Fitzpatrick and Weller, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1942

46 N.L.R.B. 28 (N.L.R.B. 1942)

In the Matter Of FITZPATRICK AND WELLER , INC. and INTERNATIONAL
FUR AND LEATHER WORKERS UNION OF UNITED STATES AND CANADA
Case No. C-2339:-Decided December' 17, 1942
Jurisdiction : barrel heading manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: activities of representatives of manage-
ment and of an employee who although not supervisory was found to have acted
in behalf, of respondent, in interrogating employees as to their union mem-
bership, threatening to close plant if union succeeded in its organizational
activities, attempting to secure renunciations of union through promises of
wage increase and reduction in price of fuel wood, attempting to undermine
union by having employees form a"committee to bargain in their behalf for
wage increases ; grant of wage increases and reduction of price of fuel wood
sold to employees.
Remedial Orders : cease and desist unfair labor practices.
Practice and Procedure : settlement alleged to have been effected pursuant to
an oral understanding between' respondent and Board agent,' held under the
circumstances not to preclude Board from determining merits of case.
Messers. Peter J. Crotty and Francis V. Cole, for the Board.
Mr. Louis A. Gerace, of Batavia, N. Y., for the respondent.
Mr. Rudolph F. Klancer, of Gowanda, N. Y., for the Union.
Mr. Herman J. DeKoven, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by, International Fur and Leather Workers
Union of United States and Canada, herein called the-Union, the
National Labor Relations Board, herein called the Board, by the
Regional. Director for the Third Region (Buffalo, New York), issued
its complaint, dated August 24, 1942, against Fitzpatrick and Weller,
Inc., of Salamanca and Ellicottville, New York, herein called the re-
spondent, alleging that the-respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of-Section 8 (1) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the com-
46 N. L. R. B., No. 5.
28
FITZPATRICK AND WELLER, INC. 29
plaint, together with notice of hearing thereon, were duly served upon-
the respondent and the Union.
In respect to the unfair labor practices, the complaint alleged in
'"substance that the respondent : (1) requested its employees to sign
statements repuditating the Union; (2) threatened them with refusal
to grant wage increases unless they repudiated the Union; (3) threat-
ened to close the plant because of their union membership; (4) con-
ducted meetings of the employees in order to learn the strength of the
Union; (5) interrogated the employees as to their union membership;
(6) secured their signatures to statements repudiating the Union; (7)
granted wage increases in order to defeat the Union; and (8) by the
foregoing acts interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. The
respondent filed an answer in which it denied that it had engaged in
any unfair labor practices.
Pursuant to notice, a hearing was held in Salamanca, New York,
on September 10, 1942, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Acting Chief Trial Examiner. The Board,
the respondent, and the Union were represented and participated in
the hearing. 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 Board's case, counsel for
the Board moved that the pleadings be conformed to the proof in
respect to minor matters such as names and dates. This motion was
granted without objection. The respondent moved to dismiss the
complaint, which' motion was denied. At the close of the hearing,
the respondent renewed its motion to dismiss the complaint. The
Trial Examiner reserved ruling,thereon, but denied the motion in his
Intermediate Report. Various rulings were made by the Trial Ex-
aminer during the course of the hearing on other .motions and on
objections to .the admission of evidence. The,Board has, reviewed the
rulings of the Trial Examiner, and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
On September 21, 1942, the Trial Examiner issued his Intermediate
Report, copies of, which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging in
unfair labor practices, within the meaning of Section 8 (1) and Sec-
tion 2 (6) and (7) of the Act, and recommended that the respondent
cease and desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act. Thereafter, the respondent and 'the
Union filed exceptions to the Intermediate Report, and the -respondent
filed a brief., --,Pursuant to notice, a hearing for the purpose of oral
argument was held on November 5, 1942, before the Board, at Wash-
9
30 DECISIONS , OF NATIONAL - LABOR RELATIONS BOARD
ington, D. C., The respondent alone was represented and participated
in the hearing.
