Container Mfg. Co.

National Labor Relations Board - Board Decisions

Jan 26, 1948

75 N.L.R.B. 1082 (N.L.R.B. 1948)

In the Matter of CONTAINER MFG. Co. and AMERICAN FEDERATION OF
LABOR AND AFFILIATED INTERNATIONAL UNION
In the Matter Of MAX SAX, DOING BUSINESS AS CONTAINER MFG. CO.,
and CASKET WORKERS LOCAL UNION No. 187, AFFILIATED WITH UP-
HOLSTERERS INTERNATIONAL UNION OF N ORTH AMERICA, AFL
Cases Nos . 14-R-1409 and 14-C-1176, respectively.Decided
January 26, 1948
Mr. Harry G . Carlson, for the Board.
Bartley and Bartley, by Mr. William H. Bartley, and Mr. Joseph
Kirby, of St . Louis, Mo., for the Union.
M. Jack D. Schiff, of St. Louis, Mo., for the respondent.
DECISION
AND
ORDER
On February 6, 1947, Trial Examiner R. N. Denham issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had not engaged in any unfair labor practices and
recommending that the complaint 1 be dismissed in its entirety, as
set forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also made findings with respect to a number of chal-
lenged ballots cast in the election held pursuant to the Board's De-
cision and Direction of Election in Case No. 14-R-1409; he recom-
mended that certain challenges be sustained and that other challenges
be. overruled and the ballots counted. Thereafter, counsel for the
Board and the Union filed exceptions to the Intermediate Report and
a supporting brief, to which the respondent filed a reply brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
I The complaint alleged that the respondent violated Section 8 ( 1) and ( 3) of the Na-
tional Labor Relations Act, 49 Stat 449. Insofar as material herein, these provisions are
continued in Section 8 (a) (1) and 8 ( a) (3) of the Act as amended by the Labor Manage-
ment Relations Act, 1947.
75 N. L. R. B., No. 126.
1082
CONTAINER MFG. CO. 1083
mediate Report, the exceptions and briefs filed by counsel for the
Board and the Union, the brief filed by the respondent, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations bf the Trial Examiner, only insofar as they are con-
sistent with our findings, conclusions, and order hereinafter set forth.
1. We disagree with the Trial Examiner's conclusion that the re-
spondent did not discriminate against the 35 employees who struck
on March 7 and 8, 1946, in protest against Killam's discharge.2
The Trial Examiner found that the walk-out of March 7 and 8
constituted an economic rather than an unfair labor practice strike,
and that the respondent had permanently replaced all striking em-
ployees before they indicated a desire to return to work. On the
basis of his finding that all strikers were replaced before uncondition-
ally applying for reinstatement, the Trial Examiner further found
that the labor dispute in question was no longer "current" at the time
of their application and that the strikers thereby lost their "employee"
status and were not entitled to reinstatement or employment as a
matter of right under the Act.
Board counsel and the Union contend, in excepting to the Trial
Examiner's findings, that even if the strike be held to be an economic
one, nevertheless the striking employees either were unlawfully dis-
charged or were discriminatorily refused reinstatement by the respond-
ent. They assert in this connection that the respondent was motivated
by a determination, which he allegedly effectuated, not to reemploy
any of the strikers because of their afore-mentioned strike activities
and, moreover, that the respondent had not in fact replaced all the
strikers by the time they unconditionally applied for reinstatement.
As found by the Trial Examiner, about 3: 00 p. in. on the afternoon
of March 7, 1946, several hours after Killam's discharge and the sub-
sequent walk-out by 17 of the respondent's employees, James R. Barr,
a general representative of the American Federation of Labor, called
on General Manager Morley at the respondent's plant. After pro-
testing Killam's discharge Barr inquired concerning the "possibility
of getting her [Killam] along with the rest of these girls back on the
job until we could have a Labor Board election or something to settle
the question once and for all." Morley's reply, other than that "no
union representative could come in his office and coerce him," does not
appear in the record. The following morning, Friday, March 8, 1946,
18 additional employees joined the walk-out, and did not report for
work. During that morning, job applicants began to appear at the
2 The names of these 35 individuals aie set forth in "Appendix A," attached hereto As
indicated below, we agree with the Trial Examiner that Killam ' s discharge was not itself
disciiminatory. .
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's plant in response to a call to the U. S. E. S. made by the
respondent the preceding afternoon after learning of the walk-out, and
also in response to the respondent's invitation to his remaining work-
ers to bring in any friends who desired to qualify for work. The
Trial Examiner found that "by the end of the day [March 8] more
than enough persons had been hired and put to work to fill the vacan-
cies created by the walk-out." Sometime during the same day,
March 8, Barr telephoned Stone, the respondent's production man-
ager, and inquired "if there was not some way we could get these
people back to work." Stone referred him to Schiff, the respondent's
attorney. Although Barr telephoned Schiff shortly afterward on the
same day, he was unable to get an appointment with Schiff until a clay
or two later, at which time he asked Schiff if there was any way to
get the employees back to work. Schiff replied that those employees
were regarded as having quit, that substantially all their places had
been filled, and that "if they [the respondent] could take on more
people, they would have no objection to putting them to work."
The Trial Examiner further found that on Saturday, March 9, the
day after Barr had talked to Stone about having the strikers return
to their jobs, a small group of the employees who had stayed out on
March 8 reported back for work, but were told by Stone and Forelady
Lynn that they had been replaced and that there were no jobs avail-
able for them at that time. On Tuesday, March 12, shortly after 9
o'clock in the morning, a group of employees representing the entire
group in question went to the plant to see Production Manager Stone
regarding their jobs, and asked him whether they had been discharged.
Stone answered that they had been replaced and not discharged, but
that he was under the impression that they had quit. The spokesman
for the group then stated that they had not quit, but had walked out
on account of the Killam discharge. Thereafter, as the Trial Ex-
aminer found, although numerous vacancies have occurred as a result
of the respondent's normal turn-over, including many among the
_group that was employed on March 8 to replace the strikers, none of
the employees who participated in the walk-out of March 7 and 8 has
ever been rehired by the respondent.
We agree with the Trial Examiner that in an economic strike the em-
ployer is free to replace his striking employees and is not bound to dis-
charge the replacements in order to create places for strikers who de-
sire to return to work.3 However, even in an economic strike, the em-
ployer may not at any time, either during or after the strike, discrimi-
nate against the strikers because of their lawful participation in the
strike. Thus, where economic strikers make an unconditional request
3 N. L. R B v. Mackay Radio & Telegraph Co , 304 U S 333, 345.
CONTAINER MFG. CO. 1085
for reinstatement to their jobs which are still vacant, the employer's
refusal, without good cause, to reinstate them often raises an inference
of discrimination because of their strike activities 4 Similarly, where
the strikers' jobs have been filled prior to any unconditional request
for reinstatement and the strikers at any later time apply as applicants
for new employment, the employer's refusal to rehire them as new em-
ployees to new vacancies because of their prior strike activities con-
stitutes unlawful discrimination proscribed by the Act.5 We need not
always, in the case of an economic strike, pass upon the question of the
employee status of the strikers or the "currency" or lack of "currency"
of the strike, inasmuch as such considerations are immaterial to a de-
termination of whether or not the employer discriminated against per-
sons who seek reinstatement or reemployment, because of their lawful
participation in the strike. With these principles in mind, we turn to
an evaluation of the facts in this case to determine (1) whether the
strike was an economic one, (2) whether unconditional requests for
reinstatement were made before the strikers' jobs were filled, and (3)
whether applications were made for new vacancies which occurred
after their jobs were filled and whether the employer refused to re-
hire them to such vacancies because of their prior strike activity.
We agree with the Trial Examiner that the respondent lawfully dis-
charged Ann Killam and that the resulting walk-out was an economic
strike and not one caused by the respondent's unfair labor practices.
Barr's request for reinstatement on March 7 was conditioned upon
the respondent's also reinstating Killam, who had been discharged for
cause. And when Barr again sought to "get these people back to
work" the following day, he gave no indication that the strikers were
abandoning the condition of Killam's reinstatement. In the absence
of such clarification, the respondent was not required to assume that
the strikers had discontinued the condition of the previous day's offer.
We are of the opinion, therefore, that Barr's request for reinstatement
on March 7 and 8 did not constitute such an unconditional offer by the
strikers to return to their jobs as to raise an inference of discrimination
from the respondent's failure to reinstate those who had not yet been
replaced. We do find, however, in agreement with the Trial Exami-
iler, that all the strikers made an unconditional request for reinstate-
inent on March 12, at which time all their jobs had been filled by
replacements.
Board counsel and the Union contend, however, that even if it be
found that all the striking employees had been replaced by March 12
"Member Houston's views as to the proof required to rebut the presumption of discrim-
ination in these circumstances are fully set out in Matter of National Grinding Wheel Com-
pann/, 75 N L R B 905
6 See Phelps Dodge Corporation Y. N L. R. B , 313 U. S. 177
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when they made unconditional application for work, the respondent
nevertheless discriminated against them when he thereafter hired a
large number of new employees without reemploying any of the
strikers.
The record shows that the strikers made daily appearances at the
respondent's plant for more than 3 weeks after the beginning of the
strike, in an effort to solicit the non-striking employees for member-
ship in the Union; and that they continued such daily appearances
for several weeks after the respondent rejected their March 12 re-
quest for reinstatement, allegedly for lack of vacancies. Yet the
respondent failed to reemploy any of them, although he continued
to hire new employees daily 6 and also despite the fact, mentioned
above, that the respondent's attorney had informed the Union repre-
sentative that the respondent would have no objection to putting the
strikers back to work if the respondent "could take on more people."
