Henry Moss & Co.

National Labor Relations Board - Board Decisions

Jan 4, 1946

65 N.L.R.B. 118 (N.L.R.B. 1946)

In the Matter of B. F. Moss, GEORGE Moss, AItTIuUR SZERLIP AND L. H.
SZERLIP, CO-PARTNERS, DOING BUSINESS UNDER TILE TRADE NAME
AND STYLE OF HENRY MOSS & COMPANY and INTERNATIONAL METAL
ENGRAVERS UNION
In the Matter of B. F. Moss, GEORGE Moss, ARTHUR SZERLIP AND L. H.
SZERLIP, CO-PARTNERS, DOING BUSINESS UNDER TIIE TRADE NAME
AND STYLE OF HENRY MOSS & COMPANY and INTERNATIONAL METAL
ENGRAVERS UNION
Cases Nos . 2-C-5034 and 9'-R-4664 , respectively.-Decided January 4,
19416
DECISION
AND
ORDER
Pursuant to a Decision and Direction of Election of the'National
Labor Relations Board,' herein called the Board, an election was con-
ducted on June 7, 1944, among employees of Henry Moss & Company,
herein called the respondent, at its 53rd and 58th Street plants in
Brooklyn, New York, to determine whether or not-they desired to be
represented by International Metal Engravers Union, herein called the
Union, for the purposes of collective bargaining. The Union lost the
election. On June 12, 1944, the Union filed objections to the conduct
of the election, alleging that the respondent had engaged in improper
conduct which had affected the results of the election, and requesting
that it be set aside. Thereafter, the Regional Director issued a Report
on Objections, in which he found that the objections raised substantial
and material issues, and recommended that a hearing be held on such
objections.
On June 27, 1943, the Union filed a charge, and thereafter amended
charges, which, with amendments thereto, were waived by the Union
in connection with the above-mentioned representation proceeding.
On July 7, 1944, the Board issued an order consolidating the above
proceedings and directing that a hearing be held on the objections to
the election and on the alleged unfair labor practices. The Board
issued its complaint dated November 17, 1944. A hearing was held
1 56 N. L. R. B. 597. -
65 N. L. R. B., No. 28
118
HENRY MOSS & COMPANY 119
before a Trial Examiner on February 27 and 28, 1945, and March 5,
6 and 7, 1945, at New York City, in which the Board, the respondent,
and the Union participated by their representatives. The Board has
reviewed the Trial Examiner's rulings on motions and on objections to
the admission of evidence, and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
On March 28, 1945, the Trial Examiner issued his Intermediate
Report, a copy of which is attached hereto, in which he found that
the respondent had engaged in, and was engaging in, certain unfair
labor practices, and recommended that it cease and desist therefrom
and take certain affirmative action. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief. On
November 1, 1945, the Board heard oral argument in Washington,
D. C.; the respondent and the Union participated therein.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the addi-
tions and exceptions noted below:
1. We find, as did the Trial Examiner, that the discharge of Howard
Schleenbecker on March 27, 1944, was violative of Section 8 (3) of the
Act. In concluding that his discharge was motivated by anti-union
considerations, we rely on all the findings of the Trial Examiner and
especially on the following circumstances, fully stated in the Inter-
mediate Report : the respondent's antipathy toward the Union; the con-
tradictory and implausible reasons assigned by the, respondent for
Schleenbecker's separation; his prominence in the Union as an active
member and as chairman of the organizing committee; Moss' inter-
rogation of Schleenbecker as to what he intended to do about the Union
and Schleenbecker's reply that he intended to stay in as the whole shop
was signed up; and Moss' hostile remarks to Schleenbecker in March
1944, when Schleenbecker defended the reputation of former em-
ployee Webber, who had served as chairman of the Union's organ-
izing committee until his discharge in December 1943.
2. The Trial Examiner has found, and we agree, that on May 29,
1944, Fred Harden was temporarily laid off in a non-discriminatory
manner, for lack of work, but that on June 5, 1944, he was unlawfully
discharged because the respondent had meanwhile learned of his ap-
pointment to serve as an observer for the Union at the Board election
of June 7, and desired to prevent him from participating therein. It
is not denied that shortly before his lay-off Harden was selected by
the Union to serve as its observer, but the respondent contends that
there is no support for the Trial Examiner's inference that by June 5
the respondent had knowledge of that fact. In our opinion, however.
the record as a whole affords a reasonable basis for believing, and we
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find, like the Trial Examiner, that at the time in question the respond-
ent was apprised of Harden's designation as union observer and that
his discharge was part of a studied plan and purpose to frustrate'em-
ployee self-organization and to defeat the Union at the polls. As here-
inafter considered, and as more fully detailed in the Intermediate
Report, the respondent, shortly after Harden's lay-off, embarked upon
a concentrated and effective pre-election campaign against the Union.
The record also shows that at about the time of Harden's discharge,
certain union members were giving the respondent information with
respect to matters transpiring at union meetings. Moreover, in his
pre-election, anti-union speech of June 7, Szerlip singled out for dis-
paraging comment the two persons, Harden and Perito, who were to
act as union observers, thereby indicating a foreknowledge of their
official status.
3. The respondent contends that, because of the absence of avail-
able work for Harden since his lay-off,2 there has been no actual dis-
crimination against Harden, and hence no violation of Section 8 (3).
We do not agree. In discharging Harden on June 5, the respondent
sought to change his status from that of a temporarily laid-off em-
ployee to that of a non-employee, to make him ineligible to participate
in the election of June 7, and to deprive him of whatever rights he
may have had as a laid-off employee. We are of the opinion, and we
find, that by such conduct the respondent discriminated against Har-
den, within the meaning of Section 8 (3) of the Act.3
4. We agree with the Trial Examiner's conclusions that the re-
spondent's pre-election activity and conduct at the polls, as fully de-
scribed in the Intermediate Report, precluded the election of Jude 7,
1944, from fairly reflecting the untrammeled will of the employees
and that the respondent thereby engaged in unfair labor practices,
within the meaning of Section 8 (1) of the Act. We have considered
the respondent's contention that the statements and publications used
in connection with its anti-union campaign are protected by the free
speech guaranty of the First Amendment. However, we are of the
opinion and find that these statements and publications were integral
parts of the respondent's course of conduct, including the discrimina-
tory discharge of Fred Harden, which in its totality interfered with,
restrained, and coerced the respondent's employees in the exercise of
the rights guaranteed by the At.
We find that the election was not an expression of the free will of
an uncoerced majority and therefore should be set aside, and we shall
so order. We shall not, however, direct a further election until such
2 The record shows that several other engraving department employees were laid off at
about the same time as Harden and that none had been recalled by the time of the hearing;
nor does it appear that any new employees had since been hired.
8 See Matter of J. & H. Clasgen8 Company , 56 N. L. R. B. 898.
HENRY MOSS & COMPANY 121
time as the Regional Director advises us that the effects of the unfair
labor practices have been dissipated.
THE REMEDY
Having found that the respondent has independently violated Sec-
tions 8 (1) and (3) of the Act, we must order the respondent, pursuant
to the mandate of Section 10 (c) to cease and desist therefrom. We
also predicate our cease and desist order upon the following findings :
the respondent has evinced unwavering hostility toward the Union
from the time the Union began to organize the respondent's employees.
By questioning employees about their union affiliations, by request-
ing employees-to refrain from participation in union affairs, and by
other acts and utterances more fully detailed in the Intermediate
Report, the respondent interfered with, restrained, and coerced its
employees in the exercise of the right to self-organization, to form or
join, or assist labor organizations, and to bargain collectively through
representatives of their own choosing. These illegal activities, par-
ticularly the discriminatory discharges of Schleenbecker and Harden,
conduct which "goes to the very heart of the Act," 4 disclose a purpose
to defeat self-organization and its objects among the respondent's
employees. Because of the respondent's unlawful conduct and their
underlying purpose, we are convinced that the unfair labor practices
found are persuasively related to the other unfair labor practices
proscribed and that danger of their commission in the future is to
be anticipaated from the respondent's conduct in the past.5 The
preventive purpose of the Act will be thwarted unless our order is
coextensive with the threat. In order, therefore, to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the
Act, we shall order the respondent to cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the
Act.
The Trial Examiner also recommended, inter alia, that the respond-
ent be required to offer immediate reinstatement to Harden with back
pay from June 5, 1945. However, since it appears that discrimination
against Harden involved his status and rights as a laid-off employee
and did not actually deprive him of any job which he would have
otherwise had at that time, we do not adopt the Trial Examiner's pro-
posed remedy as to Harden. Instead, we shall order the respondent
IN. L. R . B. v. Entwistle Manufacturing Company, 120 F. (2d) 532, 536 (C. C. A. 4) ;
N. L. R. B. v. Automotive Maintenance Machinery Company, 116 F. ( 2d) 350, 353
(C. C. A. 7).
1 See N. L. R. B. v. Empress Publishing Company, 312 U. S. 426.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to restore to Harden his status as a temporarily laid-off employee with
all rights and privileges incident thereto and to place Harden's name
on a preferential hiring list, and thereafter offer him reinstatement
to his former or a substantially equivalent position as such work be-
comes available, without discrimination against him because of his
concerted activity or union membership, and before new persons are
hired,for such work. , If, since the hearing before the Trial Examiner,
the respondent has hired any new employee, or has reinstated any with
less seniority than Harden, to fill a job to which Harden would nor-
mally be entitled, said new employee or reinstated employee, as the
case may be, shall, if necessary to provide employment for Harden, be
dismissed. In such event the respondent shall also make Harden whole
for any loss of pay he may have suffered by reason of the respondent's
discrimination against him by payment to him of a sum of money equal
to that which he normally would have earned as wages from the date
on which such other employee was hired or reinstated to fill the job
formerly held by Harden or any substantially equivalent job to which
Harden would normally have been entitled, to the date of the offer of
reinstatement, less his net earnings during such period."
As recommended by the Trial Examiner, we shall also order the
respondent to take other affirmative action designed to effectuate the
policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent co-partnership, B. F. Moss,
George Moss, Arthur Szerlip and L. H. Szerlip, doing business as
Henry Moss and Company, Brooklyn, New York, and their agents,
successors , and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Metal Engravers
Union, or in any other labor organization of their employees, by refus-
ing to reinstate any of their employees, or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Metal En-
gravers Union or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
6 See Matter of McKaig-Hatch, Inc., 10 N. L R. B. 33, 52, 53, Matter of Marlin-Rockwell
Corporation, 39 N. L R B 501, 527.
HENRY MOSS & COMPANY 123
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act.
