Enderlein Iron Foundries

National Labor Relations Board - Board Decisions

Dec 17, 1942

46 N.L.R.B. 36 (N.L.R.B. 1942)

In the Matter , of HARRY G . ENDERLEIN AND EMMANUEL X. ENDER-
LEIN, CO-PARTNERS , DOING BUSINESS AS ENDERLEIN IRON FOUNDRIES,
ALSO KNOWN AS H. G . ENDERLEIN COMPANY, ALSO KNOWN AS HARRY
G. ENDERLEIN COMPANY and INTERNATIONAL MOLDERS AND FOUNDRY
WORKERS UNION OF N. A., LOCAL #1 (A. F. OF L.)'
Case No. C-2302.-Decided December-17, 1942
Jurisdiction: iron castings manufacturing industry.
Unfair Labor Practices
,Interference, Restraint, and Coercion: interrogation concerning union mem-
bership ; threats to close plant if union organized ; request that employees
sign statements indicating whether or not they were members of union ; grant
of wage increase to employee for not signing union card ; failure to grant
employee promised raise because of union activity. '
Company-Dominated Union: participation of supervisory employees in forma-
tion and affairs of "inside" union ; solicitation for "inside" union permitted
by supervisory employees during working hours; recognition without visual
proof of majority, and prompt execution of contract granting closed-shop and
check-off ; contrast of 'treatment accorded "outside" and, "inside" unions.
Remedial Orders : cease and desist unfair labor practices; dominated organiza-
. tion disestablished ; contract with dominated organization, abrogated.
DECISION
AND
ORDER
11
On August 21, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take
certain affirmative action as set out in the copy of the Intermediate
Report attached hereto. Thereafter, the respondents filed exceptions
to the Intermediate Report and a brief in support of the exceptions
and a hearing for the purpose of oral argument was held before the
Board in Washington, D. C., in which the respondents appeared and
participated. The Board has considered the rulings of the Trial
Examiner at the hearing and finds that no prejudicial error was
committed., The rulings are hereby affirmed. The Board has consid-
ered the Intermediate Report, the exceptions, the briefs, the conten-
tions-made at the oral argument, and the entire record in the case,
46 N. L. R. B., No. 6.
36
HARRY G. E'NDERLEIN AND EMMANUEL X. ENDERLEIN 37',
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the respondents, Harry G. Enderlein
and Emmanuel X. Enderlein, co-partners doing business as Ender-'
lein Iron ,Foundries, also known as H. G. Enderlein Company, also
known as Harry G. Enderlein Company, their agents, . successors,
and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating. or interfering with the adminis-
tration of Employees' Independent Union of the Enderlein Foundry,
or with the formation or, administration of any other labor . organ-.
ization of their employees and from contributing financial or other
support to the Employees' Independent Union or to any other labor
organization of their employees;
(b) Recognizing Employees' Independent Union of the Enderlein
Foundry as the representative of any of their employees for the pur-
pose of dealing with the respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment;,
(c) Giving effect to the contract of March 31, 1942, with Em-
ployees' Independent Union of the Enderlein Foundry or to any
modification, extension, supplement, or renewal thereof, or to any
superseding contract with it, which may now be in force; '
(d) In any other manner interfering with, restraining, or coercing
the employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and' to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish
Employees' Independent Union of the Enderlein, Foundry as the
representative of any of their employees for the purpose of dealing
with the respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment, provided that nothing in this order shall be interpreted to
require the respondents to reduce wages or establish working condi-
tions less favorable than were established 'pursuant to the above-
mentioned contract; - ' ' '
38 "DECISIONS OF, NATIONAL LABOR, RELATIONS. BOARD'.
(b) Post immediately in conspicuous places throughout their office
and plant at Grenloch, New Jersey, and maintain for a period of at
least sixty (60) consecutive days from the date of posting,, notices
to their employees stating: (1) that the , respondents-will not engage
in the ' conduct from which they are ' ordered to cease and desist in
paragraphs 1 (a), (b), (c), and (d) of this Order; (2) that they
will take the affirmative action set forth in paragraph 2 (a) of this
Order; and (3) that the contract with the Employees' Independent
Union of the Enclerlein Foundry, dated March 31, 1942, and any
modification, extension, supplement, or "renewal thereof, or any super-
seding contract with it, is invalid under the National Labor Rela-
tions Act;
(c) Notify the Regional Dir"ector for the Fourth Region in writing
within ten -(10) days from the date of this Order what steps the
respondents have taken to comply, herewith.