Not even the older, more experienced, and more trusted employees
such as Goldie Russell, who the respondent admits was a skilled and
"very satisfactory" filling machine operator, and Lessie Russell, assist-
ant to Forelady Killam and previously selected by the respondent for
the very purpose of replacing Killam, were rehired in available jobs.
Under all the circumstances and upon the entire record, we are of
the opinion and find that the respondent knew, on the days following
March 12, that the strikers still desired employment. The strikers
could reasonably have concluded from the statement of the respond-
ent's attorney that additional applications were unnecessary. Under
all these circumstances, we believe, contrary to the Trial Examiner,
that it was not necessary for the strikers to continue to make specific
daily application for employment at the precise moment when vacan-
cies occurred. We find, rather, that the unconditionil application by
all the strikers on March 12 was in the nature of a continuing applica-
tion which remained in effect and was still current and operative when
subsequent vacancies occurred and hirings were made.7 We are of the
opinion, upon all the facts of the case, that the respondent refused
and failed to rehire the strikers to fill the vacancies occurring after
March 12 because these individuals had engaged in the afore-men-
tioned strike. We also find that the respondent would have rehired
6 The record shows that of the employees on the respondent's pay roll of July 16, 1946,
3 employees were hired on March 12 , one was hired on March 13, 2 on March 14, 2 on
March 15 , 4 on March 18, 2 on March 19 , etc. The record also shows that the respondent
hired approximately 77 employees between March 13 and July 16, 1946 , inclusive , and that
it increased its employee complement from approximately 160 employees in March 1946 to
approximately 200 at the time of the election in August 1946 Few of the jobs in the
respondent ' s plant, as the Trial Examiner found, are skilled positions ; most of them are
filled by the respondent with unskilled labor.
7 Matter of Republic Steel Corporation (98 Strip hhll), 62 N. L. R. B. 1008, 1028-1029.
CONTAINER MFG. CO. 1087
all the strikers by July 26, 1946, the date of the Board's Direction of
Election in Case No. 4-R-1409, but for his unlawful discrimination
against them." Accordingly, we find that, by failing to rehire the
strikers because they engaged in concerted activities protected in Sec-
tion 7 of the Act, the respondent interfered with, restrained, and co-
erced his employees in violation of Section 8 (1) of the Act. We also
find that the respondent's conduct, in discriminating in regard to the
hire and tenure of the strikers, discouraged membership in the Union
and thus also violated Section 8 (3) of the Act.
2. The Trial Examiner also found that the respondent did not en-
gage in certain other conduct alleged in the complaint as violating
Section 8 (1) of the Act. However, the Intermediate Report fails to
relate the undenied credible testimony in the record which leads us to
a contrary conclusion. Thus, sometime during the week following
the walk-out, Georgia Patton, one of the strikers, spoke to Production
Supervisor Stone in his office at the plant. During that conversation,
Stone asked Patton whether she was "for the union,'.' and upon Pat-
ton's response that she was, Stone further questioned Patton as to her
reasons therefor. On March 9, 1946, when Lucy Arnold and Dorothy
Blanks sought to return to their jobs, Stone asked them why they had
signed union cards. On the same day, Stone also asked Dorothy
Blanks, "Why didn't you come to us if you wanted to have a union?"
Forelady Lynne admittedly addressed 'a similar question to Goldie
Russell on March 7, as the Trial Examiner found. The foregoing evi-
dence establishes that the respondent interrogated his employees con-
cerning their union membership and activities, and we find that the
respondent thereby violated Section 8 (1) of the Act.
3. The Trial Examiner overruled the challenges to ballots cast by in-
dividuals hired as replacements for the strikers; and he sustained the
challenges to ballots cast by strikers who were not rehired. We do not
agree with this disposition of the challenges.
'We have held above that the respondent discriminatorily refused and
,failed to rehire the 35 strikers before the eligibility date for participa-
tion in the election which the Board directed on July 26, 1946. Had
they continued in the respondent's employ during the pay-roll period
s See footnote 5, supra.
In the Intermediate Report, the Trial Examiner refers to testimony given by employee
Zelma Anthony, that Forelady Lynn stated on March 7, 1946, after the walk-out, that the
respondent would close its shop and move it to Chicago "if a union came in." The Trial
Examiner credits Lynn's denial of having made this statement, but goes on to state that
even if the remark were made, it would be merely an expression of personal opinion made by
a subordinate supervisor and, as such, not attributable to the respondent. Inasmuch as we
accept the Trial Examiner's credibility findings concerning Lynn's denial, we find that
Lynn did not make the statement referred to above. However, we do not agree with, and
hereby reject, the Trial Examiner's alternative ground for finding the statement of Lynn
not attributable to the respondent.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately preceding the Direction of Election and not quit or been
discharged for cause at any time prior to the election on August 22,
1946, these individuals would have been "employees" at the time of the
election within the meaning of the Act and could properly have voted
therein. Conversely, there may have been as many as 35 ballots cast
by replacements who would not have been hired and who would have
been ineligible to vote, except for the respondent's discrimination
against the strikers. The total number thus involved, could materially
affect the results of the election. But we are unable to determine from
the record before us the identity of such persons or their actual number
and therefore cannot rule upon the challenges to their-ballots. Under
these circumstances, we believe it will best effectuate the policies of
the Act to set aside the election and dismiss the petition in Case No.
14-R-1409, without prejudice to the Union's filing a new petition for
a determination of representatives.
The effect of the unfair labor practices upon commerce
The activities of the respondent set forth above, occurring in connec-
tion with the operations of the respondent described in Section I of the
Intermediate Report attached hereto, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
We have found that the respondent violated the Act by interrogating
his employees concerning their union membership and activities and by
penalizing them for their organizational and concerted activities by
discriminatorily refusing and failing to rehire 35 of them who engaged
in a strike. Such discrimination "goes to the very heart of the Act." 10
Upon the entire record, we infer and find that the respondent's
illegal activities, mentioned above, disclose an intent to defeat self-
organization and its objects, and an attitude of opposition to the pur-
poses of the Act. Because of the respondent's unlawful conduct and
the underlying purposes manifested thereby, we are convinced that
the unfair labor practices found are persuasively related to the unfair
labor practices proscribed by the Act, and that danger of commission
in the future of any or all the unfair labor practices defined in the
Act is to be anticipated from the respondent's conduct in the past.
The preventive purposes of the Act will be thwarted unless our order
'O N. L. R. B. v . Entwistle Manufacturing Co, 120 F ( 2d) 532, 536 (C. C. A 4) ; see also
N. L. R. B. v. Automotive Maintenance Machinery-Co., 116 F. ( 2d) 350 , 353 (C C. A. 7).
CONTAINER MFG. CO. 1089
is coextensive with the threat." In`order, therefore, to make effective
the interdependent guarantees of Section 7 to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the
Act, we shall order the respondent to cease and desist, not only from
the unfair labor practices herein found, but also from in any other
manner interfering with, restraining, or coercing his employees in the
exercise of the rights guaranteed in Section 7 of the Act, and to take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the respondent discriminatorily refused to rehire
the 35 individuals listed in "Appendix A" attached hereto, we shall
order the respondent to offer each of them the former position, or a sub-
stantially equivalent position," that he or she would have occupied,
but for the respondent's discrimination, without prejudice to his or her
seniority or other rights and privileges, dismissing, if necessary, any
employees hired in their place since March 12, 1946. We shall also
order the respondent to make whole the aforesaid individuals for any
losses of pay that they may have suffered by reason of the respondent's
discrimination against them by payment to each of them of a sum of
money equal to the amount that he or she normally would have earned
as wages from the date of such discrimination to the date of the offer of
Employment less his or her net earnings during such period.- In
accordance with our practice, the period from the date of the Inter-
mediate Report to the date of the Order herein will be excluded in com-
puting the amounts of back pay to which these individuals may be
entitled, as the Trial Examiner recommended that the complaint be
dismissed.
We expressly reserve the right to modify the above provisions if
made necessary by a change of conditions in the future, and to make
such supplements thereto as may hereafter become necessary in order
to define or clarify their application to a specific set of circumstances
not now apparent.'
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
11 N L R. B. v Express Publishing Company, 312 U. S. 426 , May Department Stoics Co v.
N. L. R B, 326 U S 376.
12 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean " former position when-
ever possible , but if such position is no longer in existence , then to a substantially equiva-
lent position . See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch , 65 N L R B 827, 829.
11 By "net earnings " is meant the definition of the term in Matter of Crossett Lumber
Company , 8 N. L. It. B . 440, and Republic Steel Corporation v. N. L R B , 311 U. S. 7.
14 Matter of Fairmount Creamery Company, 64 N L H B 824 . et N L R . B v. New
York Merchandising Co., 134 F (2d) 949 C C. A 2) , International Union v . Eagle Picher
Mining it Smelting Co , 325 U. S 335.
logo DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Casket Workers Local Union No. 187, affiliated with Upholsterers
International Union of North America, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of the individuals named in "Appendix A" attached hereto, thereby
discouraging membership in Casket Workers Local Union No. 187,
affiliated with Upholsterers International Union of North America,
AFL, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3)15 of the Act.
3. 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 (1) 16 of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not discriminated against Ann Killam,
Edward Green, or Earl Pruett, within the meaning of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, Max Sax, d/b/a
Container Mfg. Co., St. Louis, Missouri, and his agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Casket Workers Local Union No.
187, affiliated with Upholsterers International Union of North
America, AFL, or in any other labor organization of his employees,
by discriminating in regard to the hiring of applicants for employment
or-by discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of their employment;
(b) Interrogating his employees concerning their union member-
ship and other organizational activities;
(c) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Casket Workers Local Union
No. 187, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
'4 Section 8 (a) (3) of the Act as amended by the Labor Management Relations Act, 1947.