The Board has considered the respondent's brief and the exceptions
filed by the respondent and the Union, finds the exceptions of the
Union to have merit, and finds the exceptions of the respondent to be
without merit insofar as they are inconsistent with the findings, con-
clusions, and order set forth below.
Upon the entire record in,the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Fitzpatrick and Weller, Inc., is a New York corporation engaged
at Salamanca and Ellicottville, New York, in the manufacture of
rough-turned last blocks and flour barrel headings.
Approximately 253,000 feet of logs, constituting about one-seventh
of the total amount processed at its Salamanca plant, are shipped to
the respondent annually from outside the State of New York.
From January 1 to June 30, 1942, inclusive, the respondent manu-
factured finished products, valued in excess of $10,000, of which ap-
proximately 60 percent was shipped to points outside the State of New
York. The respondent admits that it is engaged in commerce within
the meaning of the Act.
H. THE ORGANIZATION INVOLVED'
International Fur and Leather Workers Union of United States
and Canada is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of, the
respondent.
M. THE UNFAIR LABOR PRACTICES 1
In the early part of February 1942, the'Union commenced to or-
ganize the respondent's employees. On or about February 5, an or-
ganizational meeting was held at Salamanca, New York, which was
attended by employees of both the Salamanca and Ellicottville plants.2
A majority of those present signed.union application cards. On the
following day, the Union sent a letter to the respondent requesting a
meeting for the purposes of collective bargaining. Counsel for-the
respondent advised the Union that the respondent did not believe
1 The findings in this section are based upon the uncontroverted testimony of witnesses
called by the- Board , all of whom we find, as did the Trial Examiner, to be credible
witnesses , - -
z The Salamanca and Ellicottville plants are approximately 9 miles apart , and there is
an interchange of employees between the tao plants.
FITZPATRICK AND WELLER, INC. 31
that the Union represented a majority of its employees and that, in
any event, no negotiations could be conducted with the Union in the
absence of William Fitzpatrick,3 the respondent's secretary, and treas-
urer, who was then unavailable.
On or about February 11, Arthur Quackenbush, foreman at the
Salamanca plant,4 asked Lawnie Ewing, an employee, whether he had
'joined the Union. When Ewing said that he had, Quackenbush asked
him if he thought it wise and stated that Fitzpatrick "probably
would shut the place down, or run part time if the union got in."
Quackenbush then asked Ewing if it would not be better "to take a' five
cent raise." At about the same time, Quackenbush asked employee
Mark Harrison if he and Ewing, who relieved each other in the boiler
room, had joined the Union. Harrison replied that they had.' A day
or so 'later, Quackenbush told Harrison that he had made a mistake in
joining the Union and further stated that "if they shut the mill
down, . . . he [Quackenbush] could not get ajob" because he was old.
On or about February 19, Quackenbush told employees Leslie
Ostricker and Joseph Schine to see one Alsdorf; bookkeeper at the
Salamanca plant, and also requested Schine to tell employee Louis
Fisher to see Alsdorf. All three went to Alsdorf's office as instructed.
At about the same time Alsdorf spoke to employee Earl Boothe, who
was in Alsdorf's office in search of a' file. Alsdorf talked to the four
employees, all of whom had joined the Union, individually. She
regl`iested them to sign prepared letters of withdrawal from the Union,
which were addressed to the union representative. While her con-
versations with each varied somewhat, she told them in substance that
if they did not sign the letters the respondent would close the plant,
but that if they signed them, they would receive a wage increase of 5
cents per hour and the price of fuel wood sold to them by the respond-
ent would be reduced $1 per load. Alsdorf told one of them that
"all the boys had signed off . . . from the C. I. O." Of the four,
Ostricker and Boothe signed the letters. By February 22, the union
representative received the withdrawal letters of Ostricker and Boothe
and similar withdrawal letters from eight other employees of the
respondent. These letters were all dated prior to February 21.
