Consolidated Frame Co.

National Labor Relations Board - Board Decisions

Oct 26, 1950

91 N.L.R.B. 1295 (N.L.R.B. 1950)

In the Matter of LEWIS KARLTON, D/B/A CONSOLIDATED FRAME COM-
PANY and TEXTILE WORKERS UNION OF AMERICA, CIO
Case No. 21-CA-425.-Decided October 26,1950
DECISION AND ORDER
On April 27, 1950, Trial Examiner Sidney L. Feiler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
The Respondent also requested oral argument. The request is hereby
denied because the record and exceptions and brief, in our opinion,
adequately present the issues and the positions of the parties.
The Board 2 has reviewed the rulings of the Trial Examiner and
.finds that no prejudicial error was committed. The rulings are
hereby a$Irmed.3 The Board has considered the Intermediate Report,
the exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following exceptions, additions, and modifications :
1. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced his employees in violation
i In his exceptions, the Respondent contends that the Board erred in refusing to grant
certain additional time for the filing of material to complete his brief . However, no
adequate reason for granting such extension was advanced by the Respondent . Accord-
ingly, this contention is without merit. International Harvester Company, McCormick
Twine Mills, 80 NLRB 1279 ; La Salle Steel Company, 72 NLRB 411.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three -member panel [ Chairman Herzog and
Members Houston and Murdock].
3 At the bearing, the Respondent requested the exclusion of all prospective witnesses.
Upon ' objection of the General Counsel, the Trial Examiner limited the exclusions to those
prospective witnesses not in the category of alleged discriminatees or representatives of
the Union or the Respondent. The Respondent excepts to this ruling principally on the
ground that the alleged discriminatees should have been excluded. The alleged dis-
criminatees were clearly entitled to be present during the taking of the entire testimony
because, in effect, they occupy the status of complainants . Moreover , the Respondent
has not established that any substantial prejudice resulted from the Trial Examiner's
ruling . We therefore find no merit in the Respondent 's exception . See Jaques Power Saw
Company , 8^ NLRB 440, and cases cited therein.
91 NLRB No. 197.
1295
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8 (a) (1) of the Act. We rely, as did the Trial Examiner,
upon the following conduct attributable to the Respondent: (a) Karl-
ton's interrogation of his employees as to their union activities on
March 21, 1949, and the threat implicit in his assertion to them on that
date that he would not have a union in the plant; 4 (b) Karlton's or
Foreman Barney's statement to the employees on the same occasion
that they would not now be permitted to make up any time lost by
reason of lateness or early quitting, as had been the practice; (c)
Barney's withdrawal, during the week of March 21, of employee Res-.
nick's customary privilege of leaving early on Friday afternoons;
and (d) the elimination of Saturday overtime, communicated by
Barney to the employees on March 25.
2. We agree with the Trial Examiner that the Respondent, by re-
fusing to recognize and bargain with the Union, violated Section 8
(a) (5) and (1) of the Act. However, we do not adopt the Trial
Examiner's findings that the refusal to bargain took place on and after
April 4, 1949, and that until this date, the Respondent was acting in
good faith in his dealings with the Union. Rather, we are of the
opinion, based on the circumstances fully indicated in the Intermediate
Report, that the Respondent's entire course of conduct immediately
on and after March 21, 1949, when he received the Union's request for
recognition and a bargaining conference, constituted a clear reply
to the Union and demonstrated that at no time did the Respondent
entertain genuine doubt as to the Union's representative status but
was instead motivated by a rejection of the collective bargaining
principle.
In this connection, we reject as without merit the Respondent's con-
tention that he had reason to doubt the Union's majority because on
March 18, 1949, the Union petitioned the Board for an election, con-
cerning which the Respondent was advised on March 23. As the Trial
Examiner found, as early as March 21 the Respondent was informed
by employee Herring, in the presence of almost all the employees, that
they were "all for the Union." This was repeated to the Respondent
on the same day by employee Rozar, after a further meeting of the
employees. Again on March 29, the Respondent was given substan-
tial cause for believing that the claim advanced by the Union was
real, as the Union offered to show the Respondent its authorization
cards in proof of majority. Moreover, the field examiner told the
Respondent in effect that the Union had enlisted the support of all
the empolyees concerned. And on March 31, after a strike call by the
Union, all the Respondent's employees struck and, with but one ex-
Happ Brothers Company, Inc., 90 NLRB 1513.
CONSOLIDATED FRAME COMPANY 1297
ception, joined the picket line. The Respondent not only persisted in
his alleged doubt but refused to be enlightened 5
Significantly, the Respondent did not confine his efforts to forestall
recognition to expressions of doubt as to the Union's majority. When
confronted with the Union's request for recognition, the Respondent
replied with acts of interrogation and coercive utterances which we
have found to be violative of the Act. Later, during the same week,
he unlawfully-withdrew an early quitting time privilege'from one of
the employees. Again on March 25, 2 days after the Respondent
received notice of the Union's petition for an election, he discrimina-
torily abolished the customary overtime hours. Clearly, therefore,
while the Respondent evaded a direct answer to the Union's request to
bargain, his antiunion, conduct forcibly impressed upon his employees
his views with respect to the Union. In view of the foregoing, the
fact that a petition had been filed manifestly furnishes no defense to
the refusal to bargain.6
The Respondent further contends that he was absolved of the duty
to bargain by the Union's violation of an alleged "no strike agreement"
of March 29, 1949. The Respondent seeks to found such agreement
on Union Representative Stillman's oral statement to him on that date
that "we had no special action contemplated other than to proceed at
the National Labor Relations Board." This statement was made, as
the Trial Examiner found, in reply to the Respondent's request on the
same day that the Union take no action until April 4, by which time
the Respondent indicated he would reply to the Union's request for
recognition. The Respondent's contention is without merit.
Self-denial of the right to strike guaranteed by the Act cannot be
lightly presumed. Moreover, it is the very essence of a no-strike
agreement that it substitute, completely and unreservedly, collective
bargaining in place of strike and lockout.' Here, the Union's reply
that "it contemplated no action" was, by its very language, far short
of a definite promise to refrain from strike action. In any event, the
G See N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862 (C. A. 2), cert. den. 304 U. S.
576; United States Gypsum Company, 90 NLRB 964.
That the Respondent had no genuine interest in learning what the facts might be, is
further evidenced by his efforts on March 29 to divert the Union from its objective of
gaining recognition. Thus, the Respondent attempted to persuade the Union that it
should first organize the industry before concerning itself with the Respondent's em-
ployees. Further, by questioning the Union as to what its wage demand would be in the
event the Respondent agreed to bargain, the Respondent manifested that he was concerned
not with the validity of the Union's claim of majority, but rather with avoiding the
economic consequences of the collective bargaining that would ensue upon recognition.
"Inter-City Advertising Company of Greensboro , N. C., Inc., 89 NLRB 1103 ; The Cuffman
Lumber Company, Inc., 82 NLRB 296; N. L. R. B. v. National Seal Corporation, 127 F. 2d
776 (C. A. 2):
' See United Elastic Corporation, 84 NLRB 768; National Electric Products Corporation,
80 NLRB 995; Fafnir Bearing Company; 73 NLRB 1008.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent offered no consideration whatsoever for the alleged "agree-
ment" by the Union. He merely promised to reply to the Union's
request for recognition and bargaining, a reply which he was duty
bound to give.8 Consequently, not only was there no binding agree-
ment to serve as a substitute for economic warfare, but, indeed, the
Respondent had not even commenced bargaining with the Union.
There existed at best, as the Trial Examiner found, a moral under-
taking on the part of the Union. We cannot regard such an under-
taking as the equivalent of insertion of a ."no-strike" clause in a
written contract for a term. It cannot render unlawful the Union's
action is resorting to a strike when it perceived the impact of the
Respondent's unfair labor practices upon the employees and his
demonstrated lack of good faith doubt as to the Union's representative
status. In these circumstances, we are unwilling to permit the Re-
spondent to benefit as a result of his unlawful efforts to destroy the
Union's majority by taking refuge in the Union's failure to await
an answer, the nature of which had already been made apparent by
the Respondent's prior conduct.9
In view of the foregoing, we find that on March 21, 1949, and at
all times thereafter, the Respondent refused to bargain collectively
with the Union as the exclusive representative of his employees in
the unit found to be appropriate herein, and thereby interfered with,
restrained, and coerced his employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8 (a) (5)
and (1) of the Act.10
3. We find, as did the Trial Examiner, that the strike of the Re-
spondent's employees on March 31, 1949, was caused by the Respond-
ent's conduct which we have found to be violative of Section 8 (a) (1)
of the Act. We further find that the Respondent's unlawful refusal
to bargain contributed to, as well as prolonged, the strike. Accord-
ingly, we agree with the Trial Examiner's ultimate finding that the
striking employees constitute unfair labor practice strikers, and that
the Respondent's refusal to reinstate them on April 22, 1949, follow-
ing unconditional application for reinstatement on their behalf made
by the Union, was violative of Section 8 (a) (3) and (1) of the Act.