(a) Offer to Howard Schleenbecker immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority or other rights and privileges;
(b) Make whole Howard Schleenbecker for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to the amount which
he normally would have earned as wages from the date of his dis-
criminatory discharge to the date of the respondent's offer of rein-
statement, less his net earning during said period;
(c) Restore to Fred Harden his status as a temporarily laid-off em-
ployee with all the rights and privileges incident thereto, and place
his name upon a preferential list and thereafter offer him employment
as it becomes available, in the manner set forth in that section of the
Decision entitled "The remedy," offer Fred Harden immediate rein-
statement in the event any person has been employed since the hear-
ing herein to fill the job formerly held by him, or a job substantially
equivalent thereto, in the manner set forth in the Decision herein, and
make him whole for any loss of pay he may have suffered by reason
of the respondent's discrimination against him, by payment to him
of a sum of money equal to the amount of money he would normally
have earned from the date he should have been reinstated, in the
manner set forth in the Decision herein, to the date of the respond-
ent's offer of reinstatement less his net earnings during said period;
(d) Post at its plants in Brooklyn, New York, copies of the notice
attached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by the respondent's representative, be posted by the
respondents immediately upon receipt thereof, and maintained by
them for a period of sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respond-
ents to insure that said notices are not altered, defaced, or covered by
any other material;
(e) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the election held on June 7, 1944,
among the employees of B. F. Moss, George Moss, Arthur Szerlip, and
L. H. Szerlip, doing business as Henry Moss and Company, Brooklyn,
New York, be, and it hereby is, set aside.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Metal
Engravers Union or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
We will offer to Howard Schleenbecker immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges pre-
viously enjoyed and make him whole for any loss of pay suffered
as a result of the discrimination.
We will restore to Fred Harden his status as a temporarily laid-
off employee with all the rights and privileges incident thereto
and place his name on a preferential list and thereafter offer him
employment as it becomes available; and if any person has been
employed to fill the job formerly held by him, or a job substan-
tially equivalent thereto, we will offer to Fred Harden immediate
and full reinstatement to his former or substantially equivalent
position without prejudice to any seniority or other rights and
privileges previously enjoyed, and make him whole for any loss
of pay suffered as a result of the discrimination.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
B. F. Moss, GEORGE MOSS, ARTHUR SZERLIP and L. H. SZERLIP,
co-partners doing business under the trade name and style
Of HENRY MOSS & COMPANY (Employer).
Dated-------------------- By---------------- --------------
(Representative) (Title)
NoTE.-Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
HENRY MOSS & COMPANY
INTERMEDIATE REPORT
Mr. Cyril W. O'Gorman, for the Board.
Mr. Frank Barasch, of New York City, for the respondents.
Mr. Conrad Woelfel, of New York City, for the Union.
STATEMENT OF THE CASE
125
On March 24, 1944, the International Metal Engravers Union,' herein called the
Union, filed with the Regional Director for the Second Region (New York City)
of the National Labor Relations Board, herein called the Board, a petition alleg-
ing that a question affecting commerce had arisen concerning the representation
of employees of B. F. Moss, George Moss, Arthur Szerlip, and L. H. Szerlip,
co-partners, doing business under the trade name and style of Henry Moss &
Company,' herein called the respondents at their two plants in Brooklyn, New
York, and requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, e19 Stat. 449, herein
called the Act. Pursuant to notice of hearing, duly served on the parties, a
hearing was held on April 13 and 14, 1944, in New York City. Thereafter on
May 17, 1944, the Board issued its Decision and Direction of Election' providing
for an election by secret ballot among "all production and maintenance em-
ployees at the [respondents'] 53rd and 58th Street plants ... in Brooklyn,
New York, including employees in the shipping and receiving department, but
excluding clerical employees and all supervisory employees with authority to
hire, promote, discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action." This election was held on
June 7, 1944. At its close, observers for the respondents, the Union, and the
Board signed a Tally of Ballots certifying that of approximately 114 eligible
voters, 26 had voted for and 50 against the Union, while 38 ballots had been
challenged. On June 12, 1944, the Union filed objections to the conduct of the
election, contending that the election "was improperly interfered with and does
not and cannot be a true reflection of employees' wishes in the matter." On
June 28, 1944, the Regional Director issued a Report on Objections finding that
"the objections raise substantial material issues with respect to the conduct of
the election" and recommending that the Board direct a hearing on the objec-
tions. Thereafter, on July 8, 1944, the respondents belatedly filed with the
Board their answer to objections and conduct affecting election in which they
defended their own acts prior to and during the election, attacked the organiza-
tional activities of the Union and the procedure of the Board's representatives,
and asked "that the objections raised be dismissed."
On July 27, 1943, the Union filed a charge with the Board. This charge and
amendments thereto were waived by the Union on March 30, 1944. On June 12,
1945, the same day the Union filed its objections to the conduct of the election,
it also filed a third amended charge. On July 7, 1944, the Board issued its
order directing that a hearing be held on the objections to the conduct of the
election, and on the charge and amended charges, and that the representation
proceeding be consolidated with the unfair labor practice proceeding in con-
' When the petition was filed the Union was affiliated with the American Federation of
Labor and its name included the designation AFL On being advised by the Union that
this affiliation was discontinued, the Board altered all formal papers dropping AFL
s The caption above in the representation proceeding failed to name the individual
partners It is hereby amended to conform to that of the complaint proceeding.
356 N.L R.B 597
126 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
formity with Article IT, Section 36 (b) and Article III, Section 13 (c) (2) of
its Rules and Regulations, Series 3.
Upon a fourth amended charge duly filed by the Union on November 16, 1944,
the Board, through its Regional Director for the Second Region,' issued its com-
plaint dated November 17, 1944, against the respondents, alleging that the re-
spondents had engaged in and were engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act. A copy of the complaint, accompanied by notice of hearing of
the consolidated cases, was duly served on the respondents and the Union.
With respect to the unfair labor practices the complaint alleged, in substance,
that (1) the respondents, on or about March 27, 1944, discharged Howard
Schleenbecker and on or about May 29, 1944, discharged or laid off Fred Harden
and have since failed or refused to reinstate them, although Harden applied'
for reinstatement on or about June 1, 1944, because Scbleenbecker and Harden'
joined or assisted the Union or engaged in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and (2)
"The Respondent, from on or about June 1, 1493 to date, has vilified, disparaged,
and expressed disapproval of the Union; has interrogated its employees con-
cerning their union affiliations ; has urged, persuaded, and warned its employees
to refrain from assisting, becoming members of, or remaining members of the
Union ; has threatened its employees with discharge or other reprisals if they
joined or assisted the Union ; and has kept under observation and surveillance
the meeting places, meetings, and activities of the Union or the concerted activi-
ties of its employees for the purpose of self-organization or improvement of
working conditions." On or about November 27, 1944, the respondents filed
their answer which denied all the allegations contained in the complaint.
The original notice of hearing set December 12, 1944, as the hearing date.
Four successive postponements, at the instance of the Board, advanced the
hearing date to February 27, 1945, on which day, on February 28, and on March
5, 6, and 7, 1945, a hearing was conducted by the undersigned Trial Examiner,
Charles E. Persons, duly designated by the Chief Trial Examiner to serve in
place and stead of Trial Examiner Sidney L. Feller, previously appointed by the
Acting Chief Trial Examiner. The Board and the respondents were repre-
sented by counsel and the Union by one of its officials. All parties participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence was afforded all parties Prior to the
hearing, on November 27, 1944, the respondents filed a motion for a bill of
particulars, extending to 48 items. On January 10, 1945, Trial Examiner Feiler
issued an order granting the motion as to specified items and denying it in all
other respects. When the hearing opened the Board's counsel stated, on the
record, that due to his being occupied in the trial of another case he had not
fulfilled Trial Examiner Feiler's order. Instead, he suggested to respondents'
counsel "that at the close of Board's case, if he found it necessary then, after
he heard the full extent of the Board's case, to request an opportunity to pre-
pare because of surprise or some other reason" he might ask for a continuance.
Respondents' counsel agreed that he had reached such an understanding with
the Board's counsel. At the close of the Board's presentation in chief, on
February 28, 1945, the respondents moved for a continuance until March 5. This
motion was granted. When the hearing reconvened on March 5, 1945, the re-
spondents moved to dismiss the objections to the election and the complaint for
failure of proof These motions were denied. During the respondents' pres-
entation, the Board moved to exclude all witnesses, other than the witness
HENRY MOSS & COMPANY 127
under examination, from the hearing room. This motion was denied. At the
close of the hearing the Board moved to conform the pleadings to the proof as
to typographical mistakes and similar minor errors. This motion was granted
without objection. The respondents renewed their motions to dismiss the com-
plaint and the objections to the conduct of the election. These motions were
taken under advisement and are now denied after consideration of the record.
At the conclusion of the hearing, counsel for the respondents and the Board
engaged in oral argument before the undersigned. The parties were duly not!,
fled that they had the privilege of submitting briefs for the consideration of the
Trial Examiner. The respondents submitted a brief.'
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS'
The respondents doing business under the trade name and style of Henry
Moss & Company are a co-partnership, first organized in 1942, composed of
When the record in this proceeding was first received from the official reporter, the
undersigned noted that certain exhibits were missing. The respondents had offered as
their exhibit No. 3 the complete time card record of Schleenbecker beginning with the
week ending April 16, 1942, and ending with the week ending March 16, 1944. The record
as received included none of the weekly cards for the year 1942 Attached to the time
cards for 1943 and 1944 were six notes which were stated on the record to be part of
respondents' exhibit No 3. None of these notes were received. Board's exhibit No. 6-A
was also missing The records of the official reporter establish that these missing exhibits
have been withdrawn by the respondents in accordance with a ruling made by the under-
signed that these original records might be withdrawn and photostatic copies substituted.
Repeated efforts by the undersigned to recover the missing exhibits were only partially
successful Board's exhibit No 6-A and four of the missing notes attached to time
cards have been received. Respondents state that the 1942 time cards of Schleenbecker
have been lost. This constitutes the most serious omission. This record, however, is
quite remote from the date of Schleenbecker's discharge on March 27, 1944. After con-
sideration of these matters , the undersigned finds that the missing exhibits are not of
sufficient importance to justify further delay in the issuance of this Intermediate Report.
It is ordered that the missing exhibits be regarded as withdrawn by the respondents and
that the record be regarded as complete without them.
It is further ordered that all the correspondence relative to this matter , with the Board's
attorney, the respondents, and their attorney, the official reporter, and the undersigned as
listed below be incorporated and made a part of the record in this proceeding as Trial
Examiner ' s Exhibit No. 1 a to q, inclusive . This correspondence or carbon copies thereof
includes : (a) telegram dated April 5, 1945, by the undersigned to Cyril W. O'Gorman,
Board's attorney , (b) telegram dated April 5, 1945, by the undersigned to Frank Barasch,
respondents ' attorney ; ( c) letter dated April 7 , 1945, by Frank Barasch to the under-
signed , (d) letter dated April 7, 1945, by L H Szerlip, a respondent, to the undersigned ;
(e) letter dated April 9, 1945, by the undersigned to Elvira Johnson, New York City repre-
sentative of the official reporter, Ethel E Fisher and Associates ; (f) letter dated April 13,
1945, by Elvira Johnson to the undersigned ; (g) letter dated April 16, 1945, by Elvira
Johnson to the undersigned; (h) letter dated April 18, 1945, by the undersigned to
Frank Barasch ; (i) letter dated April 18, 1945, by the undersigned to Elvira Johnson ;
(j) letter dated April 18, 1945, by the undersigned to Cyril W. O'Gorman; (k) letter dated
April 19, 1945, by L. H. Szerlip to the undersigned ; (1) telegram dated April 20, 1945,
by the undersigned to Cyril W. O'Gorman; (m) letter dated April 23, 1945, by Cyril W.
