Act ; ° that the charges of the Claimants upon which the complaint
was issued were in substance identical with previous charges of the Union
and that it did not appear that the Union had complied with the requirements
of Section 9 (f), (g), and (h) of the amended Act. During the course of the
hearing, the undersigned (a) denied a motion by counsel for the Claimants
to strike the affirmative defense set up in the Answer to the effect that the
strike of October 1946 was in breach of the interim agreement between the
Union and the Respondent; and (b) granted a motion by counsel for the Re-
spondent to amend its answer, at the same time granting a motion by the
General Counsel for a 12-day adjournment and for a bill of particulars as to
the allegations of the amendment to the answer. Thereafter, as thus directed,
the Respondent served such a bill of particulars upon the General Counsel and
counsel for the Claimants. At the end of the General Counsel's case-in-chief,
the undersigned denied a motion by the Respondent's counsel to dismiss the
complaint. On the next to last day of the hearing, the undersigned denied
a motion by counsel for the Respondent to amend its bill of particulars by
adding allegations as to unlawful conduct on the part of the Claimants during
the strike. At the conclusion of the hearing, the undersigned reserved decision
on (1) a motion by counsel for the Claimants to strike the allegations of the
Respondent's answer; and (2) a motion by counsel for the Respondent to
dismiss the complaint. These motions are now disposed of in accordance with
the considerations, findings, and conclusions hereinafter set forth. At the same
time, the undersigned granted unopposed motions by the General Counsel and
counsel for the Respondent, to amend the complaint and the answer, respectively,
to conform them to the proof in such minor matters as the spelling of names and
dates. The parties waived oral argument. Since the hearing, the undersigned
has received briefs from the General Counsel and counsel for the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, with its principal offices and places
of business at Amityville, Long Island, New York, and Lindenhurst, Long Island,
New York, is and has been engaged at these plants in the manufacture, sale, and
distribution of metal parts and metal products. In the course and conduct of
5 The case was originally noticed for hearing on August 3, 1948. The Respondent
thereupon applied to the Regional Director for an adjournment until August 24, 1948,
which the Acting Regional Director granted, thus initially bringing on the hearing before
the undersigned on the latter date as the Respondent had requested.
6It appeared from the evidence that the original charge of the Claimants was served on
the Respondent on September 5, 1947, and thus within 6 months after the effective date of
. the amended Act. See Matter of Itasca Cotton Manufacturing Company, 79 N. L. R. B.
1442 ; Matter of Vanette Hosiery Mills, 80 N. L. R. B. 1116.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its business operations during 1947, the Respondent purchased raw materials,,
consisting of aluminum, magnesium, cold rolled and stainless steel and other
materials, valued in excess of $250,000, of which approximately 90 percent was.
transported to the plants of the Respondent in interstate commerce from States
of the United States other than the State of New York. During the same year,
the Respondent manufactured products valued at more than $250,000, of which
approximately 50 percent was transported from the plants of the Respondent in
interstate commerce to points in States of the United States other than the
State of New York. The undersigned finds that the Respondent is engaged in
commerce within the meaning of the amended Act.
U. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Local 790, UAW-CIO, is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In an election conducted in May 1945 by the Board's Regional Director pur-
suant to an agreement between the Respondent and the Union, a majority of the
Respondent's employees voted to designate the Union as their exclusive bar-
gaining representative. On May 18, 1945, the Respondent and the Union signed,
a so-called interim agreement, wh ich, according to its preamble, was to be
effective until they negotiated a coi iplete agreement. This interim agreement,
full copy of which is annexed to this Report as Appendix B, merely established
grievance and arbitration procedures and provided that the Union' s repre-
sentatives among the employees should not be laid off for lack of work.
During the war, the Respondent was engaged in the manufacture of airplane
parts for the Government. Its employees were semi-skilled, were hired almost
e^_clusively through the United States Employment Service, and were divided into
appropriate descriptive classifications. On V-J (lay (August 15, 1945), prac-
tically all of the Respondent's war contracts were canceled. The Respondent
thereupon laid off all but approximately 90 of its 500 or 600 production employees
and closed 4 of its 6 plants. Thereafter it entered upon the manufacture of such
items as gift ware, penicillin trays, and radio parts in one plant at Amityville,
Long Island (where its offices were and are located) and in another plant about
3 miles away at Lindenhurst, Long Island. In spite of slack business and high
monthly losses, it maintained its production force of approximately 90 employees,
under a "make work program" in the hope of eventually securing more business.
The labor required in this peacetime production was unskilled and the em-
ployees were shifted from job to job and from plant to plant without regard to
the old job classifications although they were continued upon the pay rolls.
For roughly a year after V-J Day, the Respondent filled production job
vacancies by recalling its laid-off employees by telephone, telegram, or by notice
given through their friends. Both with reference to such recalls and minor
lay-offs, the Respondent consulted with the Union's representatives and observed
the principle of seniority, where abilities were equal, although it informed the
Union that it did not consider itself bound to do so. According to the uncon-
tradicted and credible testimony of Donald Dow, the Respondent' s personnel
manager, by approximately July 1946, he had culled the list of the laid-off em-
ployees whom the Respondent deemed satisfactory and had either, recalled such
COLGATE MANUFACTURING CORPORATION 871
men or had ascertained that they were not desirous of returning to work for
-the Respondent. For this reason, he recalled very few employees after July
1946 but resorted again to the United States Employment Service. However,
it is apparent, as the Respondent admits in its brief and the undersigned finds,
that although the Respondent did not obligate itself, it regarded it to be its
established practice to recall satisfactory laid-off employees rather than to hire
new ones. Accordingly, when its contract negotiations with the Union lagged
in October 1946 and a strike was imminent, it stated in a letter outlining its
position to its employees that even "before there was a union," the Respondent
had given consideration to seniority as well as to ability and, that in order to
"retain these principles," it had proposed to the Union that "where ability, effi-
ciency and qualifications are relatively equal, then the length of services with
the Company shall govern rehiring and lay-offs.
