Gerity Whitaker Co.

National Labor Relations Board - Board Decisions

Jul 14, 1941

33 N.L.R.B. 393 (N.L.R.B. 1941)

In the Matter of GERITY WHITAKER COMPANY and GERITY ADRIAN
MANUFACTURING CORPORATION and METAL POLISHERS, BUFFERS,
PLATERS AND HELPERS INTERNATIONAL UNION, AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR and INDEPENDENT FINISHERS AND
PLATERS UNION, PARTY TO THE CONTRACT and NATIONAL ASSOCIATION
OF DIE CASTING WORKERS, LOCAL No. 26, AFFILIATED WITH THE CON-
GRESS OF INDUSTRIAL ORGANIZATIONS, PARTY TO THE CONTRACT.
Case No. C-1683.-Decided July 14, 1941
Jurisdiction : metal finishing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: removal of bulk of operations to new
locations to evade obligations under contract with union ; unlawfully rendering
assistance to affiliated organization formed after dissolution of dominated inde-
pendent union ; executing closed-shop contracts with dominated and assisted
organizations.
Company-Dominated Union: employers promoted and assisted the formation of,
as an integral part of their scheme to prevent organization activities by
charging umoil at plant of original operations-solicitation of membership
assisted by supervisory employees-support : immediate entering into an
agreement providing for exclusive recognition, closed-shop and check-off, with-
out proof of majority ; posting of notice signed by president of, notifying
employees that membership in, had become a condition of employment.
Discrimination: lay-offs and refusal to reemploy employees who were victims
of employer's unlawful removal of operations ; refusal to reinstate laid-off
employee because of illegal closed-shop contract with dominated organization ;
discharge of an employee because of his membership in and activity on behalf
of charging union.
Collective Bargaining: (Blissfield plant-plant of original operations) union's
majority admitted by employer - refusal to bargain collectively = (Adrian
plant-plant of renewed operations) charges of refusal to bargain collectively
dismissed since record fails to show that union represented a majority of
employees at this plant.
Employer by relocation of its business without notice to the union in order
to thwart the union and evade its obligation under its contract and the Act,
settled unilaterally a fundamental question concerning terms and conditions
of employment in which its employees were vitally interested, forestalled
collective bargaining, and thereby refused to bargain collectively within
the meaning of Section 8 (5) of the Act.
Remedial Orders : order to bargain collectively; cease and desist from recogniz-
ing assisted affiliated organization as exclusive representative of employees
until it is certified by the Board ; closed-shop contract with assisted organiza-
tion abrogated ; amount of dues checked off for dissolved dominated organiza-
tion ordered reimbursed.
Employers who unlawfully removed the bulk of its business to another
location ordered at their election to reinstate at either place of operations
33 N. L. R. B., No. 78.
393
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who were laid off and refused reemployment ; in the event it
chooses to employ at the new location to pay to such employees entitled to
reinstatement the reasonable expenses entailed in the transportation and
moving of such employees and their families.
Unit Appropriate for Collective Bargaining : all employees at employer's Toledo
plant except those whose duties were of an executive, managerial, technical,
or clerical nature ; no controversy as to.
Mr. Earl R. Cross, for the Board.
Messrs. W. B. Alexander and Clarke W. Baldwin, of Adrian, Mich.,
for Gerity Adrian.
Hall & Devlin, by Mr. William R. Devlin, of Toledo, Ohio, for
Gerity Whitaker.
Mr. Ray Kelsay, of Cincinnati, Ohio, and Mr. Henry Kaiser, of
Washington, D. C., for the Metal Polishers.
Messrs. Edward Lamb and Edward T. Chey fitz, of Toledo, Ohio,
for the D. C. W.
Mr. Harold Weston, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Metal Polishers,
Buffers, Platers and Helpers International Union, affiliated with the
American Federation of Labor and herein called the Metal Polishers,
the National Labor Relations Board, herein called the Board, by
the Regional Director for the Seventh Region (Detroit, Michigan),
issued its complaint, dated December 29, 1939, against the respond-
ents, Gerity Whitaker Company, Toledo, Ohio, herein called Gerity
Whitaker, and Gerity Adrian Manufacturing Corporation, Adrian,
Michigan, herein called Gerity Adrian, alleging that the respondents
had engaged in and were engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1), (2), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint and
notice of hearing were duly served upon the respondents, the Metal
Polishers, Independent Finishers and Platers Union, herein called
the Independent, and National Association of Die Casting Workers
Local No. 26, herein called the D. C. W.
The complaint alleged in substance (1) that in about March 1936,
Gerity Whitaker established a branch plant at Blissfield, Michigan,
and violated Section 8 (1) of the Act by seeking and obtaining an
agreement from the Metal Polishers to refrain from conducting
GERITY WHITAKER COMPANY 395
organizational activities at the Blissfield plant; (2) that in about
January 1937, Gerity Whitaker formed Gerity Adrian as its agent
and alter ego to avoid its obligations under the Act; (3 ) that the
respondents dominated and interfered with the formation and ad-
ministration of the Independent and contributed financial and other
support to it; (4) that on about October 30, 1939, Gerity Adrian
caused the Independent to be dissolved , and began to sponsor , foster,
and-encourage membership in the D. C. W.; (5 ) that Gerity Adrian
thereafter entered into a closed-shop agreement with the D. C. W.
and the respondents treated and dealt with the D . C. W. as the ex-
clusive representative of the employees of the Gerity Adrian plant,
although it did not, at any time, represent a majority of such em-
ployees; ( 6) that Gerity Whitaker discriminated in regard to the
hire and tenure of employment of the employees listed in Appendix
A because of their membership in the Metal Polishers ; (7) that the
respondents discharged or laid off eight employees 1 because of their
efforts, as members of the Independent , to free the Independent from
the domination of the respondents , and laid off a ninth employee 2
because of his membership in and activities in behalf of the Metal
Polishers ; ( 8) that although the Metal Polishers represented a ma-
jority of the employees of Gerity Whitaker in an appropriate unit,
Gerity Whitaker refused to bargain collectively with the Metal
Polishers ; ( 9) that although the Metal Polishers also represented
a majority of the employees of Gerity Adrian in an appropriate
unit, Gerity Adrian refused to bargain collectively with the Metal
Polishers ; and (10 ) that the respondents by these and other acts
interfered with, restrained, and coerced their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. In their
answers, the respondents admitted the essential allegations as to the
nature of their businesses , but denied that they had engaged in any
unfair labor practices , and interposed several affirmative defenses.
Pursuant to notice , a hearing was held in Adrian , Michigan, from
February 8 to 17 , 1940, before Thomas S. Wilson, a Trial Examiner
duly designated by the Board . The Board , the respondents, the
Metal Polishers , and the D. C. W. were represented by counsel and
were afforded full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence bearing upon the issues.
During the hearing the Trial Examiner dismissed the allegation of
the complaint that Gerity Adrian had discriminated in regard to
the hire and tenure of Joseph Haydo. At the close of the Board's
case, counsel for the Board moved to conform the complaint, as to
1 Frank Britt, Arthur Clark , Leo Clark , Joseph Haydo, Alfred Rich , Fred Rich, Cecil
Webert, and Donald Webert.
2 Roy heeling
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formal matters, to the proof. No objection was made to this motion
and it was granted by the Trial Examiner. At the close of the
Board's case, and again at the close of the hearing, the respondents
moved to dismiss the complaint. The Trial Examiner reserved rul-
ing on the motions to dismiss and denied them in his Intermediate
Report. During the course of the hearing the Trial Examiner made
rulings on other motions and on objections to the admission of evi-
clence. We have reviewed the rulings of the Trial Examiner and,
find that no prejudicial errors were committed. The rulings are
hereby • affirmed.
Thereafter Gerity Whitaker filed a memorandum and Gerity
Adrian a brief with the Trial Examiner. On September 20, 1940,
the Trial Examiner issued his Intermediate Report, copies of which
were duly served upon' the respondents, the Metal Polishers, and
the D. C. W. The Trial Examiner found that the respondents had
engaged in and were engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (2), (3), and (5)
and Section 2 (6) and (7) of the Act, and recommended that they
cease and desist from the unfair labor practices and take certain
appropriate affirmative action. He recommended further that alle-
gations that Gerity Adrian had discriminated against Frank Britt,
Leo Clark, Joseph Haydo, Alfred Rich, Fred Rich, Cecil Webert,
and Donald Webert be dismissed.
On October 17, 1940, the respondents filed their respective excep-
tions to the Intermediate Report. On October 21, 1940, the D. C. W.
filed its exceptions and supporting memorandum. On November 12,
1940, Gerity Adrian filed a brief in support of its exceptions. On
November 2, 1940, Gerity Whitaker filed a motion to reopen the
record and receive further evidence. By an order of the Board
dated November 28, 1940, this motion was denied.
Pursuant to notice duly served upon all parties, a hearing was
held before the Board in Washington, D. C., on November 14, 1940,
for the purpose of oral argument. The 'respondents, the Metal
Polishers, and the D. C. W. were represented by counsel and par-
ticipated in the argument.
On November 26, 1940, Gerity Whitaker filed a motion for an
extension of time in which to file a brief in support of its exceptions.
By the aforesaid order of November 28, 1940, this motion was denied.
The Board has considered the exceptions of the respondents and
the D. C. W. to the Intermediate Report, as well as the briefs and
memoranda filed, and except in so far as the exceptions are consistent
with the findings, conclusions, and order set forth below, finds no
merit in them.
GEIRTTY WHITAKERR COMPANY 397
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Gerity Whitaker Company, an Ohio corporation with its prin-
cipal office and place of business at Toledo, Ohio, is engaged in the
business of electroplating and metal finishing. In 1936 it purchased
raw materials valued at $183,844.22, approximately 90 per cent of
which were shipped to it from points outside the State of Ohio.
During the same year Gerity Whitaker's sales amounted to almost
$290,000, 70 per cent of which represented shipments to States other
than Ohio.