" . . . the recognition required by 9 (a ) is not a bargaining matter as [ Respondent]
sought to make it." McQuay-Norris Manufacturing Company v. N. I. R. B., 116 F. 2d 748,
751 (C. A. 7), cert. den. 313 U. S. 565.
9 Cf. Everett Van Kleeck & Company , Inc., 88 NLRB 785. The Respondent gave as a
reason for the delay in replying to the Union ' s bargaining request that he wanted to
inquire as to the responsibility of the Union . The responsibility of the Union could not
be made a condition precedent to initiation of the bargaining process . Cf. Dalton Tele-
phone Company , 82 NLRB 1001 , and cases cited therein.
10 Inter-City Advertising Company of Greensboro , N. C., Inc., supra; Joy Silk Mills, Inc.,
86 NLRB 1263 . Cf. Somerset Classics, Inc., et at ., 90 NLRB 1676.
CONSOLIDATED FRAME COMPANY 1299
In so finding, we reject the Respondent's contention that the striking
employees forfeited their reinstatement rights because the Union
allegedly engaged in a secondary boycott which it refused to abandon
at the strike's termination. This contention is based on the assertion
that the Union prevailed upon certain customers of the Respondent
to abstain from purchasing the Respondent's products. However, as
we have previously held, Section 8 (b) (4) (A) does not prohibit a
labor organization from inducing employers to cease doing business
with another employer.11 And as the picketing by the Respondent's
employees. was conducted entirely at the Respondent's plant, such
primary picketing was clearly lawful. Accordingly, as the record
contains no evidence of unlawful secondary activity by the Union
or the employees concerned, we find the Respondent's contention,to
be without merit. 12
4. Like the Trial Examiner, we find that the Respondent, by insist
ing that the striking employees secure the withdrawal of unfair labor
practice charges filed against the Respondent as a condition precedent
to rehire, violated Section 8 (a) (4) of the Act.
The Remedy
As recommended by the Trial Examiner, we shall order the Re-
spondent to offer reinstatement to Gerald A. Avacato, N. Braungart,
Remus K. Herring, Joe Resnick, Martin Resnick, and. Arnold S.
Schimmel, with pack pay from April 22,1949, the date of the Respond-
ent's rejection of the Union's unconditional application for the rein-
statement of these employees and of P. E. Rozar. As to P. E. Rozar,
who has already been reinstated, we shall order the Respondent to
offer this employee back pay from April 22, 1949, to the date of his
reinstatement.
Since the issuance of the Trial Examiner's Intermediate Report,
however, the Board has adopted a method of computing back pay
different from that prescribed by the Trial Examiner.13 Consistent
with that new policy, we shall order that the loss of pay be computed
on the basis of each separate calendar quarter or portion thereof dur-
ing the period from April 22, 1949, to the date of reinstatement or a
proper "offer of reinstatement. The quarterly periods, hereinafter
called "quarters," shall begin with the first day of January,, April,
July, and October. Loss of pay shall be determined by deducting,
"International Brotherhood of Teamsters, Chauffeurs , Wprehousem .en and Helpers of
America, Local 294, A. F. L. (Conway 's Express ), 87 NLRB 972 ; Sealright Pacific Ltd.,
82 NLRB 271..
'= Cf. The Hoover Company , 90 NLRB 1614 ; Intertown Corporation (Michigan), 90
NLRB 1145 ; Deena Artware, Incorporated , 86 NLRB 732.
F. W. Woolworth Company, 90 NLRB 289.
917572-51-vol. 91-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a sum equal to that which these employees would normally have
earned for each quarter or portion thereof, their net earnings '14 if
any, in other employment during that period. Earnings in one par-
ticular quarter shall have no effect upon the back-pay liability for
any other quarter.
We shall also order, in accordance-with the Woolworth decision,
supra, that the Respondent, upon request, make available to the
Board and its agents all pertinent records.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as,amended, the National Labor
Relations Board hereby orders that the Respondent, Lewis ,Karlton,
d/b/a Consolidated Frame Company, Los Angeles, California, his
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Union
of America, CIO, as the exclusive representative of all production,
maintenance, shipping, and receiving employees, at his Los Angeles,
California, plant, excluding office clerical employees and supervisors
as defined in the Act;
(b) Discouraging membership in Textile Workers Union of Amer-
ica, CIO, or in any other labor organization of his employees, by dis-
charging or refusing to reinstate any of his employees, or by dis- "
criminating in any other manner in regard to the hire, tenure of em-
ployment, or any term or condition of employment of any of his
employees ;
(c) Discharging or refusing to reinstate, or otherwise discriminat-
ing against, any of his employees because they have filed charges or
given testimony under the Act, or in any'y other manner interfering
with the right of employees to file and prosecute charges and to give
testimony under the Act;
(d) By means of interrogation, threats, or discriminatory discon-
tinuation of makeup time and overtime, or in any other manner inter-
fering with, restraining, or coercing his 'employees in the exercise of
their right to self-organization, to form labor organizations, to join. or
assist Textile Workers Union of America, CIO, or any other labor
14 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, which would not have been incurred but for this unlawful discrimination, and the
consequent necessity of his seeking employment elsewhere. Crossett Lumber Company,
8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal,
or other work -relief projects shall be considered earnings. Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
CONSOLIDATED FRAME COMPANY 1301
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment .as authorized in Section
8 (a) (3) 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 Textile Workers Union
of America , CIO, as the exclusive representative of the employees in.
the appropriate unit described above, with respect to grievances, labor
disputes , rates of pay , wages, hours of employment , and other condi-
tions of employment , and, if an nnderstanding is reached , embody
such understanding in a signed agreement;
(b) Offer to Gerald A. Avacato , N. Braungart , Remus K. Herring,
Joe Resnick , Martin Resnick, and Arnold S. Schimmel , immediate
and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and priv-
ileges, and make them whole , in the manner set forth in the section
entitled The Remedy , for any loss of pay they may have suffered by
reason of the Respondent's discrimination against them;
(c) Make whole P. E. Rozar, in the manner set forth in the section
entitled The Remedy, for any loss of pay he may have suffered by
reason of the Respondent 's discrimination against him;
(d) Upon request, make available to the National Labor Relations
Board or'its agents, for examination and copying , all payroll records,
social security payment records , time cards , personnel records and
reports, and all other records necessary for a determination of the
amounts of back pay due and the right of reinstatement under the
terms of this Order ;
(e) Post at his plant in Los Angeles , California , copies of the notice
attached hereto marked Appendix A.15 Copies of such notice, to be
furnished by the Regional Director for the Twenty-first Region , shall,
after being duly signed by the Respondent 's representative , be posted
by the Respondent . immediately upon receipt thereof and maintained
by him for sixty ( 60) consecutive days thereafter , in conspicuous
places, including 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; .
*161n the event this Order is enforced b y ' decree of a United States Court of Appeals,
there shall be inserted in the notice before the words, "A DECISION AND ORDER," the
words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the, Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
. APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that :
I WILL BARGAIN collectively Upon request with TEXTILE WORKERS
UNION OF AMERICA, CIO, as the exclusive representative of all
employees in the bargaining unit described herein with respect
to rates of pay, hours of -employment, or other conditions of
employment, and if an agreement is reached embody it in a signed
agreement. The bargaining unit is:
All production, maintenance, shipping and. receiving em-
ployees, excluding office clericals and supervisors as defined
in the Act.
I WILL OFFER to the following named employees, immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and
privileges, and make each of them, and P. E. ROZar, whole for
any loss of pay suffered as a result of my discrimination against
them :
Gerald A. Avacato
N. Braungart
Joe Resnick
Martin Resnick
Arnold S. Schimmel
Remus K. Herring
I WILL NOT discharge or refuse to reinstate or otherwise discrim-
inate against any of my employees because they have given testi-
mony under the Act, or in any other manner interfere with the
right- of my employees to file. and prosecute charges and to give
testimony under the Act. :},
I WILL NOT by means of interrogation, threats, or discrimina-
tory discontinuation of overtime or makeup time, or in any other
manner, interfere with, restrain, or coerce my employees in the
exercise of their right to self-organization, to form labor organi-
zations, to join or assist Textile Workers Union of America, CIO,
or any other labor organization, to bargain collectively through
CONSOLIDATED FRAME COMPANY 1303
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities
except to the extent that such'right may be affected by an agree-
ment requiring membership in a. labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the
Act.
All my employees are free to become,. remain, or refrain from be-
coming or remaining, members of the above-named union or any other
labor organization, except to the extent that this right may 'be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
I will not discriminate in regard to the hire or tenure of employment
or any other term or condition of employment against any employee
because of membership in or activity on behalf of any such labor
organization.
LEWIS KARLrON, d/b/a,
CONSOLIDATED FRAME COMPANY,
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.
IN:CER\iEDlATE REPORT AND RECO)IMENDI D ORDER
Messrs. Jerome Smith and Ralph H. Nutter, for the General Counsel.
!Messrs. Smamel Cohen and Louis Friedmann, of Los Angeles, Calif., for the
Respondent.