O'Gorman to the undersigned; (n) letter dated April 24, 1945, by Ethel E. Fisher to the
undersigned; (o) letter dated April 30, 1945, by Elvira Johnson to the 'undersigned; (p)
letter dated May 1, 1945, by the undersigned to Elvira Johnson; and (q) letter dated May
1, 1945, by Frank Barasch to the undersigned
i These findings are based on stipulations between the parties, on allegations in the com-
plaint admitted by the respondents at the hearing , and on testimony which is uncontro-
\erted.
079100-40-vol 65 l 0
128 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. F. Moss. George Moss, Arthur Szerlip, and L. H. Szerlip.' They, have their
principal office at 113 53rd Street, Brooklyn, New York, and a branch office in
New York;;City, and operate plants at 53rd Street and 58th Street, a warehouse
at 90th Street, Brooklyn, New York, and a third plant at Philadelphia, Penn-
sylvania. This proceeding is exclusively concerned with the Brooklyn plants
and warehouse which are engaged in the manufacture of marking devices, metal
goods, and machine articles. The value of raw materials purchased by the
respondents during the year preceding the hearing was in excess of $50,000,
of which 40 percent was shipped to the Brooklyn plants from- points outside
the State of New York. The value of the products manufactured by the re-
spondents during the same period was in excess of $50,000, of which 40 percent
was shipped to points outside the State of New York.' The respondents admit
that they are engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
The International Metal Engravers Union is an unaffiliated labor organization
which admits to membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background
The respondents ' opposition to the Union was both outspoken and long con-
tinued. It was, for the most part , expressed through General Manager L. H.
Szerlip. In July 1943, John E Kearns , a Board field examiner , had occasion
to interview Szerlip regarding charges then pending According to Kearns'
undenied and credited testimony, Szerlip , with reference to a letter written on
June 26, 1942,$ pointed out that "he was opposed to the practice of the Union
exacting tribute from the members in the form of dues ." In January 1944,
Kearns , accompanied by Conrad Woeltel, general secretary -treasurer of the
Union, and its representative of record in this proceeding , called on Szerlip,
who again said, "I am opposed to any union exacting tribute from my employees
in the form of dues or fees, " referred to Woeltel as a racketeer , and declared
that he would prefer to close the department rather than reinstate a discharged
employee "and get the union in."'
At the hearing in the representation proceeding on April 13 and 14, 1944,
Szerlip served as counsel of record for the respondents. At that time he opposed
the unit proposed as not sufficiently inclusive. In particular, Szerlip objected
6 Of the four partners, B. F Moss takes little active part in the conduct of the business
because of age and illness . Arthur Szerlip is in charge of the New York office and "is
never at the factory " In this report, unless otherwise specified , "Moss" refers to George
Moss and "Szerlip" to L H. Szerlip.
' These amounts and percentages are those stated in the Board's decision in the represen-
tation case. The respondents agreed in the instant hearing that the present facts were
substantially similar.
8'the paragraph from this letter in point here reads
We are not interested in whether they [the employeep] are members of a union. We
do not care whether they feel like paying tribute to anyone If'thev are members of
a union, and are good and helpful to us, we will retain them , and if they are or are
not members of a union and are inefficient or otherwise detrimental , we will not keep
them
° These findings are based on testimony by Kearns Szerlip did not specifically deny
these statements. He was asked, "Do you recall saying you would do everything possible to
prevent your employees from paying tribute to any union for the right to work?" and
denied making such a statement
HENRY MOSS & COMPANY 129
to the proposed exclusion of clerical workers. Ile argued on the record that a
union whose jurisdiction did not include clerical workers was "not truly repre-
sentative of the employees of the company, and by this attitude . . . [the Union
sought] to divide the employees against themselves by accepting some and reject-
ing others." Szerlip stated further, "Of course, I feel that an election should
not be ordered in any sense, because I do not believe that this petitioner is
representative of our organization." He further contended that signatures to
union application cards had been secured through duress or fraud and in some
cases "were obtained from men and women in an intoxicated condition." He
attacked Woelfel as an alien given to vicious and unfair methods who had secured
adherents by "slanderous and libelous statements and by exciting class hatred."
These assertions Szerlip substantially repeated as a witness during the hearing
in the present proceeding saying:
Because I don't think the proper method of soliciting membership, to induce
them to join is merely to get them drunk and have them sign papers under
the influence of liquor. I don't think it proper for any so-called organizer
to vilify individuals and make scandalous statements about them and by
causing dissension in trying to organize. If y ou have something worth while,
you can always sell a good product
B. Objections to the election
As noted above, the Board issued its Decision and Direction of Election on
flay 17, 1944. The Union thereafter instituted a pre-election campaign through
the medium of meetings, speeches, and the distribution of circulars outside the
respondents' plants. Notices of Election, setting June 7, 1944, as the election
date, were sent out from the Regional Office, on May 27, 1944. Thereafter, Kearns
called at Szerlip's office to make arrangements for the election. At this time
Szerlip stated that "he would do all lie could to beat the union."'o
On May 31, Szerlip assembled the employees both at the 53rd Street and at
the 58th Street plants and addressed them on the subject of the Union and the
forthcoming election. Szerlip's account of the content of this speech was given
after he had opportunity to refresh his memoiy from stenographic notes taken
at the time. He spoke extemporaneously and the text of his speech at the two
plants varied somewhat After study of the testimony of Szerlip the under-
signed draws therefrom the following summary of his speech on May 31, 1944.
He informed the employees that he "had been requested to address them by
their own co-employees" who had asked him certain questions and given him
information. Under these conditions he felt that it would "be no more than
right" that lie "should outline the policy of the company in public fashion"
Szerlip disclaimed any desire to control the employees' membership in any or-
ganization, and stated, as his testimony reads, "That was entirely a matter of
their own choice, that we were not interested in that at all," but were "interested
primarily in the quality of their work." Szerlip stated that the "company didn't
have any objection to unionism" but told his hearers to watch the organization
with which they affiliated themselves His testimony at this point was, "just
as I would tell my own children if they were to ask me for advice." Similarly
lie informed the employees that it was entirely within their province to vote
as they desired " However, he warned those present "to be careful of the com-
10 This quotation is from Kearns' undenied testnnony which is credited by the under-
signed.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany they keep" and make sure that the Union of their choice was "best for their
welfare ""
With reference to inquiries which he stated had previously been made to him,
Szerlip told the employees that joining a union was a matter for their own discre-
tion and choice and that no one could be forced to join. He promised "to back
up any employee who did not wish to join the union." Continuing, Szerlip said
that the respondents and particularly he himself, was "opposed to the closed
shop principle in that it denied a person the opportunity of free choice" and
"they could always understand that we did not see eye to eye with the closed
shop principle." Although "they might have their union, they might accept it or
join it, and the company would hold nothing against them."
Szerlip testified that he referred to the Union as follows :
I did say that I thought that if I had a good service to render or a good
product to sell or a good union to offer that I could sell that service or that
product or that union on the strength of what I had to offer, and that I did
not think that vilification, intimidation, booze parties and similar pressure
would be necessary if my product was worthwhile.
And I said, it is for you, therefore, to decide whether the offer is made to
you on the strength of that which the union actually has.
Earlier testimony by Szerlip referring to this speech reads that the Union
"had not indicated that they were affiliated with any nationally known labor
organization, either the A. F of L. or the C. I 0 and I questioned whether they
were joining a responsible outfit." '2
At the 58th Street plant, where most of the elderly employees worked, Szerlip
referred to statements that the respondents were not disposed to continue older
workers in employment. He assured his listeners that the Company both in peace-
time and in wartime "would consider it well worthwhile" to retain the elderly
people since they "had proven to us that they showed more sincerity [ and] paid
closer attention to their work than the younger folk who did not or had not
acquired patience" and were handicapped by the "exuberance of youth."
Under cross examination, Szerlip stated that during this speech he had said
to the employees, "Mr. Woelfel had called me nasty names and I retaliated in like
kind, and I was sorry that I had dignified him by doing it."
Marguerite B. Lusk, an employee at the 58th Street plant, gave the following
account of this speech by Szerlip:
He didn't object to us joining the union but he didn't like that particular
union's method, attitude, and dealing, and it was a racketeer union and Mr.
Woelfel is using Gestapo methods.
He did mention the fact that he didn't like the fact that when a company
was union, the workers had to go on a uniform scale, and there were em-
11 Elsewhere, Szerlip gave the following version of his remarks on this point :
The only thing I want you to do is to be sure that it is for your best interests. If it
is for your best interests, if you think you are [to] gain by your association with
this particular party who is organizing you, you join If you think you are not going
to gain do not join it. It is up to you alone to do as you wish.
12 Working Foreman Alfred Kirk gave corroborating testimony, as follows :
He said this union that was trying to be organized in the plant wasn't chartered
with the American Federation of Labor, and he didn't have no objections in the CIO
or the American Federation of Labor but he did have an objection in the racketeer
union.
HENRY MOSS & COMPANY 131
ployees who could not work to the extent to justify that uniform scale ; there-
fore, he didn't feel it was the proper thing for an employer to be compelled to
pay workers who were not producing as others were to a uniform scale.
That was one of the objections he had against the general attitude of the
union.
Under cross-examination Lusk testified further:
Q. During the course of the first speech, were any instructions given by
Mr. Szerlip as to how the people should vote?
A. No.
Q. Whether they should vote or not vote?
A. No, only it was understood he didn't approve of that union because
he told us they didn't belong to the A. F. of L. or-
Q. Did he say clearly he didn't approve of the union?
A. That particular union he considered a racketeer union.
Lusk's testimony was supported by Kirk, who testified that Szerlip stated
that in case the Union won the election it would demand an increase in pay
and he "wouldn't be able to pay it." Kirk also stated that Szerlip said the Union
was "a racketeer organization."
Szerlip was an evasive witness, often manifesting an intention to tell less
than the required "whole truth." Lusk and Kirk on the contrary, were trust-
worthy witnesses answering all questions freely and with obvious care to tell
nothing but the truth. Under these conditions the undersigned accepts their
testimony that Szerlip made these statements on May 31, 1944.