At about the same time that the employees at the Salamanca plant
,were being promised a 5-cent per hour wage increase 'if they with-
drew from the Union, and approximately 2 days after a union meet-
ing was held at Ellicottville, Jim Lyons, foreman at the Ellicottville
plant, told Alfred Meinecke, an employee at that plant who had
3I3oth William Fitzpatrick and his brother participate in the management of the plants.
Wherever Fitzpatrick is mentioned herein, William Fitzpatrick is referred to
4 Unless otherwise noted, the events related herein occurred at the Salamanca plant,
during working hours.
" The term "mill" is descriptive of the respondent 's plants.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joined-the Union,* that the respondent would grant the employees a
5-cent per hour' wage increase and asked him if that was satisfactory.
-Meinecke said the employees wanted a 10-cent an hour increase.
Later that day, Lyons called a meeting of the employees at the Elli-
cottville plant. He told them that the respondent intended to give
them a 5-cent per hour increase and instructed those who were satis-
fied to stand apart from those who were not. A majority indicated
that they were, dissatisfied. Later that day, Lyons told Meinecke
that if the employees wanted more money, they ought to form a
"committee" and see Fitzpatrick.
On February 21, the respondent granted the employees, at both
plants a 5-cent per hour wage increase and at approximately the same
time reduced by $1 per load the price of fuel wood sold to the em-
ployees at the Salamanca plant. Fitzpatrick testified, 'and the
respondent's answer avers, that the wage increase on February 21
was given in fulfillment of a promise made to the employees in De-
cember 1941. Regardless of such promise, however, it is clear, from
the statements and activities of Foreman Quackenbush and Book-
keeper Alsdorf, that the respondent permitted its employees to believe
that the February 21 increase, as well as the reduction in the, price
of fuel wood, were contingent upon their withdrawal f rom the Union.
Under these circumstances we find that through these benefits the
respondent sought to discourage union membership and activity.
Upon the basis of the entire record, we further find that Foreman
Lyon's promise of a wage increase to the employees at the Ellicott-
ville plant, as well as his suggestion that they form a "committee"
to see Fitzpatrick about a wage increase, were part of the respondent's
general scheme to obtain a repudiation;of the Union by the employees
and to discourage union membership and activity.
The respondent contends that since Alsdorf is not a supervisory
employee, it cannot beheld accountable for her activities as described
above. We find 'no merit in this ' contention. Three of the four em-
ployees who were requested by Alsdorf to sign withdrawal letters
went in to see her upon Foreman Quackenbush's instructions. Als-
dorf's threat of a shut-down of the plant if they did not sign the
letters, and her promise of a 5-cent per hour wage increase if they
did, followed a like threat and promise made by. Quackenbush to
employees Ewing and Harrison. Finally; the respondent's grant of
a wage increase and reduction of the price of fuel wood were in ac-
cordance with. Alsdor£'s promise of such benefits to the, employees
in the event they withdrew from the Union: Upon the basis of the
entire record, we find, pis did the Trial Examiner, that Alsdorf was
acting on behalf of the respondent in carrying out a scheme to.dis--
courage and prevent the unionization of its employees.
FITZPATRICK AND WELLER, INC. 33
The respondent also 'contends that the Board is precluded from
proceeding in this case by reason of a settlement alleged to have
been effected pursuant to an oral understanding between the respond-
ent and the 'Regional Director for the Third Region. The original
charge against the respondent, which' was filed by the Union on Febru-
ary 24, 1942, alleged that the respondent had violated Section 8' (1)
of the Act by various activities which were designed to discourage
union membership, and also alleged that the respondent had violated
Section 8 (5) of the Act by refusing to bargain collectively'-with the
Union as the representative of a majority of its employees.6 Fitz-
patrick testified that at the first conference between the respondent
and the Regional Office of the Board concerning this charge, which
was held on or about March 2, 1942, he was told by the Regional Di-
rector that if the respondent produced its pay roll and upon a check
it were found that the Union did not represent a majority, "that would
end" the "whole case." On June 19,, the respondent produced its pay
roll, and upon a check made that day by the Regional Office it was
found that the Union did not represent a majority. The respondent
urges that the Regional Director's proposal was thus accepted and
complied with and the entire case accordingly settled.