STATEMENT OF THE CASE
Upon a third amended charge filed by Textile Workers Union of America, CIO,
hereinafter referred to as the Union, the General Counsel of the National Labor
Relations Board I by the Regional Director for the Twenty-first Region (Los
Angeles, California) issued a complaint dated July 29, 1949, against Lewis Karl-
ton doing business as Consolidated Frame Company, Los Angeles, California,
herein referred to as 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), (3), (4), and (5), and Section 2 (6) and (7) of
the National Labor Relations Act as amended, 61 Stat. 136 herein called the Act.
With respect to unfair labor practices the complaint alleges in substance that :
(1) The Respondent from on or about March 18, 1949, failed and refused and at
all times thereafter continued to fail and refuse to bargain collectively in good
'The General Counsel and the attorneys representing him at the hearing are referred
to as the General Counsel. The National Labor Relations Board is referred to as the
Board.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith with the Union as the duly designated , exclusive representative of all his
employees in an appropriate bargaining unit; ( 2) that from about March 21,
1949, . until about March 30, 1949 , the Respondent personally and by his foremen
made coercive statements to his employees ; ( 3) that the employees thereafter
engaged in a strike as- a consequence of the Respondent 's unfair labor practices
and that at the conclusion thereof offered to return to work but that the Re-
spondent refused them reemployment and conditioned reemployment of some of
the strikers on their persuading the Union to drop unfair labor practice charges
previously filed against the Respondent ; and (4 ) that those strikers failed to
persuade the Union to drop the charges and were not rehired as a consequence
of their failure.
In his answer dated August 22, 1949, the Respondent admits certain jurisdic-
tional allegations but denies the commission of any unfair labor practices.
Pursuant to notice a hearing was held at Los Angeles , California , on Feb-
ruary 14, 15, 16, 17, and 21, 1950 , before the undersigned , Sidney L. Feller, the
Trial Examiner designated by the Chief Trial Examiner . The General Counsel
was represented by counsel and the Respondent by duly authorized represent-
atives. Full opportunity to be heard and to examine and cross -examine wit-
nesses was afforded . the parties.
On motion of the Respondent , prospective witnesses , with certain excep-
tions, were excluded from the . hearing room before they were called to testify.
At the conclusion of the General Counsel's case-in-chief the Respondent moved
to dismiss the complaint , which motion was denied . The Respondent renewed
this motion at the close of the taking of the testimony . Decision was reserved
thereon and that motion is disposed of by the findings , conclusions , and recom-
mendations herein. The General Counsel then moved to conform the plead-
ings to the proof as to formal matters . This motion , to which there was no
objection , was granted as to all pleadings . Oral argument was then presented
on behalf of the parties . Opportunity was afforded the parties to file briefs
and/or proposed findings of fact and conclusions of law or both . None were
received.
Upon the entire record and from his observation of the witnesses the under-
signed makes the following :
FINDINGS OF PACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , Lewis Karlton , is an individual doing business under the
registered trade name and style of Consolidated Frame Company with his prin-
cipal office and place of business at Los Angeles , California, where, at all times
material herein, he has been engaged in the manufacture of framed mirrors,
picture frames, and curio cabinets . In the 12-month period prior to the date
of the complaint , July 29, 1949, the Respondent purchased equipment , materials,
and supplies valued in excess of $15,000 all of which was shipped to the Re-
spondent 's plant from points outside the State of California . In the same
period, the Respondent sold products valued at approximately $125,000 . of which
approximately 30 percent was shipped from the Respondent 's plant to points out-
side the State of California . It was stipulated that the Respondent 's business
has continued at approximately the same rate down to the time of the hearing.
The Respondent did not deny that he was and is engaged in commerce within. the
meaning of the Act . and the undersigned finds that at all times here relevant
he was engaged in commerce within the meaning of the Act.
CONSOLIDATED FRAME COMPANY 1305
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events
In March 1949, when the Union sought to organize the employees of the Re-
spondent, his work force consisted of seven employees who were admittedly pro-
duction workers : Gerald A. Avacato, N. Braungart, Remus K. Herring, Joe
Resnick, Martin Resnick, P. E. Rozar, and Arnold S. Schimmel. There was one
other employee, Donald Barney, whose supervisory status is in dispute.
Anthony Ramuglia, an international representative of the Union met with the
employees on March 16 and 17 .2 At the end of the March 17 meeting he had ob-
tained signed membership cards for all the seven production workers. On
March 18, Harry Stillman, national representative of the Union in the Los An-
geles area and Ramuglia's superior sent a letter to the Respondent on behalf
of the Union stating that a majority of his employees had asked the Union to
be their collective bargaining representative and requesting a meeting for the
purpose of negotiating a collective bargaining agreement.
Karlton received this letter on March 21. He immediately called Barney
to his office and asked him whether he knew anything about the men wanting a
Union or whether there had been any difficulties in the shop. Barney replied
that there had been no difficulties in the shop and that he knew nothing of any
union activity. Karlton then told him to call all the workers into his office.
When all the employees except Avacato who was absent, had gathered in Karl-
ton's office, Karlton told them that he had received a letter from the Union
and wanted to know who had started the union activity. He questioned each
employee individually and they each denied starting it. Finally, Herring spoke
up and said-that they were all in it and that all the men had organized it jointly.
Karlton then asked why the men wanted a Union and after some reasons were
given stated that he did not approve of a Union and would not have one in his
shop. Karlton or Barney announced that in the future the men were not going
to receive any more privileges. That is, they would not be allowed to make up
any time lost by reason of lateness or early quitting as they had been allowed
to previously and would not be accorded any other special favors. Barney then
suggested that the men discuss the matter among themselves and let Karlton
know what they wished to do. This suggestion was followed a
The men had a meeting during their lunch hour and later Rozar acting for
the group informed Barney who had not been invited to the meeting that the
2 All dates mentioned in this report are in the year 1949 unless the contrary is indicated.
The above findings as to the meeting on March 21 are based upon the testimony of
Herring, Schimmel, Rozar, Joseph Resnick, and Barney. While there were some differences
in the testimony of these witnesses they were in-agreement as to the significant state-
ments made at this meeting. Karlton testified that he was very nervous, excited, and
upset at this meeting, that he asked why the men wanted a union, that he received some
answer to this question, that he did not say anything about cutting out favors but was
not sure whether Barney had and he-recalled Don Barney suggesting the men talk the
matter over at lunch time. As to other statements alleged to have been made at the
meeting he testified that he either could not recall making such statements or could not
recall anything further that was said at the meeting. The undersigned found his testimony
as to this meeting to clearly indicate that his recollection was at best, very hazy and
was clearly outweighed by that of the other witnesses.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men were 100 percent for the Union and would continue their efforts to organize
a Union. Barney transmitted this information to Karlton.
Barney testified that later on at some unspecified time Karlton told, him, not
to talk about the Union and to let things continue as they had prior to the time
information of the union activity had been transmitted to Karlton. However,
these instructions were not communicated to the production workers in any way.
During the next few clays at least two events occurred which altered working
conditions at the plant. It had been the custom. of Joseph Resnick to quit
work early on Fridays in order to attend to certain religious observances. He
had always been permitted by Barney to make up the time lost, approximately
one-half an hour, during the workweek. When Resnick again sought such
permission during the week of March 21 Barney told him that he could take'a
half hour off on the next Friday but that he could not make up the time lost.
Resnick thereupon worked the full day on Friday and did not discuss the
matter with Karlton although he testified he thought he might be successful if
he dfd so appeal.4
Joseph Resnick further testified that on Wednesday, March 23, he brought in
a set of his own window blinds and asked Barney's permission to spray them
after the regular working time. Barney reminded Resnick, according to the
latter's testimony, of what Karlton had said. This remark obviously referred
to the statement concerning loss of privileges. Resnick then asked if he could
do the work with his own paint. Barney then replied that he thought that
Resnick could do the work after, regular working hours and Resnick pro-
ceeded accordingly. Barney denied that he refused Resnick permission to
do the work and testified that he only told Resnick that the work could only be
done out of regular working time. Both witnesses were in agreement that
Resnick was not prohibited from doing his own personal work after the regular
working hours and there is no proof that employees customarily did personal
work during the regular working hours.
Resnick also testified that on the next day, March 24, Barney in the course
of a conversation told him that Karlton was going to lay him off because he
thought he brought his son, Martin Resnick to work, so that the Union would
have another vote. Resnick replied that that statement was foolish since there
was no union activity contemplated at the time his son was employed. Barney
did not testify concerning this incident, and the undersigned credits Resnick's
testimony."
On Friday, March 25, Barney handed their pay checks to the employees and
told each one individually that starting the next Monday there would be no
more overtime. According to Barney at that time and for a period of 11/2 to 2
years the men regularly worked 9 hours a day for 5 days for a total of 45 hours
of which 40 hours were compensated on a straight-time basis and 5 hours were
computed at time and a half. According to Barney the question of overtime and
d Barney and Joseph Resnick were in agreement that the above incident occurred.