In spite of prolonged negotiations, the Respondent and the Union were unable
to agree upon the terms of a general contract. On October 14, 1946, approxi-
mately 60 of the Respondent's 90 production employees went on strike in support
of the Union's bargaining demands-a strike which the General Counsel con-
cedes was not occasioned by any unfair labor practices on the part of the
Respondent. By October 24,.the Respondent had hired 15 employees to replace
strikers, and 30 of the strikers had also returned to work. The Respondent,
having been over-staffed since V-J Day, then decided that with the nonstriking
-employees, the 30 returned strikers and the 15 replacements, it had a sufficient
number of employees for its production purposes. The General Counsel does
not challenge either the reasonableness of this decision under the circumstances
nor the good faith of the Respondent in making it during the strike, although, as
will. be seen, it resulted in the Respondent's refusing immediate reinstatement
to the remaining strikers.
On Monday morning, October 28, 1946, pursuant to a vote at a union meeting
held on October 25, the striking employees gathered in the yard of the Re-
spondent's Amityville plant prepared to go to work, while the Union President
Philip Sparacino (himself one of the strikers) entered the office and informed
Personnel Manager Dow that the strike was over and the men wanted to come
back to work. Dow told Sparacino that there was no work available. On the
following day, October 29, Sparacino, together with International Representa-
tives Kerrigan and Schiller' met at the office of the Respondent's attorneys with
Dow and Treasurer Anderson of the Respondent,s and upon the Union's repeated
request that the strikers be reinstated, were again told that there was no work
:available. Thereupon, International Representative Kerrigan said that as far
as he was concerned, the strike was still on.
There is a dispute as to whether at these meetings on October 28 and 29, the
Respondent promised that it would recall the strikers when work became avail-
able, and also as to whether the Union conditioned the return of the strikers
upon the Respondent's reinstatement of all of them. On the first of these
points, Sparacino testified that the Union's representatives were told by Dow
.at the October 28 meeting and by Anderson at the October 29 meeting, that
when work became available, the strikers would be recalled. Denying that
either lie or any other representative of the Respondent had promised to recall
or to consider the strikers for reemployment when work should become avail-
7 There were also several other representatives of the Local and the International
present but there is no evidence that they took part in the conversation.
8 Several other officials and attorneys of the Respondent were also present but here again
there is no evidence that they participated in the discussions.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able, Dow testified that he informed the Union's representatives merely that
the Respondent "would do everything it was required to do by law." But, in
a letter written on November 12, 1946, Anderson, the Respondent's treasurer,
told the Board's Field Examiner, who had been entrusted with the investigation
of the matter, that the Respondent "has advised the Union that it will consider
the striking employees, who are now out of work, and have not quit or resigned
or obtained employment elsewhere, for reinstatement if and when work becomes
available for them later." Furthermore, Dow at another point in his testimony,
said that he considered the strikers as having been laid off on October 28, 1940
Presumably, then, in accordance with the Respondent's established practice,
they would have been recalled when needed. The undersigned, therefore, credits
the plausible testimony of Sparacino that the Respondent, through Dow and
Anderson, did in fact promise to recall the strikers when further help was
needed.
Both Sparacino and Dow, in their testimony concerning the meeting of Oc-
tober 28, agreed that at that meeting there was no discussion of, nor any refer-
ence to, the possibility that some, but not all, of the strikers might be reinstated.
The undersigned rejects the argument made by Respondent's counsel at the hear-
ing, that by failing specifically and affirmatively to suggest this possibility and
its acceptability to the Union, the Union conditioned its offer to return the
strikers to work upon the Respondent's reinstatement of all of them. At the
meeting on October 29, however, the possibility of limited reinstatement was
apparently discussed, although the evidence is in conflict as to what was said.
Sparacino testified that the Union did not insist that any particular number
of the strikers be taken back to work and that International Representative
Kerrigan told Anderson, "he didn't care when he put them back to work or
how he put them back to work, but that he would like to have them go back to
work." On the other hand, Dow testified that on October 29, International
Representative Kerrigan "made the statement that before any negotiation was
entered into, the Union insisted upon the reinstatement of some 26 people, I
believe it was, and that was a condition to further bargaining." That the
Union thus insisted upon the reinstatement of all the strikers is supported by
testimony given by International Representative Schiller in a proceeding
brought by the Respondent against the Union in the New York Supreme Court
to enjoin arbitration under the interim agreement of the strikers' claims to re-
instatement. In that proceeding, Schiller testifying for the Union, stated that
"there was a certain few people whom the Company said they would not take
back to work, and we said therefore, that as far as we were concerned there
was nothing that we could do, we wanted all the people back to work." Although
Dow in his testimony denied that the Respondent had thus objected to rein-
stating specific strikers, his testimony and that of Schiller in the New York
proceeding 1p reliably indicates that the Union at the meeting of October 29 did
in fact condition the return of any of the strikers upon the Respondent's re-
instatement of all of them. The undersigned so finds.
From October 29, 1946, until February 19, 1947, the Respondent neither re-
called any of the strikers nor hired any new employees except for specialized
types of work. Dow testified that during this period he believed that the strikers
were still persisting in their strike and he continued the names of the strikers
0 The statement was made specifically as to Thomas Moeller (incorrectly spelled in the
transcript at several points as "Muller") who, as will be seen, was the only one of the
strikers actually reemployed by the Respondent after the strike.
10 Neither Schiller nor Kerrigan was called as a witness in the present proceedings.
COLGATE MANUFACTURING CORPORATION 873
on the Respondent's pay roll and made the Respondent' s usual insurance pay-
ments on their behalf as continuing employees. According to his testimony, his
belief that the strike had not been terminated but was being continued was
based not only on Kerrigan's statement to that effect on October 29, 1946, and
on the Union' s conditioning the return of any strikers at that time upon the
reinstatement of all the strikers, but also upon the undisputed fact that for
a short time in November 1946, Strike Committeeman Richter, and perhaps
several other strikers, stood around the Amityville plant displaying a sign stating
that the Respondent had locked them out. However, during the months of
December 1946 and January 1947, in a proceeding brought by the strikers in the
Unemployment Compensation Division of the New York State Labor Department
and also in the New York Supreme Court injunction proceeding , which had
already been mentioned, the union officials, including Kerrigan, Schiller, and
Sparacino, testified in the presence of Dow that the strike had been terminated,
and the strikers had been willing and ready to return to work since October
28, 1946. Furthermore, according to Sparacino's uncontradicted testimony
which the undersigned credits, he asked Anderson, the Respondent' s treasurer,
in the presence of one of the Respondent's attorneys, during a recess in the
unemployment compensation hearing, why the Respondent did not put some
of the men back to work, to which Anderson replied that there was no work
for them. According to Dow, being convinced by February 1947 that the strike
was no longer current, he thereupon removed the strikers' names from the
Respondent's pay roll and discontinued the Respondent's insurance payments on
their behalf.