INTERMEDIATE REPORT
Mr. Geoffrey J. Cunniff,' for the Board.
Mr. Harry H. Johns,' of Philadelphia, Pa., for the respondent.
'Mr. Lewis H. Wildersnan, of Philadelphia, Pa., for the Union.
+ - - STATEMENT OF THE CASE
Upon an amended charge duly filed on June 22, 1942, by International
Molders and Foundry Workers Union of- N A, Local #1 (A. F of L.),
herein called the Union, the National Labor Relations Board, herein called the
Board, 'by the Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania), issued its complaint, dated June 26, 1942, against Harry G Enderlein
and Emmanuel X. Enderlein, co-partners, doing business as Enderlein Iron
Foundries, also known as H. G. Enderlein Company, also known as Harry G.
Enderlein Company, herein called the respondents, alleging that the respondents
had engaged in and were engaging in unfair labor practices, affecting com-
merce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
dof the complaint accompanied by notices of hearing were duly served upon
the respondents, the Union, and upon the Employees' Independent Union of
the Enderlein Foundry, herein called the Independent.
With respect to the unfair labor practices, the complaint alleged in substance
(1) ' that since January, 1942, the respondents, interrogated their employees
concerning their Union membership, urged and persuaded them to renounce
the same, warned them not to join or assist the Union, threatened to close the
Grenloch plant if they joined or assisted the Union, and discriminated against
an employee with respect to his rate of pay because of his membership in
and activities on behalf of the Union; (2) that beginning in February 1942,
the respondents interfered with and dominated the formation and adminis-.
tration,of the Independent and contributed support to it in specified ways.
' Referred to in'the record as Jeffrey Cunniff.
' Referred to in the record as Hay H. Johns.
HARRY" G'."ENDERLEIN AND EMMANUEL X. ENDERLEIN 39
On'•July 9, 1942, the respondents •filed their answer wherein they denied
the jurisdiction of the Board, admitted certain allegations of the complaint,
but denied that they had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held in Philadelphia, Pennsylvania, on
July 9 and 10, 1942, before Robert M. Gates, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the respondents,
and the Union were represented by counsel. Full opportunity to be heard,
to examine and• cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded all parties. At the close of the hearing counsel
for the board moved to conform the pleadings to the proof as to such matters
as dates, names and places. There was no objection. The motion was granted.
At the close of the Bearing counsel for the respondents moved to dismiss they
complaint. This motion was denied. Counsel for the respondents argued
orally before the undersigned at the close of the hearing, and thereafter filed
a brief. ,
Upon the entire record in the case'and from-his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS,
The respondents, Harry G. Enderlein and Emmanuel X. Enderlein, are co-
partners and owners of a business operated under the name of Enderlein Iron
Foundries 3 They operate 2 foundries, one in Philadelphia, Pennsylvania, and
the other in Grenloch,4 New Jersey, where they manufacture iron castings for
manhole frames and covers. This proceeding involves only the Grenloch plant.
In the 18 months from January 1941, through June 1942, the Grenloch plant
purchased about 1,000 tons of scrap iron costing $22,271.73 from sources in
the state of Pennsylvania, and about 350 tons of pig iron, valued at, $9,759.77
from sources in the states of Pennsylvania and New York. With minor ex-
eeptions, all of the coke, the other major raw material used, was purchased in
the State 'of New Jersey, the cost of the coke amounting'to $5,587.41. The re-
spondents also used about 300 tons of sand a year purchased in New Jersey.
It thus appears that 'of the raw materials purchased by the respondents, over
85 percent thereof, to the value of over $32,000, was purchased from sources
outside the State of New Jersey.
In the same 18-month period, the Grenloch plant produced finished products
valued at $197,552. Of this amount, products valued at $112,967 were delivered
to customers in Philadelphia, products valued at $57,398 were returned to the
Philadelphia plant for finishing, and products valued at $27,187 were sold and
delivered to customers in the State of New Jersey. Thus, over 86 percent in
value of the finished products, amounting to over $170,000, were shipped from
the Grenloch plant to points in Pennsylvania.
Most of the patterns used at the Grenloch plant are made at the Philadelphia
plant and transported to the Grenloch plant in a truck owned by the respond-
ents. Since the Grenloch plant is not equipped to do finishing work, 'such
of the rough castings as are not delivered directly to customers, are hauled
in the respondents' truck to the Philadelphia plant for finishing. The truck
$ The respondent Harry G. Enderlein testified that the enterprise is sometimes referred
to by customers as Harry G Enderlein Company , but that it is not knovrn as the H. G.