Gerity Adrian Manufacturing Corporation, a Michigan corpora-
tion with its principal office and place of business at Adrian, Mich-
igan, is also engaged in the business of electroplating and metal
finishing. In 1937 Gerity Adrian purchased raw materials valued
at almost $430,000, all of which were transported to it from points
outside the State of Michigan. In the same year its finished products
were valued at more than $1,000,000, about 30 per cent of which were
shipped to States other than Michigan.
In their answers the respondents admitted that they were engaged
in interstate commerce.
Normally, Gerity Whitaker employs about 40 or 50 employees.'
Gerity Adrian's staff of employees has increased steadily from 44 in
January 1937 to 323 in January 1940.
H. THE ORGANIZATIONS INVOLVED
Metal Polishers, Buffers, Platers and Helpers International Union
is a labor organization affiliated with the American Federation of
Labor, herein called the A. F. of L., admitting to membership em-
ployees of the respondents.
National Association of Die Casting Workers Local No. 26 is a
labor organization affiliated with the Congress of Industrial Organ-
izations , herein called the C. I. 0., admitting to membership employees
of Gerity Adrian.
Independent Finishers and Platers Union was an unaffiliated Labor
organization admitting to membership employees of Gerity Adrian.
3 As will appear below, the average number of Gerity Whitaker employees dwindled
to approximately 17 in 1938 , and 7 or 8 in 1939. As many as 130 employees had been
employed by Gerity Whitaker in the latter part of 1936
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The opening of the Bliss field plant and the creation of Gerity
Adrian; interference, restraint, coercion, and discrimination in
regard to hire and tenure of employment
In 1922 James Gerity, Sr., who had, over a period of 24 years,
operated a small plating shop in Toledo, Ohio, organized, together
with two business associates, the Gerity, Whitaker and Nagel Com-
pany, an Ohio corporation engaged in metal polishing and electro-
plating. During the following 6 years, according to Gerity, he had
frequent quarrels with his associates, and finally bought out their
interest in the enterprise. By 1928 the company name had been
changed to Gerity Whitaker Company, and Gerity, Sr., had become
its sole owner, except for four qualifying shares held by his son,
James Gerity, Jr., and other members of the Gerity family. In the
same year, Gerity, Jr., who had entered his father's employ in about
1924 as a clerk, began to supervise and promote sales of Gerity
Whitaker and to handle its labor relations. Gerity, Jr., secured
several large accounts and developed the practice of purchasing great
quantities of raw castings which Gerity Whitaker plated, finished,
and sold, thus modifying substantially its previous custom of plating
and finishing on a piece-work basis a relatively small number of
castings.
When Gerity, Jr., was promoted in 1928, his father and he agreed
to divide the profits of the business equally. They continued this
practice over the ensuing years. Gerity, Sr., however, still held all
the stock in the" company, except for the qualifying shares, and re-
fused to comply with his son's request for a redistribution of the
stock. The Geritys testified that they had frequent disputes over that
matter as well as over purchases of equipment, expenses , and general
policy.
In 1934 the Metal Polishers began its organizational campaign.
On October 21, 1935, Gerity Whitaker entered into a contract with
the Metal Polishers covering employment relations and recognizing
it as "the organization of its employees." During that same year,
according to Gerity, Sr., there was "a big dispute with- the polishers"
in the plant. In, March 1936 4 Gerity Whitaker and the Metal
Polishers signed another collective bargaining agreement providing,
among other things, for exclusive recognition of the Metal Polishers
and a wage increase.
One month later, in April 1936, a small plating and finishing shop
opened in Blissfield, Michigan, with a staff of about eight employees.
* George Englert, president of the Metal Polishers, testified , without contradiction, that
in 1936 practically all employees of Gerity Whitaker were members of the Metal Polishers.
GERITY WHITAKER COMPANY 399
The shop was managed by Gerity, Jr. The complaint alleges and
the record clearly reveals that this was but a branch plant of Gerity
Whitaker. Machinery was transferred from the Gerity Whitaker
plant at Toledo to the Blissfield plant. Records of the Blissfield
plant were kept in Gerity Whitaker books at Toledo. Castings
ordered by Gerity, Jr., from other companies, were delivered at
both the Blissfield and Toledo plants, and were billed to Gerity
Whitaker. Quotations of prices for products of the Blissfield plant
were made by Gerity, Jr., in the name of Gerity Whitaker and on
the latter's stationery. Gerity Whitaker received customers' orders
for work performed at the Blissfield plant, and products sold by
Gerity, Jr., were manufactured at both Toledo and Blissfield.
Checks from customers of the Blissfield plant were made out to the
order of Gerity Whitaker. Both plants used Gerity Whitaker sta-
tionery and Blissfield employees were paid by check drawn by
"Gerity Whitaker Company, Blissfield, Michigan."
To operate machinery transferred to Blissfield from the Gerity
Whitaker plant at Toledo, non-union employees were hired at rates
of pay lower than those prevailing at the Toledo plant. Considering
such a move as a distinct threat to the tenure and conditions of em-
ployment of its members at Toledo, the Metal. Polishers voted to
strike. Representatives of the Metal Polishers informed Gerity, Jr.,
of the vote, and accused him of hiring non-union employees at rates
of pay contrary to the terms and conditions of the existing contract,
which contract, they argued, covered employees at Blissfield as well
as at Toledo. Gerity, Jr., replied that the Blissfield plant had been
opened solely as a threat to a Michigan competitor and in an effort
to secure more business. He assured the representatives that under
no circumstances would the Blissfield plant be enlarged, and that
if the Metal Polishers would not "bother" him at Blissfield, that
plant would be no threat to the Toledo plant or to the Metal
Polishers.
Gerity, Jr.'s, promise allayed the fears of the Metal Polishers
and no strike was called. During the ensuing months, however,
Gerity Jr., violated his promise not to expand the Blissfield plant,
and the records of Gerity Whitaker show that the monthly wages
at Blissfield grew steadily from $216.07 in April to $2,336.22 in
December 1936. Gerity, Jr., in the beginning of January 1937,
moved the Blissfield equipment into larger quarters at Adrian, Mich-
igan, and closed the Blissfield plant.
Shortly thereafter, on January 15, 1937, about 80 employees were
laid off at the Toledo plant, which for the preceding 10 weeks had
been employing about three times its normal complement of 30 to
40 employees. With three or four exceptions, employees laid off
at Toledo were not offered employment at Adrian, although the
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter's staff had grown to 44 by the end of January 1937. Roy
Eldridge, an employee who had just been laid off at the Toledo
plant, spoke to Gerity, Jr., about a position soon after the Adrian
plant had begun operations. During the conversation that followed,
Gerity, Jr., stated that he had "started up his own plant," that "it
seemed as though it was hard to get along with the Union, and .. .
he was going to get away from the Union's interference."
Thereafter, Gerity Whitaker machinery was transferred from
Toledo directly to the Adrian plant. Gerity, Jr., continued to nego-
tiate and sign contracts -in behalf of and in the name of Gerity
Whitaker, on Gerity Whitaker stationery. He ordered castings from
the Schultz Die Casting Company in Toledo,' which billed Gerity
Whitaker for the castings delivered to "Gerity Whitaker Company,
Plant B, Adrian, Michigan," as well as for the castings delivered
at Toledo, on orders of Gerity, Jr. Both the Adrian and Toledo
plants continued to fill orders on the same contracts executed- by
Gerity, Jr., on behalf of Gerity Whitaker. These orders were billed
by Gerity Whitaker and payment received at either the Toledo or
Adrian plants. All records were kept in the Gerity Whitaker books
at Toledo. Gerity Whitaker stationery was used at both plants.
Adrian employees were paid by checks drawn by "Gerity Whitaker
Company, Adrian, Michigan."'
Business was conducted in the Adrian plant in the manner recited
above until March 5, 1937, when it was incorporated under the laws
of- the State of Michigan as Gerity Adrian Manufacturing Corpora-
tion. Gerity, Jr., was elected president, Gerity, Sr., vice president,
and Attorney Alexander, secretary of the new corporation. Gerity
Adrian began using its own stationery the letterheads of which were
worded almost identically with those of Gerity Whitaker and in-
cluded the same motto, " `Finish'-The Silent Salesman ." Gerity,
Jr., continued to handle labor relations with employees of the Toledo
plant, meeting with their representatives during 1937 and 1938 to
consider their grievances. On June 21, 1937, he negotiated and
signed on behalf of Gerity Whitaker a new contract with the Metal
Polishers, providing for exclusive recognition and a wage increase at
the Toledo plant.
Until March 8, 1937, the machinery, equipment, and supplies de-
livered to Adrian from Gerity Whitaker's Toledo plant were on in-
voices which described the addressee as "Gerity Whitaker, Adrian,
Michigan." Gerity Adrian opened its own books and the same
auditor who audited the Gerity Whitaker books set up the books
5 Both Geritys testified that they were instrumental in the organization of the Schultz
Die Casting Company , which is an Ohio corporation Gerity, Sr , had, some financial
interest in the firm and became its vice president , while Gerity, Jr., became secretary,
which positions they still retain
GERITY WHITAKER COMPANY 401
for Gerity Adrian. An inter-company account was set up in the
Gerity Whitaker books. As of March 31, 1937, the auditor trans-
ferred from the Gerity Whitaker books of account to those of Gerity
Adrian the accounts receivable from Buick Motor Company under
its contract with Gerity Whitaker and the accounts receivable from
Standard Sanitary, amounting in all to $17,743.46; the sales and
revenue for January, February, and March, 1937, amounting to
$32,461.46; ownership of tools, dies, raw materials, machinery, and
equipment, valued at $5,667.73; and the account of Schultz Die Cast-
ing Company against Gerity Whitaker in the sum of $34,443.28. As
of April 1, 1937, the auditor, treating the cash on hand, cash in
bank, accounts receivable, inventories, tools and dies, machinery,
equipment, and deferred charges of the Adrian plant as the personal
property of Gerity, Jr., and treating the plant's liabilities in like
fashion, found the net assets to amount to $10,000. Gerity, Jr.,
received all 10,000 shares of fully paid Gerity Adrian common stock
for the transfer of these assets and liabilities to the new corporation.