30 Section 8 (a) (1) of the Act as amended by the Labor Management Relations Act, 1947.
0
CONTAINER MFG. CO. 1091
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act, as
amended.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act, as amended :
(a) Offer the 35 individuals listed in "Appendix A" immediate and
full employment at the same or substantially equivalent positions at
which they would have been employed but for the respondent's dis-
crimination against them, without prejudice to their seniority and
other rights and privileges, in the manner set forth above in that
section of the Decision entitled, "The Remedy";
(b) Make whole the individuals listed in "Appendix A," for any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them, by payment to each of them of a sum of
money equal to the amount which he or she normally would have
earned as wages during the period from the date of the respondent's
discrimination against him or her to the date of the Intermediate Re-
port herein, and during the period from the date of this Order to the
date of the respondent's offer of employment to him or her, less his
or her net earnings during such periods ;
(c) Post at his plant in St. Louis, Missouri, copies of the notice
attached hereto, marked "Appendix B." 17 Copies of such notice, to
be furnished by the Regional Director for the Fourteenth Region,
shall, after being 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 all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent discriminated in regard
to the hire or tenure of employment of Ann Killam, Edward Green,
and Earl Pruett.
IT IS FURTHER ORDERED that the election held on August 22, 1946,
among the respondent's employees be, and it hereby is, set aside, and
that the petition in Case No. 14-8-1409 be, and it hereby is, dismissed
14 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted , before the words : "A Decision and Order ," the words : "A Decree of the
United States Circuit Court of Appeals Enforcing."
766972-48-vol. 75-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to the Union 's filing a new petition fora determina-
tion of representatives.
APPENDIX A
Anderson , Lucy Arnold, Lucy
Barton , Betty Bishop , Willie Mae
Cook, Vera Blanks, Dorothy
Dehne, Lulu Buggs, Flora
Eubanks, Evelyn Delmer, William
Franklin , Elizabeth Edmonds, Jean
Hollis, Dovie Fields, Rose
Jones, Annie Galloway, Elmer
Lay, Bernice Gay, Amos
Lay, Dorothy Helmer, William
McGuirk, Lucy Horges, Doloras
Poss, Hazel Jones , Pirttrue
Poss, Raymond Maxwell , Cloteal
Russell, Goldie Parks, Clara
Russell, Lessie Patten , Georgia
Smith, Elmer E . Porter, Tom
Stratton , Margie Rose, Eugene
Anthony, Zelma
APPENDIX B
NOTICE TO ALL EaIrl.ovEEs
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, as amended , I hereby notify my employees that :
I WILL NOT in any manner interfere with, restrain , or coerce my
employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist CASKET WORKERS LOCAL
UNION No. 187, AFFILIiTED WITH UPHOLSTERERS INTERNATIONAL
UNION or NORTH AMERICA, AFL, or any other labor organization,
to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
I WILL NOT interrogate my employees concerning their union
membership and their other organizational activities.
I WILL OFFER to the following named individuals immediate and
full employment at the same or substantially equivalent positions
at which they would have been employed , without prejudice to any
CONTAINER MFG. CO. 1093
seniority or other rights and privileges they would have enjoyed,
and make them whole for any loss of pay suffered as a result of
the discrimination against them.
Anderson, Lucy Arnold, Lucy
Barton, Betty Bishop, Willie Mae
Cook, Vera Blanks, Dorothy
Dehne, Lulu Buggs, Flora
Eubanks, Evelyn Delmer, William
Franklin, Elizabeth Edmonds, Jean
Hollis, Dovie Fields, Rose
Jones, Annie Galloway, Elmer
Lay, Bernice Gay, Amos
Lay, Dorothy Helmer, William
McGuirk, Lucy Horges, Doloras,
Poss, Hazel Jones, Pirttrue
Russell, Goldie Maxwell, Cloteal
Russell, Lessie Parks, Clara
Smith, Elmer E. Patten, Georgia
Stratton, Margie Porter, Torn
Anthony, Zelma Rose, Eugene
All my employees are free to become or remain members of the above-
named union or any other labor organization. I will not discriminate
in regard to hire or tenure of employment or any term or condition of
employment against any employee because of membership in or activity
on behalf of any such labor organization.
MAX SAX, DOING BUSINESS AS
CONTAINER MFG. CO.,
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.
INTERMEDIATE REPORT
Harry U Carlson, Esq., of St. Louis, Mo, for the Board
Bartley and Bartley by William H. Bartley, Esq, of St. Louis, Mo., and Mr.
Joseph Kirby, International Vice-President, of St. Louis, Mo., for the Union.
Jack D Schiff, Esq., of St. Louis, Mo., for the respondent.
STATEMENT OF THE CASE
On August 22, 1946, pursuant to a Decision and Direction of Election entered
by the National Labor Relations Board, hereinafter called the Board , on July
26, 1946 , in Case No. 14-R-1409, an election was conducted among the employees
of Container Mfg. Co., in St . Louis, Missouri , for the purpose of determining
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether the employees in an appropriate unit consisting of all the production
and maintenance employees of Container Mfg. Co., with certain designated ex-
ceptions, desired to be represented for purposes of collective bargaining by
Casket Workers Local Union No. 187, affiliated with Upholsterers International
Union of North America, AFL, herein called the Union. Out of a total of 165
ballots offered, 103 were challenged and 62 were counted as valid ballots re-
flecting the result of 16 votes for the Union and 46 votes against the Union.
Of the 103 ballots that were challenged, 3 were challenged by the Board's agent,
22 were challenged by Respondent's representative on the ground that the per-
sons tendering the ballots were not employees eligible to vote, and the remaining
78 were challenged by the union representative on the general ground that the
persons tendering them were temporary replacements hired to take the place
of strikers who, on the day of the election, had not been returned to work.
Since, prior to the time of the election, a charge had been filed by the Union
against Max Sax, doing business as Container Mfg. Co., hereinafter called
Respondent, in Case No. 14-C-1176, charging him with the discriminatory dis-
charge of one of his employees because of her membership in and activity on
behalf of the Union, which discharge resulted in the strike above referred to,
the Regional Director has recommended to the Board that the Board direct a
hearing on the matter of the challenges.
An amended charge having been filed on October 9, 1946, the Board, on October
23, 1946, issued its order pursuant to Section 20358 subsection (c) (2) and
Section 203.42 (b) of the Rules and Regulations, Series 4, directing that Cases
Nos. 14-R-1409 and 14-C-1176 be consolidated, and that notices of hearing
on such consolidated cases be issued by the Regional Director for the Fourteenth
Region.
Upon the amended charge filed in Case No. 14-C-1176 on October 9, 1946,
by the Union, the Board, by its Regional Director for the Fourteenth Region
(St. Louis, Missouri), issued its complaint in the cases so consolidated, dated
October 25, 1946, against Respondent, alleging that Respondent had engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
'Act, 49 Stat. 449, herein called the Act, and concurrently therewith, issued
and served upon Respondent and the Union, copies of the complaint and a notice of
hearing in the consolidated cases above referred to, said notice fully apprising
parties that the purpose of the hearing was not only on the allegations of the
complaint, but to hear the evidence and determine the challenges to the ballots
that were tendered in the election above described.
With respect to unfair labor practices, the complaint alleges that on March
7, 1946, the Respondent discharged Ann Killam; that from March 8, 1946, to
March 12, 1946, the Respondent locked out and discharged certain named
employees ; that on or about May 18th, 1946, Respondent discharged Edward
Green and Earl Pruett; that Respondent has at all times since the above dates
failed and refused to reinstate the employees above referred to; that the dis-
charge of Ann Killam and the lock-out and discharge of the other named
employees except Edward Green and Earl Pruett, and Respondent's subsequent
refusal and failure to reinstate them, were for the reason that they joined
and assisted the Union and engaged in concerted activities with other.employees
for the purposes of collective bargaining and other mutual aid and protection ;
that Respondent discharged Edward Green and Earl Pruett for the reason,
that they had testified in a hearing before the National Labor Relations Board
and engaged in concerted activities with other employees for the purposes
CONTAINER MFG. CO. 1095
of collective bargaining and other mutual aid' and protection ; that at all
times since March 7, 1946, up to and including the date of the issuance of the
complaint, Respondent has interfered with, restrained, and coerced his employees
in the exercise of the rights guaranteed in Section 7 of the Act by: (a) ques-
tioning employees concerning their Union activity, (b) warning employees
from joining or assisting the Union, (c) threatening to discharge employees who
engaged in concerted activity, (d) warning employees that Respondent would
close his plant before lie would let the Union in; and (e) warning and advising
employees to vote against the Union ; and that by all the foregoing conduct
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (1) and (3) of the Act.
The answer of Respondent duly filed was a general denial of each and every
allegation in the complaint.
Pursuant to such notice, a hearing was held in St. Louis, Missouri, on Novem-
ber 19, 1946, through November 26, 1946, before R N. Denham, the undersigned
Trial Examiner duly designated by the Chief Trial Examiner. All parties ap-
peared and were represented by counsel. Full opportunity was afforded them
to be heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues . At the close of the Board's presentation of its case-in-
chief, counsel for Respondent moved to dismiss those paragraphs of the com-
plaint beginning with the paragraph alleging the discharge of Edward Green
and Earl Pruett, and each allegation thereafter pertaining to alleged unfair labor
practices, because of lack of proof of any of the allegations contained in any of
said paragraphs. Counsel for the Board having adduced no testimony with ref-
erence to the alleged discharge of Ear] Pruett and having moved for the dismissal
of the complaint as to him, and having adduced no substantial evidence that Ed-
ward Green had been discharged or that there was any unlawful discrimination
attached to the termination of his services, the motion of counsel for Respond-
ent to dismiss all the allegations in the complaint pertaining to the discharge of
Edward Green and Earl Pruett was granted There having been no evidence
or suggestion that Respondent had warned and advised employees to vote against
the Union, the motion to dismiss as to subparagraph (e) of the general allega-
tions of the complaint with reference to interference, restraint, and coercion was
granteib The remainder of the motion was denied. At the close of the taking
of all testimony, counsel for the Board moved to conform the pleadings to the
proof with respect to the correction of names, dates, and other incidental mat-
ters not going to the issues of the case. Motion was granted without objection.