On or about February 19, 1947, Dow telegraphed an offer of jobs to 5 of the
strikers, none of whom had made an individual application for reinstatement.
Of these 5 strikers who were thus offered jobs, Thomas Moeller accepted the
job and went back to work for the Respondent on March 3, 1947; Thomas Ma-
loney rejected the job offer ; William Hewlett and Don Earle failed to answer
the offer ; and Ray Knowles, before he could accept the offer, received a notice
from the Respondent canceling it because of a change in the Respondent's pro-
duction situation. Thus, by the beginning of April 1947, of the 30 employees
who had been on strike on the preceding October 29, 1 of them (Moeller) had
been reinstated, and 3 of them (Maloney, Hewlett, and Earle) had either
rejected or failed to answer the Respondent's offer of reinstatement. As a
result, on April 1, 1947, there were still 26 strikers, including Knowles and the
other claimants named in Appendix A, to whom the Respondent made no firm
offer of reinstatement. Moreover, by this time, 13 of the 15 employees hired by
the Respondent during the strike as replacements of the strikers had either
quit, or had been discharged or laid off. By May 2, 1947, one of the remaining
two of these replacements had quit and the other had been discharged.
On April 1, 1947, the Respondent began hiring new employees to enable it to
fulfill new contracts, the principal one being a contract to manufacture house-
hold appliances for the Landers Frary and Clark Company of New Britain,
Connecticut. In order to meet the low price demanded by the Landers Com-
pany, the Respondent reduced its existing average wage rate of $1.29 per hour
to an average of $1.02 per hour. It chose to reach this average not by reducing
the wage rate of any of its current working force but by hiring new unskilled
employees at the flat rate of 90 cents per hour. Accordingly, from April 1, 1947,
until September 1, 1947, the Respondent hired 52 new unskilled production
employees at 90 cents per hour in a new general classification known as
"helpers," through the United States Employment Service and the Placement
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Division of the New York State Department of Labor. Twenty-six of these
"helpers" were hired between April 1, 1947, and July 25, 1947. After April 1,
1947, the Respondent also hired a number of skilled employees under special
classifications, such as a tool maker, who was hired on May 28, 1947, at $1.35
an hour. and a spray painter, who was hired on July 1.4, 1947, at $1.15 an hour.
It should be noted that among the strikers who were not reinstated, were
Joseph Sredniawski who had worked for the Respondent until the strike as a
tool maker at $1.35 per hour, and Robert J. Newman, who had worked for the
Respondent until the strike as a spray painter and heat-treater at $1.20 per hour.
Thus, there were two strikers who performed work of these specialized types
at the same and approximately the same wage rates as new employees hired
after April 1, 1947. Furthermore, according to Dow's testimony, the work of
the "helpers" hired since April 1, 1947, was of the type which the strikers were
capable of performing. In spite of those facts none of the strikers was recalled
to work.
In explanation of the Respondent's failure to recall any of the strikers, Dow
testified that the Respondent feared unfavorable publicity and a depressing
effect upon plant morale if it recalled former employees at a lower wage rate
than they had previously received, and also that, because of the lower wage rate,
the new positions were not substantially equivalent to those which the strikers
had occupied. Although Dow as personnel manager participated in the Re-
spondent's decision not to recall the strikers for these reasons, he testified
that he did not examine the Respondent's records to ascertain what the wage
rates of the strikers had been. From these records, it appears that four of the
Claimants named in Appendix A had earned only 90 cents per hour before
the strike," while five had earned 95 cents per hour,'2 and two others $1.00 per
hour.l3
B. Conclusions
On October 28 and 29, 1946, the Respondent, in accordance with its established
practice, promised that when work became available, it would recall the strikers
(including the 26 Claimants) for whom it then had no work and whom it re-
garded as "laid-off" employees. But the Respondent has failed to recall the
Claimants, although on and since April 1, 1947, it has hired 52 new employees
for production work: which the Claimants were admittedly capable of perform-
ing. Unless satisfactorily explained, the Respondent's apparent departure from
its promises and general custom in thus failing to recall the Claimants, consti-
tuted discrimination against them because of their participation in the strike
of October 1946."
The Respondent contends in substance that it omitted recalling the Claimants,
not because of their participation in the strike and its activities,35 but (1) be-
" Neal Carlton , Paul Feustal , Rudolph Gonzalez , and Lawrence Murdock.
12 Joseph Corrigan , Raymond Knowles, Austin Piazza , Joseph E . Smith, and Franklin
Smith.
' 3 Gerard Cockerill and Seraphin Van Driessclae.
14 Matter of American Bread Company, 51 N. L. R. B . 1302 ; Container Manufacturing
Corporation, 75 N. L. R. B. 1082 ; Matter of Brezner Tanning Co ., Inc., 50 N . L. R. B. 894.
15 It is true that the Respondent contends that the Claimants lost their right to reinstate-
ment because the strike was in violation of the interim agreement of May 18 , 1945 , and also
because they participated in or aided and abetted , the commission of illegal acts during the
strike . However, from Dow ' s testimony , as well as from the Respondent ' s answer and the
explicit statements of its counsel in the hearing , it appears that neither of these possible
grounds relating to strike activities entered into the Respondent ' s decision not to recall
the Claimants after April 1, 1947, but that they are urged by the Respondent solely as bars
COLGATE MANUFACTURING CORPORATION 875
cause the Union had conditioned the return of the strikers upon the Respondent's
reinstatement of all of them, which was impossible at any given time; (2) be-
cause recall of the Claimants to the lower paid jobs which became available
would have resulted in unfavorable publicity and a lowering of plant morale ;
and (3) because the jobs which became available after April 1, 1947, were not
substantially equivalent to those which the Claimants held before the strike.