The Geritys testified that these matters were left entirely to Mul-
holland, the auditor. The auditor was not called to explain any of
the matters here related.°
In the main, only inexperienced men were employed at the Adrian
plant, where wages were substantially less than those paid employees
at the Toledo plant under the contract in force with the Metal
Polishers. Gerity Adrian admittedly knew that practically all ex-
perienced polishers and buffers were members of the Metal Polishers.
When, on February 26, 1937, representatives of the Metal Polishers
accused Gerity, Sr., of operating "a runaway shop" at Adrian and
raised the question of reemploying men laid off at Toledo, he assured
them that "things would be straightened out." By March 1937, 2
months after the Adrian plant had .begun operations, it had doubled
its original force of 44 employees. Nevertheless, none of the many
employees who had been laid off at Toledo 2 months before were
included in the personnel increases at Adrian. On about March 1,
1937, and again on October 12, 1937, the Metal Polishers voted to
strike because of the lay-off of their members at Toledo and what
they termed "the threat of the Adrian plant." Gerity, Sr., disposed
of the first threat by meeting in the Toledo plant with the Metal
Polishers' representatives and assuring them that their constituents
would be employed at Adrian before he would "see them unem-
ployed." When in October 1937 Gerity, Sr., was notified that an-
9
Although Gerity Whitaker subsequently claimed that Mulholland had not been available
during the hearing, no reason was given for Mulholland ' s alleged unavailability and when,
at the oral argument , counsel for Gerity Whitaker was questioned in that regard, he
merely observed that he was told Mulholland had not been available.
402 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other strike vote had been taken, he requested officers of the Metal
Polishers to arrange a conference at the Toledo plant and "to get
hold of Ed Ruffin, who is a director or secretary of the Toledo Peace
Board," and have him attend. On October .16, the proposed con-
ference was held and attended by Ruffin, the two Geritys, and repre-
sentatives of the Metal Polishers. An agreement was reached pro-
viding for the employment of 13 men at the Toledo plant for 102
working days. Although these men were reinstated, they were not
retained for more than 2 months. Englert testified that strikes by
the employees. of the Toledo plant were averted only because he con-
tinually assured the employees that Gerity, Jr., would be fair and
keep his word.
Two months later, towards the end of December 1937, wholesale
lay-offs began at Toledo. On December 31, 1937, the staff was re-
duced from 38 to 8 employees, and never again assumed normal pro-
portions, averaging 12 in 1938, 7 in the first 6 months of 1939, and
5 during the remainder of that year. During 1938 Gerity, Jr., con-
tinued to meet at the Toledo plant with representatives of the Metal
Polishers and to assure them that he would either increase the Toledo
staff or employ at Adrian the unemployed workmen of the Toledo
plant. Finally on August 14, 1938, when only five employees re-
mained at Toledo, Gerity Jr., according to George Englert, the
Metal Polishers' president, agreed to employ four of the Toledo
employees at Adrian that month and two more men "by the first
of September and then as fast as I can use them I will put the
rest of them on before I put new employees on." Although he did
employ four 7 in August, Gerity, Jr., failed to fulfill the remainder
of his alleged promise. Gerity, Jr., admitted that he had agreed to
employ four men in August 1938, but denied that he had made any
other promises to employ laid-off Toledo workers. On the basis of
the entire record, however, and particularly in view of Gerity, Jr.'s,
failure to keep his promise not to expand the Blissfield plant, we
find, as did the Trial Examiner who had an opportunity to observe
the demeanor of the witnesses, that Eliglert's testimony is credible
and that Gerity, Jr.'s, denials thereof are not. Aside from these 4
men employed in August 1938, over 18 months after the Adrian
plant had been opened, it does not appear that more than 3 or 4
employees laid off at the Toledo plant were employed at the Adrian
plant which had increased its staff of employees to 383 by January
1940.
We note below that in and after March 1937 Gerity Adrian inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act, by anti-union state-
' Hazel and Roy Keeling, Bill Manders , and Arthur Pi ice.
GERITY WHITAXER COMPANY 403
ments, by discriminatory lay-offs, by organizing, supporting, and
dominating an unaffiliated labor organization, and by assisting the
D. C. W.
• The complaint alleges and the Trial Examiner found that the re-
spondents opened the Blissfield and Adrian plants to eliminate the
Metal Polishers and to evade their obligations under the Act. The
• respondents maintain that Gerity, Jr., opened them to start his
own business.
In support of their position, the respondents contend that the
Blissfield period and the first 2 months at Adrian were periods of
transition during which Gerity, Jr., was permitted the use of his
father's facilities purely as a paternal favor. They urge that Gerity,
Sr., had been unable to "get along" with business associates in the
past, that his relations with his son followed the same pattern,
and that the friction that developed between father and son was
instrumental in causing the latter to begin his own business. The
respondents point to testimony that once before, in 1926, Gerity, Jr.,
had left his father's plant and conducted his own business for
several months. They claim that Gerity, Sr., was intere3ted in run-
ning a small business, while the son favored a policy of expansion
and that, in line with his policy, Gerity, Jr., developed new accounts
and obtained important customers. After the new plants were
opened, Gerity, Jr., secured for them more than 400 new customers
who had never been served by Gerity Whitaker in Toledo. The
record also reveals that only about one-tenth of the machinery used
by Gerity Adrian was obtained from the Toledo plant.
The -respondents contend further, and the Geritys testified, that
the machinery, equipment, and supplies sent to the Blissfield and
Adrian plants from Toledo were in payment to Gerity, Jr., for
accrued "back salary" owing to him by Gerity Whitaker. Except
for their testimony that under Gerity, Jr.'s agreement with his
father, he was to receive half the profits of the Gerity Whitaker
business in lieu of salary, neither of the Geritys attempted to explain
how or when this back salary accrued, nor did they estimate the
amount of this alleged indebtedness. Both testified that as with the
other financial affairs of the respondents, they relied absolutely on
the auditor. Other than these oral statements of the Geritys, the
proof of this alleged indebtedness is lacking. The auditor who
might have explained these matters, was as already noted, not called
as a witness.
In view of all the circumstances of the case, including Gerity, Jr.'s,
statement in January 1937 that "it seemed as though it was hard to
get along with the Union, and ... he was going to get away from
the Union's interference," the suspicious circumstances inhering in
450122-42-vol 33-27
404 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
the respondents' treatment of accounts transferred from Gerity
Whitaker to Gerity Adrian as property of 'Gerity, Jr.,' the employ-
ment at Adrian of new and inexperienced workers at lower pay-
instead of the skilled employees laid off at Toledo, the Geritys'
manipulation of bargaining relationships to prevent organized action
by the employees at Toledo, the intermingling of the business of the
Toledo plant with that of the Blissfield plant and, until Gerity
Adrian's organization, with that of the Adrian plant, Gerity Jr.'s
transaction of business in the name of Gerity Whitaker after the
Blissfield and Adrian plants had been opened, Gerity, Jr.'s acquies-
cence in negotiations and agreements between the Metal Polishers
and Gerity Whitaker concerning the employment of the latter's em-
ployees at Adrian, and the unfair labor practices at Adrian, we are
satisfied and find that apart from business considerations a sub-
stantial cause of the transfer to Blissfield and then to Adrian was the
Geritys' plan to thwart the Metal Polishers and to evade Gerity
Whitaker's obligations under the contract with the Metal Polishers.
and the Act."
We find that Gerity Adrian is the alter ego of Gerity Whitaker
and that Gerity Whitaker, by the Geritys' opening the Blissfield and
Adrian plants and founding and establishing Gerity Adrian, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
As we have already noted, all but five of the employees at Toledo
were terminated, and although operations were transferred to and
expanded at Adrian, the Metal Polishers was unsuccessful in its
efforts to have the respondents employ many of the persons laid off
from the Toledo plant at either Toledo or Adrian. Among the em-
ployees thus laid off at Toledo and not reinstated at either Toledo
or Adrian are the employees named in the complaint and Appendix
A. From the facts already set forth above, it is clear that the em-
ployees named in Appendix A were victims of Gerity Whitaker's
unlawful campaign to circumvent its contract with the Metal Polish-
ers and the Act by transferring its business and equipment from its
well-unionized Toledo plant to Adrian.
.a
Although Gerity Whitaker moved to reopen the record for the purpose of adducing
Mulholland's testimony in this connection , it did not advance an adequate explanation for
not ha%ing presented this evidence during the hearing or for having failed to file Its
motion to reopen sooner, and the Board denied the motion. But even apart from the
suspicious circumstances attending the property transfers , we are satisfied , in view of the
other circumstances disclosed , that operations were conducted at Blissfield, then at Adrian,
in an effort to thwart the Metal Polishers and evade Gerity Whitaker ' s obligations under
its contract and the Act
9 On the general problem of industry relocation to evade collective labor agreements see .
Matter of Isaac Schieber, etc. and United Hatters, Cap and Millinery Workers' Int't
Union, etc, 26 N L It B 037 ; Matter of Jacob H. Klotz, et at and Joint Board of
Suitcase, Bag & Portfolio Makers' Union, A. F. of L, 13 N. L. R. B 746, 50 Harvard Law
Review 700, and 36 Columbia Law Review 776
GERITY WHITAKER COMPANY 405•
At the hearing and in its exceptions Gerity Whitaker contended
that the complaint should be dismissed as to 16 10 of the 29 employees
listed in Appendix A, on the ground that they, were temporary em-
ployees and- were not employed until after "the alleged runaway
shop was claimed to have been established" at Blissfield. While these
16 employees were not employed until 4 ,or 5 months •after'the Bliss-
field shop had been opened, they were all in its employ before and
after the Adrian plant had been founded. Obviously, Gerity
Whitaker's course of illegal conduct did not cease with the opening
of the Blissfield shop but continued to manifest itself in various
ways, including the lay-off of the employees named in Appendix A,
after the Adrian plant had' begun operations.