At the close of the case, counsel for Respondent renewed his motion to dismiss
the complaint. The disposition of such motion is contained in the recommenda-
tions set forth at the conclusion of this report. At the conclusion of the hearing
the parties were apprised of their privilege to argue the issues before the Trial
Examiner and such argument was had. They were further advised of their
privilege to file briefs and proposed findings of fact on or before December 11,
1946.
Briefs have been received from counsel for the Board and for Respondent, to-
gether with a document from counsel for Respondent, entitled "Respondent's
Suggested Intermediate Report" which, it is assumed, is intended to serve as
Respondent's proposed findings of fact and conclusions of law. Because of the
form in which the proposed findings of fact and conclusions of law are submitted,
it is impossible to rule upon the acceptance or rejection of each element contained
therein. This is especially true with reference to the proposed findings as to
the credibility of the witnesses. In the main , however, the proposed findings
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of fact are substantially supported by the evidence and are accepted in sub-
stance, subject only to such variations therefrom as may be reflected in the
findings of fact set out in this Intermediate Report.
Similarly, the proposed conclusions of law are accepted subject to such enlarge-
ments and restatements thereof as appear in this Intermediate Report.
The foregoing pertains only to so much of the proposed findings of fact and
conclusions of law as apply to Case No. 14-C-1176. The proposed findings with
reference to the validity of the challenged ballots involved in Case No 14-R-1409
are likewise accepted only insofar as they are not inconsistent with the specific
findings on the questions there involved, as the same are set out in this Inter-
mediate Report.
Upon the basis of the foregoing and upon the entire record in these cases, as
well as from his observation of the witnesses, and his examination of such
exhibits as were offered and ieceived in evidence, the undeisigned makes the
following.
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Max Sax, an individual, doing business under the trade name and style of
Container Mfg. Co., with his principal office and place of business in St. Louis,
Missouri, is engaged in the manufacture and sale of punchboards in connection
with which he employs approximately 200 persons as his production and mainte-
nance personnel . In the course and conduct of his business , Respondent annually
purchases raw materials valued at more than $25,000, of which in excess of 50
percent is shipped to St Louis from States other than the State of Missouri.
The finished products annually manufactured and distributed by Respondent are
valued in excess of $50,000 of which more than 75 percent is shipped to points
outside the State of Missouri.
II THE ORGANIZATION INVOLVED
Casket Workers Local Unton No. 187, affiliated with Upholsterers International
Union of North America, AFL. is a labor organization admitting the employees
of Respondent to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
4
Although the superintendent of maintenance and the four mechanics working
under him are all members of the International Association of Machinists, and
the superintendent who hired the men under him was known to be such at the
time he was hired, the record does not reflect any effort on the part of the pro-
duction employees of Respondent to effect an organization among themselves
for purposes of collective bargaining, until March 6 and 7, 1946, when the incidents
which gave rise to the charge and complaint in this case occurred.
Respondent employs approximately 200 persons as production workers in the
manufacture of punchboards which it distributes generally throughout the United
States with its apparently largest center of distribution in Chicago. These
punchboards are gambling devices consisting of highly ornate boards, of varying
designs and arrangements, in the lower halt of which are a large number of small
holes, frequently exceeding 1.000, into which have been inserted folded slips of
paper which the players punch out of their respective holes upon the payment
of various sums ranging from 5 cents to a dollar. Each slip bears a number or
symbol, some of which entitle the holder to receive varying sums of money from
CONTAINER MFG. CO. 1097
the operator of the board. On some of the boards, there are also certain slips
which entitle the holder to punch another slip out of a smaller group of holes
where the slips represent a higher ratio of winnings to the players and vary in
amount from 25 cents up. On certain of the boards and especially the board
known as the "Silver and Gold Board," around which much of the controversy
in this case has turned, those players who are lucky enough to win a chance in
the first small group of holes, have chances, in making their punches in this first
group, known as the "Silver Jackpot," to draw tickets which will entitle them to
advance to another small group of holes known as the "Gold Jackpot" where the
prizes are substantially greater From this jackpot, the player also has a remote
chance of drawing a ticket that will give him a chance at the grand prize.
In the manufacture of these boards, the ratio of winning tickets to the total
number of tickets in the board is carefully computed and, to guard against
duplication, each ticket in the main body of the board as well as those in the
supplemental groups of punch holes, bears a serial number that corresponds to
it serial number appearing on the back of the board. The tickets in the main
body of the board are one color Those that are to be inserted in the primary
or "Silver Jackpot" group are of a different color, and those which go into the
high paying "Gold Jackpot" group are of still a third color. It is obvious there-
fore, that, for. the preservation of the ratio of possible winnings to the total
amount of money played by the players, the initial computation of winning
tickets in each of the three groups of punch holes must be preserved, and the
tickets intended for the smaller jackpot not intermingled with or exchanged for
those in the "gold" jackpot, and vice versa
In the manufacture of the boards, the design of the holes for any given type of
board is first punched out. The tickets, with their serial number and the neces-
sary symbols or figures, are prepared in the printing shop of Respondent and
delivered to the filling department, just enough tickets being delivered with
each board to till that board. These tickets are then separately shuffled in
their respective color groups, and run through a crimping machine which folds
them into a tight package small enough to allow one ticket to fit into each hole,
after which they are loaded into the holes by machinery and passed on to the
checking department.
It is the primary duty of the checking department to inspect the boards after
the tickets have been inserted, to see that the various colors of tickets are in the
appropriate groups of holes, am' to endorse on the back of the board its serial
number, type, and trade name, for the information of the next department where
the board is sealed by placing the ornate top on it. While it is possible for the
topping department occasionally to discover errors in the placement of the
slips, especially where groups of slips have been exchanged insofar as their
location in the board is concerned, it is the checking department's primary
responsibility to make sure that the slips are properly placed, since, ordinarily,
after the board leaves the topping department, it is impossible to discover an
error in the placement of the slips until the board is actually put into play
and slips punched out of it. The topping department has no inspection responsi-
bility, as such That rests squarely in the checking department and upon its
accuracy depends the maintenance of the advertised ratio of profits to be derived
in the operation of the board Thus, if the tickets in the gold jackpot and the
primary or silver jackpot should be exchanged so that the high value tickets
are in the low value jackpot, the board not only becomes useless, but subjects
its operator to the payment of premiums that can hardly help but result in a
substantial loss to him in the operation of the board instead of the very high
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ratio of profits which the board is designed to yield. The effect of poor inspec-
tion and repeated errors of this character upon the good will of the manufacturer
is too obvious to require comment.
Ann Killam, whose employment with Respondent began in late 1942 or early
1943, became forelady of the checking department in 1944, and until about the
middle of 1945 performed her duties in a manner entirely satisfactory to
Respondent. The management of Respondent operates on the basis of holding
the forelady of each department completely responsible for the performance of
all the operations in that department, and rarely, if ever, directly criticizes or
disciplines individual workers except on the request or recommendation of the
forelady. On this basis, although the errors may have been made by some of
the girls working under her, it was Killam who received all criticism and com-
plaints traceable to the work of the checking department. Such complaints
began to appear with considerable frequency in the middle of 1945 and continued
up to the date of Killam's discharge on March 7, 1946.
In about January 1946, William Soroky, known and referred to as "Rocky,"
was made assistant production supervisor under William Stone, production
manager, and in taking up his work on the production floor, was instructed by
Stone to pay particular attention to the operations of the checking department.
In line with these instructions, Rocky took up with Killam the various complaints
about misplaced tickets in the boards or mislabeling of boards from time to
time, and admonished her to take more pains with her supervision of the workers
to see that such errors did not recur.
As head of the checking department, Killam was in charge of some 12 or 15
girls and responsible for their work but notwithstanding this, there is credible
evidence that during the latter part of 1945 and the early months of 1946, Killam
habitually spent long periods in the ladies' rest room and otherwise left-her
work on matters not pertaining to company business. Rocky frequently ad-
monished her about these absences from her place of work and warned her that
her attention to her work would have to improve if she expected to continue on
the job. When these reprimands became particularly severe, they usually ended
with Killam bursting into tears and promising to do better. On occasion it
became-necessary for Stone to call Kellam to his office and similarly reprimand
her, and on one occasion, Max Sax, the proprietor of the business, who visits
the plant only semimonthly, and seldom, if ever, had been known to personally
reprimand an employee, took Killam severely to task about errors that were
occurring in the "Silver and Gold" boards, especially concerning the inter-
changing of the two jackpots. Killam denied that she had ever been reprimanded
by any of the supervisory authorities, but in the light of the credible testimony
of Stone and Rocky above described, and that of two of the other foreladies that
Killam, on several occasions, told them that Rocky had been criticizing her again
and threatening to discharge her, her denials are not credited It was also the
credible testimony of Lessie Russell, a sister of the Board's chief witness and an
admitted supporter of Killam, that she had observed Rocky talking to Killam on a
number of occasions when Killain had burst into tears at the end of the conver-
sation. There were introduced into evidence, several of the boards in which
errors of the kind above described had been made, and it was the credible testi-
mony of Stone, and Jack 'Morley, general manager, that during the 2 months or
so immediately preceding March 7, 1946, a number of complaints had come in
about the erroneous placement of tickets in the boards, especially the Silver and
Gold boards. On at least one occasion, Respondent has been required to refund
to one of its customers, not only the price of the board but the money he had
CONTAINER MFG. CO. 1099
lost in its operation by reason of the errors It was also the credible testimony
of Stone that Killam had been warned on each occasion when such complaints
were received, and that the errors in her department had become a matter of
considerable concern to management.