The record discloses that in the interim between the aforemen-
tioned conference of March 2 at which, according to Fitzpatrick, the
Regional Director made the proposal relied upon by the respondent,
and the respondent's submission of its pay roll on June 19, the
respondent and the representatives of the Regional Office were nego-
tiating for the settlement of the case by the posting of a notice by
the respondent that it would cease and desist from engaging in any
activity in violation of Section 8 (1) of the Act. A discussion con-
cerning such notice took place at a conference, held on April 3. At a
conference held- on April 12, a Field Examiner for the Board re=
quested Fitzpatrick to sign a "settlement agreement" under which
the Union was to withdraw the charge if the respondent posted the
afore-mentioned notice. Fitzpatrick and counsel for the respondent
argued with the Field Examiner over -the contents of such notice.
Fitzpatrick then stated that he would not sign the agreement without
first consulting his brother, who participated in the management of
the respondent's affairs. The settlement agreement was never executed.
We do not' find it necessary to determine whether the Regional
Director in fact made the proposal relied upon by the respondent,
for, ' eveif' if made,, we do not believe that it was operative, when the
0The'amended • charge, filed on August 18, 1942, upon the basis of which the complaint
herein was issued, alleged violations of Section 8 (1) alone. The violations of Section
8 (1) alleged ' in the original charge were substantially the same as those alleged in the
amended charge. '
604086-43-vol . 46-3•
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, produced its pay roll. The pay roll was not submitted
by the respondent to the Regional Office until more than 31/2 months
after the proposal. Not only did more than a reasonable time thus
elapse between the proposal and the production of the pay roll, but
in the interim there were negotiations for a different type of settle-
ment. Under these circumstances, when the respondent finally sub-
mitted its pay roll, it could hardly have believed that the original
proposal of the Regional Director was in effect. On the basis of the
entire record, we find, as did the Trial Examiner, that there was no
settlement of the charges that the respondent engaged in unfair labor
practices in violation of Section 8 (1) of the Act.
We find that by the above-described statements and activities of
Foremen Quackenbush and Lyons and Bookkeeper Alsdorf, as well
as by its grant of a wage increase and a reduction of the price of
fuel wood sold to its employees, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the, Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
J
We find that the activities of the respondent set forth in Section III
'above, occurring in connection with the operations of the respondent
-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 respondent has engaged in and is engaging
in unfair labor practices, we shall order it to cease and desist there-
from and to take certain affirmative action which we find necessary
to effectuate the policies of the Act. "
Upon the basis of the foregoing findings of fact and upon the
entire-record in the case, the- Board makes the following :
CONCLUSIONS OF LAW f.
1. International Fur and Leather Workers Union of United
States and Canada, affiliated with the Congress of Industrial Or-
ganizations, is a labor organization, within the -meaning of Section
2 (5) of the Act.
2. .-By interfering- with, restraining, and 'coercing "its employees
in the exercise of the right's guaranteed in, Section 7 of ' the,, Act,•
the respondent has engaged in and is engaging in unfair-labor- prac=
tices, within the meaning of Section 8 (1) of'the' Act. - '
FITZPATRICK AND WELLER, INC.' 35
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the'National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Fitzpatrick and Weller, Inc., its officers, agents, successors,
and assigns, shall:
1. -Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees iii the exercise.of the rights 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 or 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: ' ' I
(a) Post immediately in conspicuous places throughout its plants
at Salamanca and Ellicottville, New York, and maintain for a period
of not less than sixty (60) consecutive days from the date of posting,
-notices to its employees, stating that the respondent will not engage
in the conduct from which it is ordered to cease and desist in para-
graph 1 (a) of this Order ; .
(b) Notify the Regional Director for the Third Region in writing
within' ten (10) days from the' date of this Order what steps the
respondent has taken to comply herewith.