We find that by terminating the employment of all the employees
listed in Appendix A, and by refusing to reemploy them, the re-
spondents discriminated in regard to their hire and tenure of em-
ployment, thereby discouraging membership in the Metal Polishers
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
`B. Gerity Whitaker's refusal to bargai,& collectively
1. The appropriate unit
The complaint alleged, the answers admitted, and we find that
all the employees of Gerity Whitaker's Toledo plant, except those
whose duties were of an executive, managerial, technical, or clerical
nature, at all times material herein constituted and now constitute
a unit appropriate for the purposes of collective bargaining and
that said unit insures to the employees the full benefit of their right
to self-organization and to collective bargaining and otherwise effec-
tuates the policies of the Act.
2. Representation by the Metal Polishers of a majority in the
appropriate unit
The complaint alleged and the answers admitted that during all
times in question a majority of the employees of Gerity Whitaker
within the appropriate unit had designated the Metal Polishers as
their representative for the purposes of collective bargaining with
Gerity Whitaker.
We find that on October 21, 1935, and at all times thereafter, the
Metal Polishers was and is the duly designated bargaining repre-
sentative of a majority of the employees in the appropriate unit,
and that pursuant to Section 9 (a) of the Act, the Metal Polishers
10 These persons are Frank Bykowski, Lucille Clark, Glenn Grable, William Gilbert, Mike
Gzik, Harold Hartley, Woodrow Hoover, Gale Jaquillard, Edward Johnson, Harry Johnson,
George Kauffman, Joseph Kress, John Martin, -Eldean Morgan, Walter Stable, and Stanley
Wesolowski.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was at all such times and now is the exclusive representative of all
the employees in such unit for the purposes of collective bargaining
in respect to rates of pay, hours of employment, and other conditions
of employment.
3. The refusal to bargain
The complaint alleged that on or about January 30, 1937, and
thereafter, Gerity Whitaker refused to bargain collectively with the
Metal Polishers within the meaning of Section 8 (5) of the Act.
We have noted above the circumstances surrounding Gerity Whit-
aker's transfer of machinery and operations first to Blissfield and
then to Adrian and the other circumstances in respect to the allega-
tion that Gerity Whitaker did not fulfill its obligation within Section
8 (5). These circumstances reveal that during the negotiations be-
tween representatives of the Metal Polishers and Gerity Whitaker
concerning the relocation of its business, the latter concealed its
intention to remove the bulk of its operations from Toledo. When,
shortly after the Blissfield plant had been opened, representatives
of the Metal Polishers advised Gerity, Jr., that the Toledo employees
had voted to strike because they considered the transfer; to Bliss-
field a threat to their tenure and conditions of employment, Gerity
Jr., assured them that under no circumstances would the Blissfield
plant be enlarged. During the following months, as we have found,
Gerity Jr., proceeded to expand substantially Blissfield's staff and
operations. By January 1937, Gerity Whitaker moved the Bliss-
field equipment into larger quarters at Adrian where operations were
thereafter further expanded. - As set forth above, on October 16,
1937, and again in August 1938, Gerity, Jr.,. agreed to employ certain
of the. men laid off at Toledo, but thereafter failed to fulfill his
promises.
Although the Metal Polishers had made known to Gerity Whitaker
its concern with the removal from Toledo and although the removal
of business from Toledo plainly went to the very root of the Toledo
employees' tenure'and conditions of employment, no notice was given
by Gerity Whitaker of the proposed transfer to Adrian and, as we
have found above, apart from business reasons, a substantial cause
of the transfer was the Gerity's plan to thwart the Metal Polishers
and evade Gerity Whitaker's obligations under its contract and the
Act. Thus Gerity Whitaker, as part of the unlawful plan, settled
unilaterally a fundamental question concerning terms and conditions
of employment in which its employees were vitally interested, fore-
stalled collective bargaining, and thereby refused to bargain collec-
tively within the meaning of Section 8 (5) of the Act"
11 Cf. N . L. R B. v Whittier Mills Company, Salver Lake Company, and Scottdale Mills,
Corporatnons,'111 F. ( 2d) 474 C C. A 5; N. L R . B. V Louisville Relining Co., 102 F. (2d)
GERITY WHITAKER COMPANY 407
It is true that Gerity Whitaker had a contract with the Metal
Polishers at the time of the transfer to Adrian. Its obligation to
bargain with the Metal Polishers was, however, a continuing -one,
by "virtue of the terms of the contract and the policy and provisions
of the Act.12 That obligation was all the more important where the
unilateral determination would cut off the tenure of employment of
the employees and thereby undermine the contract and the exclusive
representative. The removal to Adrian was such a drastic and cru-
cial change in Gerity Whitaker's employment conditions that the
refusal to bargain inherent in such removal, when presented as an
accomplished fact, could not be cured by the bargaining that sub-
sequently occurred in regard to the employment at Adrian of some
employees laid off at Toledo especially since the Geritys failed to
carry out in full the understanding reached in connection with this
negotiation.
We find that the respondent,'Gerity Whitaker, refused to bargain
collectively with the Metal Polishers as the exclusive representative
of its employees in an appropriate unit in respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and that by such refusal interfered with, restrained, and coerced its
employees in the exercise of their right to bargain collectively through
representatives of their own choosing.
C. Interference, restraint, and coercion at the Adrian plant; interfer-
ence with, domination of, and support given to the Independent
At Adrian, the Metal, Polishers confined their activities to visits
to the employees' homes during the early part of 1937 and to two
attempts in March of that year to distribute literature outside the
plant. Upon the latter two occasions, Gerity, Jr., and Foreman
Williamson stood near the organizers and many employees did not
accept the circulars. During this period, the respondents began a
counter-campaign to control the choice of its employees' representa-
tives and to frustrate the Metal Polishers' organizational activities
at Adrian. As already noted, members of the Metal Polishers laid
off at Toledo, were, with possibly three or four exceptions, not offered
employment at Adrian where a large staff was being employed. Roy
678 C . C. A. 6, cert denied 308 U. S. 568; Matter of Dallas Cartage Company and Int'l
Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America , Local 745, 14 N L.
R. B 411. Matter of Isaac Schieber, etc and United Hatters, Cap and Millinery Workers'
Intel national Union, etc,, 26 N L It. B 937 ; Matter of Claire Knitting Mills , etc. and
Knitgoods Workers International Union, 2 ( old) N L. It. B. 469 . Also see Matter of
Edward F. Reichelt , Robert J. Hillard , Russel J. Jensen, doing business as a co-
partnership under the name and style of Paul A. Reichelt Co and Chicago Fur Workers
Union, Local No. 45, 21 N . L. R. B 262.
"See N. L. R B. v. Sands Mfg. Co., 306 U S 332; N L R. B v. Newark Morning
Ledger Company, decided April 17, 1941 (C. C A. 3) ; N. L. R. B v Highland Shoe, Inc.,
decided April 15, 1941 (C. C A. 1) ; Matter of Isaac Schieber, etc. and United Hatters,
Cap and Millinery Workers' International Union, 26 N. L It. B. 937.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Eldridge, one of the Metal Polishers' members laid off at Toledo
applied unsuccessfully for work at Adrian in January 1937, and was
told by Gerity, Jr., that all positions at Adrian were filled. On
April 12, 1937, when Arthur Clark, whose lay-off is hereinbelow
discussed was first employed, one Kelly, Gerity Adrian's personnel
clerk, asked him if he belonged to any union, and when Clark replied
in the negative, Kelly warned him not to do so if he wished to keep
his job.
About a month later, in May 1937 James McComb, an employee
-transferred from the Blissfield plant, summoned the employees to a
meeting which took place in the back room of the plant about one-
half hour before the end of the working day. Gerity, Jr., Harry
Hammond, at that time superintendent of the Adrian plant, and
Foreman Williamson attended this meeting. In a brief speech,
-Gerity, Jr., told the assembled employees that they would have to
organize a union in order to prevent the diversion of orders to some
other company. During the meeting, Superintendent Hammond
.warned Clark,,who had been a member of the Metal Polishers, to
"watch your step, what you say or do, because they [the respondents]
don't want any C. I. O. or A. F. of L. in this shop."
A few weeks later another meeting was held in the back room of
the plant again about one-half hour before the end of the working
day. Williamson and Howard Schwab, who had replaced Ham-
mond 13 as superintendent, attended this meeting. Schwab intro-
duced Frank Poirer, an employee of the Schultz Die Casting Com-
pany and an organizer for the Die Casters League, then an un-
affiliated labor organization. Poirer told the employees that he had
been invited to speak by the management and that it had become
necessary for the employees to join the Die Casters League in order
to keep work in the shop. At this meeting Poirer succeeded in sign-
ing about 80 applicants for membership in the Die Casters League.
After the meeting Poirer received a Gerity Adrian check for $160
which, according to Gerity, Jr., represented employees' application
fees. Gerity, Jr., also testified that these applicants had signed an
assignment of wages for this purpose.'' The money was returned to
the Adrian plant when the Die Casters League refused to issue a
charter because no die casters were employed at Gerity Adrian.
Gerity Adrian also paid Poirer the sum of $40 on May 4, and the
sum of $25 on May 28, 1937. Gerity, Jr., testified that those two
checks were in the nature of a personal loan to Poirer. There is no
evidence that any part of its was ever repaid.
'$ Hammond, who did not leave Gerity Adrian 's employ until several months later on
October 1, 1937, apparently became "engineer on the installations of new machinery" at
about this time
i4 This assignment was not produced at the hearing.
GERITY WHITAKER COMPANY 409
Sometime later, during the summer of 1937, another meeting was
held in the same back room in the plant. McComb, who had been
chairman of the Die Casters League, presided. Schwab and Wil-
liamson were again in attendance. Superintendent Schwab intro-
duced one Hammond,15 the assistant prosecuting attorney of the town
of Adrian, who proceeded to inform the employees that he proposed
to organize them into an incorporated organization to be called the
Independent Polishers and Finishers Union which, he said, could
,make its own bylaws, bargain with Gerity, Jr., and handle its own
grievances through shop stewards and grievance committees. The
effect of Schwab's introduction of Hammond was to associate him
with the management, in the eyes of the employees and we so find.