A substantial number of employees of Respondent are colored girls. Killam
i;, a white woman. Although Killam denied that she used profanity in addressing
those working under her, the evidence was overwhelming that what might be
termed profanity of the milder sort was almost an habitual part of Killam's
conversational language, and that on occasions this habit extended itself into
the realm of unrepeatable vileness. It is the credible testimony of Morley that on
the day preceding Killam's discharge, as he was walking through the plant, he
overheard Killam address herself to one of the colored girls working under her,
criticizing some of the colored girl's work in language quoted by Morley for the
record but which is of a character not justifying repetition in this report. Morley
promptly reported this incident to Stone who noted it but did nothing about it
at the time.
On the afternoon of March 6, 1946. shortly before quitting time, Killam engaged
in a conversation with Goldie Russell, a skilled filling machine operator, in which
Killam suggested forming a union in the plant and told Russell she had spoken to
Pauline Sheer, forelady of the ticket department about it, but that Sheer would
be unwilling to be identified with any such movement although she agreed that a
union would be desirable. Russell fell in with the suggestion and made an ap-
pointment to meet with Killam at the latter's house that evening. Russell,
with her sister Lessie, also an employee, kept the appointment together and
called at Killam's house where it was agreed to start a union movement, and
arrangements were made with Killam's mother-in-law to get a supply of AFL ap-
plication cards for distribution at the plant the next day. The following morn-
ing, however, Killam's mother-in-law having been unable to make the contacts
she had intended, Russell arranged with her father to meet John R. Barr, the
general representative of the AFL in St. Louis, and have Barr be available at
the plant at noon on that day to take applications for admission to the union.
Pursuant to this, Barr and Russell's father arranged to be in the alley behind
the building in which the plant was located, during the luncheon period from 12
to 12: 30 and there distribute the application cards for signature by all who might
apply.
Respondent's plant is on the fifth floor of a loft building with an attended
elevator at the front and an automatic elevator at the rear. During the morn-
ing of March 7, Russell and Killam passed the word among the employees in their
respective departments and in other departments when they could reach them,
that the AFL organizer was to be in the alley at the rear of the building during
the noon hour, and that if they desired to sign up with the Union, they should
go to the alley at that time and do so. Killam testified that she mentioned this -
fact to Sheer and also to another forelady not now employed by Respondent, but
that aside from this, the only persons spoken to were the ordinary employees,
many of whom were in the colored group. There is no evidence that up to 12
o'clock any knowledge or suggestion of this organizational activity was conveyed
to either Morley, Stone, or Rocky.
During the lunch period, it is customary for a substantial number of the em-
ployees to leave the plant and obtain their lunches outside. Many of those who
do so use the stairs instead of waiting for the elevator. On March 7, Killam
and Russell left the plant at 12 o'clock and went to the alley where they actively
assisted Barr and Russell's father in obtaining signatures to the AFL application
1100 DECISION.- OF NATIONAL LABOR RELATIONS BOARD
cards. The evidence indicates that about 40 cards were signed at that time.
There is no evidence to persuasively suggest that this activity was observed or
brought to the attention of either Morley, Stone, or Rocky at the time.
Promptly at 12 • 80 the girls resumed their posts of work and almost immedi-
ately after the 12: 30 bell rang, Killam was summoned over the loud speaker into
the office. On arriving at Stone's office, she was met by Rocky who told her that
because of the inadequacy of her work and because of her abuse of the girls under
her, she was being discharged Killann made no comment other than to say
"0. K.," whereupon she returned to her desk and announced to the girls in her
department that she had been discharged. This word reached Goldie Russell
almost immediately, whereupon Russell and a number of the other employees,
together with most of those in Killani's department, announced that if Killain
left they would go with her. As Killam prepared to leave the plant, these girls
put on their hats and coats and started toward the exit door with her While
the girls were standing around preparing to leave, they were interrogated by
Thelma Lynn, the forelady of the filling department, many of whose employees
were in the group. Exactly what conversation took place at that time is not
clear except that the thought was conveyed to Lynn that the girls all belonged to
the union and that they were walking out in protest of Killam's discharge Lynn
immediately went to Stone's office and told him what was happening, whereupon
Stone went to the rear of the plant, asked the girls what was going on and received
about the same reply that had been given to Lynn. By the time Stone leached
the girls, however, Goldie Russell had already left the plant with Killam, but
not until after a conversation between herself and Lynn in which Lynn asked
why, it she wanted to start a union, she had not talked to Lynn about it. Russell's
reply was that she had said nothing to Lynn because Lynn was "company'' and
Killam was not
In addressing the girls who were preparing to leave, after being told that they
were leaving in protest of Killani's discharge, Stone said to them in substance,
"Well, those of you who want to work, go back to work and those who don't can
clock out," whereupon a total of 17 including Goldie Russell, who had already
gone, left the plant, and have not since been reemployed. No picket line was
formed, but at the close of the shift most of the 17 were on Band at the doors to
the plant, first, to advise the signers of the union applications of a meeting that
had been called for that night, and secondly, to urge them to join in the walk-out
and refuse to return to work the next day. In response to these urgings, IS others
failed to report on the morning of March S
Despite Killam's testimony that she had no recollection of anyone ever having
criticized either the work done by her department or the manner in which she
performed her duties, the overwhelming evidence is to the contrary. The work
in her department was in fact faulty, and errors, avoidable by the use of reasonable
diligence, had occurred in it At numerous times during the 2 or 3 months pre-
ceding her discharge, Killam had been reprimanded and warned that she could
not be retained if such errors persisted, numerous of which had to do with mis-
placed tickets in the "Silver and Gold" board heretofore referred to. On the
i There are a number of conflicting versions 3s to exactly what was said by Lynn and
Stone as the employees were about to leave the plant, all generally to the effect that if the
gills wanted the union they should have talked to Linn of to Stone, according to which
one was being quoted Since none of these versions , if accepted , would tend to change the
general pictuie of what occurred at that time, and all agreed that Stone invited those to
go back to work who wanted to work and those to leave the plant who did not want to
work , it has been found that the conversation in fact was substantially as above set out
in the text.
CONTAINER MFG. CO. 1101
morning of March 7, 1046, Morley received a long distance telephone call from
Respondent's distributor in Chicago, in the course of which another complaint was
made concerning some of the "Silver and Gold" boards. At the conclusion of
the telephone conversation, which occurred in the general neighborhood of 11:30,
Morley requested Stone to come to his office where he repeated the complaint
of the Chicago distributor, discussed with Stone the source and cause of the
errors, and finally, when advised by Stone that they traced back to Killam and her
department, again called attention to the many complaints concerning the work
of that department, as well as the incident he had witnessed the clay before cou-
cerni ng Killam's profanity toward one of the girls, and expressed the opinion
that such a person no longer could be retained in the company's employ. He
suggested that Stone discharge her. Stone immediately sent for Rocky and by
that time. the luncheon period either was at hand or had already started. When
RockyL reported to Morley's office, the question of dismissing Killam was dis-
cussed and Rocky advised Morley and Stone that he had been contemplating such
action for some time and had in fact designated one of the girls to be Killam's
assistant with the idea of putting her in Killam's place as soon as she could
qualify This designee was Lessie Russell, heretofore referred to. Rocky was
directed by Stone to call Killam to the office and discharge her immediately, for
incompetence and for abuse of the girls under her. When Rocky left the office,
the plant was shut down for the luncheon period and Killam could not be found.
As soon as work was resumed, Killam was called to the office and discharged
by Rocky as has been heretofore described.
Morley, Stone, and Rocky denied they had any information or intimation that
any union activities were under way in the plant until the walk-out following
Killain's discharge, and that they were not fully advised on the subject until Barr
called on Morley during the afternoon to protest the discharge and to inquire
whether it was possible to get Kellam and the others who had left the plant back
on their jobs This conversation between Barr and Morley eventually became
somewhat heated and wound up by Morley telling Barr that no union representa-
tive could come into his office and coerce him into anything According to Barr,
Morley also stated, in reply to Barr's accusation that it was "funny" that Killam
should be discharged immediately after signing a union card, that Killam had
been giving trouble for some time and he thought that she was the "key" to the
whole thing Barr's testimony, while not denied by Morley who did not touch on
the Barr incident other than to mention that he had had a conversation with Barr
during the afternoon, was given with an air of palpable animosity toward Re-
spondent, which detracts from its value with reference to the details of the con-
versation quoted by him, although it is accepted as a general and broad descrip-
tion of the conversation with Morley.
The next day Barr telephoned Stone and again asked him what could be done
about getting the people back on the fob and was referred by Stone to Respondent's
attorney. Jack Schiff. When lie talked to Schiff 2 or 3 days.later, Barr was
advised that the employees who left on the 7th, and those who failed to report
on the 8th were regarded as having quit, and their places had substantially all'
been filled already, but, he assured Barr, "if they could take on more people,
they would have no objection to putting them to work."