Szerlip testified that on May 31, 1944, he sent material for eight signs, relative
to the Board election, to his brother, Arthur Szerlip, a partner, requesting that
they be ready by the following day. Szerlip asked that two signs be made up,
one to be posted in each plant. They were to be in two colors, 28 inches wide
and varying in length as the volume of copy dictated. The wording follows :
1. Vote as you wish. Do not be intimidated.
2. Vote for the truth and your welfare.
3. Vote the American way.
No Fear
No Malice
No Insults
4. Will your vote be based on vilification or on honesty and fact.
5. Vote for the truth.
6. "The priceless ingredients in each product are the honor and integrity
of its maker" says a leading medical manufacturer. Be guided by
honor and integrity in all your work says the company.13
7. The National Labor Relations Board has decided that Jake Bulin,
Al Kirk and other productive employees are entitled to vote.14
8. Vote, Vote, Vote Vote yes or no but be sure to vote.16
13 Underscored phrases in this sign are marked "large" in the copy, other matter is
marked "small."
14 This is the form posted at the 58th Street plant when Buhn and Kirk were working
foremen. Szeilip's note which was attached to this copy directed that a form for use at
the 53rd Street plant omit their names and add "excluding office and clerical" after pro-
ductive employees. The posting of this sign has added significance where Szerlip's
testimony at the hearing in the representation case that "Al Kirk and Jake Bulin are
union men," is noted.
11 The matter below, as Szerlip testified, was copied from the sample ballot sent in by
the [Board]
0
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mark an "X" in the square of your choice
Do you desire to be represented by International Metal Engravers Union
YES q NO q
Here or Here
You Decide
Szerlip testified, and the undersigned finds, that he picked the finished signs
up at his brother's house on June 1, 1944, and the following day "went around
with thumb tacks and stuck them up."
Szerlip did not specifically testify that these eight signs were all that he
had posted. Lusk, whom the undersigned finds to be an exceptionally careful
and trustworthy witness, gave the following testimony regarding an additional
sign :
One mentioned about Mr. Woelfel, with relation to his nationality, being
a foreigner and that-another about racketeer.
This testimony , presented on the first day of the hearing, was not denied and
is credited by the undersigned 1°
Although, as noted above, the official election notices were sent out on May 27,
1944, they were not posted in the respondents' plants, as-Szerlip admitted, until
"the Saturday preceding the election," i. e., June 3. Kearns received com-
plaints through the Union that the notices had not been posted and on Friday,
June 2, visited both the 53rd Street and the 58th Street plants in an unavailing
endeavor to make an inspection and determine the truth of this report At the
53rd Street plant Kearns, in the absence of Szerlip, presented his request to Moss
who told him that since the plants were engaged in war work he could not enter
without permission from the proper military authority. Kearns pointed out
that he had been in the plants on several prior occasions and that this require-
ment had never been made He asked to see Szerlip, with whom he had previ-
ously arranged his entry into the plants. Kearns was told that Szerlip was
not available. Thereafter he went to the 58th Street plant and was refused
admittance by Samuel Spanier, plant superintendent. On reaching his office
next day Kearns found a message from the respondents saying that the notices
had been posted. This statement he verified through the Union As Szerlip
admitted in his testimony, the posting of the Board's official notices followed
by a day and a half the posting of his own signs relative to the election.17
There was similar delay in furnishing an eligibility list for use at the election.
Such a list was delivered to Kearns at his home at 8: 30 p. in., June 5, 1944.
Next day, Kearns asked Szerlip for an opportunity to check the list against the
respondents' pay roll. This request was refused. Szerlip assumed responsibility
for the preparation of the list, testifying, "The list was submitted to me of employ-
1° It is admitted that a sign r^ading : "The Truth Wins" was posted over the door of the
plant on the morning after the election. It was still posted at the time of the hearing in
the instant proceeding.
17 These findings are based on Kearns' credited testimony Moss denied that he had
refused to admit Kearns. His version was that he had referred Kearns to Szerlip. The
witnesses agree that Kearns did not in fact enter the plants.
HENRY MOSS & COMPANY 133
ees, and I eliminated those which in my opinion were asked to be eliminated by
the [Board ] in their decision . I eliminated those which were confined to the
office and those which were listed in the category of managers or chief super-
visors, and the others , following the Board 's ruling, I had contained in the sheets
which I forwarded to the home of Mr Kearns " Due to the short time available
Kearns was able only to check the list with the Union by telephone At that
time the omission of Fred Harden 's name was noted.
-Harden, one of the complainants in this proceeding, had been selected to be
an observer for the Union at the election The date of his selection was not
definitely fixed but since it was prior to May 29 , 1944 , it was within his period
of employment by the respondent On the evening of June G. Harden , and others,
made speeches at a union meeting attended only by the respondents ' employees.
Harden urged the employees to join the Union as the only organization available
in their industry He combatted the idea that it was not a legitimate union
because unafhliated with either the A F of L or the C I 0 Many independent
unions, he asserted , were large and powerful Harden attacked the health and
safety conditions existing in the shop . He stated that protection through work-
men's compensation was inadequate because of the employees ' meager wages.
He illustrated this point by reference to the case of Mary Leo, who had recently
suffered an injury to her hand.'
Szerlip was informed of Harden' s speech next morning . Evidently he was
told that Harden had asserted that the respondents ' plants were not covered
by workmen ' s compensation insurance.19 This report Szerlip disproved in speeches'
made June 7, 1944, at each plant Szerlip displayed his insurance policy and
cancelled checks covering premium payments . He also stated that Leo had been
fully paid by the respondents for her normal time , and overtime earnings , during
the period she was absent because of her accident . This statement Leo substan-
tiated when questioned by Szerlip at the 53rd Street plant during his speech.20
The record shows clearly that Szerlip 's remarks on June 7 went beyond an
answer to Harden's speech as reported to hiir_. He urged the employees to get
out and vote. He also made reference to a letter mailed to the employees by the
Union under date of June 5, a copy of which had come into his hands . Szerlip's
testimony with reference to the union letter and other union circulars was :
. . . I said that previously we were called a "Hitler" and now we aie
compared to "Smiling Tojo ," that we were stooges , and that we would stab
our friends in the back, and that we had been called rats , and I asked
if the employees accepted that brand of vilification as the truth, and I said,
if you do, you decide, it is entirely up to you.2i
"This summary is drawn from uncontroverted and credited testimony by Harden.
'° Szerlip testified that several employees, including Janet Bissett, Jacob Bulin, and
George Rao, came to him the following morning after Harden's speech to inquire whether
they were covered by compensation. The three employees named were all called as wit-
nesses, but Bissett and Bulin were not questioned about Harden's speech. Rao testified
that he had no knowledge that anyone had said the employees were not covered by insurance
against accidents. Employees Andrew LoBianco and Harold Schlig testified that they
heard Harden's speech and told Szerlip of it next day. LoBianco testified further that he
had previously told Szerlip of his intention to attend the Union meeting and that he
gave Szerlip a copy of a union letter dated June 5, 1944 which had been mailed-to him.
t0 This summary is drawn from Szerlip's testimony which is corroborated by other
witnesses.
21 In so stating Szerlip misapprehended the application intended by the Union. The
pertinent paragraph from the letter reads :
Conditions such as these are possible only because we workers make no organized efforts
to protect our interests. This enables the employer to deal with us as individuals, it
enables him to snipe away at each of us separately, using us as he sees fit to "feather
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Szerlip further attacked Harden directly stating that he was not a good workman;
that he was supposed to have been a dental technician '2 but could not get a job,
and "that he could not place him any place in the plant because he didn't seem
to stay put because he didn't seem to be efficient " 22 Szerlip also said of employee
John Perito, who was designated as the second union observer at the Board
election, that he had been planted in the shop as a union agent to organize the
employees 2+
Kearns was in charge of the election. When the observers assembled shortly
before 5 p. m. on June 7, 1944, Frank Morgenstern,25 an employee who had charge
of ship nomenclature installation and was an observer for the respondents, pro-
tested to Kearns against Harden serving as an observer for the Union. Mor-
genstern asserted that Harden was not an employee of the respondents and was
therefore ineligible to serve. Kearns rejected this protest since, as he testified :
I had already investigated the circumstances under which Mr. Harden
had been laid off . . . I exercised my discretion as field examiner to decide
whether or not that he could act as an observer. I I reached the conclusion
that it would be more harmful to a free election to remove him.
Morgenstern telephoned to Szerlip and related the failure of his protest. Szerlip
then came to the polling place. Morgenstern's credited testimony as to what
then happened reads as follows :
Well, Mr. Szerlip came in very excited and said that the election was a
farce, and that Mr. Woelfel was electioneering outside, and that Mr. Harden
was 'a representative of the union though he had no right to be because he was
not employed by the Company.
Mr. Kearns also got very excited and threatened to call a policeman ifoMr.
Szerlip did not get right out, and he said he was running the election and
Mr. Szerlip had no right to interfere and come in that way. After a short
while, Mr. Szerlip left . 24
Woelfel came to the door of the polling place at about the same time as Szerlip
and made complaint to Kearns that Szerlip was escorting voters in his car to
the corner diagonally across from the polling place 27 These events took place
while about 12 employees were in the polling place
his own nest " This method of being beaten from within is an old, but very effective
weapon In the hands of a crafty employer it must be fought vigorously. We must
not fall for this booby trap ! Instead, in these next important days we must beware
of the "smiling Togo's," the stooges who pretend to be our friends, but who will not
hesitate to stab us in the back These rats advise against voting four [for] our
union. They know they must "play ball," they understand and are afraid, for they
know there is no room for these (sic) kind in a union shop.
22 The reference is to Harden's former occupation.
23 This quotation is from the credited testimony of Lusk. Kirk also testified to this
criticism by Szerlip regarding Harden.
24 Szerlip admitted this attack on Perito. Kirk testified that Szerlip said of Perito, "he
knew that John was planted in the shop to try to organize the place " Lusk's testimony
was that Szerlip said, with reference to Perito, "we allowed an outsider to come in and
organize us and stir all this trouble and dissension."
25 At the time of the hearing in the instant proceeding Morgenstern had left the
respondents' employ
21 Harden testified that Szerlip said, "This man has no right to sit here as an observer.
He is not in my employ." "He is fired " "This whole election is a farce." Kearns'
testimony was that Szerlip "told me I should put out Harden immediately or I was a fraud
and in league with the Union."
21 This finding is based on Kearns' undenied and credited testimony.
HENRY MOSS & COMPANY 135
After the polls were closed and the votes counted, Szerlip. said to Morgen-
stern, as Kearns testified, "Don't worry about the challenged ballots I will
pick up 25 more votes there " When questioned regarding this occurrence, Szer-
lip replied, "I don't know what I said then. There was a lot of things passed
by the union people and by us," and further, "there were some wise cracks
passed by all parties around, and we went out. This is all. I don't remember
what was said." In this state of the record, the undersigned credits the testi-
mony as to this incident given by Kearns.