Under the circumstances, therefore, we find the respondents respon-
sible for Hammond's statement. At this meeting a motion was made
and passed to hold a secret vote to see what organization the em-
ployees wished to join. This ballot resulted in approximately 50 votes
for the A. F. of L., 16 for the C. I. 0., and 10 for the Independent.
The group also voted favorably upon a motion by Clark to invite
,representatives from the A. F. of L. and C. I. 0., as well as Attorney
Hammond, to a future meeting to explain the benefits which the
various organizations would give the employees before making a
definite decision as to which organization to join. A committee was
selected to secure representatives from the various organizations to
speak.
Early the following morning, the invitation committee was called
together and informed that the Independent was signing up the
employees in the shop. The proposed meeting for the representa-
tives of the three groups was never held. McComb and another
individual went through the shop calling employees. from their work
and signing them to membership in the Independent. This solicita-
tion was carried on openly in the presence of both Williamson and
Harry Hammond 16 who not only made no objection to this inter-
ruption of the work, but went so far as to assist in securing members
for the Independent. Williamson counselled Frank Britt, an em-
ployee, to join the Independent, while Harry Hammond told Clark,
upon the latter's inquiry, that he could either join the Independent
or not, but that it would be necessary for him to become a member
if he wanted to keep his job as a whael setter. Harry Hammond also,
told Clark during this period that "if he were in [his] place, he would
forget all about the A. F. of L." Also at about this time, Superin-
tendent Schwab advised Fred Rich, an employee, that it would be
best to join the Independent as they could "get along,better," that
'b Not to be confused with Harry Hammond, formerly superintendent of Gerity Adrian.
16 See supra, footnote 13
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerity, Jr., would give more wages, and that the men would "co-
operate" with Gerity, Jr.; during the "hard times." On several
different occasions during 1937, Williamson asked Rich if he knew
"any A. F. of L. or C. I. O. men working in the shop," and upon at
least one such occasion, added "We don't want them in here."
A few days after the Independent began to solicit membership,
a statement written on Gerity Adrian stationery was posted near the
time clock in the plant. This notice, signed by McComb who later
became president of the Independent, stated that all employees who
had not joined the Independent must do so immediately or "the man-
agement will be notified to dispense with their services." Thereafter,
several men who had not joined bec%me members of the Independent.
The Independent was incorporated under the laws of the State of
Michigan.
Thereafter, on July 26, 1937, Gerity, Jr., executed a contract with
the Independent giving the Independent a closed shop, seniority
rights, and the check-off. There is no proof in the record that the
Independent actually represented a majority of the employees at this
time. The wages specified in this contract varied from 45 cents to 70
cents an hour, about 30 per cent lower than provided for in the con-
tract of June 21, 1937, entered into by the Metal Polishers and Gerity
Whitaker. Similar contracts were executed between the same parties
on June 2, 1938, and May 28, 1939. The rates of pay have remained
stationary ever since the first Independent contract was executed.
In all three contracts Gerity Adrian agreed that lay-offs and rein-
statements would be governed by strict seniority and that it would
recognize the shop-steward system "to be set up" in the plant. The
stewards received many grievances from employees that they failed
to receive the guaranteed rate of pay or that men were not being
reinstated or laid off in accordance with their seniority, as provided
for by the contract. On several occasions, these disputes were settled
apparently largely through the action of Steward Fred Rich. Wil-
liamson refused to abide by the adjustments, however, and in meet-
ings with the shop stewards frequently stated that' he was running
the shop and that no union was going to run it, and that he would lay
off or reinstate according to ability despite the seniority clause in the
contracts.
The above-recited facts established that the respondents, as an
integral part of their scheme to prevent organizational activities at
Adrian by the Metal Polishers, promoted and assisted the formation
of the Independent. In view of the respondents' expressed hostility
to the Metal Polishers, it is plain that the genesis of the Independent
is to be found in Gerity, Jr.'s warning to employees at this same
May meeting, that they must organize into a union. Later, through
the town assistant prosecuting attorney's remarks to a meeting of
GERITY WHITAKER COMPANY, 411
employees,'the respondents reemphasized their interest in the estab-
lishment of an unaffiliated organization. When immediately, there-
after, the employees had nevertheless voted for representation by the
American Federation of Labor, the respondents, through prompt
solicitation of membership in the Independent assisted by super-
visory employees on the respondents' time and property, dealt sum-
marily with this final effort of their employees to select representa-
tives of their own choosing. The above-described notice in sub-
stance notified the employees that membership in the Independent
had become a condition of employment. The circumstances sur-
rounding this notice compel the conclusion that it constituted further
potent support of the Independent. By these meetings and solicita-
tion on the respondents' time and property, by Gerity, Jr.'s and
Attorney Hammond's remarks, and by Harry Hammond's and Wil-
liamson's statements discouraging membership in_the Metal Polishers,'
the respondents interfered with and aided the formation of the Inde-
pendent. By immediately entering into an agreement with the Inde-
pendent providing for exclusive recognition, closed shop, and check-
off, without proof of majority representation, the' respondents lent
further support to the Independent. The events leading up to
and including the dissolution oT the Independent described below,
as well as other facts hereinafter set forth, also demonstrate the
unlawful relationship which obtained between this organization and
the respondents.
We find that the respondents dominated and interfered with the
formation and administration of the Independent, and contributed
support to it; and that thereby, and by the statements of Harry
Hammond and Kelly to Clark, by Williamson's statements to Britt
and Rich, and by Superintendent Schwab's statement to Rich, the
respondents interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act.17
We further find that the closed-shop agreements between the
company-dominated Independent and Gerity Adrian did not fall
within the proviso of Section 8 (3) 18 and- constituted unfair labor
practices within Section 8 (1) of the Act.19
34 On October 28, 1939, the Independent was dissolved by a vote of its members ; see
below, p. 25.
is The proviso states :
. . . nothing in this Act . . . shall preclude an employer from making an agree-
ment in a labor organization ( not established , maintained , or assisted or any action
defined in this Act as an unfair labor practice) to require as a condition of employ-
ment membership therein, if such labor organization is a representative of the
employees as provided in section 9 (a), in the appropriate collective bargaining unit
covered by such agreement when made
i9 International Association of Machinists v. N. L. If. B., 311 U. S. 72; Warehousemen's
Union, Local in, International Brotherhood of,Teamsters , Chauffeurs , Stablemen d Helpers
of America, aflUiated with the American Fiederdtion of Labor V. N. L If. B., 121 F. (2d) 84,
decided May 5, 1941 (App, D. C )
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Discrimination by the respondents in regard to hire and
tenure of employment at the Adrian plant
The complaint alleged that the respondents discharged or laid off
Frank Britt, Arthur Clark, Leo Clark, Joseph Haydo, Roy Keeling,
Alfred Rich, Fred Rich, Cecil Webert, and Donald Webert because
of their efforts to exercise the rights guaranteed employees under
the Act. The Trial Examiner found that Frank Britt, Leo Clark,
Joseph Haydo, Fred Rich, Cecil Webert, and Donald Webert had
not been discharged because of union membership or activities and
recommended the dismissal of the complaint as to them and as to
Alfred Rich, since no evidence was adduced at the hearing to sup-
port the allegation with respect to him. Upon an examination of
the record, we agree with the Trial Examiner in these respects.
Since no exceptions to these findings or recommendations have been
filed, we need not discuss them in further detail. The allegations
in the complaint charging the respondent with having discriminated
against Frank ,Britt, Leo Clark, Joseph Haydo, Alfred Rich, Fred
Rich, Cecil Webert, and Donald Webert in violation of Section 8 (3)
of the Act will be dismissed.
The Trial Examiner sustained the allegations of the complaint
with respect to Arthur Clark and Roy Keeling, and the respondent
takes exception. We are of the opinion that these findings of the
Trial Examiner are correct.
Arthur Clark was first employed by Gerity Adrian on April 5,
1937, as a polisher and buffer and as an instructor. He had gained
nearly 22 years of experience in this type of work. After Clark
had worked at the Adrian plant for about 5-weeks, he was assigned
to a newly created wheel department, where he set up, reset, and
resized the wheels.
Clark had been a member of the Metal Polishers, but had been
suspended in about 1933 for non-payment of dues. As already
noted, when Clark applied for work at Gerity Adrian, Kelly warned
him not to belong to a.union. In May 1937, at the first of the
meetings already discussed, he was cautioned by Superintendent
Hammond to "Watch your step, what you say and do, because they
don't want any C. I. 0. or A. F. of L. in the shop." Several weeks
later, at about the time the second of the above-discussed meetings
was held and Poirer sought to organize the employees into the un-
affiliated Die Casters' Union, Foreman Williamson told Clark that
the respondent had previously released him, Williamson, because
of his union activities, but after he had "tore up his book and went
back to" Gerity, Jr., he was restored to his position, and "worked
himself up to where he became a foreman." Williamson then added,.
GERITY WHITAKER COMPANY 413
"A fellow of your ability as a polisher would be wise to get out of
the A. F. of L. and push ahead in that capacity." Clark was the
employee who made the motions at the third of the meetings-con-
sidered above to determine by means of an election which organiza-
tion most employees favored and to invite the representatives of
the various unions to explain the respective benefits of their organi-
zations to the employees. He was appointed to the committee which
was to issue the invitations to those representatives but was told
the following morning that the Independent was signing up the em-
ployees in the plant.
During the summer of 1937, after the Independent began to
organize the employees, Harry Hammond told Clark, in reply to
it question by Clark, that the latter would have to join the Inde-
pendent in order to retain his job as a wheel setter. At about the
same time, Harry Hammond also told him that "if he was in [his]
place, he would forget all about the A. F. of L." ,Several days
later, as noted above, there was posted in the plant a notice warn-
ing employees that "the management" would be notified to dispense
with the services of those who failed to join the Independent im-
mediately. About 10 days later, Clark joined the Independent.