5 Samuel Cohen, the Respondent's representative in negotiations with the Union testified
that Resnick came to him in advance of the hearing seeking'a personal settlement and
promising in return to attempt to avoid testifying in this proceeding. The undersigned,
crediting Cohen's testimony in this regard has carefully scrutinized-Resnick's.testimony.
In general , Itesnick ' s testimony concerning the"March 21 meeting was corroborated by
that of other witnesses , including Barney. Barney also agreed with Resnick concerning
the discussion in which . Resnick sought to take, time off on Friday , March 25. There is
no valid reason for discrediting Resnick 's testimony in toto or . for rejecting his testimony
concerning this incident which is not denied. His testimony is therefore accep 'tedras + toahis
incident.
CONSOLIDATED FRAME COMPANY 1307
its elimination had been discussed by him and Karlton as early as November
1948, when at Karlton's direction he gave the men a choice of cutting out all
overtime and maintaining the existing work force or dismissing one man.
However, before final action could be taken business picked up and no change
was made in the work schedule. Again, according to Barney, he and Karlton
often had talked about cutting out overtime whenever the work slowed up.
He could not recall any such talks in the month of March before March 21. He
further testified that the decision to eliminate overtime was made during the
week of March 21 by Karlton but he could not recall under what circumstances
or exactly .when the decision was made. He did recall Karlton saying that he
had wanted to go on a 40-hour week and that this was a good time to do it. He
further testified that when he distributed the checks he did not make any ex-
planation to the men as to the reason why the workweek was being cut down
nor could he recall whether the men asked him why the change was being made
or if he made any response. The undersigned credits Herring's testimony
that when he asked Barney why overtime was being eliminated the latter re-
plied, "what do you expect." Joseph Resnick's testimony that Barney told him
"you should know better than that" when he asked why the change was being
made, is also accepted.
Karlton testified that he had discussed the overtime question with Barney
several times beginning in October or November 194S.6 He further testified that
after January 1949, business started to taper off and that he began discussing the
question of cutting out overtime with Barney and that sometime in March a de-
cision was made to either lay off men or eliminate overtime on the advice of
an accountant who stated that labor costs were too high and had to be cut
down. He was not certain as to just when the decision was made to eliminate
overtime but he testified that it was in the beginning of the week of March 21.
He further testified that he booked 75 to 80 percent of all the business and that
the labor difficulties upset him so that he did not keep in touch with accounts.
Karlton first testified that the decision-on overtime was made either on Tues-
day or Wednesday, March 22 or 23. He later testified that after the men went
back to work after the meeting on March 21 he told 'Barney lie had enough busi-
ness for that week but not enough for the next week and that Barney should
cut down the overtime. He testified that that conversation occurred just a few
minutes after the men left his office and that he was still excited at the time. He
further testified that in the afternoon of that day he told Barney not to change
working conditions in the plant. This, he testified, did not include any change
in his order on overtime elimination.
In addition to its letter sent to Karlton on March 1S seeking recognition the
Union on the same date filed a representation petition with the Board requesting
an election among the employees of the Respondent to determine 'whether they
wished to be represented by the Union. On March 22, Carl Abrams, a field
examiner for the Board sent a letter to the Respondent and the Union asking
them to appear on March 29 for an informal conference. The meeting took
place as arranged. In addition to Abrams, Samuel Cohen appeared for the
Respondent and Ramuglia appeared for the TJnion.
Abrams in his letter had asked the Respondent to furnish a list of the em-
ployees a copy of all correspondence and contracts relating to the representation,
of the employees, and data relating to the Company's business. Abrams asked
Cohen if he had the information that had been requested. Cohen replied that
6 Karlton testified contrary to Barney ' s recollection that in October 1948, overtime was.
actually eliminated for a 3- or 4-day period but then was reinstated.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had not had an opportunity to gather the information but that he would
have it the following Monday, April 4, and that he did not feel that the Re-
spondent would contest jurisdiction. Ramuglia then wanted to know if the
Respondent would recognize the-Union as collective bargaining agent. Cohen
replied that lie was not ready to answer this demand and also expressed some
doubt as to the Union's majority. Abrams then stated that assuming that
there were seven employees in the unit the Union had signed up all the em-
ployees. Ramuglia offered to let Cohen see the signed membership cards if the
latter would agree to a card check agreement. That is, if it were determined
that the Union had actually signed up a majority of the employees, recognition
would be forthcoming. Cohen refused to enter into such an agreement.
Cohen and Ramuglia left the meeting together and continued their discussion
in a restaurant. Some of the matters discussed at that time were Cohen's
suggestion that a survey be made of the conditions in the picture-frame industry
with a view to establishing uniform conditions, what the demands of the Union
might be if it were granted. recognition by the Respondent, general information
about the Union itself, and Ramuglia's repeated demand that the Union be
recognized by the Respondent and that they proceed to bargain collectively.
Cohen would not agree to any such arrangement and at his suggestion and
request they then adjourned to the offices of the Union where Cohen continued
his discussions with Harry Stillman, a national representative of the Union,
John Broy, an international representative, and Ramuglia. Cohen told Still-
man that the Respondent was not in good financial condition and suggested
that it might be better to organize the rest of the industry before beginning
any bargaining with the Respondent. Stillman countered by suggesting that
the Respondent recognize the Union and it would take his financial condition
into consideration in framing its demands. Cohen refused to give a direct
answer at that time and stated that he would furnish his answer on April 4.
Cohen left the Union's offices sometime between 12: 30 and 2 p. in.
There is a dispute among the witnesses as to what was said at the conclusion
of this conference. Cohen testified that he asked Stillman whether he could
be certain that nothing would happen between that time and April 4 and that
Stillman assured him that nothing would happen between the two dates. Still-
man testified that when Cohen said he would not be able to give his answer
until the following Monday, Stillman replied, "okay" because he had no alterna-
tive but to wait until the following Monday. Ramuglia corroborated Still-
man's testimony. Broy testified that Cohen had requested that no action be
taken until Monday and that Stillman had replied that no special action was
contemplated except action at the Board. The undersigned is satisfied that
there was an understanding that no action by the Union was contemplated
before the following Monday.'
In the afternoon of March 29, Stillman, on behalf of the Union, sent the
following letter to the Respondent : "Your company has engaged in unfair labor
practices. In order to protect your employees from your violations of the
Labor-Management Act of 1947, the union reserves the right to take such meas-
ures as will protect its members from your actions." According to both
Ramuglia and Stillman this letter referred to the occurrences at the March 21
meeting called by Karlton. According to Stillman the letter was sent by the
7 Abrams in his testimony stated that ata later conference Stillman, agreed with Cohen
that there had been such an agreement, but declared that it was conditioned on the-
Respondent 's not engaging in unfair labor practices or taking other action against the
employees.
CONSOLIDATED FRAME COMPANY 1309
Union as an alternative to filing ' charges in view of the possibility that the
Respondent might cooperate in expediting the recognition of the Union and the
letter merely sought to protect the Union's position.
Late in the afternoon of March 29 , Herring telephoned Ramuglia and reported
to him that overtime had been eliminated and that he understood that Joe
Resnick was no longer able to obtain permission to quit early on Fridays and
make up the time. Ramuglia , according to his testimony , reported to Herring
that results of the conferences held that day with Cohen and declared that in
his opinion he thought that the Respondent was stalling . When Herring re-
ported what had taken place at the plant, Ramuglia instructed him to call a
meeting of the men for the next evening.
All the seven employees who had signed union cards , except Joe Resnick, ap-
peared at the Union meeting on March 30. Ramuglia and Broy also were
present. According to Ramuglia , he reported to the men that he had met with
Cohen on March 29 and he summarized what had taken place in the negotiations
on that day . He told the men that in the opinion of the union officials, the
Respondent was stalling and that there would not be a quick determination of
the representation question . The employees then, according to Ramuglia, fur-
nished an account of what had taken place in Karlton's office on March 21.
Herring reported that overtime had been eliminated the preceding Friday.
There was also discussion of certain shipments that had been made to the
Respondent ' s father-in -law and the possibility that there might be a lockout.
Another point mentioned was the elimination of Resnick 's privilege to leave
early on Fridays . Ramuglia further testified that Avacato related that Karlton
questioned him on March 21 as to who had started the Union and Avacato further
declared that the men had better strike because the Respondent was getting
ready to get rid of the employees . Ramuglia , for his part , stated that in his
opinion the Respondent was getting ready to discharge the men, that they
were not highly skilled and were easily replaceable . He also advised the
men to strike . A secret ballot was taken and the men voted unanimously to
strike the next morning . Ramuglia reported to Stillman that the men had
voted to strike and also gave Stillman an account of the discussion at the
meeting .' Stillman then gave his approval to the strike. The next morning,
March 31, a picket line was established at the Respondent 's plant and it was
maintained through April 21. All the employees with the exception of Joe
Resnick took an active part in maintaining the picket line.