Enderlein Company.
4 Spelled "Grenlock" in the transcript of the testimony.
4O DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD ,
makes a trip a day from Grenloch to Philadelphia , hauling castings to cus-
tomers as well as to the Philadelphia plant.
The respondents contend that the business of the Grenloch plant is so small
as not to affect interstate commerce, and that the Board does not ' have, juris-
diction. It is obvious that this contention is without merit.`
II. THE ORGANIZATION INVOLVED
International Molders and Foundry Workers Union of North America, Local
41, is a labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the respondents at their Grenloch, New
'Jersey plant.
III.' THE UNFAIR LABOR PRACTICES
A. Domination and interference with and support to the Independent ; Inter-
ference, restraint and coercion
On January 24, 1942,8 the Union began a campaign to organize the respond-
ents' employees. Harry G. Enderlein, according- to his own testimony, was in-
formed of this action by an anonymous telephone call later the same day, and
was given further details by an employee who visited him at his home, the
following day.7 -1
This information brought immediate reaction. About January 26 or 27, sev-
eral employees were called into Enderlein's office and interrogated as to
whether they had joined the Union. Thus, Joseph Brna 8 was sent, in to
Enderlein's office by superintendent Harvey Taylor,9 where, in the presence
of Taylor, Enderlein told Brna that he had heard that he (Brna) was a mem-
ber of the Union. Brna replied that he was not. "He questioned me a few
more words," testified Brna, "trying to make me tell if I was telling the truth."
Brna finally replied that he held an "honorary card" in the Union. As a matter
of fact, Brna' had signed a union' application. Similarly, employee Charles
Heck was asked by Enderlein if he (Heck) had joined the Union. Heck re-
plied that he had not. Enderlein said he had a report that Heck had in fact
joined the Union, and he asked Heck to make an affidavit that he had not.
Heck refused. Employee 'Harry Hilbert had a similar conversation with Ender-
lein. Enderlein asked him if he had, signed a union card Hilbert denied
having done so, which was untrue, but said that he had a blank card at his
home. Enderlein told him to get it. Upon Hilbert's return with the card
Enderlein said, as Hilbert testified, "that if (Hilbert) was with the company
(he) would tear the card." Hilbert accordingly tore it up.90
i See N. L. R B. v. Fainblatt, 306 U S. 601, and N. L. R. B v. Suburban Lumber Co,
1 21 F ( 2d) 829 , ceit. den . 311 U S. 673 See also N L R. B v White Sloan Co , 313
U. S 23, 118'Fed (2d)1002.
0 All events hereinafter referred to occurred during the year 1942.
7lIarry G. Enderlein lives in Grenloch , approximately 13 miles from Philadelphia.
Emmanuel E. Enderlein does not appear hereinafter . Accordingly , all references to
"Enderlein" mean Harry G. Enderlein
Pronounced "Berna."
In the complaint and in the respondent 's brief he is designated as Harvey Taylor.
In the transcript he is variously called Charles or Harold : He is to be , distinguished,
however, from the Harold Taylor who is coremaker for the respondents , and recording
secretary of the Independent
10 Enderlein 's version of this incident differs from Hilbert's , but is even more significant
as showing Enderlein 's antagonism to the Union He testified that Hilbert told him
that he had a card at home and wanted to know if Enderlein wanted him to get it ; that
Enderlein said he did ; that Hilbert returned with the card and asked Enderlein'what
HARRY G. ENDERLEIN AND EMMANUEL X. ENDERLEIN 41
On January 26, the Union filed a Petition for Investigation and Certification
with the Board's • Regional Office in Philadelphia u On January 27, the Regi-
onal Director wrote to the respondent of the filing of this petition. This letter
was presumably received by the respondent by the morning of January 28.12
On'the 'afternoon of January 28, Enderlein called the employees together in
the plant: ` He told them of the company's financial condition, stated 'that "it
had lost money, and indicated that if the Union came in he' would shut the
plan' down is -
On January 29 the secretary of the Union wrote to Enderlein, claiming that
the union represented a majority of the employees at the /Grenloch plant, and
asking for an appointment to discuss working conditions. The record does not
indicate that any reply to this letter was made.14 This letter was presumably
received by Enderlein on January 30. The same day, January 30, Harry H.