Sometime in March 1938 the wheel department was abolished.
Clark was transferred to polishing and buffing work. He ranked first
in seniority in the wheel department and 22nd in the polishing
and buffing department. He had worked as a polisher only 2 or 3
days when on March 18, 1938, Williamson and Ennis, the comptroller
and personnel director of Gerity Adrian, informed the whole depart-
ment that they were being laid off because there was no work.
Williamson had previously told Clark that, unless the Adrian plant
increased the rate of production, the work would have to be sent
to the Toledo plant. At the time of the lay-off, Williamson told
Clark that he had no idea when Clark would be recalled but that
he could "drop around" and see if there was any work.
By June 1938, Clark discovered that men of less seniority who had
been laid off with him in March had since been reinstated and were
working at the plant. He returned to the Adrian plant in August
and asked Williamson for a job. Williamson answered that he did
not have any work for 'Clark. Clark then went to Earl Gust, who
had formerly been Gerity Adrian's night foreman and was then the
secretary of the Independent. Gust informed him that he had been
voted out of the Independent and that "I would go and see Mr.
Ennis, [the personnel director] in regard to it." Clark saw Ennis,
who also told him that he had been dropped from the Independent
and therefore could work for Gerity Adrian no longer. Clark then
requested the right to see Gerity, Jr., but Ennis refused to allow
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him to do so. In September 1938, Clark again called upon Gust
and Williamson. On that occasion, he was told that they would
take it up with the Independent committee and that he should
return in a few days to learn the result. When he returned a few
days later, he was told that he was "all through." At the same
time, Williamson accused him of lying about not paying dues 'to
the Metal Polishers. Clark has never since worked for Gerity
Adrian.
Gerity Adrian contended in its answer that Clark's lay-off was
prompted by his inability, because of deficient eyesight, to perform
the work assigned to him. There was no evidence regarding Clark's
eyesight adduced at the hearing. Sutter, formerly the general fore-
man, and at the time of the hearing the master inspector, testified
generally that Clark's work was not "up to our standards," although
admitting that he had never spoken to Clark about poor work. In
addition to the vagueness of this testimony, it is contradicted by
the fact that Clark received two increases in wages during his em-
ployment, one of which was received as recently as 4 months prior
to his lay-off. Personnel Director Ennis testified that Clark was
not recalled because Williamson had stated that his work was un-
satisfactory. It is noteworthy that Williamson, who was responsible
for a large part of the anti-union activities carried on at the plant
and whose word was responsible for the failure to recall Clark,
was not called as a witness by the respondents. Nor did any witness
refute Clark's testimony that he had received no complaint against
his work. Moreover, Clark was not recalled to work when the wheel
department was reestablished about a year after his lay-off,
although, according to Ennis, his work in the wheel room was "not
unsatisfactory," and although he ranked first on the seniority list
in that department and the agreement then in force between Gerity
Adrian and the Independent required the former "to recognize
seniority rights."
Since it appears that all employees in the two departments in
which Clark had worked had been laid off with him, we are satis-
fied that Clark's lay-off was not discriminatory.20 As already noted,
however, employees were thereafter reinstated to both departments.
The record is clear, and we find, that in August 1938, when Clark
first applied for reinstatement, and thereafter, the respondents re-
fused to reinstate him because of their illegal closed-shop contract
with the Independent and because of their opposition to the Metal
20 Upon the entire record, it is clear that after his lay-off, Clark continued to remain
an employee. Cf. North Whittier Heights Citrus Association v. N. L. R. B., 109 F. (2d)
76 (C. C. A. 9), cert. denied, 310 U. S. 632. Whether or not he was an employee, Clark,
of course, was still protected against the unfair labor practices condemned by Section 8 (1)
and (3 ) of the Act. Phelps Dodge Corporation v. N. L. R B. 313 U. S. 177
GERITY WHITAKER COMPANY 415
Polishers. We find that the respondents, by refusing to reemploy
Clark, in August 1938 and thereafter, discriminated in regard to his,
hire and tenure of employment, thereby encouraging, membership
in the Independent and discouraging membership in the Metal
Polishers, and interfering with, restraining, and coercing their em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act.
Roy Keeling was employed by Gerity Whitaker as a polisher and
buffer from July 1938 until August 1938, when he was laid off at
Gerity Whitaker because there was no more work in the shop. He
had been an active member of the Metal Polishers and had served
on the Metal Polishers' shop committee.
As set forth above, early in August 1938, at a conference with
officials of the Metal -Polishers, Gerity, Jr., agreed to employ at
Adrian four of the Metal Polishers' members laid off at the Toledo
plant.21 Keeling was one of the men so employed and told by
Gerity, Jr., that they would be employed as foremen and instructors.
in order to avoid the seniority list which had been agreed upon
with the Independent. These four men began work at Adrian about
August 15, and were paid a monthly salary. In addition to instruc-
ting the less experienced employees in the polishing and buffing de-
partment, they performed some of the work of that department
themselves. They were known as foremen and were under the direc-
tion of Williamson, who in turn was responsible to the general
foreman, Norbert Sutter.
Keeling remained interested in the Metal Polishers after his trans-
fer to Adrian. He visited employees at their homes in Blissfield
and other towns, attempting to interest them in the Metal Polishers.
At other times, he told employees that they were receiving insufficient
wages.
On one occasion Williamson informed Keeling that he had just
told an employee that if the employee "thought anything of his wife
and children, he would let the A. F. of L. alone." Keeling testified
that in October 1938 Ennis called him to the office and stated that
he heard that Keeling had gone "down to Blissfield" and that if
Keeling had been there talking to the men, "Hell was going to be
popping." Ennis did not specifically contradict this testimony, but
testified that he had, heard that Keeling had told some of the em-
ployees that the wages paid them were I not high enough and that
he asked Keeling who he "thought he was working for." We are
satisfied and find that Ennis' remarks were made in connection with,
and in order to discourage, Keeling's union activities.
" See supra, p 10, footnote 7.
416, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 11, Sutter, the general foreman, told Keeling that
his services would not be needed any longer and that he was not
satisfactory. As Keeling was leaving the plant, Sutter told him that
Gerity, Jr., wished to see him. When Keeling demanded the right
to have his brother go with him to interview Gerity, Jr., Sutter
answered, "To hell with that." Keeling thereupon refused to see
Gerity, Jr., and left the plant. Several hours later, Keeling was
,informed by, his brother that Gerity, Jr., wanted Keeling to go to
work at the Gerity Whitaker plant in Toledo. Keeling returned to
the Toledo plant the following day. Nine days later he was laid
off for lack of work. Since that time he has not been employed at
either the Adrian or Toledo plants.
Sutter testified that Williamson had shown him four trays of work
which Keeling had just spoiled beyond repair and that he discharged
Keeling because' of this. He testified that he had also heard that
Keeling was unable to handle the men under him. In view of Wil-
liamson's failure to testify and Sutter's admission on cross-examina-
tion that it was unusual to discharge a man for one batch of poor
work and that, so far as he knew, these four trays were the only
bad work charged to Keeling, we do not find Sutter's explanation
for Keeling's discharge persuasive. On the contrary, we are con-
=vinced that Keeling's discharge from the Adrian plant was not
occasioned by faulty work, as alleged by the respondents, but rather
was prompted by his activities in behalf of the Metal Polishers at
the Adrian plant. His subsequent employment at Toledo does• not
detract from this conclusion because such employment was• only for
a short period and the Metal Polishers was the only union at that
plant. _ "
We find that the respondents discharged Keeling on October 11,
1938, and refused to reinstate him because of his membership in,
and activities in behalf of, the Metal Polishers, thereby discouraging
membership in the Metal Polishers and interfering with, restrain-
ing, and coercing employees in the exercise of the rights guaranteed
in Section 7 ^ of the Act.
E. The closed-shop agreement with the D. C. W.
About mid-October 1939 a group of Independent members called
upon Lavon B. Kuney, prosecuting attorney of, the town of Adrian,
and discussed with him the formation of a new union.
About 2 weeks later-, on October 26 or 27, 1939, a telegram was
posted on the Adrian plant bulletin board which read in effect that
the respondents' products must thereafter be "made by the C.I. 0."
or they would not be accepted. This telegram was signed by
"Reuther" who was identified by Carl Potts, an employee, as "Mr.
GERIT_Y WHITAKER COMPANY 417
Reuther of the Buick Plant" at Detroit. It appears that Buick was
one of Gerity Adrian's main customers. A day or two later on
October 28, a meeting of the Independent was held at the County
Court House, which had become the Independent's meeting place
after about four meetings had been held in the plant. McComb,
president of the Independent, opened the meeting 22 and read and
commented upon Reuther's telegram. He declared that the Inde-
pendent would be discontinued'23 and that the employees were free
to vote for whatever organization they desired to join. McComb
then relinquished the chair to Roland Watring, another employee.
Upon the advice of Kuney, who was representing the Independent
for dissolution purposes, the Independent was thereafter dissolved
by formal vote. Discussion then followed as to "whether to form a
new independent union or. to join the C. I. O. or A. F. L." Sometime
during the course of the meeting Gerity, Jr., arrived. He testified
that he was invited to attend and address the meeting, and that,
when he made his appearance, he found a great "commotion" and
spoke to Kuney, who informed him that the employees would not
make a move until he talked to them. Gerity, Jr., then told the
employees that he was not speaking in his official capacity but only
as an individual, that he did not care what union, if any, they joined,
but that he wanted his plant open for work on Monday morning.