Upon the facts disclosed by the record, the undersigned finds no justification
in the first of these explanations by the Respondent for its failure to recall the
Claimants after April 1, 1947. It is true that on October 29, 1946, the Union
conditioned the return of the strikers upon the Respondent's reinstatement of
all of them. From this fact, as well as from International Representative Kerri-
gan's statement on that day, the Respondent was then justified in its belief that
the strike still continued. Furthermore, so long as both the Union and the
individual strikers continued their insistence upon the mass reinstatement of
the strikers, the Respondent was clearly excused from offering reinstatement to
any of the strikers, since it appears from the record that at no time was there a
sufficient number of vacant jobs for all the remaining strikers 36 But, during
December 1946 and January 1947, the Respondent received notice from the
testimony of various union officials and several of the Claimants in the unemploy-
ment compensation and injunction proceedings that the strike had ceased, that
neither the Union nor the strikers insisted upon a mass reinstatement, and that
the strikers were willing to return to work when, and as, their services might be
required. At the same time, during a recess in the unemployment compensation
hearing in January 1947, the Union's President Sparacino asked Treasurer Ander-
son why the Respondent did not put some of the men back to work. Although
Dow stated in his testimony that the Respondent did not take these statements
by the union people seriously since they were "self-serving" in view of the pending
compensation and injunction proceedings, the Respondent's apparent reaction
proves otherwise. For, according to Dow, the Respondent was then convinced
that the strike was over and therefore immediately removed from its pay roll
the names of the strikers whom it had been carrying as "laid-off" employees.
Furthermore, within the next few weeks, the Respondent sent recall notices to
five of the strikers, thereby indicating its expectation that the strikers would
individually return to work in accordance with Sparacino's unconditional rein-
statement request in January and the consistent statements of the union witnesses
in the compensation and injunction proceedings. Upon these facts, it appears that
by February 1947, the Union had made clear to the Respondent that it had
withdrawn its insistence upon a mass reinstatement of the strikers, and had
specifically and unconditionally requested the Respondent to reinstate such
strikers as it could. Accordingly, the undersigned rejects the Respondent's
contention that, when it began hiring new employees less than 2 months later, it
omitted recalling any of the strikers because it still believed that none of them
would return to work unless all were reinstated.
The other two reasons advanced by the Respondent for its failure to recall the
Claimants are also unsatisfactory. The evidence indicates no substantial differ-
ence between the work done by the "helpers" employed after April 1, 1947, and
the work done before the strike by the old employees, including the Claimants,
to an order requiring the Respondent to reinstate the Claimants and to indemnify them for
loss of earnings. The nature and effect of the Claimants' strike activities are therefore
discussed below in the section of this report dealing with "The Remedy."
"Matter of V-0 Milling Co., 43 N. L. R. B. 348; -fatter of Omaha and Council Bluffs
Street By ., 18 N. L . R. B. 82.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since in both cases the work was unskilled and all the employees floated from
task to task. The Respondent stresses the generally lower wage rate of 90 cents
an hour which it paid to the helpers, arguing, as Dow testified, that because of
this lower wage rate, the Respondent not only concluded that the new jobs were
not substantially equivalent to the Claimants' old jobs, but also that it feared that
recalling the Claimants would result in unfavorable publicity and a lowering of
plant morale. But, although professing to be governed solely by these considera-
tions, the Respondent excluded from recall even the four Claimants who had
earned only 90 cents per hour before the strike, without bothering to check their
prestrike wage rates. Furthermore, instead of recalling Claimants Sredniawski
and Newman to their previous, skilled jobs as spray painter and tool maker, respec-
tively, the Respondent hired new employees for these jobs at the same and
approximately the same wage rates. Certainly, by the Respondent's own stand-
ard, these six Claimants should have been recalled. In the opinion of the under-
signed the Respondent's failure to recall these six claimants discredits its expla-
nations not only with respect to them but with respect to all the Claimants as a
class.
Since the Respondent has failed to offer any satisfactory explanation for its
departure from its promises and established practice in failing to recall the
'Claimants to the jobs which became available on and after April 1, 1947, the
undersigned finds that by thus failing to recall Claimant Sredniawski to the
job of tool maker on May 28, 1947, by failing to recall Claimant Robert J. New-
man to the job of spray painter on July 14, 1947, and by failing to recall the
other Claimants to the various other jobs which became available on and after
April 1, 1947, the Respondent, in violation of Section 8 (a) (1) and (3) of the
amended Act, discriminated with respect to their hire and tenure of employ-
ment, thereby discouraging membership in the Union and interfering with, re-
straining, and coercing its employees in the exercise of the rights guaranteed in
:Section 7 of the amended Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section 1, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
.among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the amended Act,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the amended Act.
The undersigned has found that the Respondent discriminated against the
Claimants named in Appendix A by failing to recall them to jobs which became
available on and after April 1, 1947, thereby discouraging membership in the
Union, a labor organization within the meaning of the Act. The Respondent con-
tends, however, that the Claimants lost their right to reinstatement and in-
demnity for loss of earnings (1) because the strike of October 1946, in which
the Claimants participated, violated the interim agreement of May 18, 1945,
between the Respondent and the Union ; and (2) because the Claimants par-
ticipated in, or aided and abetted, the commission of illegal acts during the strike
consisting of (a) the picketing of the home of nonstriking employee Ruth
COLGATE ]MANUFACTURING CORPORATION 877
'Thorpe by strikers Mary Kern and Elizabeth Hussey; (b) threats made by
(claimants Angelo Vacca and Gunnar Niklasson against nonstriking employee
Charles Ellis on the picket line and also at Ellis' home; (c) a threat made by
Union President Sparacino against nonstriking employee George Brown at
Brown's home; and (d) mass picketing.
We turn now to • a consideration of each of these contentions and relevant
,evidence.