Concluding findings
The undersigned finds, on the basis 01 the above-recited acts and utterances,
that the respondents not only failed to maintain the neutrality which the Act
requires employers to observe in representation proceedings 28 but embarked
upon a partisan policy In effect, they treated this representation proceeding
as' a contest between the respondents and the Union. This policy was adopted
by the respondents soon after the advent of the Union in their plants and con-
sistently pursued until the date of the hearing in the instant case. In his
speeches of May 31 and June 7, 1944, Szerlip made positive partisan declarations.
Significant of his attitude is the statement of employee Charles Blaustein, called
as a witness by the respondents. Blaustein, when asked if Szerlip expressed
any opinion as td the election to be held.later that day, replied, "He said the
truth will win, and he was sure he was right and he would win." Both pre-
election speeches were strongly anti-union in character. Attempts by Szerlip
to justify them under the principle of freedom of speech as mere expressions of
opinion and refutation of erroneous union statements are proven invalid not
only by the credible testimony of Board witnesses but by his own admissions on
cross-examination . When viewed in the setting of the respondents' consistently
anti-union campaign , these speeches clearly cross the line dividing legitimate
`exercise of freedom of speech in democratic processes from utterances which
interfere with the employees' "full freedom of association" which the Act en-
visages. They are correctly regarded as acts in defiance of the declared policy
of the United States "to encourage the practice and procedure of collective bar-
gaining." The respondents assembled their employees during work time and
expounded to them their own policy of opposition to the Union. They under-
took, through direct action, to defeat the policy which the Act was designed to
effectuate.
The respondents delayed the posting of the Board's official notices of elec-
tion. Meanwhile they placarded both plants with notices of their own devising,
which, interpreted in the light of Szerlip's speech on May 31, 1944, can have but
one possible significance and that an anti-union one. Szerlip's invasion of the
polls on June 7, and Morgenstern's and Szerlip's protest of Harden's functioning
:is a union observer, which took place in the presence of numerous employees
waiting for an opportunity to vote, were inexcusable interferences with the
Board's plenary control of election procedure. As the Supreme Court has said,
"The control of the election, procedure, and the determination of the steps neces-
sary to conduct that election fairly were matters which Congress entrusted to
the Board alone." 29
On the basis of the whole record, the undersigned finds that the election did
not fairly reflect the untrammeled wishes of the respondents' employees and did
21N. L. R. B. v. Sunbeam Electric Mfg. Co, 133 F. (2d) 856, 860 (C C. A. 7).
"I Waterman Steamship Corporation v. N. L. R. B., 309 U. S. 206.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not constitute a fair test of the employees ' desires as to representation. Ac-
cordingly, it will be recommended that the Board set aside the election held on
June 7, 1944.
C. The discriminatory discharges
Howard Schleenbecker was hired by the respondents about April 16, 1942, as
a polisher in the 53rd Street plant In Octobei 1943, at his own request, he was
transferred to,the plating department located in the SSth Street plant. Schleen-
becker had developed stomach ulcers while employed by the respondents and
thought the dust in the polishing department was detrimental to his ailment.
His initial wage was 35 cents an hour In each of the months May, June, and
July 1942, he received an increase of 5 cents an hour. In November of that year
he was given a fourth 5-cent increase which gave him an hourly wage of 55
cents an hour. In 1943 he received raises of 5 cents an hour in each of the
months May, July, and December. His final increase, effective in the pay-roll
week ending December 16, 1943, raised his wage to 70 cents an hour.'0 Except
for his working foreman, Alfred Kirk, Schleenbecker was then the highest paid
employee in the plating department. Schleenbecker testified, and the under-
signed finds, that he always asked Moss for these raises On the occasion of
his last increase, he suggested to Moss that "he would have to go to see if [he]
could make more money some place." Moss advised him "to keep [his] shirt
on" and promised the increase.
Schleenbecker's service with the respondents terminated on March 27, 1944.
Moss testified that he "was discharged for poor workmanship and failure to
attend." He stated further :
Schleenbecker occupied a position which became a bottleneck. As a matter
of fact, that is why, the only reason why we kept him for the period he was
there. I can assure you, as you know, the manpower situation at that
time was most acute, during the period of the war, and we had to take what
we could get, that wasn't what we wanted.
Criticism of Schleenbecker's work performance was mainly directed to an
incident occurring soon after his transfer to the plating department in October
1943. At the time the department was engaged on a large order and had a
definite daily quota to meet When told by Kirk of the output expected, Schleen-
becker, who thought it was an impossible assignment with the available tanks,
admits that he "flew off the handle," and said "if you can do it, do it your-
self."" Szerlip testified that Schleenbeck thereafter left the plant. Kirk and
Schleenbecker testified positively that he did not leave. The undersigned, after
consideration of the demeanor of these witnesses and the setting of their re-
spective testimony in the whole record, accepts the version of Kirk and Schleen-
becker, the witnesses most intimately concerned, and rejects that of Szerlip.
Both Kirk and Schleenbecker testified further as to the incident that there had
iu It is the practice of the respondents to pay on each Monday for the week ending the
preceding Thursday
ii Kirk testified that Schleenbecker said, "If you can work them, I can't. You do it
yourself." Szerlip ' s testimony , evidently referring to the same occasion , was that he
found the work blistered from over long immersion in the tank . On calling this to
Schleenbecker ' s attention , he said, "I am doing all I can do, and - if you can do better, do it
yourself." While Moss did not directly participate in this incident , he testified that
Schleenbecker said on an occasion "early in 1944," "I can't do it any better . If you think
you can do it better do it yourself."
a
HENRY MOSS & COMPANY 137
been trouble with the solution in the tank which had been incorrectly com-
pounded or had been tampered with ffi They agreed that after this condition was
-corrected Schleenbecker did the amount of work required.
Criticism of Schleenbecker's attendance record was vigorously voiced in the
testimony of Moss, Spanier, and Szerlip, as respondents' witnesses. This testi-
mony loses in impressiveness because of its exaggerated and inexact character.
Thus Moss testified:
I know he had a very poor attendance record. It was more inattendance
than attendance record. . . . He was sporadically, periodically out.
Mondays was his favorite day out. Particularly after Sunday. He did
not work Sunday but he was out Monday. Saturday continually. That
was a live-day week man. He did not come in Saturdays.
After much begging we got him to come in a few days.
It was usual for him to come in at 10 o'clock, 12 o'clock, two o'clock,
whenever he darned pleased.
The exact tinie card record of Schleenbecker for 1943 and 1944, as placed in
the record,33 does not bear out Moss' testimony. There is no support whatever
for Moss' testimony that Schleenbecker habitually reported late. On every day
covered by the time cards fn evidence Schleenbecker, when present, reported
on time for the beginning of his shift at 8: 30. The further criticism of Schleen-
becker's record by Moss has some justification when applied to the 8 months'
period from January through August 1943. During these months Schleenbecker
was absent 45 days, of which 24 were Saturdays and 10 were Mondays. In the
34 weeks included, his hours fell below 40 in 15 instances. He worked 44 hours
in each of 8 weeks ` and exceeded that number in but 1 week.
However, Moss' criticism has very slight, if any, justification when applied
to Sclleenbecker's last 7 months of employment with the respondents. This
period covers all of his work in the plating department. From the week ending
August 20, 1943, to that ending March 23, 1944, a total of 30 weeks," Schleen-
becker was absent from all causes on 15 days '
No account is here taken of 22 Saturdays on which he worked from 4 to 7
hours. Of the 15 days on which Schleenbecker failed to attend 7 were Satur-
32 Spanier testified that the solution in one of the tanks had been tampered with but
denied that it hampered Schleenbecker's work. The undersigned rejects this denial.
13 As noted above the time cards for 1942 were also offered by the respondents but later
were withdrawn.
>u This includes the week of March 4, 1943, for which the time card with clock punchings
is missing. The duplicate card shows earnings of $25 30 which, at Schleenbecker's rate of
55 cents an hour, accounts for 40 hours at straight time plus 4 hours at time and a half.
It is inferred that Schleenbecker was not absent during this week.
81 The time card for the week of January 13, 1944, is missing. Since Schleenbecker
worked a total of 50 hours that week, it is clear that he was not absent on any day.
8° A comparative statement of Schleenbecker's absences in the two periods follows :
Mon. Tues. Wed. Thurs Fri. Sat. Total
Jan. through Aug 1943-----------------
Sept. 1943 to March 23, 1944 ------------
10
2
5
2
2
0
1
2
3
2
24
7
45
15
Totals--------------- ------------ 12 7 2 3 5 31 60
l
'138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days 37 In this 30 weeks Schleenbecker's weekly hours fell below 4033 in 8
weeks ; September 9, 28 hours ; September 16, 38 hours ; November 11, 33 hours ;
January 6, 34 hours ; January 27, 28 hours ; February 3, 10 and 24th, 30, 28 and
38 hours respectively." He worked 44 hours or more in 20 weeks during the
30-week period. The undersigned finds that Schleenbecker's record of attend-
ance prior to this 7 months' period was too remote to furnish justification for
his termination on March 27, 1944. It is noted further that Schleenbecker was
deemed worthy of a final increase in pay on December 16, 1943, which falls
about in the middle of his last 7 months of service with the respondent. Judged
in the light of this 7 months' record of attendance the strictures of Moss must
be found to be unsubstantiated.
Moss further testified that he spoke to Schleenbecker about the quality of
his work or his absenteeism "on manifold occasions." He stated that the first
occasion was "-,cry early in his period of employment by us," and that be had
spoken to him "any number of times" in 1942. Moss' further testimony reads :
When he was absent, I spoke and complained about it. When his work was
not getting out, I complained about it, on any number of occasions, a great
number, a good.number, a half a dozen, eight or ten, something of that
sort.
Moss also testified that he spoke to Schleenbeclfer about his work "quite a
number of times" in 1943 and "several times" in 1944. He was unable, however,
to specify these occasions nor to give any account of his conversations with
Schleenbecker. The only exception to this complete lack of specificity is Moss'
testimony relative to Schleenbecker's statement that he could not produce
to the extent desired noted above in this report.
Spanier, similarly, when asked whether he had ever talked to Schleenbecker
about his absences, answered, "Innumerable times." When asked, how many
times, he answered, "Five, six, seven, eight times." However, Spanier gave
detailed testimony relative to such incidents appPying only to Schleenbecker's
last days of employment. Spanier testified that Kirk was in charge of the
plating department, and gave testimony regarding Kirk's reports to him on
Schleenhecker's work, reading as follows :
A. On some occasions he [Kirk] ,spoke to me about his not being there, he
was absent. On other occasions, that he was careless with the work in
the tank. Some of the work came out burned. .
Q. Did he complain about his work?
A. Not to any great extent, only the occasions I have mentioned.
Schleenbecker testified positively that neither Moss nor Spanier had ever spoken
to him in criticism of his work. Kirk's testimony includes the following
excerpt:
Q. Do you recall any occasion recommending or telling somebody Schleen-
becker's services were not satisfactory?