During the afternoon of March 7, when Morley learned of the walk-out, he
immediately gave orders to request the United States Employment Service to
refer to them as many persons qualified for the work as they could and at the
same time passed the word around among the workers who stayed on the job
requesting them to bring in the next day any friends they had who were looking
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for work and could do the kind of work required there. By the middle of the
morning on March 8, a large number of applicants for work had arrived at the
office and by the end of the day more than enough persons had been hired and put
to work to fill the vacancies created by the walk-out. Where the striking em-
ployees had particular skill, their jobs were filled by taking persons from within
the ranks of the staff and putting them on the jobs of the strikers, and filling the
vacancies thus made with new people. These were all permanent employments,
with many of those hired at that time still on the pay roll of Respondent. In
the case of the machine operators, one of whom had been Goldie Russell, Re-
spondent employed men operators to take the place of the women who had pre-
viously clone the work, and since that time has operated its machines with these
male employees.
On March 9, a small group of the colored employees who had stayed out on
March 8 reported back to the plant and upon attempting to go to their previous
points of employment, were told by Thelma Lynn and Stone that they had been
replaced and that there was no employment for them at that time. Oil Tuesday,
March 12, a group headed by Goldie Russell went back to the plant and saw Stone.
Russell, acting as the spokesman for the group, told Stone that she was speaking
for the entire,group who had left their work and wanted to know whether they
had been discharged. Stone's reply was that they had not been discharged but
that they had been replaced ; that he had been under the impression that they
had quit. Russell's reply was that they had not quit but that they had walked
out on account of the Killam discharge.
None of those who left their employment on March 7 and 8 has as yet been
specifically recalled to work, notwithstanding that in the normal turnover ex-
perienced in the plant, there have been numerous vacancies from time to time
since March 8, many of which have occurred among the group of those who were
employed on March 8 to replace the strikers.
The record is devoid of substantial evidence that either Morley, Stone, or
Rocky had any knowledge or notice that steps were being taken to organize a
union within the plant prior to Killam's discharge on March 7.2 There is sub-
2 Dovie Hollis testified that she had been working for Respondent about 6 weeks at the
time of Killam's discharge , that on March 7 she did not leave the plant, but ate her lunch
sitting on the floor near her table ; that the table occupied by Thelma Lynn, her forelady,
was some 8 or 10 feet distant, and that during the lunch hour she saw Stone come to
Lynn's table with a white card in his hand, which, she testified, looked like a union card
such as she herself later signed She was unable, however, to identify it as such Stone
testified , and his testimony is credited , that during the entire noon period from 12 o'clock
to 12 : 30, he was with Morley in the latter's office, in the conference heretofore described
which resulted in Killam's discharge ; that he did not go into the plant during that period
but, after the conference with Morley had ended, returned to his own office and did not
go back into the rear of the plant until he was attracted by the noise of numerous ringings
of the time clock and at about the same time was told by someone whose identity he did
not then recall, that a large number of the girls were leaving the plant, whereupon lie went
to the back of the plant and talked to the girls as has been heretofore related. In connec-
tion with Hollis' testimony, it is to be noted that there is a direct conflict concerning
,Stone's whereabouts during the lunch period. In this conflict, the testimony of Stone,
which is fully supported by that of Morley and Rocky and by the general circumstances,
is credited and that of Hollis' is disregarded, and since Hollis was wholly unable to
identify the card which she saw Stone holding, that portion of the testimony becomes
immaterial in any event There is also some testimony by Goldie Russell that as she
returned to the building at 12. 30 and was going to her machine , she saw Rocky talking
to Lynn at the latter's desk ; that as she went back into her department, Lynn followed
her and asked several of the gals who it was that had started the 'Union, and then
addressed the same question to Russell , that when Russell asked her why she wanted to
know, Lynn replied that Rocky had told her that Stone wanted her to find out who had
CONTAINER MFG. CO. 1103
stantial credible evidence that during the last 6 or 9 months of her employment,
Killam had neglected her work and that numerous serious errors had been
allowed to occur and recur within her department ; that she had been repri-
manded on a number of occasions for the laxity of the manner in which she
conducted her department ; that although she had means of tracing back to the
individual employees the errors which were reported to her, she at no time recom-
mended disciplinary action against such employees ; and that she engaged more
or less habitually in the use of profanity and obscenity in her regular conver-
sation and especially when called upon to address critical remarks concerning
their work to those employed under her. It is therefore found that Killam's
discharge on March 7 was due solely to the unsatisfactory character of the
work performed by her; that it was accomplished without knowledge on the
part of management of her activity in connection with an attempt to organize
the plant ; and that there was no intent on the part of Respondent, by such dis-
charge, to discourage membership in the Union.
In addition to the foregoing with reference to the basis of Killam's discharge,
it is also found that on March 8, and before any of the striking employees had
indicated a desire to return to work, Respondent had replaced each of them with
a permanent employee, some of whom were newly hired and others promoted
from within, to perform the duties of the persons so replaced, and thereafter
retained such replacements in its employment, subject only to the normal turn-
over caused by quitting, discharges for cause, and other similar reasons usually
experienced in the conduct of the business of Respondent.
The complaint alleges the Respondent "on or about March 8, 1945 to
March 12, 1946, did lock out and discharge" 35 employees whose names are listed
in Appendices A and B attached to the complaint. Seventeen, listed in Appendix
A, were those who walked out on March 7, 1946, and 18, listed in Appendix B,
were those who failed to report for work on March 8, 1946 Several of these were
refused employment on March 9, and all were refused employment on March 12,
in the course of Russell's conversation with Stone, for the reason that they had
been replaced. Admittedly, all these persons terminated their work on March
7, 1946, or refused to resume work on March 8, 1946, solely because of the dis-
charge of Ann Killam.
It has been found that the Killam discharge was for good cause and not contrary
to any of the proscriptions of the Act. This being so, those who struck because
of that discharge did not lose their employee status by striking, but still are not
afforded the extraordinary protection accorded persons whose employment has
ceased because of a labor dispute growing out of an unfair labor practice.'
The term "employee" is defined as including "any individual whose work has
ceased as a consequence of, or in connection with, any current labor dispute or
because of any unfair labor practice, and who has not obtained any other regular
and substantially equivalent employment . . .
The Act is designed, and the Board is empowered, to prevent unfair labor
practices as defined in Section 8, which affect commerce, and employees who
engage in disputes arising from such practices are protected in their status as
disputants so long as the unfair labor practice remains unremedied. On the other
hand, Congress and the courts have recognized that there may be labor disputes
done it Lynn denied this, and in view of all the circumstances and especially the fact
that at about the time this conversation was taking place, if it did take place, Killam
was already in the process of being discharged, I am unable to credit Russell's testimony
or to find that such a conversation as described by her took place at that time or previous
thereto
3 N. L. R B v Mackay Radio if Telegraph Co., 304 U. S 333.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not arising from unfair labor practices In connection with these, the Board is
powerless to act. Since the first type of dispute arises from a violation of Section
8 of the Act, the cessation of work visits no penalty on the employee. His status
is protected at all times and under all circumstances so long as he conducts him-
self with that regard for the property and legal rights of others that is required
of all of us, and does not abandon his position by taking other "regular and
substantially equivalent enployment"4 The responsibility of the employer to
correct the results of his unfair labor practice is not diminished and the right
of the employee to have the status quo reestablished is not impaired either by
lapse of time or affirmative action by the employer.
But, when the dispute arises from some situation not involving an unfair labor
practice, the rule runs along a wholly different course. Men cannot be legislated
into fundamental agreement with each other. Employers and employees have
frequently been known to disagree on matters pertaining to the employment
relation between them and often when that has happened, or when the employees
have become displeased, with or without good cause being not material, over
some situation that has arisen in the plant, numbers of them have stopped their
work-have struck-in protest and in the hope that, by depriving the employer of
their services, the economic pressure thus asserted will lead the employer to so
change the operation as to remove the objectionable condition. With the merit
of such a controversy, no unfair labor practice being involved, neither the Act
nor the Board is concerned The right to strike is a constitutional one. It has
been specifically recognized in the Act which provides that nothing therein
"shall be construed so as to interfere with or impede or diminish in any way
the right to strike." But the exeicise of the right to strike, like the exercise of
any other right, carries its responsibilities and its hazards. It inaugurates an
economic contest in which there may be casualties on both sides, for the employer,
being without fault as to unfair labor practices, also has his rights. One of these
is the right to continue the operation of his business which the strike is designed
to impede. In operating his business, he is entitled to hire other persons to take
over the duties and operations abandoned by the strikers and when he has thus
replaced any strikers with a new employee whom he has installed on a permanent
basis in the striker's job, that striker may not be heard to demand, at some later
date, that he be taken back and the replacement employee removed to make room
for him. This principle has been firmly established in the Mackay case, supra,
and in the numerous other decisions on the same subject that have been m endered
since then. In that decision, the Court took pains to point out that the enforce-
ment of this forfeiture of the striker's job is not an impairment of the right to
strike It may make the business of striking less attractive but it does not
restrict the right when one desires to engage in it. But the status of the replaced
striker from that point forward has not yet been clearly defined Even with his
job gone and with no right to be reinstated in it, has he lost his status as an
"employee"? When the Mackay decision was handed down, the status of mere
applicants for employment had not been in issue and was not fixed until the
Board decided the l auinbec Mills case, 15 N. L R B. 39; enf'd 114 F. (2d) 226
(C. C. A. 1) protecting an applicant for employment against the unfair labor
practice of discrimination Since discriminatory selection of those strikes s chosen
to be reinstated to the few positions still not filled by replacements was an issue in
4 Even in such cases, the Board has held that the employei may still he required to
offer such an employee reinstatement in order to fully dissipate the coercive effect of the
unfair labor practice In re United Dredging Co., 30 N L R B 739. 803 . In re Ford Motor
Co, 31 N. L. R. B. 994, 1099, In re Maynard K. Van Deusen, etc., 45 N L. R. B 679
I)
CONTAINER MFG. CO. 1105
the Mackay case, the court there held that, notwithstanding their replacement,
the replaced strikers, being persons whose employment had ceased as the result
of a current labor dispute, are "employees" within the meaning of the Act and
protected against unfair labor practices denounced by the Act. The Wauvibec
Mills doctrine now absorbs the field covered by the limited comments of the
Supreme Court above referred to, and would afford the same protection to the
displaced strikers regardless of those observations In short, the displaced
strikers and the new applicant for employment enjoy the same right to freedom
from discriminatory treatment. It is a right inherent in the language of the
Act and not dependent on the existence of an "employee" status.