As has already been noted, the interim agreement, full copy of which is an-
nexed as Appendix B, provided merely for grievance and arbitration procedures
and the immunity of union officials from lay-off until a full agreement could be
negotiated between the Union and the Respondent. Its provisions are clear and
unambiguous ; they purport to express the full extent of the parties' agreement
at the moment, leaving other matters to future negotiation ; and they contain
no reference to any agreement that there should be no strikes. Yet, the Re-
spondent contended at the hearing and still contends in its brief, that the in-
terim agreement was in effect a no-strike agreement and offered testimony,
which the undersigned rejected on the General Counsel's objection, to show that
this was the intention of the parties as disclosed by their discussions during the
negotiation of the agreement. The undersigned rejects this contention, and re-
affirms his ruling on the offer of evidence. In view of the clarity of the
language, the written instrument must be regarded as the embodiment of the
.complete agreement of the parties. Furthermore, as the Board has recently
.held in its construction of a similar agreement, a waiver by employees of the
right to strike must itself be express and clear and is not to be implied from pro-
visions which, like those of the interim agreement in the present case, merely
establish arbitration and grievance procedures.' Accordingly, the undersigned
xejects the contentions of the Respondent that the strike of October 1946, was
in violation of a no-strike agreement between the Union and the Respondent,
and finds, therefore, that the Claimants' participation in the strike did not cost
them their right to reinstatement's
As to the picketing of Ruth Thorpe's house, there was no factual dispute. The
only witness as to this incident was Valentine `Vernersbach, the captain of the
Respondent's plant guards, who testified that on the morning of October 17, he
had seen strikers Mary Kern and Elizabeth Hussey walking back and forth in
front of Thorpe's home carrying signs with the legends, "Ruth Thorpe, unfair to
organized labor-CIO," and "Colgate, unfair to organized labor-CIO." Neither
Mary Kern or Elizabeth Hussey is a Claimant in the present case. The respond-
ent argues, however, that the Claimants as strikers are collectively responsible
for improper conduct on the part of any of their fellow strikers. The under-
signed rejects this argument and finds that the picketing of Ruth Thorpe's home
by strikers Kern and Hussey, whether improper or not, does not affect the indi-
vidual rights of the Claimants to reinstatement.
Charles Ellis, a man about 70 years old, who was employed by the respondent
as a porter in the Amityville plant, testified as to the threats allegedly made
17 Matter of Dorsey Trailers Inc., 80 N. L. R. B. 478, 23 LRRM 1112, decided November
22, 1948.
18 In these conclusions, and in his rejection of the Respondent's 'offer of evidence as to
intention, which are in accord with the Board's decision in the Dorsey case (supra), the
undersigned respectfully disagrees with Mr. Justice Steinbrink of the New York Supreme
Court who, in an unreported opinion granting an injunction to the Respondent against the
Union's resort to the arbitration provisions of the iterim agreement on the question of the
strikers' reinstatement, found that the agreement constituted a no-strike agreement, and
that the strike of October 1946 was in breach thereof.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him by Claimant Angelo Vacca as Ellis came up to the picket line to go
to work on Monday, October 14, the first day of the strike, and also when Vacca
visited him with Claimant Gunnar Niklasson at his home on Monday and
Tuesday afternoons of the following week. As to the first occasion, Ellis testified
that, as he left the taxicab in which he usually came to work, Vacca approached
him from the picket line and asked, "Where are you going?" and that, to Ellis'
statement that he was going to work, Vacca then said, "You can't go to work.
If you want to stay here, you will have to picket." According to Ellis, he returned
°home and stayed away from work until Monday morning, October 21, when he
returned to work in a police car.19 On that afternoon, and also on the following
afternoon, Claimants Vacca and Niklasson visited him at his home. According
to Ellis, on the first of these two afternoons Vacca said to him, "Don't you go
down to the plant tomorrow" but Ellis refused to make any promise to that
effect. As to the conversation on the second afternoon, Ellis testified that Vacca,
remarking that he had seen Ellis at work in the plant that day, said, "You
oughtn't be there. Things can happen to you, just like that." Loth Vacca and
Niklasson denied that either of them had made any such statements to Ellis.
Vacca denied having spoken to Ellis on the picket line, although Niklasson testi-
fied that he "thinks" that Ellis spoke with Vacca at the time, although he could
not hear anything that was said. As to their visits to Ellis' home in the second
week of the strike, Vacca and Niklasson testified that, on the morning of the first
of these days, Monday, October 22, they were told by a tool maker named Brand,
that it was rumored that Ellis had been beaten up by the strikers; that, being
disturbed and indignant at the possible truth of this report, they decided to see
Ellis, who had worked alongside Vacca and with whom Vacca was very friendly ;
that they thereupon visited Ellis at his home on Monday, October 21, and asked
him whether the report was true ; that Ellis told them nothing had happened to
him but that he had stayed home because he was sick; that, seeing Ellis come to
work the next clay, they again visited him that afternoon and attempted to per-
suade him to join the strike but that he had refused to do so; and that thereafter
they had not spoken further with Ellis about the matter. Although Ellis orig-
inally testified in the detail set forth above, he later summarized the substance of
Vacca's statement and Niklasson's statements to him as being "they just told me
not to go to work. That's all." On this state of the record, the undersigned
credits the testimony of Vacca and Niklasson, and finds that the statements made
to Ellis constituted, at most, attempts to persuade Ellis as a fellow employee to
join the strike and were devoid of threats.
The incident in which Union President Sparacino allegedly threatened non-
striking employee George Brown at his home, appears to the undersigned to
have been quite similar. On Monday, October 21, the beginning of the second
week of tl e strike, Brown, a union member who had refused to talk to Sparacino
on the picket line that day," drove home from his work at the Lindenhurst plaint
and was followed in another car by Sparacino and Claimants Murdock and New-
man. At Brown's home, Sparacino (accompanied by Murdock, but leaving
Newman in the car) hailed Brown and asked why Brown had continued to work
in spite of the strike. Brown testified that Sparacino also asked him to stay
away from work the next day, that, upon Brown's refusal, Sparacino said, "If
you go back, next month you will be out of work and we will be back . . .
If you continue to work, something will happen to you for which you will be
10 Ellis did not request a police escort. According to Ellis all he knew was that the
police came with an envelope containing money from "the boys" at the plant.