Johns,, the, respondents' ' attorney, mter^iewed most or all the employees in
the plant. The employees were brought into the company office by Enderlein or
Taylor, singly, or in pairs. There they were asked to sign statements indicating
whether or not they were members of the. Union. While the record does.not
disclose the exact number of employees who were so interviewed and re-
'quested to sign the statements it is clear that it included most of the approx-
imately 51 employees on the payroll. Nor does the record indicate how many
admitted membership in the Union, or how many disclaimed it.' However,' 6
such signed statements are included in the exhibits of the hearing, indicat-
ing that the signers were not members of the Union. Of this number, however,
3 or 4 actually had signed union cards and were members 16
2. The formation of the Independent
A few days later, early in February, Edward Weldon and Dominick Pontano,
respondents' employees, discussed the formation of an 'unaffiliated union. As
he wanted him to do with-it; and that Enderlein replied that he did not care adding,
according to his own testimony, "I am glad you did not sign it" Enderlein continued
"I gave him $2 50 because lie didn't sign it, but he had signed. I gave him $2 50 a'
week raise"
11 A few days later, however, the Union filed the charge in this proceeding and withdrew
the Petition
12 In their answer the respondents averred that they were notified of the filing of the
Petition on January 27
11 Enderlein, in his testimony, denied saying that he would close the plant. His version
was that he told the employees that it would be impossible for the plant to operate by
paying union wages, and that he then told the men "It is up to you." On the other
hand, several employees took Enderlein's speech as a statement that if the Union came
in lie would shut the plant down: Brea testified that Enderlein made this threat, and
employee Dominick Pontano who, if not a witness who was hostile to the Board's
attoiney's theory of the case, was at least an unfriendly one, a d who was active in
the formation of the Independent, testified, of Enderlein's speech,)that "The only thing
lie said, if you got a union in here he is going to shut the place down. That is all I
know lie said "
14 It subsequently developed that the Union in fact did not represent a majority.
15It,is apparently the respondents' position that no pressure was used to obtain these
signatures. On the other hand, the evidence is uncontradicted that several employees
who were told 6 go to the office for this purpose were informed by Superintendent
Taylor that a man (referring to Attorney Johns) from the "Labor Board" or the De-
paitment of Labor" was in the office and wanted to see them And when asked on cross-
examination whether he was forced to sign the statement, one of the employees,
Oswald Alexander testified, "No one did, but I was under the impression in my own
-mind that I would not. keep my job there very long if I did not sign that paper." And
Harry Hilbert testified, "we were not forced to do it, but Mr. Enderlein stayed right
these and watched everything going on " In any event the effect of this procedure on
the minds of the employees is significantly evidenced by the, fact that many of them
denied being members of the Union although in fact they were.
42- DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
a result,. Pontano circulated a paper among the employees, asking each of them
to sign it if he was in favor of an independent union. When asked what time
of day this paper was circulated, Pontano testified, "I did it about after dinner.
We stopped at 12: 00 to eat dinner, and I had.my dinner, a couple of sandwiches
and I went around. It took me a couple of days to do it." On,the other hand,
employee Joseph' Brna testified that his signature,was solicited during working
hours, "before dinner , I would say about half past eleven or a quarter past
eleven ; say half past eleven-it might have been before that, I am not sure-
he came around with a slip of paper with names on it." Pontano was unimpres-
sive as a witness. Among other things, he contradicted himself an unusual
number of times, he claimed not to remember certain pertinent facts, and his
estimate of pertinent dates was particularly faulty.16 As between Pontano and
Brna, the undersigned unhesitatingly accepts Brna's testimony, and finds that
some, at least, of the employees were solicited for their signatures during work-
ing hours. How many signatures were obtained does not appear,, but Pontano
testified that a majority of the employees signed. The paper itself, according
to Weldon to whom Pontano turned' it over, subsequently' disappeared from
Weldon's pocket. .
There was also conflict in the testimony as to what Pontano said to those
• whom lie solicited He testified that he asked the men what kind of a union
they wanted, an outside union or a shop union, -and that they all seemed to
.want a shop union. On the other hand, Brna testified that Pontano told him
,-that Enderlein and Weldon were "trying to unionize the men- in the foundry,
and [he] asked me if I would sign that paper." Here again for the reasons
given, the undersigned credits Brna's.testimony on the point. It is a fair infer-
ence, the undersigned finds, that Pontano spoke similarly to some of the other
employees from whom he obtained signatures.
On or about February 11, Weldon arranged for a meeting of the employees
in the pattern department immediately after working hours, to discuss the
formation of an unaffiliated union. Weldon testified that permission to use the
pattern shop for this purpose was not obtained from either Enderlein or Taylor.