On the other hand, as long as his absence from his work is the result of a
"current labor dispute," his status as an employee continues and as such, not
only is he protected against unfair labor practices by his employer, but also is
entitled to exercise the rights granted to him by the Act, as an "employee."
Among these are the right to vote in an election such as was held here.
In the Mackay case, the employer was found to have discriminatorily refused
to install certain of the strikers in vacancies caused by the strike which had
not been filled. It is conduct of that character the Act is designed to prevent.
But here, no such question may be raised On both March 9 and March 12,
when applications for reinstatement were made, there were no unfilled vacancies
into which any of the strikers could be put. The only reason for not putting
them to work was that there were no jobs available. Nor is there any evidence,
except a suggestion contained in the discredited testimony of Dean Miller, of a
policy on the part of Respondent not to rehire the strikers because they had
struck. On the contrary, Barr's testimony that Schiff had announced a willing-
ness to put them to work when more people could be hired, would seem to
completely eliminate this contention. This was not more than a day or two
removed from March 12. Since that date, none of the strikers has applied for
reinstatement. In other words, there is no evidence that Respondent has ever
refused to rehire any striker when there was a vacancy he was equipped to fill.
In view of this, it is found that Respondent, by replacing the 35 persons listed
on the Appendices to the complaint and thereafter refusing to reinstate such
employees for the reason that they had, in fact, been replaced in their employ-
inent either by promotions from within or by new persons hired, did not lock
out or discharge such employees or any of them, contrary to the provisions of
Section 8 of the Act, and did not engage in any unfair labor practice, it being
specifically found that on March 9, 1946, when a small group of the striking
employees applied for reinstatement and on March 12, 1946, when Russell and
her committee made application for reinstatement on behalf of all the strikers,
Respondent had filled all the positions normally occupied by the striking em-
ployees, with bona fide employees who were then on the same basis of per-
manency of tenure that applied to all the other persons within Respondent's
employ.
It has been the experience of Respondent that there is a high ratio of turn-
over among its employees with frequent vacancies in its operational staff. Few
of these jobs call for a high degree of skill. In most of them an average person
can learn the job after a few hours of instruction. As a result, Respondent
does not make a practice of calling back former employees, but customarily fills
such vacancies from the day to day applicants who come to its office, or through
orders to U. S E S for referrals. After the complete replacement of the strikers
and the concurrent employment of some additional personnel, the turnover con-
tinued, with the result that numerous vacancies occurred following the requests
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Barr and Russell that the striking group be returned to their jobs. It is the
contention of counsel for the Board that as such subsequent vacancies occurred,
Respondent was under an obligation to offer the jobs to the strikers in their
continued status of "employees," before filling them elsewhere. In other words,
to set up a preferred list made up of the displaced strikers. There is no au-
thority or basis for this contention. It is not as if these were discriminatorily
discharged persons or persons whose employment had ceased as the result of a
dispute arising from an unfair labor practice. Such persons would be entitled
to the largest measure of protection the Board could provide. But these are
"economic" strikers. They assumed the risk of being forced out of their jobs
by replacements when they undertook their strike. They may technically be
"employees" within the definition in the Act so long as the cause of their con-
tinued unemployment is a current labor dispute, but there is no remedy avail-
able to them. On the other hand, the question raises itself-when there is no
unfair labor practice involved, and the employer has continued his operations
with bona fide replacements and has maintained no dealings with the Union or
recognized the strikers as "employees," whether the currency of the dispute is
of be allowed to perpetuate itself. I think not. There must be an end at some
point in these economic contests initiated by the Union. That point had been
reached here by the time the applications for reinstatement were made. In
fact, having applied for reinstatement and having been denied it because the
employer had, with legal sanction and without doing violence to any of the
provisions of the Act, filled their jobs with replacements, it may be said that their
continued unemployment then was attributable, not to the existence of a current
labor dispute, but rather to the fact that they had been legitimately replaced.
Had there been no replacements in their jobs, they either would have- been re-
turned to their jobs, in conformity to the law, or would be in a position to urge
a discriminatory refusal to rehire. However, the effect of being replaced and
refused employment because of such replacement, was to end the currency of
the dispute so far as they were concerned. In other words, their status as
employees actually ended, both under the technical application of the definitions
and in fact, when they were legitimately denied a return to their respective jobs
because replacements had been permanently installed in such jobs and the em-
ployer was neither willing nor obliged to dislodge such replacements to make
places for the strikers, given, of course, a situation where the business of the
employer was proceeding normally with a substantially full complement of em-
ployees, and there were no negotiations with the Union or the employees for the
settlement of the dispute If vacancies had existed and Respondent had refused
to place the qualified strikers in them because of their union activities, as was
the situation in the Mackay case, the situation would be different. But that
condition did not exist here. There simply were no vacancies. That being so,
all the strikers fell into the same category. Their unemployment had ceased to
be the result of a current labor dispute, but arose from the exercise by the
employer of a right conceded to him when the strike took place.
Since there is no evidence of any application for reinstatement subsequent to
March 12 and no evidence of a refusal by Respondent' to employ any of the
strikers, on application, at a time when vacancies existed, it is found that there
had ceased to be a current labor dispute as to any of the strikers by March 12,
when the last incident which might be construed to be a blanket application for
reinstatement took place, and that failure of Respondent thereafter to seek
out the strikers and offer them employment as subsequent vacancies occurred,
did not constitute an unfair labor practice within the meaning of the Act. '
I
CONTAINER MFG. CO. 1107
Respondent's motion for the dismissal of the complaint as to Edward Green
and Earl Pruett, made at the conclusion of the presentation of testimony by the
Board, having been granted at that time, and there being no substantial evi-
dence of any character to support the allegation of the complaint that these
persons were discharged discriminatorily and for the purpose of discouraging
membership in the Union, furthi r findings on the subject of these discharges do
not appear to be here indicated
There is some testimony by Thelma Anthony, one of the employees of the
filling department who had been in the employ of Respondent about 6 weeks
when the strike occurred, that, on March 7, after the walk-out had taken place,
her forelady, Thelma Lynn, made the statement that some previous efforts to
get a union into the shop had been made but had not succeeded ; that if a union
came, the Company would close the shop and move it to Chicago, and that she,
Lynn, would quit if a union came into the shop Anthony was one of the girls
who failed to report for work on the morning of March 8 and who, on March 9,
was told by Stone that she did not have a job in the factory because she had been
replaced. Lynn denied having made the statement attributed to her by Anthony.
While, as between Lynn and Anthony, the former was the more impressive and
apparently reliable witness, and her denial is credited, nevertheless, this state-
ment attributed to her, if made, coming from one in the lowest rank of super-
visory authority and without anything in the record to indicate that the man-
agement of Respondent which carried the responsibility for directing the af-
fairs of Respondent had any such thought in mind, would seem to fall more
readily into that category of statements made by subordinate supervisors, that
are no more than expressions of personal opinion and recognized by the employees
as such, than to be classed as a coercive statement to be attributed to the
employer.