20 This particular finding is based on the uncontradicted credible testimony of Sparacino_
COLGATE MANUFACTURING CORPORATION 879
sorry," and then added, as Brown's daughter summoned him to dinner, "You
wouldn't want anything to happen to [your child] would you?" and threatened
to picket Brown's home. Sparacino denied having said that something would
happen to Brown or his children or that he would picket Brown's home. He
testified that, on the contrary, he merely asked Brown why he did not support
the strike, and, to Brown's reply that lie had a family to support, said that all
the men on the picket line had families to support. Murdock corroborated
Sparacino's testimony as to the substance of this conversation, although he ad-
mitted that he did not hear all of it since he briefly left the two men to see
what kind of home Brown had. The undersigned credits Sparacino' s denials
of the threats attributed to him by Brown and finds, in accordance with Spara-
cino's testimony, that Sparacino, without making any threats, merely attempted
to persuade Brown, another union member, to join the strike.
The Respondent's remaining contention that "mass" picketing bars reinstate-
ment of the Claimants is based upon the testimony of Personnel Manager Dow
and Captain Wernersbach concerning the conduct of the pickets at the auto-
mobile entrance to the Lindenhurst plant, principally on Tuesday, October 22,
during the second week of the strike. It is undisputed that, during the strike,
these pickets walked in an oval, or circle in front of this entrance and that,
having been summoned by the Respondent even before the strike began, police-
men were always present. Furthermore, there were no arrests, nor is there any
testimony as to violence or threats on the part of the Lindenhurst pickets. Dow
testified that throughout the strike, these pickets included Claimants Belmont,
Kehoe, Murdock, Richter, Joseph-Smith, and Sparacino; that they walked about
a foot apart; and that as nonstriking employees approached on foot or in cars,
they would be stopped by the "close order" of the pickets, until the police parted
the latter. Wernersbach testified only as to the stoppage of cars on the morning
of October 22. His testimony was that there were then approximately 25
pickets on the line in front of the automobile entrance; that the only Claimants
who were there were Knowles, Murdock, and Sparacino; 21 that, on the approach
of each of seven or eight cars, the pickets, who had been patrolling with a dis-
tance of about 4 feet between them, closed ranks in front of the car, stopping it;
that some of the pickets, including Knowles and Murdock, but not Sparacino,
"tried to place their shoulders" against the front of the cars ; and that when this
had happened twice, the police thereafter parted the pickets as a car approached
and was stopped. After having thus stated that the pickets "tried" to put
their shoulders against the cars, Wernersbach testified that they did put their
shoulders against the cars. Furthermore, in describing the action of the police,
Wernersbach testified on direct examination that they "busted open" the pickets'
circle, and that"on oxe occasion" they "got right in there and shoved [the pickets]
out of the way." But then on cross examination, after again saying that the
police had "shoved" the pickets, he testified that the police "didn't push them,
they put up their hands and waved them apart." Later, however, he again
testified that the police "pushed [the pickets] forcibly aside."
None of the policemen who were on duty at the Lindenhurst plant was called
to testify. Union President Sparacino, although a witness, did not testify as to
the picket line activities at Lindenhurst. The only witness produced by the
General Counsel to testify as to what happened on the Lindenhurst picket line
was Claimant Lawrence Murdock. He testified that throughout the strike, the
21 When the names of all the Respondent's employees, including the Claimants, were read
to him by Counsel, Wernersbach stated specifically that with the exception of Knowles,
Murdock, and Sparacino , none of the Claimants were on the picket line that morning.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets walked in front of the entrance with distances between them varying:
from 4 to 8 feet depending upon the number of the pickets on the line at the time ;
that the pickets never closed their ranks upon the approach of an automobile;
that, as a company truck came up to the entrance on the first morning of the-
strike, they continued marching across in front of it; that, thereafter, on the-
approach of every car, the police stepped between them and put up their arms,
whereupon the pickets stopped to permit the car to pass through, and resumed
their patrol only after the police stepped aside ; that in thus forming an "alley-
way" for the car's entrance, the police may have "brushed" against a picket;.
that he never touched a car while on the picket line; and that, on the morning-
of October 22 dealt with in Wernersbach's testimony, there were 10 to 13 pickets
at the plant entrance including himself and the following other Claimants:
Knowles, Kehoe, -Maloney, Carlton, Feustal, Gonzalez, and Sparacino.
The undersigned credits Murdock's version of the picketing at the Linden-
hurst plant. Wernersbach displayed an obvious tendency to exaggerate con-
cerning the conduct of the pickets and the police measures which he intimated
were thus made necessary as is illustrated by the excerpts already quoted from
his testimony. This tendency, incidentally, was also observed by the under-
signed in the testimony of Ellis and Brown as to the incidents previously dis-
cussed. There is also other support in the record for the general impression
that, for the purpose of defeating the Claimants' right to reinstatement, the
Respondent and its witnesses were disposed to magnify and distort incidents
which occurred during the strike, and, in fact, did so at the hearing. Thus,
even before the picketing started, the Respondent, with no reason to anticipate
violence so far as the record shows, had police detailed for strike duty at each
of its plants. Yet, in spite of the "pushing" and "shoving" of the pickets by the
police which Wernersbach. testified was necessitated by the conduct of the
pickets, there were no arrests and none of the policemen was produced at the
hearing to give his disinterested version of what had happened. Finally, al-
though in its original answer to the complaint, the Respondent specially pleaded
the breach of the interim agreement as a defense to the reinstatement of the
Claimants, it waited until 6 days of the hearing had passed, and until almost
the termination of the General Counsel's case, before it added to its answer, by
amendment, the further defense that the strike conduct of the Claimants also,
barred their reinstatement. At the time of amendment, counsel for the Respon-
dent explained that it had omitted this latter defense only because of an abso-
lute faith in the defense resting upon the breach of contract and that the
amendment was made in view of the unfavorable rulings of the Trial Examiner
in excluding testimony explaining and amplifying the interim agreement. The
undersigned, however, cannot thus lightly appraise the omission by counsel from
its pleading of a substantial defense, the basic facts of which had admittedly
been known to them for almost 2 years. Upon these considerations, the un-
dersigned feels that, consistent with Murdocks' testimony and contrary to that
of Wernersbach and Dow, the strike activity of the Claimants was peaceable
and not obstructive. Crediting Murdock's version, therefore, the undersigned
specifically finds that, except for the attempted prevention of the entrance of a
truck on the first day of the strike, the pickets, promptly obeying signals from the
police, permitted every car which thereafter appeared, to enter the plant without
delay. While the exclusion of the truck on the first day was undoubtedly im-
proper, it was an isolated incident which was not repeated and should not,
in the opinion of the undersigned, bar any of the pickets from reinstatement.