Cohen testified that on April 4 he telephoned the union offices and asked that
union representatives come to his office for his answer to the Union 's request
on March 29 for recognition and collective bargaining . Ramuglia and Broy
came to his office. According to Cohen, he -told the union representatives that
the Union had been unfair in calling a strike and establishing a picket line after'
there had been an agreement that nothing would happen until April 4. Then,
according to Cohen , Ramuglia replied that there had not been any such agree-
ment or commitment , but Broy told Ramuglia that there had been such an
arrangement . Continuing his testimony , Cohen Stated that Ramuglia then
sought to place the responsibility for the calling of the strike on the men.
Then when Cohen countered by asking how he could do business with the
Union if it could not control the men, Ramuglia changed his position and said
that the Union had called the strike or authorized it, and denied that there had
8 The above account of 'the course,of the., meeting. is ,based, primarily , onRamuglia'a._
testimony, as corroborated by employee witnesses.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been,any agreement not to take action. Then, according to Cohen's testimony,
he told the union representatives "while I had been prepared to give them an
answer on the questions that have been raised in their letter of March the 18th,
that I could not give them that answer as long as the picket line was in effect,
that an unlawful picket line, unlawful strike had been called in violation of the
agreement and commitment which had been made at the union office by the
officers of the union."
Ramuglia testified that after discussion of the strike he asked Cohen if the
Respondent would agree to bargain with the Union and that Cohen said the
Respondent would riot.
Broy testified that at the conclusion of the March 29 meeting he heard Cohen
ask whether the status quo would be maintained and that Stillman had replied
that no special action was contemplated except in connection with proceedings
at the Board, and that on April 4 when Cohen had claimed that there had been
a commitment to wait, he had called Ramuglia's attention to the fact that Cohen
had made such a request. He further testified that on April 4 he asked Cohen
whether the Respondent would agree to recognize the Union and bargain with
it, but that Cohen proceeded to take them to task for violating the alleged
commitment. Then, according to Broy, Ramuglia pressed for an answer on
the company's position and Cohen stated that he kept his word and that he would
give the company's position and that the answer was no. Ramuglia then asked
if that meant that the Respondent would not recognize the Union or bargain with
it and Cohen replied that the Respondent would not.
On April 4, Broy, on behalf of the Union wrote to the San Francisco office of
the Federal Mediation and Conciliation Service advising it of a "strike situation"
at the Respondent's plant and requesting the services of its agency "in bringing
this dispute to a prompt and peaceful settlement." On the same day Broy
filed the original charge in this case. On April 18 the Union filed the request
with the Board to withdraw its representation petition without prejudice and
.this request was approved on April 19.
Efforts at conciliation proved fruitless, although a conciliator did make efforts
to bring the parties together. According to Broy he told the conciliator that
the Respondent had committed unfair labor practices and had refused to bargain
with the Union, that a strike had resulted and that he wanted the Conciliation
Service to try to get the Respondent to comply with the law. Broy testified that
the conciliator reported that after conferring with Cohen it was impossible to
reach an agreement. Cohen testified .that he did meet with the conciliator and
stated that he was willing to meet with the Union "provided the strike or the
picket line was not in effect. I told him the facts as I knew them to be, and that
I felt the strike and the picket line .was unlawful, and I could not, under those
conditions, meet with the union until that was eliminated." Cohen further tes-
tified that the conciliator later reported that the Union was uncooperative and
that he would report that it would be impossible for the Mediation and Con-
ciliation Service to be of any value in the dispute.
There was one further conference between the parties which took place at
the Board's offices and on this occasion Stillman and Cohen met with Abrams.
The date of this meeting was not fixed except that the parties were in an agree-
ment that it took place some time after April 22. The main purpose of this
meeting was to explore the possibility of a settlement of the controversy but the
meeting proved fruitless. In general it was the position of the Union that the
Respondent had been guilty of unfair labor practices and would have to remedy
CONSOLIDATED FRAME COMPANY 1311
them in full, while it was contended on behalf of the Respondent, in substance,
that, he was under no obligation in this case.
The strike continued in effect at the Respondent's plant through April 21.
On that day Stillman wrote the Respondent as follows :
You are hereby officially informed that the union is hereby uncondition-
ally calling off the strike at your plant, which arose as a result of your
violation of the Labor-Management Relations Act of 1947. The strike has
been terminated unconditionally as of 4: 30 p. in., Thursday, April 21, 1949.
We hereby request the reinstatement of all of the strikers who indi-
vidually and collectively, unconditionally offered to return to work as of
your receipt of this communication. The strikers will be waiting outside
the plant to be reinstated to their former positions.
On April 22 the former strikers gathered outside the Respondent's plant and
were called into the office later where they met' with Cohen and Marlton.
Cohen did most of the speaking. Herring testified that Cohen reviewed the
negotiations and stated that in his opinion the letter from the Union did not
constitute an unconditional offer to return to work, that he did not consider the
strike over because the Union was still pressing charges against the Respondent,
and that Cohen further stated that before the Respondent would consider that
there had been an unconditional offer to return to work, it would be necessary
for the Union to notify the Respondent's customers that the strike was over.
Cohen referred particularly to two concerns which had been requested by the
Union, according to him, not to do business with the Respondent. Cohen further
stated, according to Herring, that the Respondent felt no obligation to the strik-
ers, would not discharge their replacements, but would put them back to work
whenever there were openings.
Schimmel corroborated Herring and testified that Cohen urged the men to
try to have the Union drop the unfair labor practice charges.
Neither Cohen nor Marlton alluded to the April 22 meeting in any detail in
their testimony. However, there was received in evidence a transcript of a
hearing before the Unemployment Insurance Appeals Board, Department of
Employment, State of California, with reference to the claims of Joe Resnick,
Schimmel, and Herring. This hearing was held on August 22. In the course
of this proceeding references were made to the April 22 meeting and the follow-
ing excerpts from the transcript shed further light on what took place:
REFEREr. The union did, as you say, file a complaint before the Board?
Mr. STILLMAN. We filed a complaint-the Board did issue a complaint
against the company.
RF.FExmE. And the union was willing to send them back to work pending
the outcome of the issues?
Mr. STILLMAN. Yes.
REFEREF;. Both parties agreed?
Mr. COHEN. There has been no agreement on our part, no. This was
something that the union literally did on their own volition.
Cohen testified in the' hearing that by the above statement he had reference
to the Union's letter notifying the Respondent that it was terminating the strike.
As to this letter, he testified :
And I felt that that was-there had been no agreement with me, there
had been no discussion with me as to whether or not the picket line would be
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawn , there had been no understanding or agreement with me as to
whether the strike was over.
There was Just that action on their own part in deciding to call the
picket line off, or to call the strike off, and that is what I meant by that.
The following exchange took place at the Unemployment Insurance Hearing
in Cohen's examination of Joseph Resnick :
Q. I am going to ask you these questions , and you can answer yes or no.
Wasn't it a , fact, Mr. Resnick , that I outlined to all of the men present the
history of what occurred from March 21st, the date on which Mr. Carlton
received a letter from the union , up to and including the morning that you
came in to the office?
A. I don't remember.
Q. You don't remember my telling you that?
A. I don't remember.
Q. Do you recall, Mr . Resnick, that statement that I made that we could
not consider'the strike as having , been settled until the union would notify
two chain stores who had been informed during the period of the strike that
there was a strike in effect-
A. I don't know.
Q. Do you recall the statement that I made that we would not consider
the strike as being settled until the question of unfair labor practices which
had been filed against us by the union had either been settled or withdrawn?
A. I don't know . I don't remember such thing§.
Q. Mr. Resnick , do you recall when I personally contacted you and asked
you to contact the union and call their attention to the fact that the request
that you had made of the union had not been complied with?
Mr. STILLMAN . Will he please specify what request he made of Resnick?
Mr. COHEN . This request about the notification of the stores and the unfair
labor practices.
A. (By Mr . RESNICK. ) I remember one thing. I came there for work with
another fellow by the name of Norman Braumgarden , and the boss said to
us-he said , "Boys, if you want to work again, I will see that you go back
to work if the union will drop the charges-I will take you back to work."
Q. (By Mr. COHEN .) Do you recall the statement with reference to the
notification of the two chain store outfits?
A. No.
In the course of Cohen's examination of Schimmel , the following questions
and answers were recorded :
Q. (By Mr. COHEN.) At this meeting 'at which I was doing the talking,
do you recall the statement was made that we could not consider the strike
as having been settled until the customers who had been stopped from buying
from the Consolidated Frame Company and the question of the unfair labor
practice charges had been taken care of ; that we could not consider putting
any of the men back to work until the strike was settled ; and that we
couldn ' t put the men back to work until it was settled.
A. (By Mr. SCHIMMEL.) I remember you saying something like that.
Q. Did you do anything about the statement I made about notifying the
customers that the strike had been settled and the withdrawal of the unfair
labor practice charges, or the settling of.those charges-did you do anything
about that?
CONSOLIDATED FRAME COMPANY 1313
A. No. I had to get work. I didn't have time to do anything about that.
Q. You didn't go back to the union and report that?
A. No. I did not.
Cohen also questioned Herring at the Unemployment Insurance Hearing and
the following exchange took place :
Mr. CoHEN. Did you give a signed statement or an affidavit which was
used as a basis to file charges against the Consolidated Frame Company of
unfair labor practices?