The record reflects no substantial and credible evidence that anyone for whose
actions Respondent may be said to be responsible, and who may be said to have
been acting in the interest of Respondent, had questioned employees concerning
their union activity, warned employees against joining or assisting the Union,
threatened to discharge employees who engaged in concerted activities, warned
employees that Respondent would close his plant before he would let the Union
in, or warned and advised employees to vote against the Union In short, the
record reflects no action on the part of Respondent which has the effect of inter-
fering with, restraining, or coercing his employees in the exercise of the rights
guaranteed in Section 7 of the Act'
,Dean Miller, since June 1943 the operator of the elevator in the building where
Respondent's plant is located, testified that at the fifth floor, the elevator opens on a
lobby and that at the left of the elevator, a door opens into the large space used by Respond-
ent as an office , that on March 11, he noticed a large number of employees of Respondent
gathered in the office with some few, including the foreman of the print shop, standing in
the lobby at the door to the office, that he heard Morley addressing the employees and
stopped his elevator to listen and that while standing in the elevator cage, he heard
Morley tell the assembled employees that those who had walked out would never cone
hack it, long as lie was connected with the Company According to Miller; he remained
at the fifth floor on this occasion for only a brief interval and left when the print shop
foreman went to the elevator and closed its door m his face Miller also testified to a
siuila.r incident of listening in on a meeting of the employees at the office, on March 17,
ulien he heard Motley tell them that they did not have to join a union to work there and
that at just about that time, it was Rocky who put an end to his listening and ordered him
away
Miller was too willing a witness to be wholly persuasive He admitted having had
some "trouble" with the officials of Respondent previous to the March 7 walk-out. He
denied lie had "bothered' the white girls in the elevator but admitted Morley had ad-
766972-48-vol 75--71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE CHALLENGES
In its Decision and Direction of Election in Case No 14-R-1409, which was en-
tered subsequent to the strike and the discharge of Ann Killam, and subsequent
to the filing of the charge herein, the Board said :
In accordance with our established custom, we shall allow these em-
ployees concerning whom the 8 (3) charges are now pending, and any who
are not working because of a current labor dispute, to participate in the
election, by casting separate sealed ballots to be opened 'and counted by the
Regional Director only if determinative of the election result, in which latter
event, the final disposition of the instant case will await the outcome of the
unfair labor practices * * * With respect to the replacements, we
cannot now determine whether such employees were hired to replace
workers out on strike or, if that be true, whether in view of the unfair
labor practice charges now pending before the Board, they would constitute
valid replacements with permanent employees status. We shall therefore
direct an immediate election permitting all employees to participate who
were employed during the pay roll period immediately preceding the date
of this direction. All persons hired since March 7, 1946, the date of the
strike, will be presumptively eligible to vote subject to the right of challenge
In arranging for the election, Respondent failed to supply the Board with its
pay-roll records from which the list of eligibles could he determined, and as a
result, the Union observers challenged every person concerning whose eligibility,
based on the time of first employment, they had any doubt. Seventy-eight of the
challenges made by the Union were on this general overall basis. Twenty-two
of the challenges were made by the Respondent and were directed either to
persons who had left their work on March 7 and/or who failed to report for work
on March 8, or to those who had been discharged or had quit, all of whom, as
has been heretofore found, had been replaced by bona fide permanent replace-
ment employees Three of the challenges were made by the Board's agent
because their hiring came after the eligibility cut-off date At the hearing, itwas
monished him on several occasions to stop annoying them He later admitted, on cioss-
examination, that he had solicited the girls to sign union cards, and in so doing, had
stopped the elevator to talk with them about it On one occasion shortly after the walk-
out Miller and Morley engaged in it heated altercation as 'Morley was leaving, with some
of the office force, at the close of the day This incident was sufficiently serious to bring
about police interference
It was obvious from Miller's attitude and the general manner in which lie testified,
that his testimony, although in the inain bottomed on incidents that did occur, was
colored by In,,, personal antipathy for Morley It ,aas admitted that Morley did ni fact,
call two meetings of the employees at which he, commented on the walk-out The first
of these, it has been established, was held March 8, at which time, accoiding to the
testimony of it number of credible witnesses, Morley referred to the walk-out of the
previous day and the efforts of some of the employees to organize This testimony
reflects no dispaiagement of the Union but on the contraiv is to the effect that Morley
assured the employees that they were at liberty to join it union or not, that no one would
be disciplined for joining and that they were flee to do as they ])leased The second
meeting was held March 11, the day when the Union had posted a notice calling a meeting
for that evening Many of the colored employees, were concerned with the problem of
whether they were undei any compulsion to attend, and had let their concern become
known The March 11 meeting was about the same as the previous one and was called
to again assure the employees of then tieedom of action
The testimony of the numerous witnesses concerning the happenings at these meetings
is in general accord with that of Morley It is credited and that of Miller rejected No
meeting of employees was held on March 17, notwithstanding Miller's testimony of the
contrary
CONTAINER MFG. CO. 1109
conceded by all parties the three persons challenged by the Board's agent were
ineligible and it is now so found.
Twenty of the persons challenged by the company were persons who partici-
pated in the strike on March 7 and 8 and whose places had been filled by
replacement employees by the close of business on March 8 and prior to any
request from any of them for reinstatement to their previous employment.
Under the doctrine of the Mhckgj case, snpro, Respondent was wholly within
his right in employing replacements to fill the jobs of and to perform the duties
previously performed by the strikers of March 7 and 8, and having so employed
replacements, was under no duty or obligation to reinstate any of the replaced
striking employees upon application In other words, there having been no
unfair labor practice, the strikers assumed the economic risk of losing their
employment and their right to employment if Respondent should see fit to fill
their jobs before applications by them for reinstatement, with new and bona
fide permanent employees. That is what occurred in the instant case, and, as
has been noted, when it happened, the status of the striker as an "employee"
terminated. However, regardless of this technical status, the replaced striker,
with no job in which he can be reinstated, with no right to reinstatement, and
with no expectation of early employment by Respondent except as he might find
vacancy available on personal application, has been so far removed from a direct
interest in the wages, hours, rates of pay and other conditions of employment
affecting those employed by Respondent, as to be rendered ineligible to participate
in the selection of a bargaining representative to bargain collectively on behalf
of those who are actually on the job In other words, he had lost his status as
"employee," both in law and in fact On such basis, the displaced employees
without right of reinstatement or employment must, therefore. be found to be
ineligible and the 20 challenges of such strikers by Respondent sustained These
are listed in "Appendix A" hereto attached
The ballots of Ann Killam and Edward Green were the other two challenged
by the Company. Since it has been found that Killam was discharged for cause
and the record reflects that Green quit voluntarily prior to the election, those
challenges should be sustained
Since it was stipulated that Vincent R Roach, Luennma Lee, and Ernest
Walker were ineligible because they had been hired after the eligibility date
set by the Board,,these challenges by the Board Agent should be sustained.
The Union challenged 78 voters on the ground that as replacements of the
strikers they were ineligible. Under the principle announced by the Board in the
Columbia Pictures case,' and the authorities there cited or derived therefrom,
the right of these persons to vote if they were on the pay roll of the Company
on the eligibility date, no longer may be questioned, especially in the absence of
an unfair labor practice
During the hearing, counsel for Respondent offered to concede the propriety
of these 78 challenges and to stipulate that they should be sustained. However,
the right of a qualified voter to cast his ballot is a personal one He may not
be deprived of this privilege of expressing his preference by the stipulation of
third parties and without his consent. The Board, having'directed an election
by secret ballot among the qualified voters within a determined appropriate
unit, is not only without authority to disregard the ballot of any such qualified
voter, regardless of the expressed wishes of all parties (except the voter) to
6 In the Matter of Columbia Pictures Cowporation, et at., 64 N . L R B 490.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election contest that it do so, but is obligated to see that such ballots are
included in the tally, unless it is obvious that they cannot affect the result of
the election. Here, there are 15 of those challenged by the Union and listed
on Appendix B whose eligibility was beyond challenge. Those in this group
admittedly were employees of Respondent within the appropriate unit on and
prior to March 7, 1946. These challenges should be overruled and the ballots
counted. The remaining 63 challenges by the Union, except Amanda Speigel,
admittedly an ineligible supervisory employee, apply to persons hired subsequent
to March 7, to permanently replace the strikers and to augment the Company's
working staff. They clearly are entitled to vote. These challenges therefore
should be overruled and the ballots counted, since the total of the ballots, 77
in number, the challenges of which are found herein to be without merit, could
affect the result of the election.
V. CONCLUSIONS
Having found the Respondent has engaged in no unfair labor practice within
the meaning of the Act, it will be recommended that the complaint herein be
dismissed in its entirety.
With respect to the challenges of ballots offered at the election of August 22,
1940, it will be recommended that such challenges be disposed of in accordance
with the findings heretofore set out and that the Regional Director for the
Fourteenth Region be directed to open and count all the ballots as to which it
has been found that the challenges are without merit, and to thereafter report
the result of the election in the manner provided for by the rules and Regula-
tions of the Board.
On the basis of the foregoing findings of fact and on the entire record, the
undersigned makes the following:
CONCLUSIONS or LAw
1, Casket Workers Local Union No 187, affiliated with Upholsterers Interna-
tional Union of North America, AFL, is a labor organization within the meaning
of Section 2 (5) of the Act.
2, Respondent has engaged in no unfair labor practices within the meaning
of the Act
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint against Respondent, Max Sax, doing
business as Container Mfg. Co., be dismissed.
It is further recommended that the challenges by Respondent to the ballots of
the persons listed in "Appendix A" hereto attached, be sustained ; that the chal-
lenges by Board Agent to those ballots heretofore described, and the challenge of
the Union to the ballot of Amanda Speigel, be sustained: and that the challenges
by the Union to the ballots of those listed or described in Appendices B and C
hereto attached, be overruled and the Regional Director for the Fourteenth
Region be directed to open and count such ballots and report the revised result
in the usual prescribed manner
As provided in Section 203.39 of the Rules, and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203 38 of said
CONTAINER MFG. CO.
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D.-C, an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
the filing of such statement of exceptions and/or briefs, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as
required by Section 203.65. As further provided in said Section 203 39, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board
Dated February 6, 1947.
Lucy M. Anderson
Zelma Anthony
Lucy Arnold
Betty Barton
Dorothy Blanks
Elizabeth (Jean)
Evelyn Eubanks
Edmonds
Elizabeth Franklin
Elener Galloway
Edward Green (Quit)
Dovie Hollis
Challenges by Union.
APPENDIX A
R. N. DENHAM,
Trial Examiner.
Annie Jones
Pirttrue Jones
Bernice Lay
Dorothy Lay
Cloteal Maxwell
Lucy McGurk
Georgia Patton
Hazel Poss
Goldie Russell
Lessie Russell
Ann Killam (Discharged)
APPENDIX B
To be ',verruled On pay roll prior to March
Evelyn Baskin
John Brown
James Byrd
Viola Crisp (Crimp)
Willie Mae Harrell
Katherine Harvey (Barney)
Marie Kahle (Cable)
Cora Kirksey
Edith Lewis
Rena McGee
Dessie Mitchell
Carrie Nash
Phennie Rush
Lilliam Simpson
Marion Wilson
APPENDIX C
Challenges by Union. To be overruled.
Includes all other challenges not noted in appendices A and B
7, 1946
except those
challenged by the Board agent and Amanda Speigel which challenges are sus-
tained and specially noted in the attached Intermediate Report.