37 Saturday was a regular work day. However, the regularity with which Schleenbecker
worked either 4, 6, or 7 hours shows that these were approved hours. Spanier testified,
"Well it is part of the rules we work Saturdays all day." Szerlip gave similar testimony.
38 Szerlip was asked, "how many hours did you expect Mr. Schleenbecker to work from
December 30, to March 30, [1944]." He answered, "we would prefer him to work 40 hours
and give us 40 hours of 8 hours a day .. . .11
39 It will be noted that this period includes the Christmas and New Year season . Szerlip
stated that he would not "hold it against the employee for not appearing on any of the real
national holidays."
HENRY MOSS & COMPANY 139
A. I don't recall that Outside of when he wasn't there, the work was
being produced.
The criticism of Schleenbecker's attendance record by the respondents' wit-
nesses was entirely undiscriminating. Any failure to work was presented under
the guise of absenteeism, without inquiry as to its cause. Thus Szerlip sum-
marized Schleenbecker's record in this blanket indictment :
Excluding Saturdays and Sundays you will find he was absent not less than
43 days . . .
o s a x * a s
Yes, and I made some calculations this past Sunday, and I find that there
is approximately, giving Mr. Schleenbecker the benefit of the count, 35.7
percent imperfect weekly attendance and 8 5 percent lost days, both per-
centages excluding Saturdays and Sundays.
Schleenbecker testified, without denial that he was absent 3 days because of his
father's death and another 3 days because he had been injured by stepping on a
nail. There is partial corroboration of this injury in Spanier's testimony. When
questioned whether such an injury caused Schleenbecker to be absent, Spanier
answered, "Possibly so. I recall that he limped there at one time." Moss made
inquiry as to Schleenbecker's absence at the time. Since Moss gave Schleen-
becker "$3 00 out of his pocket" in lieu of workman's compensation, it may be
assumed that Moss was satisfied that the 3 days' absence was legitimate.40 An
undetermined amount of absence on the part of Schleenbecker was d>>e to his
temporary disablement with stomach ulcers. Spanier beard from Kirk that
Schleenbecker suffered from this ailment and agreed that this was a legitimate
cause for absence Schleenbecker estimated that his absence from this cause
totaled 10 days, although "It might have been more." This absence, added to
that caused by his father's death and his injury, accounts for over a third of the
43 days' absence computed by Szerlip in Schleenbecker's 2 years of employ-
ment with the respondents Some further allowance should be made for ex-
cusable absence on national holidays."
As noted above Moiss Gaily in his testimony assigned reasons for Schleen-
becker's discharge. Near the close of his testimony, however, Moss changed this
testimony and stated that Schleenbecker was not discharged but had quit.42
Moss' testimony at this point reads:
Air. Spanier said that he had called Mr Schleenbecker's attention to his
poor workmanship and to his inattendance Air. Spanier then told me that
Mr Schleenbecker came back into the office in the morning and said, "All
right, I quit."
Sp.uuer, testifying subsequent-to Moss. rave a detailed account of his
contacts with Schleenbecker just before his termination. Spanier's version was
that he spoke to Schleenbecker 2 or 3 days before his termination. Spanier's
testimony as to this interview reads:
I told him that he was on a job that was very important and that part
was a bottleneck. We had to get the work through, had contracts for a
40 Schleenbecker, while testifying as a witness in the Board's rebuttal, gave a circum-
stantial account of this matter, credited b3 the undersigned
"As noted above Szerlip testified that he would not "hold it against the employees for
not appearing on any real national holidays."
42 Moss' statement was, "Mr. Schleenbecker, as I understand, quit That is my recollec-
tion , that he quit."
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarter of a million stencils to go through and we were behind on our com-
mitments , and the expediters of the Navy were after us, and he wasn't co-
operative, and unless he would give his job more attention, give us more of
his time, he wasn't going to be around there very long or words to that
effect.
Spanier gave the following testimony relative to events on Schleenbecker's last
day in the 58th Street plant:
I went back there about sometime between 8: 30 and quarter of 9 and
I commenced to talk to him and I was interrupted and I had to get back to
the office.
* * * * * * *
I started to tell him about his not being in Saturdays. I was interrupted,
and I got back again about 10 o'clock . . . I told him I was very much dis-
appointed and dissatisfied with his attendance. We needed his services
there, and unless I could get it, he wasn't going to be around there very
long.
I left . . . and about 10: 30 or thereabouts he came out . . . To the, front
of my office . . . and he said, "The hell with this." And I said, "What is
the matter, Howie?" He said, "I am fed up, I am through." I said, "OK,
go to 53rd Street and get your check. It will be ready."
Schleenbecker's testimony, which was fully corroborated by that of Kirk, was
that he had been ill with his stomach ailment and absent on the Saturday pre-
ceding his termination on March 27, 1944. He continued ill through Sunday but
reported at 8:30 Monday morning thinking he "would be able to stick the day
out." After two hours he felt too ill to continue and asked Kirk's permission
to leave which was granted. Kirk's testimony as to the incident reads :
Q. Do you remember the day that Mr. Schleenbecker was laid off, the
last time he worked in the plant?
A. I can't recall the day exactly but he was off the day before, I imagine,
and when he came in, he complained of feeling sick, so I said to him "Listen,
if you feel sick, you better go home because you are no use to me while you
are sick." "
March 27, was Monday and a pay day. About 4: 30 p. m. Schleenbecker, as he
testified, gave his friend, Charles Herbert his badge and a note to serve as
identification and requested Herbert to get his pay" Schleenbecker further tes-
tified that Herbert gave this note to Spanier who gave him two checks, one for
the regular pay day and a second covering Friday and the 2 hours' work on
Monday. Spanier then took the badge from Herbert and told him Schleenbecker
was through.
That evening, as Schleenbecker testified and the undersigned finds, his fore-
man, Kirk, came to his home and told him he was laid off and that Spanier had
told Kirk not to let him start to work if he came in. Next day Schleenbecker
went to the 53rd Street plant office in order to see Moss and ask why he was
laid off. He was told that Moss was very busy, whereupon he inquired whether
11 Schleenbecker testified that, Kirk said : "If you feel that bad, go ahead home."
44 As his name on time cards indicates, Herbert had collected Schleenbecker's pay for the
week of February 3, 1944 and for four weeks in 1943.
HENRY MOSS & COMPANY 141
he could obtain a release . A clerk thereupon gave him a release, which is in
evidence, dated that day and signed with the name G. S. Moss's
Spanier testified that lie telephoned to the 53rd Street office soon after Schleen-
becker left on Monday and instructed them to prepare his checks and a release.
It was Spanier's further testimony that under such instructions the paymaster
would prepare the check immediately. Spanier denied having taken up the
badge from Herbert and when first asked concerning a messenger coming for
Schleenbecker's pay that afternoon, answered, "I don't recall any such incident."
However, he admitted that he had once received a note asking for Schleenbecker's
pay which to the best of his recollection was clipped to the time card. He was
shown such a note dated March 27, 1944, signed by Schleenbecker and attached
to his time card for the week ending March 30, 1944, reading as follows :
"Will you please give this boy my pay. Thank you."
Spanier identified his own signature appearing below the notation, "Check is at
53rd Street," which lie bad written thereon When checks were delivered to
persons other than the employee, it was the respondent's practice to require per-
sons applying to sign the time card. Schleenbecker's cards for the weeks ending
March 23 and March 30, 1944, were both signed "Charles Herbert." Spanier
explained as follows :
It is my impression the one note covered both checks, because that check
for March 23 would not ordinarily be ready until Monday, and that on the
same day which another check was prepared and I believe both checks were
received the same day and signed by the same individual under that one
note.
Spanier testified further that the check for the week ending March 23 would
in the normal course of business come into his possession Monday, March 27,
about 3 p. m. Herbert, since he arrived after 4: 30 p. in., would then have been
required to sign the time card in Spanier 's presence before receiving the pay
check. When asked whether he recalled seeing Herbert sign any time card in
his presence, Spanier replied, "I don't recall it He may have. I don't recall
It.,,
The undersigned notes that Spanier's testimony relative to his protest to
Schleenbecker allegedly made 2 or 3 days before March 27 is inherently
improbable when judged in the light of Schleenbecker's attendance record for
his last 7 months of employment as set forth above. Moreover, in the 6
weeks preceding his termination Schleenbecker had been absent but 2 days, one
of which was Tuesday and the other Saturday In this 6 weeks' period Schleen-
becker worked in successive weeks 491/ , 38, 49, 40 50 and 46 hours. Szerlip
said of the card for the 49 hour week, "I consider this a good card. * * *
This is a swell card. If we could have that from him all the time there would
be no argument." The time card for the week showing 50 hours, included 3, 9-
hour days, 2, 8-Hour days. and a 7-hour day on Saturday. Szerlip said of the
card, "I consider this a good card, likewise" It is clear that Schleenbecker's
record as to absenteeism was materially better in the last 6 weeks of his em-
ployment than it had been at earlier periods.
After consideration of the record, the demeanor of the witnesses concerned,
the specificity of their testimony, its accuracy or inaccuracy as shown above,
95 Szerlip stated that the signature on this document was G. S. Moss and that it had
been affixed by an office employee with authority. The document in evidence is a type-
written copy of the original exhibit and the name thereon is incorrect.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remembering that Kirk was the official best infornied ras to Schleenbecker's work
performance since he was intimately associated with him as his working fore-
man, and noting that both the note and the rel4ase in evidence exactly confirms
Schleenbecker's testimony, the undersigned rejects the testimony of Moss and
Spanier to the effect that Schleenbecker quit on March 27, 1944, and accepts the
version of events occurring that day given by Kirk and Schleenbecker.
•Schleenbecker did not join the Union until January 1944 In that mouth
Moss asked him what he intended to do about the Union. Schleenbecker replied
that he intended to stay in since the whole shop was signed up. Moss further
asked him if be thought that some man on the outside could do more for him
than Moss could and received the reply. "that was to be seen " " Schleenbecker
attended union meetings and solicited applications for membership from his
fellow workers. On a date not definitely fixed in the record, Schleenbecker was
elected to succeed employee Robert Webber, who had served as chairman of the
Union's organizing committee Sciileenbeckei agreed to assume this position.
In March 1944. i e, shortly prior to Schdeenbecker's discharge. Szerlip came to
Kirk in the 58th Street plant. Szerlip referred to Webber in opprobrious terms
and declared, as Kirk testified, "FIe [Webber I started all this trouble with this
union business." Later Szerlip asked Kirk if lie had ever seen Webber drunk
in the 58th Street plant. Kirk replied in the negative and referred the question
to Schleenbecker who also said that he had not." As Schleenbecker's testimony
reads, "Mr. Szerhp then turned on me because I said 1 had never seen Bob Webber
drunk, and lie said my work was no good and I should keep my month shut."