Mr. HERRING. Yes. I signed a statement. I don't remember what was
in there now, but I believe it related to what was said the morning that we
went in and asked Mr. Carlton to join the union.
Mr. CoHEN. And do you know whether that was used as a basis for the
charges now pending before the National Labor Relations Board?
Mr. HERRING: No, I don't.
Mr. CoHIN. You were present at the meeting at. which I was speaking,
and at which time I made the statement that before we could consider the
trade dispute as being settled that the item of the notification of customers
and the settlement of charges of unfair labor practices would have to be
settled before we could consider the trade dispute to be settled?
Mr. HERRING. Yes.
Cohen, in his questioning of Schimmel, also asked him whether he had made any
signed statements or given an affidavit which was the basis for the charges
against the Respondent.
The transcript of the Unemployment Insurance Hearing also contains the final
exchange of letters between the parties. On May 19 Stillman wrote the Respond-
ent as follows:
To date you have not offered to take your employees back to work, even
though the union and the employees as individuals have unconditionally
given up the strike. We do not understand Mr. Cohen's position that the
union must give up its unfair labor practice charges against the company
before he will consider the strike as unconditionally given up. We believe
the law is on our side on this question.
We do not understand what Mr. Cohen is talking about when he says that
the union must notify all of the customers of the company that the strike has
been given up. You certainly have our letter, of which you can make a copy
and send to your customers, if you think it is necessary. In addition, we
have upon several occasions told Mr. Cohen that while we didn't see the
necessity for it and didn't feel we were legally bound to do it, we had no
objections to notifying any of his customers if that would help the
situation along.
On May 25th Marlton wrote the Union as follows :
Receipt of your letter dated May 19, 1949, contents of which have been
carefully read and noted, is hereby acknowledged.
I must disagree with the accuracy of your opening sentence-
As you personally know that we have repeatedly not only offered but have
been. exceedingly anxious to put back to work those of our employees for
whom we have work, despite the fact that they took part in a strike which
was called on Wednesday, March 30, 1949, to start on Thursday morning,
March 31, 1949, in direct violation of a mutual understanding which re-
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suited in a commitment personally made to our Mr. Cohen in your office
by your Mr. Stillman on March 29 , 1949 , in the presence of your Messrs.
Ramuglia and Broy, not to take any action or to do anything until Monday,
April 4 , 1949, at which time our Mr . Cohen had agreed is advise you as to our
decision with reference to our voluntarily accepting you as the bargaining
agent for our employees without an election or if you would insist on your
being certified by the National Labor Relations Board as the bargaining
agent.
I also wish to call your attention to the fact that to the best of my know-
ledge and belief, and based upon decisions which I have been informed have
been made by the National Labor Relations Board under the Labor Manage-
ment Relations Act of 1947, and even under the original Act, I 'did not engage
in any unfair labor practice prior to your calling the strike ; and under the
circumstances , therefore , I am informed we are not required, by law or
otherwise , to put back to work the striking employees, whose jobs are now
filled by other workers. Furthermore , it is the considered opinion of my
labor relations counsel that there is no obligation on my part to put any of
the men back to work. and your resistance to your issue raised about with-
drawing the allegations of unfair labor practice is under the circumstances
really immaterial. ,
With respect to the second paragraph of your letter , I wish to inform
you that whether you know it or not, you and your union engaged in an
unfair labor practice in violation of the Labor Management Relations Act
of 1947 by secondary boycott in threatening , intimidating and coercing two
of our major customers namely, Sears Roebuck & Co . and Coronet Stores,
"cease using , selling and handling our merchandise", under threat of a picket
line being placed at their stores-and in fact in the Coronet Stores case your
direct action was instrumental in their first instructing its on April 7, 1949,
to cancel all unfilled orders which we had on hand , and subsequently modi-
fying these instructions by telling us not to cancel the orders but to hold
the merchandise for further instructions , and on April 8, 1949. these in-
structions were rescinded , and you personally , Mr. Stillman , called me on
the telephone , telling me that you were giving me instructions and per-
mission , which had been confirmed by the Coronet Stores, allowing me to
ship the orders we had on hand , but that no further orders would be placed
with us by the Coronet Stores while the strike was pending.
It is, therefore , these two accounts , Sears Roebuck & Co. and Coronet
Stores, whom you and your associates persomially contacted, that we in-
sisted were to be- notified by you in writing about your having uncon-
ditionally called off the strike.
In closing, Mr. Stillman , I cannot understand how a strike can be called
off "unconditionally " and yet attach strings to your action. It is my con-
sidered opinion that a strike is not unconditionally called off until you have
notified the customers in writing or at least in the sane manner as you
previously notified them to the contrary , that the strike has been uncon-
ditionally called off, for otherwise those customers whom you have contacted
previously would only have our word for this instead of being officially
notified by you.
In the present proceeding. Cohen testified that he spoke with Braungart about
10 days or 2 weeks after the striking employees applied for reemployment and
that at that time he told Branugart that Karlton was willing to put him back
to work on condition that lie complied with the conditions which had been
CONSOLIDATED FRAME COMPANY 1315
stated in the meeting of April 22. Braungart, according to Cohen, said he had
spoken with union officials but, that they refused to have anything to do in
connection with notifying stores that the strike was over. Braungart further
stated, according to Cohen, that he would make a further effort to have this
condition complied, with but Cohen did not hear from him again.
From March 31 through April 4. no replacements were hired to take the place
of the strikers. In the week ending April 8, six employees were hired. In the
week ending April 15 there were six employees on the payroll. In the week
ending April 22 seven employees were hired. In the following week, namely
that ending April 29, six men were on the payroll. At the time of the hearing,
six persons were employed to do the work that had formerly been performed
by, the strikers. None of the strikers were reemployed except Rozar. He was
reemployed in May and was in the employ of the Respondent at the time of the
hearing.
Jerome Weinberg was one of those who had been hired to replace the strikers.
He testified that he was interviewed by Karlton before he was hired and that
in the course of the interview Karlton told him that although there was a
strike in effect, he would not have to worry about his job or the Union, that
Karlton would not recognize the Union and that Weinberg's job would be perma-
nent. It was only after extensive cross-examination that Weinberg admitted
that Broy had suggested that he apply for employment with the Respondent.
Weinberg's entire testimony impressed the undersigned as evasive and biased.
Although Karlton did not allude to Weinberg's testimony in the course of his
own examination, the undersigned finds Weinberg's testimony per se, as un-
worthy of belief and does not credit it. It is therefore unnecessary to decide
whether Karlton's alleged remarks were violative of the Act.
B. Acts of interference , restraint , and coercion
The clear preponderance of the evidence establishes that on March 21 , Karlton,
on receipt of a letter of demand for recognition sent by the Union , called his
employees into his office and there the employees were questioned as to their
union activities , were told that the Respondent would not have a union in its
plant , and were also told that henceforth they would lose certain privileges?
9 Barney took a part in these activities. The Respondent denies that Barney was a
supervisory employee. It is undisputed that Barney spent the majority of his time, probably
over 80 percent. in manual work. However Barney, in many ways, exercised real and
effective supervisory authority. Karlton himself testified that before lie called the men into
his office on March 21 he discussed the situation with Barney and that one of the points
he had in mind was whether Barney, in his handling of the men in the shop, had (lone any-
thing to antagonize them. Herring testified that lie received instructions from Barney,
that the men called him foreman or regarded him as the foreman, and that when he wanted
a salary increase, lie asked Barney first. It is undisputed that Barney distributed the pay
checks and significantly, when the employees had a meeting to determine their procedure
after the meeting in Karlton's office, he was the only one of the employees who did not
take part in that meeting. Schimmel also testified that Barney hired him and -gave him
instructions. Joseph Resnick testified that he understood that Barney was the foreman
and that lie went to hire for permission to spray his window blinds. Also, Barney was the
person to whom Resnick applied for permission to take time off on Fridays and Barney in
the past had given such permission. Most important is Karlton's own treatment of
Barney. He consulted with Barney before having the men in his office, he told Barney
of his decision on overtime and, according to his own testimony , lie gave Barney instructions
on how the men should be handled. All these factors indicate that Barney supervised the
operations in the Respondent 's plant . Karlton clearly did not exercise close supervision
of the operations there. His job was chiefly securing orders for plant operations. He
transmitted instructions to Barney and Barney , in turn , passed them on to the men. The
917572--51-vol. 91-84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that Karlton's remarks were made while he was
very excited, that at that time he had had no prior dealings with the Union,
and that these remarks were of an isolated character. He further contends that
Cohen, according to his own testimony, instructed Karlton not to change working
conditions at the plant and that Karlton, according to Barney's testimony and
Karlton's instructed the foreman not to change working conditions in the plant.
If steps had been taken to bring home to the employees that the Respondent
disavowed the remarks made on March 21, these arguments would have some
weight. Instead, not only was nothing done to disavow the activities of March
21, but affirmatively Barney by his own testimony did change Joseph Resnick's
working conditions by refusing him time off, giving as his reason the remarks
concerning loss of privileges made at the March 21 meeting. Also, on Friday,
March 25, an additional step was taken when overtime was eliminated.