He testified that he made this last statement because he had heard
rumors that his plant might be closed on the following Monday. An
election was held as to, whether to join the D. C. W., affiliated with
the C. I. 0., or the A. F. of L., and resulted in a practically
unanimous vote in favor of forming the D. C. W.24
Kuney was not certain whether or not Gerity's remarks to the
employees at this meeting preceded the balloting on the question of
affiliation with the D. C. W. or the American Federation of Labor,
although he was certain that they followed the decision to dissolve
the Independent. Had the employees already voted for affiliation,
however, there would have been no occasion for Kuney to inform
Gerity, Jr., that the employees would not make a move until he
talked to them or for Gerity, Jr., to tell the employees that he did
not care what union, if any, they joined. Moreover, Gerity, Jr.,
testified that he attended the meeting in the morning, while Carl
^ There was some difference of opinion as to the number of employees at the meeting.
Carl Potts, an employee, testified that about 116 persons attended the meeting, while
Attorney Kuney testified that there were approximately 128 persons present and that he
"understood" that they constituted more than half of the employees of Gerity Adrian
Henry Stange , an employee , claimed that there were as many as 300 people at the
meeting.
13 According to Potts, the language used by McComb was that the Independent had
been "outlawed."
u Henry Stange , the employee referred to in footnote 22, supra, testified that approxi-
mately 98 percent of the voters chose affiliation with the C. I. 0.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Potts, an employee, testified that the employees voted for affiliation
with the D. C. W. in the afternoon.25 Under the circumstances, we
agree with the Trial Examiner that the election took place after
Gerity, Jr., had addressed the meeting. It may fairly be inferred
that when Gerity, Jr., addressed the employees on this occasion, a
day or two after the telegram had been posted on the plant bulletin
board, he was well aware of the content of the Reuther telegram.
It does not appear that at the meeting of October 28 any further steps
were taken to form a union. There is no evidence that at that meet-
ing officers were elected, or that any committees-grievance, negotiat-
ing, or otherwise-were formed. Nor does the record reveal that any
cards were signed at that time authorizing the D. C. W. to represent
the employees. On the following Monday, October 30, 1939, Gerity,
Jr., and Ennis met with representatives of the D. C. W., including
Kuney, five or six employees 2(l and Cheyfitz and Lamb, national
secretary and attorney, respectively, of the National Association of
Die Casting Workers. During the conference, Gerity, Jr., was in-
formed that the D. C. W. represented a majority of the employees
in the plant. To verify this statement, Gerity, Jr., asked the five or
six employees present whether Cheyfitz and Lamb represented them.27
When they all agreed, Gerity, Jr., stated that there was only one
thing to do then and that was to negotiate a contract. During the
negotiations Gerity, Jr., kept the existing Independent contract be-
fore him in order to know what changes were being written in this
new contract. These changes consisted in the change of the name
of the union party to the contract, the absence of a check-off provi-
sion, the addition of one - holiday, the additional right of Gerity
Adrian to consider a man no longer an employee if be failed, to
report within 72 hours after Gerity Adrian had sent him a registered
letter notifying him to return to work, and the omission of the
provisions for advancing wages which had been contained in the
Independent contracts. In all other respects this contract, which
included a closed-shop provision, was substantially the same as the
contracts Gerity Adrian had entered into with the Independent.
The contract was executed on October 30, 1939, by Gerity, Jr., for
Gerity Adrian, by Cheyfitz for the National Association of Die
Casting Workers, and by Roland Watririg, as president, for the
D.C.W.
25 The meeting was held in two parts, as it became necessary to adjourn over the lunch
hour. Kuney testified, and we deem it clear, that despite the adjournment this was but -a
single meeting.
26 Apparently, these employees were Roland Watring, Thomas Kelly, Rollie Roebeck,
Earl Gust, Norman Wilt, and Howard Kilchman, who comprised the negotiating com-
mittee of the D. C. W. The record does not reveal when this committee was chosen.
27 Gerity, Jr, testified that he was also shown "a bunch of" membership or application
cards which he "checked."
GERITY WIIITAKER'COMPANY 419
About 2 weeks after the execution of,, the contract, the officers of
-the Independent signed the formal papers dissolving it. About a
month after the execution of the contract, the D. C. W. held its first
election of officers and Roland Watring was elected president.
Under all the circumstances disclosed, we find that Gerity, Jr.'s
statement at the meeting of October 28, 1939, that he wanted his
plant open for work on Monday morning was made with reference
to, and incorporated, the threat contained in the Reuther telegram
that the Adrian products would either be "made by the C. I. 0." or
not be accepted, and was therefore tantamount to an instruction that
the men vote for the D. C. W.; and that the vote for the D. C. W.
at that meeting was the result of the respondents' continued unfair
labor practices in interfering with labor organizations. We find,
accordingly, that the respondents unlawfully assisted the D. C. W.
We find further that since the contract of October 30, 1939, was ,
entered into with a labor organization which had been assisted by
the respondents' unfair labor practices, it is not within the proviso
of Section 8 (3) of the Act and is invalid .211
We find that the respondents, by assisting the D. C. W. and by,
the closed-shop contract with the D. C. W., interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act.
F. The alleged refusal of Gerity Adrian to bargain collectively
The complaint alleged that on March 5, 1937, and on numerous
occasions thereafter, Gerity Adrian refused to bargain collectively
with the Metal Polishers. The record fails to show that the Metal
Polishers represented a majority of Gerity Adrian's employees. We
shall therefore dismiss the complaint in so far as it alleges that
Gerity Adrian refused to bargain collectively with the Metal
Polishers.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
The activities of the respondents set forth in Section III above,
occurring in connection with the operations of the respondents, de-
scribed 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.
at See footnote 18, supra.
450122-42-vol 33-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY ,
,We have found- that the respondents have by various acts engaged
in unfair labor practices within the meaning of Section 8 (1), (2),
(3), and (5). We shall order them to cease and desist therefrom.
It is further necessary in order to effectuate the purposes of the Act
to order the respondents to take certain affirmative action, more
particularly described below.
Gerity Whitaker's removal of the bulk of its business from Toledo
to Adrian and the creation of Gerity Adrian formed the basis of
a plan to eliminate the Metal Polishers and to circumvent the Act.
The subsequent lay-off of the Toledo employees and the refusal to
reemploy them at Adrian were further steps in the unlawful scheme.
As an appropriate means of removing the consequences of the unfair
labor practices and of restoring the status quo as nearly as possible,
we shall order the respondents, at their election expressed in writing
to the Regional Director, to reinstate the employees listed in Appendix
A either at Toledo or at Adrian.29
We shall order the respondents to offer the employees listed in
Appendix A immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
and other rights and privileges, discharging such persons, hired by
the respondents after the lay-off of the employees named in Appendix
A, as may be necessary to provide said employment for those to be
offered reinstatement. We shall further order the respondents, and
each of them, to make whole employees listed in Appendix A for
any loss of pay they may have suffered by reason 'of the aforesaid
discrimination by payment to each of them of a sum of money equal to
that which he normally would have earned as wages from the date of
said discrimination to the date of the offer of reinstatement, less his net
earnings 30 during said period. If the respondents- choose to employ
at Adrian the men entitled to reinstatement, we shall, in .,order to
make such employees whole, order the respondents to pay for the
reasonable expenses entailed in the transportation and moving of such
employees and their families from Toledo to Adrian.31
29 See Matter of Isaac Schieber et al. and United Hatters, Cap and Millinery Workers
International Union, affiliated with the American Federation of Labor, 26 N. L. R. B. 937,
and cases therein cited.
30 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondents , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America , Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal , State, county, municipal , or other work-relief
projects shall , be considered, as earnings . • See Republic Steel Corporation V7.' N. L. R B.,
311 U. S 7.
81 See Matter of Isaac Schieber et al. and United Hatters, Cap and Millinery Workers
International Union, affi liated with the American Federation of Labor, supra , footnote 28.
GERITY WHITAKER COMPANY 421
We have found that Gerity Whitaker refused to bargain collec-
tively with the Metal Polishers as exclusive representative of its
emplo,yjes at Tgledo. Accordingly, we shall order Gerity Whitaker
to bargain collectively upon request with the Metal Polishers as such
representative. '
The respondents have dominated and interfered with the formation
and administration of the Independent and contributed support to
it. Since the Independent has been dissolved, we shall not order
its disestablishment. In order to effectuate the policies of the Act,
however, and to free the employees from the effects of such domina-
tion and interference, we shall order the respondents to withhold
recognition from the Independent as representative 'of any of the
employees for the purposes of dealing with the respondents concern-
ing grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of.employment.
We have found, too, that the respondents unlawfully rendered
assistance to the D. C. W. In order to restore the status quo and to
permit the employees full freedom in self-organization without hin-
drance by reason of the respondents' unfair labor practices, we shall
order the respondents to withdraw recognition from the D. C. W. as
the exclusive representative of the employees for the purposes of
collective bargaining and to withhold such recognition unless and
until the D. C. W. shall have been certified as such by the Board.32
Since the contracts between Gerity Adrian and the Independent
have terminated and the Independent has been dissolved, we need
enter, no specific' order with respect to such contracts. Since the
contract between Gerity Adrian and the D. C. W. embodies recog-
nition of the D. C. W. as the exclusive representative, and makes
membership in the D. C. W. a condition of employment, since further
the agreement represents the fruit of the respondents' unfair labor
practices, a device to perpetuate their effects and a cover under
which the respondents may continue to commit unfair labor prac-
tices, we will order the respondents to, cease, and desist from giving
effect to this or any other agreement which it may have entered into
with the D. C. W. with respect to .rates of pay, wages, hours of
employment, or other conditions of work and to cease and desist
from recognizing the D. C. W. as the exclusive representative of
their employees unless and until it is certified as such by the Board.33
Nothing in the Order, however, shall be taken to require the respond-
ents to vary those wage, hour, and other substantive features of their
relations with the employees themselves, which the respondents may
as Cf.- N. L. R. B. v. National Motor Bearing Company, 105 F. (2d) 652 (C. C A. 9) ;
Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Uniod
No. $, International Woodworkers of America, 20 N. L. It B 1
33 Ibid.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have established in performance of their contracts with the 'Inde-
pendent and the D. C. W. as extended, renewed, modified, supple-
mented, or superseded. Of course, this proviso does not privilege
the respondents to impose as a condition of employment membership
in the Independent or the D. C. W.