Enderlein himself testified that he did not know that the meeting was to take
place, that he 'spends every afternoon at the respondents' Philadelphia plant,
and that superintendent Taylor is also away Wednesday afternoons.' But
though neither Enderlein nor Taylor may have known about this meeting before
it, was held, Russell Mauger, coremaker foreman, who, according to his own
testimony, has charge of the "main department," did. Mauger, who joined the
Independent at or 'near its inception, and who at the time of the hearing was
still a member, not only attended this meeting in the pattern shop but appar-
ently invited various employees to attend. Thus, for example, Brna testified
that during working hours on the day of the meeting Mauger came up to him
and told him that a meeting would be held in the pattern shop after working
hours, about forming a union, and that Brna "should ' attend." Although he
testified as a witness at the hearing, Mauger did not deny Bract's testimony.
The undersigned finds that Brna's testimony on the point is true.
Indeed, Mauger must have known of the distribution by Pontano, hereinabove
referred to. He testified in substance that he was in a position, by virtue of his
"Both Weldon and Pontano testified that this paper was circulated early in January.
The facts are clearly to the contrary. The undersigned is satisfied, and finds, that both
Pontano and Weldon deliberately tried to set the time of the circulation at a point earlier
than the eNents which have been described, although they both knew the contrary was
the fact.
'4 February 11 was a Wednesday.
HARRY G .' ENDERLEIN AND EMMANUEL X. ENDERLEIN 43
job, to have seen and ' known ;whether men circulated freely through the shop and
obtained signatures for the company union. , There is no evidence that Pontano
made any effort to conceal his activities . It is not reasonable to suppose, con-
sidering-the smallness of the plant and the extent of Pontano 's operations, that
Manger did not kiiow, what was going on. Mauger 's denial of knowledge is not
credited.
Weldon acted as chairman at this meeting. Practically all the employees, then
51 in number , were present. It was decided to proceed with the formation of an
independent union . Nominations for officers of the organization ' were held,
Weldon being nominated as president . The meeting lasted about an hour.
If Enderlein and Superintendent Taylor did not know about this meeting in
the pattern shop before it was held, it is a fair inference that they knew about
,it thereafter. There is no evidence that anyone was reproved for having used
company property for this purpose.
During the next approximately 2 weeks the organization of ,the Independent
took form . After the meeting in the pattern shop, the next three or four meet-
ings were held in a room on the second floor of the Grenloch Fire Department
building. Officers were elected , and a shop committee representing the several
departments in the plant was appointed . Weldon was elected president. A by-
laws committee was appointed which prepared bylaws for the new organization:"
- Thereafter, further meetings were held on the second floor of a garage adjoin-
ing the respondents ' plant. This garage was owned by a man named Thorne who
kept some trucks therein .. Thorne hauled sand for the company which sold
foundry sand to the respondents . He is not employed by the respondents., Some
furniture for the meeting hall was made by William H. Hicks, the respondents'
carpenter. Some of this work was done on company property and with the use
of company equipment. There is no direct evidence , however, that the respond-
ents were aware that their equipment was being used or had been used for this
purpose. Although Thorne supplied the meeting hall without any compensation
to him , and although Hicks testified that he paid $22 .15 for the material for the
furniture out of his own pocket , and had made no charge for his labor , no finding
is made that the respondents are chargeable for these circumstances. While
there is an element of suspicion in some of the testimony involved, a finding that
the premises were furnished and the materials and labor supplied at the
respondents ' direction , or with its consent, would be merely speculative.1B
About this time an incident occurred which again indicated Euderlein 's feel-
ing toward the Union . Employee Harry Hilbert had borrowed $50 from Enderlein
probably sometime in January , and had thereafter paid back $15 of it. Sometime
later, in February, Enderlein asked Hilbert how he was going to pay him back.
Hilbert - replied in substance that he would continue to make payments on the
loan. During this conversation Enderlein told Hilbert that if Hilbert would
tell hini the man who started the "union trouble" in the plant he would "call
the $50 square." Hilbert indicated that he did not know who had started it.
Although Enderlein testified as a witness , he did ' not deny this testimony of
Hilbert's and the undersigned credits it.
Early in March, a number of officers and shop committeemen of the Inde-
pendent called on Enderlein , informed him that the Independent represented a
18 The bylaws of an unaffiliated organization at the Link -Belt Company plant in Phila-
delphia was used as a model.