Concluding findings
The undersigned finds the contention of the respondents that Sclileenhecker's
termination was a result of absenteeism and inefficiency unconvincing As the
time cards in evidence show most of his absences were niaiked "OK" Schleen-
becker's absences were most frequent in the first 8 months of 1943 In that year
lie received three raises and his wage increased from 55 cents to 70 cents an
hour. These raises were granted by Moss, who was his severest critic at the
hearing. In the last 7 months of his employment Schleenbecker's attendance
record was good and his total hours worked averaged over 40 per week The
criticism of the respondents was entirely undiscriminating, inainiig no account
of legitimate absences resulting from injury, illness, and the death of Schleen-
becker's father These criticisms further covered the entire period that Schleen-
becker worked for the respondents. Despite his attendance record, Schleen-
becker was an acceptable employee for nearly 2 years during which period his
wage was doubled by periodic increases. As appears from the testimony of Su-
perintendent Spanier, a witness called by the respondents. Schleenbecker was
discharged at a time when the plating department had a great press of work.
It had a quarter of a million stencils to get out and was behind in its commit-
ments. There was nothing new in the character of the service which Schleen-
be kei rendered in March 1944 nor°in the respondents' need for those services.
The new element in the situation in March 1944 was Schleenbecker's promi-
nent position as chairman of the organizing committee for the Union The
4" These findings arc based on Schleenbeckei•s credited testinioni Moss slid not specifi-
cally deny Schleenbeckcr's statements although when asked whether lie had ever questioned
Harden or Schleenbecker regarding their union activities. Moss replied, "I never spoke to
them or any other employee about union activity "
V These findings are based on Kirk's credited testimony- It was Kirk's further testi-
mony that, at this point there were words passed between Schleenbecker and Szerlip which
he did not recall
HENRY MOSS & COMPANY 143
respondents knew of his membership in the Union and his intention to retain
it. Szerlip, in the month of Schleenbecker's termination, was outspokenly pro-
voked by his defense of Webber, his predecessor in the organizing committee
chairmanship Tile record indicates that respondents' officials had ready and
prompt sources of information of happenings at union meetings. It is a fair
inference made by the undersigned that it learned of Schleenbecker's elevation
to the key post of chairman of the organizing committee.
The record shows that other employees had absentee records worse than
Schleenbecker. One hale employee, as Spanier admitted, was accustomed to
be absent on periodical sprees sometimes lasting a week or more. Although, as
Spanier testified, his total (lays of absence probably exceeded that recorded by
Schleenbecker, he was still employed by the respondent at the time of the hear-
ing. A female employee also had a record of voluntary absence which Spanier
admitted was "possibly" greater than Schleenbecker's total absence from all
causes. -
The undersigned is further influenced by the contradictory character of the
accounts given by the respondents' witnesses of events preceding Schleenbecker's
termination. Witnesses for the respondents at first proceeded on the basis
that he had been discharged, alleging absenteeism and inefficiency as justi-
fication. Later Moss, supported by Spanier, gave detailed testimony to the effect
that Schleenbecker quit. This account was disproved by the testimony of Kirk
and Schleenbecker and by documentary evidence which clearly substantiated their
testimony.
After consideration of the record and of the demeanor of the witnesses, the
undersigned concludes and finds that the respondents, on hearing that Schleen-
becker held the key position in the Union's oaranizational campaign, seized upon
the opportunity afforded by his illness and resulting absence oil Monday, Mal ell
27, 1944, to discharge him summarily without warning or explanation given
to him. It is further found that Schleenbecker's discharge was based on his
union membership and activities. By this discharge the respondents have dis-
criminated in regard to his hire and tenure of employment and have discour-
aged membership in a labor organization, and have thereby inteifeted with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Fred Harden was first employed by the respondents as a polisher in the latter
part of August 1943. In late December he was transferred at his own request
to the screw machine department where he operated a turret lathe. He contin-
ued on this job about 10 days and again requested transfer He was then
placed in the engraving depaitment. Harden's initial wage was 60 cents an
hour. This was increased to 65 cents, effective in the week ending September
23, 1943 He received a second a cents an hour raise on December 28. 1943, on
the occasion of his first transfer, and a final increase of the sanne amount on
April 20, 1944
Testimony as to Harden's transfer into the screw machine department is
sharply in conflict. Harden and his wife, Vera Harden, who was not an employee
of the respondents, gave mutually corroborative accounts of what then hap-
pened. Harden, early in December 1943, contracted a severe cold. He was
absent, as his time cards in evidence show, from Saturday, December 4, through
Monday, December 27, 1943. On December 26, as Hoiden testified, Mrs Haider
went to the 53rd, Street office with a note which was addressed to MossIn this
"Harden's credited testimonv explain-, the delai in collectnig hi, par as clue to tile filet
that his Niife was enipioved in a liospitel and could not take a dal off earlier The under-
signed notes that the amount due was only $5 20.
679100-46-vol 65-11
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
note Harden requested that his wife be given the pay due him and his release
"because of his health condition." '° On Harden's time card for December 9, 1943,
appears the name "Vera Harden," indicating that she received the sum due.
On returning, Dirs. Harden, as she testified, reported to her husband that
she had presented the note to an office employee and that thereafter Moss came
out and said to her:
I understand that your husband wants a release . . . will you please go
back and tell your husband that I want him back. I want him definitely
back. I am satisfied with his work and I want him back.
Mrs. Harden further testified that she thereupon told Moss that she didn't think
the plant was a suitable place for her husband to work since he had contracted
a cold there. Moss said, "We will heat up that place, and let him come back
to work." Moss further promised to give Harden any kind of work he wished
to do and closed the interview by saying, "one thing I want you to tell your hus-
band, not to do anything before he will get in touch with me." Moss declined
to give Mrs. Harden the requested release.
Harden testified that he telephoned Moss the next day and told him that he
had contracted a second cold because of the plant's inadequate heating facilities
and, had no intention "of going back on the job unless conditions would be im-
proved." Harden also complained of the dust hazard in his polishing depart-
ment, and requested an assignment as a lathe operator in a new department
being set up. He suggested that an increase in pay would be acceptable. Harden
testified that Moss assured him that new heating facilities were being installed,
that he would give Harden "any job" he wanted and that he would give him
a raise. Harden testified further that Moss definitely promised to give him a
job operating a turret lathe in the screw machine department. Harden then
returned to work on the following day, December 28, 1943.a .
Moss testified, to the contrary, that Mrs. Harden called on him about January
1944, rather than in the preceding month ; that no note was presented, and that
he personally did not give her Harden's pay. His version of the interview reads
as follows :
She came in and asked for me and told me her husband Fred was sick
and would be off for a couple of weeks and wanted to know whether his
position would still be open when he came back, and I said, well, I will do
what I can to hold the position open, but when he comes back, let us see,
and that was the sum and substance of our conversation.
Moss further testified that he "requested one of the girls in the office to see [that
Mrs. Harden] received her husband's pay" and that "Harden came back about
two weeks later." Prior to Harden's return, as Moss testified, he had inquired
of Kirk what type of work Harden had done and how good his work was. Moss'
testimony as to Kirk's reply reads :
Kirk informed me he wasn't up to snuff, he never did get the knack of
polishing sheets, and, therefore, he could not use him.
Moss positively denied that he had received a phone call from Harden at this
time. He admitted that Harden received a raise on his return and was trans-
ferred to the turret lathe. Moss explained this increase as based on the fact
10 This note was not produced at the hearing . As appears below Moss testified positively
that no such note was presented.
60 Respondent ' s counsel stated at the hearing that Harden had testified that he was
absent in January, rather than December , and that his absence only lasted one day. The
record lends no support to this contention.
HENRY MOSS & COMPANY 145
that operating the turret lathe required more skill than did Harden's job as a
polisher.
In resolving these conflicts in testimony the undersigned notes that although
Harden testified without the aid of the respondents' records, his recollection is
substantiated by the time cards and Social Security data introduced by the re-
spondents. A copy of the quarterly report to the Social Security Board shows
that Harden was "out" in the weeks ending December,16 and 23 and that these
were the only weeks of absence during his full period of employment. Szerlip,
after reference to the records, at first testified that Harden did not return until
December 31, 1943. It was only after his attention was called to the fact that
the Social Security record indicated attendance in the preceding week that he
corrected this error. Further, time cards in evidence show that Harden re-
turned to work on December 28, 1943, and that his raise to 70 cents was effective
that week. Charles Moser, plant superintendent, whose jurisdiction extended
over both plants, a witness for the respondents, testified, without contradiction,
as to Harden's transfer :
I put him in the polishing department, and he reported sick, and Mr.
Moss recommended putting him in the screw machine department, and I did.
Moser further testified that he had never had occasion to talk with Kirk about
Harden's work since he "did his work all right until such time as he was home
sick." Under these circumstances and influenced in addition by the proven
inaccuracies and exaggerations in Moss' testimony relative to Schleenbecker's
work record, as discussed above, the undersigned accepts the testimony of Mr.
and Mrs. Harden relative to incidents connected with Harden's illness and trans-
fer to the screw machine department and rejects such testimony by Moss and
Szerlip as conflicts therewith.
All witnesses agree in testifying that Harden requested a transfer from his
job as turret lathe operator. Harden's statement was that he had difficulties
with the foreman. Moss, who stated that Harden was not efficient in the post,
testified as follows : "Well, he just was not fitted for that type of work. We
had constant tool breakage and he did not seem to get the feel of the machine,
and his foreman complained." "
Charles Moser, plant superintendent, whose approval was a necessary prerequi-
site for transfer in the 53rd Street plant, testified that Harden came to him with
a "complaint that the machine was too heavy for him and he could not handle
it the way he would like to." Later Harden was transferred to the engraving
department. The undersigned does not find it necessary to resolve the conflicts
in this testimony beyond noting that Moss' testimony as to Harden's inefficiency
is not borne out by the record. Moser was closer to Harden than Moss and yet
had no knowledge of the alleged ineffectiveness to which Moss testified.
Moser testified that William Dolphin, Harden's supervisor after his transfer to
the engraving department, had talked to him, "about four or five times" saying
"that his [Harden's] work wasn't satisfactory." Moser, however, did not talk
to Harden about the matter and testified that the early complaints of Dolphin
did not seem to him "really justifiable because the man would only be starting
in that department." 62 He stated, "the complaints later on impressed me a bit."
"Neither Moss nor Harden could give the foreman's name and it does not appear in the
record.
s< Dolphin gave testimony which corroborates Moser :
Q. But Mr. Moser told you to bear with him?
A. That is right
Q. And to go along with him?
A. That was after he received his own machine.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dolphin testified that Harden was inept and slow in mastering the technic of
operating an engraving machine, and that his spoilage was excessive amounting
to 10 percent whereas but 2 percent was recognized as permissible. No records
were kept of spoilage and Dolphin had no better basis for his estimate of 10 per-
cent than the amount of spoiled material he "found laid away." Moreover Dolphin
was not able to give the value of material spoiled. Harden testified that no one
criticized him for excessive spoilage, and that errors were made in the work
"practically every day." His further testimony reads :
As a matter of fact, whenever anything was spoiled, it was so natural that
they said "Forget about it. Don't worry about it." They said, "The more
you worry, the more mistakes you make "
In order to eliminate further mistakes, you had to forget this one, the last
one first, so you have to forget about those things. Those were very natural
things.