The check-off of dues from members' wages was accorded to the
Independent for the purposes of stabilizing and facilitating the se-
curing of membership in that organization and as an integral part
of the respondents' campaign to discourage membership in the Metal
Polishers. It is apparent that an authorization for the check-off of
dues owed to the company-dominated Independent, was not a volun-
tary act of the employee signing such authorization but represented
a further aspect of the employee's compulsion to abandon his rights
under the Act and to join and support the organization which the
respondents had fostered for a purpose proscribed by the Act. Under
these circumstances, in order to restore the status quo and effectuate
the policies of the Act, we will order the' respondents to reimburse
their employees for amounts deducted from their wages. as dues for
the Independent.84
We have also found that the respondents discriminated in regard
to the hire and tenure of employment of Arthur Clark and Roy
Keeling. The respondents will be directed to offer these employees
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their former rights and
privileges. We shall also order the respondents to make Arthur
Clark and Roy Keeling whole for any loss of pay they may have
suffered by reason of the aforesaid discrimination, by payment to
each of them of a sum of money equal to that which he normally
would have earned as wages from the date of said -discrimination
to the date of the respondents' offer of reinstatement, less net earn-
ings 85 during such period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAw
1. Metal Polishers, Buffers, Platers and Helpers Union, affiliated
with the American Federation of Labor, National Association of
Die Casting Workers, Local No. 26, affiliated with the Congress of
Industrial Organizations, and Independent Finishers and Platers
Union, are labor organizations within the meaning of Section 2 (5)
of the Act.
34 Matter of Heller Brothers Company of Newcomerstown and International Brotherhood
of Blacksmiths , Drop Forgers and Helpers , 7_N. L. R. B. 646..
15See, supra, footnote 29. 0
GERITY WHITAKER COMPANY 423
2. By dominating and interfering with the formation and admin-
istration of Independent Finishers and Platers and by contributing
support thereto, the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (2)' of
the Act.
3. The Respondents, by discriminating in regard to the hire and
tenure of employment of Arthur Clark and Roy Keeling and those
employees listed in Appendix A, thereby discouraging membership
in Metal Polishers, Buffers, Platers and Helpers Union, have engaged
in and are engaging in unfair labor practices, within the meaning of
:Section 8 (3) of the Act.
4. All the employees of Gerity Whitaker Company's Toledo plant,
except those whose duties are of an executive, managerial, technical,
or clerical nature, at all times material herein constituted and now
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
5. Metal Polishers, Buffers, Platers and Helpers International
Union, affiliated with the American Federation of Labor, has been
at all times material herein the exclusive representative of all em-
ployees in such unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
6. Gerity Whitaker Company, by refusing to, bargain collectively
with the Metal Polishers, Buffers, Platers and Helpers International
Union, affiliated with the American Federation of Labor, as the ex-
clusive representative of all its employees in such unit, has engaged
in and is engaging in unfair labor practices within the meaning of
:Section 8 (5) of the Act.
7. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in unfair labor practices within the mean-
ing of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within, the meaning of Section 2 (6) and (7) of
the Act.
9. By discharging and refusing to reinstate Frank Britt, Leo Clark,
Joseph Haydo, Alfred Rich, Fred Rich, Cecil Webert, and Donald
Webert, the respondents did not engage in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
10. By refusing to bargain collectively with Metal Polishers, Buff-
ers, Platers and Helpers International Union, affiliated with the
American Federation of Labor, as the representative of the employees
of Gerity Adrian Manufacturing Corporation, the respondents did
not engage in unfair labor practices within the meaning of Section
8 (5) of the Act
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact grid conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that:
The respondent Gerity Whitaker Company and its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Metal Polishers, Buffers,
Platers and Helpers International Union, affiliated with the Amer-
ican Federation of Labor, as the exclusive bargaining representative
of the employees of the Toledo plant, excepting those whose duties
are of an executive, managerial, technical, or clerical nature.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the'Act :
(a) Upon request bargain collectively with Metal Polishers, Buff-
ers, Platers and Helpers International Union, affiliated with the
American Federation of Labor, as the exclusive representative of the
employees of the Toledo plant, excluding those whose duties are of
an executive, managerial, technical, or clerical nature, in respect to
rates of pay, wages, hours of employment, and other conditions of
employment;
(b) Post notices immediately in conspicuous places in its plant
located at Toledo, Ohio, and maintain such notices for a period of at
least sixty (60) consecutive days, stating that it will cease and desist
in the manner set forth in paragraph 1 of this Order and that it will
take the affirmative action required in paragraph 2 (a) of this Order.
The respondents, Gerity Whitaker Company and Gerity Adrian
Manufacturing Corporation, and each of them, and their officers,.
agents, successors, and assigns, shall:
3. Cease and desist from :
(a) Dominating or interfering with the administration of Inde-
pendent Finishers and Platers Union or with the formation or admin-
istration of any other labor organization of their employees and from
contributing financial or other support to said Independent Finishers
and Platers Union or to any other labor organization of their
employees ;
(b) Recognizing National Association of Die Casting Workers,
Local No. 26, affiliated with the Congress of Industrial Organizations,
as the exclusive representative of their employees for the purposes of
collective bargaining, unless and until that labor organization shall
have been certified as such by the National Labor Relations Board;
GERITY WHITAKER COMPANY 425
(c) Giving effect to the contract of October 30, 1939, between
Gerity Adrian Manufacturing Corporation and National Association
of Die Casting Workers, Local No. 26, affiliated with the Congress of
Industrial Organizations, or to any extension, renewal, modification,
or supplement thereof or to any superseding contract :
(d) Discouraging membership in Metal Polishers, Buffers, Platers
and Helpers International Union, affiliated with the American Feder-
ation of Labor, or discouraging or encouraging membership in any
labor organization of their employees, by discriminating in regard to
hire or tenure of employment or any term or condition of employ-
ment ;
(e) In any manner interfering with, restraining, or coercing their
employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted activi-
ties for the purpose of collective bargaining and other mutual aid or
protection as guaranteed in Section 7 of the National Labor Relations
Act.
4. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withhold all recognition from Independent' Finishers and
Platers Union as representative of any of the employees for the pur-
poses of dealing with the respondents concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment;,
(b) Withhold all recognition from National Association of Die
Casting Workers, Local No. 26, affiliated with the Congress of Indus-
trial Organizations, as the exclusive representative of their employees
for the purposes of dealing with them concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, unless and until that organization shall have
been certified as such by the National Labor Relations Board :
(c) Reimburse each of their employees whose dues to the Inde=
pendent Finishers and Platers were checked off for the amounts
deducted from their wages;
(d) Offer to the men listed in Appendix A immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privi-
leges, at either the Gerity Whitaker plant at Toledo, Ohio, or at
the Gerity Adrian Manufacturing Corporation plant at Adrian,
Michigan ;
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Offer to Arthur Clark and Roy Keeling immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges;
(f) Make whole the men listed in Appendix A and Arthur Clark
and Roy Keeling for any loss of pay they may have suffered by rea-
son of the respondents' discrimination against them, by payment to
each of them of a sum of money equal to the amount which he nor-
mally would have earned as, wages from the date of the discrimina-
tion to the date of the respondents' offer of reinstatement, less his
net earnings during said period, and offer to the employees listed
in Appendix A payment for the reasonable expenses entailed in the
transportation and moving of said employees and their families
from Toledo to Adrian if the respondents elect to employ said em-
ployees at Adrian, Michigan.
(g) Post notices immediately in conspicuous places in their plants
located at Toledo, Ohio, and Adrian, Michigan, and maintain such
notices for a period of at least sixty (60) consecutive days, stating
that the respondents will not engage in the conduct from which
they are'ordered to cease and desist in the manner set forth in para-
graph 3 (a), (b), (c), (d), and (e) of this Order; that they will
take the affirmative action required in paragraph 4 (a), (b), (c), (d),
(e), and (f) of this Order; that the respondents' employees are free
to become and remain members of Metal Polishers, Buffers, Platers
and Helpers International Union, affiliated with the American Fed-
eration of Labor; and that the respondents will not. discriminate°
against any employee because of membership or activity in that
organization.
5. Notify the Regional Director for the Seventh Region in writing
within ten (10) days from the date of this Order what steps the
respondents have taken to comply herewith, and state which of the
two alternative methods of reinstating the employees listed in Ap-
pendix A, as set forth in 2 (a) of this Order, will be followed.
IT IS FURTHER ORDERED that the complaint b®I, and it hereby ,is,
dismissed in so far as it alleges that the respondents engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act by discharging and refusing to reinstate Frank Britt, Leo Clark,
Joseph Haydo, Fred Rich, Cecil Webert, Donald Webert, and Alfred
Rich, except that with respect to Alfred Rich such dismissal shall
be without prejudice.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that Gerity Adrian has engaged in
unfair labor practices within the meaning of Section 8 (5) of the
Act.
GERITY WHITAKER COMPANY
APPENDIX A
6
William C. Boldridge
Frank Bykowski
Lucille Clark
Blenn Crable
Leonard Dixon
John Eldridge
Frank Flores
John Gahagan
Wm. Gilbert
Mike Gzik
Albert Hallers
Harold Hartley
Woodrow Hoover
Gail Jaquillard
Edward Johnson
Geo. Kauffman
Earl Keeling
Roscoe Keeling
Leo Kime
Wm. Knaggs
Harry Johnson
Joseph Krzes
John Martin
Elden Morgan
Chester Pacer
Carl Paul
Walter Stabb
H. L. Wardlaw
Stanley Wesolowski
427
MR. EDWIN S . SMITE, dissenting in part:
I concur in the Decision and Order, except in so far as it permits
the respondents to elect between reinstatement at Toledo or Adrian.
It would appear that an order to return to Toledo would most nearly
restore the status quo and therefore best effectuate the policies of
the Act 88
M See my separate opinion in the Bchieber case, supra, footnote 28.