16 The same is true as to certain testimony which indicated that the respondents ' attor-
ney, Johns , appeared at the close of one of the meetings in the dieliouse . Weldon testified
that Johns came there to discuss a personal matter with him, and that Johns did not
attend the meeting.
d
'44 'I)ECISIONS•.OF NATIONAL LABOR •RELATIONS,,BOARD
majority , of the employees , and asked to be recognized as exclusive bargainink
`agent for the employees. Enderlein testified that he asked Weldon if he could
'prove that the Independent represented,a majority, that Weldon replied that the
Independent represented almost every man in the shop, and that he, Enderlein,
took Weldon''-s word for it. No written evidence of membership was asked for
or given. Enderlein nevertheless accorded the requested recognition.",
About the time that the bylaws were adopted ,by the Independent at a meeting
,held in the firehouse , discussion arose among the members as to the terms of a
contract to be submitted to Enderlein . 'Accordingly , Weldon and 'employee Robert
Campbell ; a 'son-in -law of Enderlein 's drafted a proposed contract which `was
submitted to Enderlein . Enderlein asked for a week to consider it and subse-
quently, on March 31, the contract was signed. Therein the 'Independent was rec-
ognized as the' sole collective bargaining agency for the employees. 'The con-
tract further provided for a closed shop , and it included a check-off clause which
provision, however, never became operative, since the clues of 25 cents a month
were collected directly by the Independent treasurer. Under the contract, raises
in pay were provided for and grievance machinery was set up . At the time this
contract was signed , Enderlein had already received a letter from the Board's
-Regional Office; on or about March 13, that the Union had filed a charge against
the respondents. I . '
The complaint alleges that the respondents threatened to discriminate and
'did 'discriminate against Joseph Brna with respect to his rate of -pay because of
his membership in and activity' in behalf of the Union. In support of this alle-
'gatio'n, Brna testified that early in January he discussed with Enderlein the
'question of a raise in pay ; that Enderlein asked Brna if he would be satisfied with
'50 cents more per day; that he asked Enderlein if he could do better than
that, and that Enderlein replied "I will see." The following pay day, not hav-'
ing received the expected increase, Brna, according to his testimony, went to
Enderlein again. Enderlein replied that Brna would get the raise the following
'week. The following week, however, there was again no increase. Brna, accord-
ingly quit to get another job' in Philadelphia. About a week later, according
'to his testimony, Brna returned and again spoke to Enderlein at the latter's
home Brna testified that Enderlein told him that he would have granted the
'raise to Brna, but that Gallagher, foreman of the foundry department, had told
him (Enderlein ) that he had heard that Brna was a "trouble makes," that
Brna had "stuck with Mr. Hayes 21 in regard- to unionizing the foundry " Brna
testified that he replied he was not a trouble maker, and that Enderlein replied
'that he "was going to find out who started it," and would take Brna "back to work
after" he found out "who started this trouble." Brna was never recalled to work
by the respondents.
20 On February 27, employee Hilbert , who had joined the Independent and became a
member of the bylaws committee , left a copy of the bylaws at Enderlein ' s home in Ender-
lein s absence . Enderlein later the same day returned the bylaws to Weldon with a
letter wherein he said : "I herewith refuse to be intrigued by your Mr. Hilbert or have
any connection with your organization which is not legal It is to be noted that
at this time the Independent had already been established The reference to illegality
in Enderlein 's letter is somewhat ambiguous . The undersigned is satisfied , however,
and finds, that Enderlein had reference to "any connection " which was illegal , rather
than to the organization itself The undersigned has given due consideration to the cir-
'cumstances surrounding the sending of this' letter by Enderlein , on the question of whether
there has been a violation of the,Act by the respondents as to ' the Independent, and is
satisfied and finds that what Enderlein objected to «as the overt approval of the bylaws
by him ( for which purpose they were apparently left at his home), which would thereby
make more patent his connection with the Independent.
21 The union 's organizer. '
HARRY G. ENDERLEIN AND - EMMANUEL X. ENDERLEIN 45.
Enderleih in his testimony denied discriminating against Brna, while Foreman
Gallagher testified that Bina was an inefficient workman and that the work
available for him and 3 other employees doing similar work had diminished.,
Accordingly, testified Gallagher, when Brna told him he had an opportunity to
take another job, Gallagher advised him to accept it.
Enderlein did not, however, deny the details of Brna's testimony. Gallagher's
testimony, in turn, is not inconsistent with Brna's. The undersigned is satisfied
and finds that Enderlein did withhold the raise in pay_ from Brna because of
Brna's membership in and activities on behalf of the Union.