Karlton's own testimony as to the circumstances under which he decided to
eliminate overtime negatives the contention that he was motivated strictly by
economic considerations in making the announcement . His final version as to
when he made the decision to eliminate overtime was that immediately after the
March 21 meeting he had a talk with Barney and then and there decided to
eliminate overtime. By his own testimony he had been excited when he met
with the employees. At that meeting he and Barney had threatened reprisals
because the employees had engaged in union activities . He gave as one of his
reasons for eliminating overtime his inability to engage in normal business
activity during the week of March 21 because of the Union's letter. Yet it is
difficult to see how on March 21, a Monday, he would know that for the balance
of the week he would not be able to conduct business operations effectively. The
testimony establishes that while in the past the possibility of the elimination of
overtime had frequently been discussed, increases in orders at various times had,
except for perhaps one instance, obviated the necessity for eliminating overtime,
and that this had been true for many months. The undersigned is persuaded
from the events preceding the decision to eliminate overtime and the timing
of the decision itself that Karlton was motivated not by economic considerations
but by an intent to penalize the employees for their union activities. At best
the Respondent's decision was actuated by mixed motives and in such a situa-
tion it is well settled that Respondent is also liable for a violation of the Act.`
The undersigned concludes that the Respondent by inquiring concerning the
union activities of his employees;' by asserting that he would not have a union
in the plant,12 by threatening employees with a loss of privileges because of their
union activities and by the actual withdrawal of certain privileges and the elim-
ination of overtime has interfered with, restrained, and coerced his employees
within the meaning of the Act"
size of the plant did not require that Barney devote much of his time to actual supervision
but nonetheless , he can best be described as a working foreman and he did exercise effective
supervision over the men and was a supervisor within the meaning of the Act (Alabama
Marble Company, 83 NLRB 1047).
10 The Respondent 's payroll records indicate that when operations were resumed during
the strike it was not necessary for the new employees to work overtime . However, opera-
tions at that time were admittedly not at a normal volume and the payroll situation at that
time furnishes no guide as to the needs of an overtime schedule from the situation existing
on March 21.
11 Standard-Coosa-Thatcher Company, 85 NLRB 1358.
12 C. A. Webb d/b/a Weaver Wintark, 87 NLRB 208.
13 Respondent contends that the proof does not establish that the employees were actually
coerced by the Respondent 's actions . While this contention can be challenged it is unnec-
essary to rule on this contention since proof of such an effect is not necessary under estab-
lished decisions . Everett Van Kleeck and Company, Inc., 88 NLRB 785.
CONSOLIDATED FRAME COMPANY 1317
The Respondent contends that the employees had no vested rights in the
continuance of an overtime schedule since it was not part of the regular work-
week. This contention ignores the fact that overtime actually was part of the
regular work schedule and had been for a long period and that the elimination
of overtime substantially diminished the take-home pay of the employees. In a
very real sense the elimination of overtime imposed a monetary penalty on the
employees.
The General Counsel contends that Cohen's questioning of Schimmel and
Herring during the unemployment compensation hearing as to whether they
had furnished statements or affidavits which had been the subject of the charge
brought against the Respondent was violative of the Act. The undersigned, from
his examination of the entire record in that hearing, is satisfied that these, ques-
tions were asked not in an effort to use that hearing to obtain information which
could not otherwise be properly obtained but rather that the questions were
asked as part of the development of the Respondent's presentation of his case.
The undersigned finds that such questioning was not violative of the Act.
C. The refusal to bargain
1. The appropriate unit
The complaint alleges that the following unit of employees of the Respondent
is a unit appropriate for the purposes of collective bargaining within the meaning
of the Act:
"All production, maintenance, shipping and receiving employees, excluding
office, clerical and supervisory employees as defined in the Act."
The Respondent, in his answer denies this allegation.
The testimony establishes that the Respondent at all relevant times herein
employed seven production workers in one plant which Cohen estimated was 40
to 50 feet by 100 feet. These employees, under the supervision of Barney, per-
formed assigned tasks which resulted in the finished product. These were inte-
grated operations which would ordinarily require a single production and main-
tenance unit. The Respondent introduced no evidence challenging the appro-
priateness of the alleged unit. The undersigned concludes and finds that at all
times here relevant the following unit of employees of the Respondent was and
still is an appropriate one within the meaning of the Act : All production, main-
tenance, shipping, and receiving employees, excluding office and clerical em-
ployees, and supervisors as defined in the Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges that the Union at all times since about March 18, 1949,
has been and is the duly designated collective bargaining representative of the
employees in the appropriate unit. Respondent denies this allegation in his
answer.
At the hearing application cards in the Union signed by all seven employees
in the unit were received in evidence. Five of the cards are dated either March
1.6 or March 17. The cards of Martin and Joe Resnick are undated. However,
according to Ramuglia's credited testimony he had received all seven cards by
the evening of March 17. Abrams testified that at the time of his conference
with Cohen and Ramuglia the Union had turned over to him all seven application
cards. Herring, Schimmel, Rozar, and Joseph Resnick personally identified their
cards. The undersigned concludes that on March 17, 1949, and at all times there-
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after, the Union was the duly designated bargaining representative of the em-
ployees in the aforesaid appropriate unit and pursuant to Section 9'(a) of the
Act, the Union was on March 17, 1949, and still is, the exclusive representative
of all employees in the aforesaid appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The refusal to bargain
The General Counsel contends that the Respondent from as early a (late as
March 29 failed and refused to bargain in good faith with the Union. In sup-
port of this contention he points to the failure of Cohen to bring to the informal
conference at the Board's office on March 29 the information requested in the
notice of that meeting which Cohen admitted receiving from Karlton as early
as March 24 and Cohen's unwillingness to make any definite commitments at
the conferences held on that day and his suggestions to the union representa-
tives that arrangements be worked out which would not necessitate immediate
recognition of the Union by the Respondent. On the other hand, representatives
of the Respondent and the Union had met for the first time on March 29. There
had never been any bargaining relationship between them. Cohen promised
to have the information requested of him and also an answer for the Union
within a few days, namely by April 4. The undersigned, after considering these
factors, and more particularly from his evaluation of Cohen's testimony is not
persuaded that Cohen's unwillingness to make a final commitment on March
29 and his promise to be ready to proceed further on April 4 were part of an
attempt to evade the Respondent's responsibility under the Act.
On the other hand, the undersigned finds no merit in the Respondent's con-
tention that Cohen had bona fide doubts as to the Union's majority status as
of April 4. Cohen testified that he felt that the Union was uncertain of its
majority status in view of the fact that it found it necessary to petition for an
ejection. This obviously in and of itself was not a sign ofweakness. It was
an attempt to have representation questions adjudicated by resort to Board
processes rather than economic combat. Cohen further testified that Karlton
had told him that Joe Resnick had reported to him that he was not interested
in the Union, that he wanted nothing to do with it and only dealt with it at
the insistence of his son, Martin. Cohen also testified that before the strike
Joseph Resnick spoke to him and said something about settling the controversy
since fighting was not good. Cohen testified that he concluded from this that
Joseph Resnick was not interested in the 'Union. Cohen also testified that
lie was influenced by Karlton's report to him that A\;acato had told him that
he had not attended union meetings and wanted nothing to do with it. These
reports, according to Cohen, made him doubtful as to just how the men would
vote on a secret ballot. On the other hand, Karlton had been told in the con-
ference on March 21 by Herring, when all the men except one were present,
that all the men were for the Union. Rozar had reported to Barney that the
men had reconsidered their opinion during lunch and were still for the Union
and Barney, according to his own testimony had reported this matter to Karlton.
Abrams had told Cohen on March 29 that the Union had secured signed member-
ship cards from all the employees and Ramuglia had offered to enter into a
card-check agreement with Cohen. This again was a recognized way of de-
termining majority and the fact that Ramuglia did not wish to turn the cards
over to Cohen without any prior agreement, certainly was no justification for
CONSOLIDATED FRAME COMPANY 1319 ,
Cohen entertaining any doubts as to the majority. There thus was very clear
evidence that the Union represented a clear majority of the employees and there
was no reasonable basis for entertaining any doubts on that point. Certainly
whatever doubts Cohen may have had as to the Union's majority status should
have been fully dispelled when every employee in the unit joined in the strike
on March 31. Cohen, of course, knew of the strike when he met the union
representatives on April 4. Also, according to his testimony, he made daily
visits to the plant and was familiar with the fact that a picket line was in
existence.