However, even if the Respondent's contentions were regarded as supported
by the evidence and normally sufficient to bar the Claimants' right to reinstate-
COLGATE MANUFACTURING CORPORATION 881
ment, it appears to the undersigned that the Respondent, by its treatment of
the Claimants, has waived its objections. It will be recalled that in February
1947, the Respondent offered reinstatement to Knowles and Maloney, two of
the Claimants who participated in the typical alleged misconduct along the picket
line . Furthermore, according to Dow's testimony, Respondent carried all of
the Claimants on its pay roll as "laid-off employees" and, as has been found,
promised to reinstate them when work became available. It thereby treated
them as employees temporarily unemployed for lack of work." For this addi-
tional general reason, the undersigned is of the opinion that, even assuming that
the misconduct alleged by the Respondent had occurred, the Respondent waived
its rights to object to the reinstatement of the Claimants.'
Upon the foregoing considerations, the undersigned perceives no grounds.
for withholding reinstatement from the Claimants. He, therefore, recommends
that, in order to effectuate the policies of the Act by a full dissipation of the
effect of its unfair labor practices in discriminatorily refusing to recall the
Claimants to the jobs which became available on and after April 1, 1947„
the Respondent offer each of the 26 Claimants named in Appendix A his former
position, or a substantially equivalent position 2' that he would have occupied
but for the Respondent's discrimination, without prejudice to his seniority or
other rights and privileges, dismissing, if necessary, any employees hired in such
positions since April 1, 1947. It is also recommended that the Respondent
make whole the aforesaid Claimants for any losses of pay that they may have
suffered by reason of the Respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount that he normally
would have earned as wages from the date when he would have been reinstated
by the Respondent, absent discrimination, to the date of the offer of employment
less his net earnings during such period.-5 It is further recommended that the
Board, upon the issuance of an order in accordance with these recommendations,
reserve the right to modify these provisions, if modification is made necessary
by a change of conditions in the future, and to make such supplements thereto
as may hereafter become necessary in order to define or clarify their application
to a specific set of circumstances not now apparent."
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 790 , UAW-CIO , is a labor organization within
the meaning of Section 2 (5) of the amended Act.
2 Matter of Dorsey Trailers , Inc., supra.
25 Matter of Dorsey Trailers, Inc., supra; Matter of Fafnir Bearing Co., 73 N. L. R. B.
1008; Matter of E. A. Laboratories, Inc., 80 N. L. R. B. 625 ; Matter of Carey Salt Company,.
70 N. L. R. B. 1099.
y' In accordance with the Board ' s consistent interpretation of the term , the expression'
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially equivalent
position." See Matter of Chase National Bank of the City of New York, San Juan, Puerto,
Rico, *Branch, 65 N. L. R. B. 827, 829.
25 See Matter of Crossett Lumber Co ., 8 N. L. R . B. 440 , and Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
26 Matter of Container Manufacturing Co., 75 N. L. R. B. 1082, 1089; Matter of Fair-
mont Creamery Co., 64 N. L. R. B. 824 ; see also, N. L. R. B. v. New York Merchandise
Co., 134 F. 2d 949 (C. A. 2) ; International Union v. Eagle-Picher Mining & Smelting:
Co., 325 U. S. 335.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment of the
individuals named in Appendix A, attached hereto, thereby discouraging mem-
bership in International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, Local 790, UAW-CIO, the Respondent has
engaged, and is engaging, in unfair labor practices within the meaning of Section
8 (a) (3) of the amended Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the amended Act, the Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (3) of the amended Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the amended Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the Respondent , Colgate Manufacturing
Corporation , its agents , successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, Local 790 , UAW-CIO,
or in any other labor organization of its employees , by discriminating in regard
to their hire or tenure of employment , or any term or condition of their
employment ;
(b) In any other manner interfering with , restraining , or coercing its employees
in the exercise of the right to self-organization , to form labor organizations, to
join or assist International Union, United Automobile , Aircraft and Agricultural
Implement Workers of America , Local 790, UAW-CIO, or any other labor organi-
zation, 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 amended Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the amended Act :
(a) Offer the 26 individuals listed in Appendix A immediate and full employ-
ment at the same or substantially equivalent positions at which they would have
been employed but for the Respondent 's discrimination against them , without
prejudice to their seniority and other rights and privileges , in the manner set
forth above in the section of this report entitled , "The remedy" ;
(b) Make whole the individuals listed in Appendix A for any loss of pay they
may have suffered by reason of the Respondent ' s discrimination against them, by
payment to each of them of a sum of money equal to the amount which he
normally would have earned as wages during the period from the date of the
Respondent 's discrimination against him to the date of Respondent ' s offer of
employment , less his net earnings during such period;
(c) Post at its plants in Amityville and Lindenhurst , copies of the notice
attached hereto, marked "Appendix C." Copies of such notice , to be furnished
by the Regional Director for the Second Region, shall , after being signed by the
Respondent 's representative , be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter in
conspicuous places , including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any other material ;
COLGATE MANUFACTURING CORPORATION 883
(d) 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 the Respondent shall, within ten (10)
days from the receipt of this Intermediate Report, notify the Regional Director
for the Second Region in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,.
file with the Board, Rochambeau Building, Washington 25, D. C.,, an original
and six copies of a statement in writing setting forth such exceptions to, the In-
termediate Report and Recommended Order 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 six copies of a brief in support thereof ; and
any party may, within the same period, file an original and six copies. of a brief
in support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs,' the party filing
the same shall serve a copy thereof upon. each of the other parties. Statements
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and, shall be legibly printed or mimeographed, and, if mimeo-.
graphed, shall be double spaced. Proof of service on the other parties: of all
papers filed with the Board shall be promptly made as req-Ared by Section 203.85.
As' further provided in said Section 203.46, 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 service of the order transferring
the case to the Board.
In the event no statement of exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, conclu-
sions, and order, and all objections thereto shall be deemed waived for all
purposes.
bated at Washington, D. C. this 21st day of December, 1948.
WILLIAM F. SCHARNIKOW,
Trial Examiner.