B. Concluding findings
That the respondents violated Section 8 (1) of the Act, as alleged in the
complaint , is clear and needs no extended comment. Enderlein's questioning
of the employees personally, and later through his attorney, his reward of a
raise in pay to Hilbert for not signing a Union card (as he thought), .his
speech to the employees wherein he threatened to close the plant if the Union
came in, his failure to give Brna the proinised raise in pay because he thought
Brim was a Union "trouble maker," his offer to Hilbert to call the $50 loan
"square" if Hilbert would tell him who started the "union trouble" in the
plant,-all these, constitute flagrant interference, restraint and, coercion of
the employees in the exercise of their legal rights. The undersigned finds that
the respondents have interfered with, restrained, and coerced their employees
in the exei cise of the rights guaranteed in Section 7 of the Act.22
Such acts of hostility toward the Union necessarily impressed upon the em-
ployees the futility of seeking representation in an affiliated labor organization,
and provided a favorable environment for the creation of an inside union not
handicapped by employer disfavor 23 While there is no direct evidence that
Enderlein suggested the formation of the Independent, at least some of the
employees thought he had. As found hereinabove, when Pontano circulated
through the plant soliciting signatures for an inside union, he told them that,
"Endorlei n and Weldon" were "trying to unionize the men in the foundry."
'And, as has been found, Mauger, foreman of the "main department," not only
knew of Pontano's circulation for signatures, but was himself, active in the,
formation of the Independent, attended the meeting in the pattern shop, and
invited the employees to attend. Manger's position is such that the respondents
must be held chargeable for his conduct.
Moreover, the contrast in Enderlein's -treatment 'of the 2 unions is signifi-
cant His attitude toward and treatment of the Union has already been
detailed. His' treatment of the Independent went to the other extreme. No'
speech was made against'it, recognition of it was at once accorded without
visual proof of majority, and a contract granting it a closed shop arid'a check-
off-provisions that legitimate unions generally do not secure'without a long
struggle and after bitter opposition-was speedily signed. All these, and the
evidence as a whole, must have made it abundantly evident to the employees,
as Enderlein intended it should, how he felt in the matter.
The undersigned finds that the respondents have dominated and interfered
with; the'formation and administration of the Independent and have contrib-
21 See N. L. R. B. v. Hearst, 102 F. (2d) 658; N. L. it. B. v . Boss • Mfg. Co., 107 F. (2d)
574; N. L. it. B. v. Pacific Greyhound Lines, 303 U. S. 272. Commenting upon 'similar
interrogation of employees , the Board , in Matter of Greensboro-Lumber Co., 1 N. L. R. B.
629, said "That this procedure constituted flagrant, intimidation and coercion of respond-
ents' employees is obvious."
23 See Matter of Decatur Iron &',Steel Co , 29 N. L R. B . 1044. ' '
i
46 _':DECISIONSOF • NATIONAL LABOR -RELATIONS BOARD'
uted support thereto, and have thereby interfered with, restrained, and co-
erced their employees in the exercise of the rights guaranteed in Section 7
of the Act 2`
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents as set forth in' Section III above, occurring
in connection with their operations described in Section I above, have a close,
° intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor practices,
it will be recommended that they cease and desist therefrom, and take certain
affirmative action which the undersigned finds necessary to effectuate the policies
of the Act.
It has been found that the respondents have dominated and interfered with
The formation and administration of the -Independent and have contributed
support thereto. The effects and consequences,of the respondents' domination,
interference with, and support of the Independent, as well as the continued
recognition of the Independent as the bargaining representative of their em-
ployees, constitutes a continuing obstacle to the free exercise by the employees
of their right to self-organization and to bargain collectively through repre-
sentatives of their own choosing. Because of.the respondents' illegal conduct
the Independent is incapable of` serving the employees as a genuine collective
bargaining agency. Moreover, continued recognition of the Independent would
be obstructive of the free exercise by the employees of the rights guaranteed to
them by the Act. Accordingly, it will be recommended that the respondents
disestablish and withdraw all recognition from the Independent as the repre-
sentative of any of its employees for the purpose of dealing with them concern-
ing grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment.
Under the facts found, the contract with the Independent constitutes and is
a part of the unfair labor practices. It is recommended below thatI the
respondents cease and desist from giving effect to the contract, as well as to
any extension, renewal, modification, or supplement thereof, or to any super-
seding contract which may be in force. Nothing herein shall be taken to require
the respondents to vary those wages, hours, seniority, and other such sub-
stantive features of their relations with the employees themselves which the
24 Apparently to indicate his neutrality , Enderlein testified he has hired men after
they told him they were members of a union . He then testified as follows :
Q. (by Board attorney ) : Is' that ( telling him of union membership ) the usual
practice in your shop?