Actually, the testimony concerning the meeting on April 4 clearly indicates
the basis on which Cohen refused to deal with the Union. He did not raise any
issue concerning the Union's majority but he did charge the Union with breach
of an agreement to maintain conditions in status quo between March 29 and
April 4 and that since there had been such a violation he would not recognize
the Union." The basic question here is whether under these circumstances the
Respondent was justified in denying recognition to the Union on April 4 when it
clearly represented a majority in an appropriate unit solely on the basis of its
failure to maintain the status quo and going out on strike. The undersigned
has concluded that Cohen reasonably understood at the conclusion of his con-
ference with Stillman and the other union representatives on March 29 that,
as lie put it. nothing would happen until April 4. This arrangement, or under-
standing. was not of a contractual nature. At best, it was a moral undertak-
ing on the part of the Union. Certainly, at the very least, the Respondent should
be held to the same standard of good faith dealing as the Union. The Respond-
ent certainly was not guiltless in this matter. He had threatened reprisals
against the employees for their union activities and they actually had been
penalized for those activities. They had reason to fear other penalties. Cer-
tainly, tinder those circumstances they should not be penalized when they
took steps to thwart further reprisals. Perhaps the union representatives
should have been more aware of what was occurring at the plant but their
failure to obtain this information until after the conference with Cohen on
March 29 does not furnish a basis for denying the employees collective bargain-
ing rights. The fact that the employees were out on strike on April 4 of course
furnishes no basis for denying them collective bargaining rights since they
still remained employees of the Respondent. The undersigned concludes that
the Respondent, by failing and refusing, to, recognize the Union as collective
bargaining representative on April 4 and to bargain with it has engaged in a
violation of the Act.
The Respondent contends that he has been willing to meet with the Union
and offered to do so when a conciliator appeared in the case. However, at
that time, the Respondent was under an obligation to recognize the Union as
collective bargaining representative. He had failed to grant such recogni-
tion and was under an obligation to do so. `while he may have offered to meet
with the Union to discuss the strike situation at no time did the Respondent
offer to recognize the Union within the meaning of the Act. This unfair labor
practice, therefore, stood unremedied and the offer to meet with the Union
without such clear recognition did not remedy this unfair labor practice. In
any case, the offer was conditioned on the Union abandoning the strike..
"Whether we accept Cohen's testimony that he told the union representatives that in
view of the strike he was not prepared to give his answer or whether we accept the testimony
of the union representatives that he told them that he would not recognize the Union ih
either event there was a failure and refusal to recognize the Union at that time.
'1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The discriminatory refusals to reinstate the strikers
The Respondent contends that the strike which commenced on March 31 was
an economic strike called by the Union in order to put pressure on the Respondent
to grant recognition. The credible evidence clearly establishes the contrary.
Beginning on March 21, as previously related herein, the Respondent threatened
the employees with reprisals for their having engaged in union activities and
actually did inflict reprisals. According to the credited testimony of Ramuglia
and employee witnesses when the union members met on March 30 they had
these acts of discrimination in mind and feared further acts of reprisal. The
Respondent's prior conduct had given them good reason to fear that further
steps might be taken against them. According to the 'evidence the strike vote
was taken because the employees were in fear of just such action and wished
to take mass action to protect themselves. The undersigned concludes that
the weight of the credible evidence shows that the strike was caused by the
Respondent's unfair labor practices." In any event, it is very clear that it was
prolonged by the Respondent's action on April 4 in.refusing to grant recognition.
to the Union. Under these circumstances, the law is plain that the strikers
being unfair labor practice strikers, who had not been replaced at the time of
the unfair labor practices prolonging the strike, were entitled to reinstatement
upon their unconditional application for reemployment providing that there
was work for them even though it might be necessary to discharge those who
had replaced them." It is undisputed that they applied for reemployment
both through their Union and personally on April 22. It also is clear from the
testimony of all the witnesses that the Respondent refused them reemployment
unless two conditions were complied with. These two conditions were that
the strikers see to it that the Union notified customers of the Respondent that the
strike was over and also that the strikers see to it that the charges against
the Respondent be either dropped or disposed of in some way. The imposition
of such conditions does not find any sanction in the law. The strikers had un-
conditionally offered to return to work. The Respondent had hired replacements
for them and these replacements were at work during the week of April 22 and
the following week as well. There, therefore, were jobs to which these strikers
could have been assigned. The Respondent's refusal to reinstate the strikers
under these circumstances was violative of the Act. Respondent's insistence
that the charges be disposed of as a condition to reinstatement was, in itself, a
violation of the Act.17
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 described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
16 Even if the strike had as its purpose both the achievement of an economic goal and
the dissipation of the Respondent's unfair labor practices, it is a well-established principle
that a strike caused in part by an unfair labor practice does not lose. its character as an
unfair. labor practice strike because economic reasons may also have played a part in it.
Northeastern Indiana Broadcasting Co., 88 NLRB 1381; Julian Freirich Co., 86 NLRB 542 ;
N. L. R. B. v. Remington Rand, The., 94 P. 2d 862, 871-872 (C. A. 2), cert. den. 304
U. S. 605.
16 Pacific Gamble-Robinson Company, 88 NLRB 482; West Boyll•ton Manufacturing Conti-
pany of Alabama, 87 NLRB 808; Kansas Milling Company, 86 NLjtB 925.
. 17 Briggs: Manufacturing Company;.-7K' NLRB 569, 570; Burnside Steel Foundry Com-
pany, 69 NLRB 128, 136; John H. Macan Peanut Co., Inc., 84 NLRB 384.
CONSOLIDATED FRAME COMPANY 1321
several States and such of them as have been found to be unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices, it will be recommended that he cease and desist therefrom in
order to effectuate the policies of the Act.
Having found that the Respondent has engaged in interrogation of employees
concerning their union activities, has threatened his employees with reprisals
for engaging in union activities, has actually penalized employees for such
activities and by these and other methods has interfered ivith, restrained, and
coerced his employees in derogation of their rights secured by Section 7 of the
Act, it will be recommended that he cease and desist therefrom.
Having found that there has been a refusal to bargain with the Union the
undersigned will recommend that the Respondent, upon request, bargain col-
lectively with the Union as the representative of all his employees in the
appropriate unit previously described.
It has further been found that the Respondent discriminated in regard to the
hire and tenure of employment of the seven employees whose names are set forth
in the attached Appendix A. The undersigned will recommend that the Re-
spondent offer all these persons, with the exception of Rozar, who has been re-
employed by the Respondent, immediate and full reinstatement to their former
or substantially equivalent positions," without prejudice to their seniority or
other rights and privileges, if necessary dismissing all replacements hired on
or after April 4, 1949, and not employees of the Respondent on that date. If,
despite such reduction in force, there are not sufficient positions available, all
existing positions shall be distributed among the former strikers employed in
the unit, without discrimination against any of them because of his union
affiliation or activities, following a system of seniority, or such other non-
discriminatory practice as may have heretofore been applied in the Respondent's
business. Any former striker remaining after such distribution for whom no
employment is immediately available, shall be placed upon a preferential list
and offered reemployment as work becomes available and before other persons
are hired for such work, in the order determined among them by such system
or practice."
It will be further recommended that the Respondent make whole the former
strikers for any loss of wages that they may have suffered as a result of the
discrimination by payment to each of them, except Rozar, of a sum of money
equal to _the amount which he would have normally earned as wages from the
day of the Respondent's discrimination against him, namely, April 22, 1949, to
the date of the Respondent's compliance with the reinstatement provisions hereof,
less his net earnings during this period.20 As to Rozar, it will be recommended
that the Respondent pay him a sum of money equal to the amount which he would
have normally earned as wages from the date of the Respondent's discrimination
against him, namely, April 22, 1949, until the date of his reemployment.
The undersigned is of the opinion upon the entire record in this case that in
view of the extensive violations of the Act committed by the Respondent that
'" See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, 829.
"Pacific Gamble-Robinson Company, 88 NLRB 482.
20 Crossett Lumber Company, 8 NLRB 440.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the commission in the future of other unfair labor practices may be- anticipated
from the Respondent's conduct in the past. It will, therefore, be recommended
that the Respondent cease and desist from, in any manner, infringing upon the
rights guaranteed to his employees in Section 7 of the Act.21
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. "Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All production, maintenance, shipping, and receiving employees of the Re-
spondent, excluding office, clerical, and supervisory employees as defined in the
Act at all times material herein constituted and now constitute a unit appropri-
ate for the purposes of collective bargaining- within the meaning of Section 9
(b) of the Act.
3. Textile Workers Union of America, CIO, was at all times material and now
is the exclusive representative of the employees in said unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing, on April 4, 1949,, and at all times thereafter, to bargain col-
lectively with the Union as the exclusive representative of his employees in the
appropriate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the
employees whose names are set forth in Appendix A of this report, thereby dis-
couraging membership in Textile Workers Union of America, CIO; the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
6. By refusing to reemploy all the employees named in Appendix A herein,
with the exception of Rozar, unless and until they secured the settlement or
withdrawal of unfair labor practice charges filed against the Respondent with
the Board, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (4) of the Act.
7. By interfering with, restraining, and coercing his 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 (a) (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.
[Recommended Order omitted from publication in this volume.]
21 May Department Stores v. N. L. R. B., 326 U. S. 376. Daniel Hamm Drayage Co., Inc.,
84 NLRB 4,58; Morristown Knitting Mills, Inc., 86 NLRB 342.