Matthew Belmont
Joseph Bernagozzi
Caesar Bernagozzi
Neal Carlton
Gerard Cockerill
Joseph Corrigan
Joseph Elppedio
Paul Feustal
Rudolph Gonzales
Herbert, F. Kehoe
Raymond Knowles
Lawrence Murdock
Robert J. Newman
857829-50-vol. 85-57
APPENDIX A
Gunnar Niklasson
Clinton Pettit
Austin Piazza
John H. Richter
Joseph E. Smith
Franklin Smith
Philip Sparacino
Joseph Sredniawski
Benjamin Stetz
Frank J. Tomek
Angelo Vacca
Seraph in . P. Van Driessche
Thomas White
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
AGREEMENT made this 18 day of May, 1945, between COLGATE AIRCRAFT
CORPORATION, hereinafter referred to as the Employer and INTERNA-
TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, UAW-CIO, hereinafter referred to
as the Union.
The parties hereto, being desirous , pending the negotiations of a collective
bargaining agreement , of establishing a procedure for the purpose of adjusting
grievances of employees , agree as follows :
I. ORGANIZATION
1. The Union shall be entitled to One (1) Steward for approximately Thirty
(30) employees or fraction thereof.
2. Each shift except the Warehouse (Plant #4) shall have a Shop Committee
consisting of two (2) employees, one of whom shall be a member of the Nego-
tiating Committee. The Warehouse (Plant #4) shall be entitled to One (1)
Steward, but for organizational purposes Plant #4 shall be considered part of
Plant #2.
3. The Negotiating Committee shall consist of One (1) representative from
each shift in each plant.
II. GRIEVANCE PROCEDURE
1. An :employee will take up any problem or grievance with his leadman. If
.requested by the employees the Shop Steward may be present at the con-
ference. If not handled satisfactorily within twenty-four hours or less the
grieyance will be reduced to writing with the disposition of the leadman noted
by him and Step ##2 is invoked.
. In the case of night shifts the grievance will be taken up immediately through
the leadman with the night foreman.
2. The written grievance and disposition will be discussed between the em-
ployee, shop steward, a shop committeeman and the leadman and foreman. If a
satisfactory decision is not made (and noted in writing), within twenty-four
hours or less Step #3 is invoked.
In the case of night shifts the employee, steward and a shop committeeman
will take up the grievance with the night foreman and day foreman.
3. The written grievance with action taken is referred to the Plant Grievance
Committee which will meet regularly each week. This committee will be com-
posed of. (1) Factory Manager or Assistant Factory Manager or General Fore-
man, (2 ) A Foreman, (3) A Representative of the Personnel Department, and
two Shop Committeemen and a Shop Steward. If not settled satisfactorily with-
in three days or less Step #4 is invoked.
In the event of a group grievance the matter will be taken up directly with
the Plant Grievance Committee and from there shall be processed in the same
manner as an individual grievance.
4. The written grievance with action taken noted is referred to the Com-
pany Grievance Committee which will meet on a scheduled day at the request
of either party but not more than once a week. This Committee will be com-
posed of representatives of management and the joint union committee repre-
senting all plants. If not settled satisfactorily the matter will be referred to
:arbitration.
5. Arbitration will be arranged through the American Arbitration Associa-
tion and arbitration costs will be borne by the company. -Matters which are the
COLGATE MANUFACTURING CORPORATION 885
subject of contract negotiations between the company and the union are not
arbitrable.
The time limits set forth in the grievance procedure may be extended by agree-
Inent of all concerned.
Time spent by employees or by their union representatives on union matters
will be at the union's expense. The company will pay for time lost by em-
ployees and union representatives (company employees) for attending confer-
ences and regularly established meetings of the Grievance Committee (Steps 1-5
inclusive), or meetings called by the management and for reasonable time spent
for the investigation of grievances. Any abuse on either side will be subject to
the grievance procedure. All payments hereunder are subject to War Labor
Board approval.
Employees may be free to discuss any matters with the Personnel Department
at any time if they so desire.
III. MISCELLANEOUS
During the negotiations of the contract between the company and the Union,
committeemen, stewards and union officers shall not be laid off for lack of
work.
If the company finds its operations require a revision in this arrangement, the
company and the Union agree to reconsider and amend it in conformity with any
change in operations.
Both the company and the Union agree to do all in their power to expedite
the conclusion of a contract.
IN WITNESS WHEREOF, the parties hereto have signed this agreement the day
and year first above written.
COLGATE AIRCRAFT CORPORATION
By Gilbert Colgate (Sgd.)
GILBERT COLGATE, President.
INTERNATIONAL UNION UNITED
AUTOMOBILE AIRCRAFT AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA UAW-
CIO, LOCAL 790
By John H. Richter (Sgd.)
JOHN H. RICHTER
By Leon J. Teppe (Sgd.)
LEON J. TEPPE
By William J. Robinson (Sgd.)
WILLIAM J. ROBINSON
By Lester C. Hoack (Sgd.)
LESTER C. HOACK
By Thomas Scarpelli (Sgd.)
THOMAS SCARPELLI
By Herman Rubacha (Sgd.)
HERMAN RUBACHA
INTERNATIONAL UNION UAW-CIO.
Paul J. Krebs (Sgd.)
International Representative.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO ALL EMPLOYEES
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 manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self -organization , to form labor
organizations , to join or assist International Union, United Automobile,
Aircraft , and Agricultural Implement Workers of America, Local 790, UAW-
CIO, or any other labor organization , to bargain collectively through rep-
resentatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or 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 privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Matthew Belmont
Joseph Bernagozzi
Caesar Bernagozzi
Neal Carlton
Gerard Cockerill
Joseph Corrigan
Joseph Eppedio
Paul Feustal
Rudolph Gonzalez
Herbert F. Kehoe
Raymond Knowles
Lawrence Murdock
Robert J. Newman
Gunnar Niklasson
Clinton Pettit
Austin Piazza
John H . Richter
Joseph E. Smith
Franklin Smith
Philip Sparacino
Joseph Sredniawski
Benjamin Stetz
Frank J. Tomek
Angelo Vacca
Seraphin P. Van Driessche
Thomas White
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
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.
COLGATE MANUFACTURING CORPORATION
Employer.
Dated--------------------By-----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced , or covered by any other material.