A. I like the men to be open and free with me.
Q In other words , you encourage the practice
A. Absolutely. My door is always open to them.
'Q: .I -mean, you encourage the men informing you of their union membership?
A. I would not say that in that tone, no.
Q.-At least , these 3 or 4 men have voluntarily told ^ you they belonged to outside
labor organizations ; is that right?
A. I am not going to say that specific. I , will say I got the information. How
will that be?, r '
Q. From what source did you get it?
A. I refuse to answer. i
HARRY G. ENDERLEIN AND EMMANUEL X. ENDERLEIN 47
respondents have established in performance of the contract or as it has been
extended, renewed, modified, supplemented, or superseded.
- Because of the nature of the respondents' unlawful conduct, the undersigned'
is convinced that the unfair labor practices found are persuasively related to
the other unfair labor' practices proscribed and that the danger of their com-
mission in the future is to be anticipated from the course of the respondents'
conduct in the past. The preventive purpose of the Act will be thwarted unless
the recommended order is co-extensive with the threat. In order, therefore,
to make effective the inter-dependent guarantees of Section 7, to prevent a
recurrence of unfair labor practices, and thereby minimize strife which burdens
and obstructs commerce, thus effectuating the policies of the Act, it will be
recommended that the respondents cease and desist from in any manner infring-
ing the rights guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF L_1w
1. International Molders and Foundry Workers Union of N. A, Local #1 (A P.
of L) and Employees' Independent Union of the Enderlein Foundry are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of.
Employees' Independent Union of the Enderlein Foundry and contributing sup-
port thereto, the respondents have engaged in` and are engaging in unfair labor
practices within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged
in and'are engaging in unfair labor practices within the meaning of Section 8
(1) 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.
RECOMMENDATIONS
'Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that 'the respondents Harry G. Enderlein and Emmanuel X.
Enderlein, co-partners doing -business as Enderlein Iron Foundries, also known
as H. G. Enderlein Company, also known as Harry G. Enderlein Company, their
agents, successors, and assigns, shall:
1. Cease and desist from :
- (a) Dominating or interfering with the administration of Employees' Inde-
pendent Union of the Enderlein Foundry or with the formation or administration
of any other labor organization of their employees, and from contributing finan-
cial or other support to said labor organization or to any other labor organiza-
tion of their 'employees ; -
(b) Recognizing Employees' Independent Union of the Enderlein Foundry as
the representative-of any of their employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
(c) Giving effect to the contract of March 31, 1942, with Employees' Inde.
pendent Union of the Enderlein Foundry or to any modifications, extensions,
supplements, or renewals thereof, or to any superseding contract with it which
may now be in force ;
48 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
(d) In-any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of their right to self-organization, to form, join, or assist
labor organizations, 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 and protection, as guaranteed in Section-7 of
the Act.
2. Take the following affirmative action, which, the undersigned finds will,
effectuate the policies of the Act :
(a) Withdraw all recognition from Employees' Independent Union of the
Enderlein Foundry as the representative of any of their employees for the pur-•
pose of dealing with the respondent, concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment, and
completely disestablish Employees' Independent Union of the Enderlein Foundry
as such representative; ,
(b) Post immediately in conspicuous places throughout their office and plant
at Grenloch, New Jersey, and 'maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to their employees stating: (1)
that the respondents will not engage in the conduct from which it is recommended
that they cease and desist in paragraph 1 (a), (b), (c), and (d ) of these recom-
mendations;'(2)' that the respondents will take the affirmative action set forth
in paragraph 2 (a) of these recommendations; (3) that the contract with the
Employees' Independent Union dated March 31, 1342, and any modifications,
supplements, extensions, or renewals thereof, or any superseding contracts are
invalid under the National Labor Relations Act, without prejudice, however, to
the assertion by the employees, of any legal rights acquired thereunder ;
(c) Notify the Regional Director for the -Fourth Region in writing, within
twenty (20) days from the date of the receipt of this Intermediate Report what •
steps the respondents have taken to comply herewith.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report, the respondents notify said Regional Di-
rector in writing that they will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondents
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case to-
the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, 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. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request .
therefor must be made in writing to the Board within twenty (20) days after the.
date of the order transferring the case to the Board.
ROBERT M. GATES.
Trial Examiner.
Dated August 21, 1942.
I