Harden further testified that his immediate superior, Dolphin, praised his work
and "acknowledged that I turned out very nice work only it is slower." '
The undersigned notes that Moser did not include excessive spoilage among the
matters about which Dolphin reported to him in discussing Harden's work.
Moser's testimony was that Dolphin reported that Harden's "work wasn't satis-
factory." When asked for Dolphin's specific complaints, Moser's answer reads as
follows :
Well, he told me the man can't set his own machine, I have to set the machine
for him, and when I told him what to do he is always arguing about this and
that, and he is doing the work improperly.
Dolphin testified that Harden advanced to the degree that he was able to set up
his own machine. Moss and Moser were the officials of the respondents responsible
for Harden's lay off on May 29, 1944. Neither testified that excessive spoilage by
Harden affected their decision. Both testified that in April 1944 when Harden
requested his last increase in pay they agreed to discharge him as soon as work
in the engraving department slackened. Under these circumstances the under-
signed concludes and finds that the record does not support respondents' conten-,
tion that excessive spoilage by Harden was a cause of his discharge.
Testimony regarding the circumstances attending Harden's final increase is
also directly in conflict. It is Harden's testimony that he first approached Dolphin
on the subject of an increase, saying that he did not like to go over Dolphin's head
in asking for a raise. Harden's testimony reads: "I said, I would like to get at
least ten cents this time, but he [Dolphin] said, `I don't think you will get more
than a nickel.' " Later, as Harden testified, he carried his request to Moss, who
promised to grant the increase but stated that it might take some time "to
straighten things out." After waiting some time, Harden again spoke to Moss
about the matter and was told the raise was going through. Later Moss handed
Harden a sure of money in fulfilliuent of this promise. Harden's testimony re-
garding the incident reads :
He [Moss] says "Here you are, Fred." He handed me an envelope., He
said, "Here you are, Fred. Here is your raise I promised you. Just keep up
the good work," and he patted me on the shoulder.
Harden did not remember exactly the amount contained in the envelope 'hichW
was in addition to the pay received on the regular pay days His best estimate
was that it was "either $168 or 2.68, I am not sure, . . . something like that."
Time cards in evidence show that Harden's last increase was effective in the
HENRY MOSS & COMPANY 147
week ending April 20, 1944. The sum required to ante-date this increase by one
week was $2.60 "
Moss and Moser agreed in testifying that Harden's last raise was "strictly a
hold up." Moss testified that Moser came to him telling of Harden' s request
which he stated was timed to coincide with a great press of work in the engraving
department. Moss' further testimony regarding the incident reads:
Mr. Moser came to me and said, "What am I going to do with him? He
wants an increase and he is not worth it. You want the jobs out and what
can we do?"
I said, "All right. give it to the guy. It is a hold up, it is not right. He is
not desirable, and in view of the fact that he is not a good operator, when
times are'slack, release him, dismiss him."
Moser's testimony given immediately following that of Moss, agrees, except in
the detail that Moser stated it was his suggestion, not Moss', that Harden be
given the increase Moser testified that Harden asked for a 10-cent increase and
was given but 5, and that Harden had then been in the engraving department
"around four or five months" which he admitted was long enough to qualify an
employee for a nickel raise. Moser's testimony relative to the "hold up" char-
acter of the raise was mates sally NNeakened by his turther testimony that Harden,
before the raise, was getting "somewhere around 85 or 90 cents an hour." An
increase of 5 cents an hour added to Harden's wage of 70 cents would still leave
his wage substantially below that level. As noted above, Harden was found to be
a trustworthy witness (Moss' testimony is both inexact and exaggerated. The
giving of a 5 cents an hot4r increase after three months service during war time
shortage of manpower can hardly constitute a "hold up" nor give justification for
discharge. Under these circumstances the undersigned accepts the detailed
ersion of this increase given by Harden and rejects the accounts given by Moss
and Moser insofar as they conflict with Harden's testimony regarding- the incident.
There is similar conflict in the testimony relative to Harden's termination.
Moser assumed responsibility for the actual discharge. He testified that in accord
with his understanding with Moss and after learning that the pressure of work
in the engraving department had decreased, he determined on May 29, 1944, to
let Harden go. Moser's testimony as to what transpired reads :
During the course of the day, I sent his card upstairs. I marked it
terminated at five o'clock, and I sent his card upstairs to the paymaster's
office, and had his pay made up, and also a release, and around 10 minutes of
five, I called him into the office and I told him, "I am sorry, but I have to
leave you go" and he says, "What is the matter?"
I said, "You are asking me what is the matter? You know as well as I do.
We haven't work enough to keep you moving and, secondly, your work has
not been up to standard."
And I gave him his two checks, had him sign the two cards and also gave
him the envelope with the release in it.
Harden's account reads as follows :
Mr. Charley Moser carne over to sue, and he told me about five minutes
before quitting time that, lie says "Fred, I am sorry to tell you this but I don't
think I will have enough work for you I have to let you off."
So I said to Mr. Moser "Why, I have some work unfinished yet."
13 In the preceding week ending April 13, 1944 , Harden worked 48 hours. The computa-
tion then is 40 hours at 5 cents or $2.00, and 8 hours at 7'4 cents or 60 cents.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
He says, "Well, we will have to finish that without you."
I says, "Are you laying me off definitely or indefinitely?"
He says, "Just for the time being until we find some more work for you."
I said "Would you let me know in case you find some work for me so I can
get back on the job?"
He said "I certainly will."
And that finished the conversation.
Harden agreed that he collected his pay that day. He was not certain whether
he received one check or two His testimony differed radically from that of
Moser on the matter of a release. Harden testified that he never received a
release from the respondents although about June 14, he telephoned to Moss ask-
ing that he be given one. Moss, at the time, promised to send one by mail. Failing
to receive this, Harden testified that he went to the War Manpower Commission,
stating that the respondents had refused to give him a release and procured one.
The testimony of Moser and Harden is in agreement that Harden returned
to the plant after May 29 and asked Moser whether there was any work for him.
Harden testified that Moser replied, "No, not yet, Fred, but I will let you know."
Moser's account of the interview reads, "I believe he returned about two weeks
after and asked if I had any work for him, I told him, 'I am sorry, I haven't."'
As set forth above, Szerlip did not include Harden's name in the list of eligible
voters delivered to Kearns on the evening of June 5. On the evening of June 6,
Harden made a speech at a union meeting, the content of which has been here-
inbefore discussed. It was Szerlip's testimony that he first learned of Harden's
discharge when he proposed to call him in after receiving reports from employees
concerning this speech. Manifestly this testimony is inconsistent with the fact
that Szerlip had earlier omitted Harden's name from the eligibility list. Harden
testified that he first learned that he had been discharged when Szerlip came to
the polling place and demanded of Kearns that Harden be ousted as a union
observer because he had been discharged.
Uncontroverted testimony in the record establishes that there was a shortage
of work in the engraving department about May 29. A night shift of two men
was then discontinued and another employee on the day shift had been laid off.
At the time of the hearing none of these employees had been recalled to the de-
partment After consideration of the record and the demeanor of the witnesses
testifying, the undersigned concludes and finds that Harden was temporarily laid
off on May 29, 1944, and that such lay-off was based on business considerations.
Harden had not joined the Union until February 1944. He attended union
meetings and handed out application cards to fellow employees. He was selected,
at a date not exactly established in the record but prior to his lay off on May 29,
to serve as an observer for the Union in the Board election of June 7, 1944. On
the evening of June 6 he made the speech at the union meeting which provoked
Szerlip's reply on the day of the Board election.
Moser testified that his action in laying off Harden was pursuant to the under-
standing reached with Moss in April. His testimony that he discharged Harden
on May 29, 1944, and gave him a release on that date signed by Moss is hardly
consistent with his further testimony, elicited on cross-examination, that Harden
later returned asking if he had work for him and was told, as Moser testified,
"I am sorry I haven't." Moreover, Kearns gave uncontroverted testimony 64 to
' Kearns ' testimony , given after reference to his file memorandum made at the time,
reads as follows :
Q Will you give your best recollection of what was said by you and Mr. Szerlip
with respect to that occasion?
HENRY MOSS & COMPANY 149
the effect that on June 6, he called Szerlip and inquired why Harden's name was
not on the eligibility list. Szerlip told him Harden was laid off. On further
inquiry by Kearns, Szerlip stated that the lay-off was not temporary. At this
time Kearns told Szerlip the Union had informed him that Harden had not been
given a release.
In appraising the testimony of Moss and Moser relative to the raise Harden
received effective in the week ending April 20, 1944, the undersigned has been
influenced by the incident established in the undenied testimony of Schleenbecker
that Moss gave him $3.00 in partial compensation for time lost when he had
suffered injury by stepping on a nail. The detailed story in the testimony of
Harden as to Moss giving him a similar sum to antedate his formal increase of
April 20 by one week has thus an established precedent. Moreover, Moss, in the
case of Harden as in that of Schleenbecker, was over-anxious in his testimony to
attack Harden's work record. Moss' attack on Harden's work in the polishing
department is refuted by Moser's testimony that he had no complaints on Harden's
work "while he was employed in the polishing room." After considering the
record as a whole and the demeanor of the witnesses concerned, the undersigned
accepts the account given by Harden of incidents connected with his raise effec-
tive in the week ending April 20, 1944, and of the additional sum given by
Moss which antedated it 1 week, and rejects testimony by Moss in conflict
therewith.
Concluding findings
The contradictory and conflicting nature of the testimony in this proceeding
imposes on the undersigned the duty of resolving these conflicts. After con-
sideration of the complete record and of the demeanor of the witnesses con-
cerned, the undersigned concludes and finds that the respondents found Harden
an acceptable employee and desired to retain his services until their good will
toward him was alienated by Harden's union activities. In the closing days of
December 1943, Moss made a direct appeal to Harden, through his wife, to
induce him to return to the respondents' plant. Moss at this time arranged for
Harden's transfer and granted him a raise. In February 1944, Harden joined
the Union and became progressively prominent in its activities. Moss neverthe-
less gave him another raise in April and antedated it 1 week by personally
giving Harden a sum of money. Harden's lay-off on May 20, 1944, was based on
slack work in the engraving department.
On June 5, Szerlip omitted Harden's name from the list of employees eligible
to vote in the election on June 7. On June 6, as stated above, he informed Kearns
that Harden had been permanently discharged Harden had not on that date,
as Kearns pointed out to Szerlip, been given the release which all employees
received when discharged. The Board's decision in the representation pro-
ceeding provided that employees temporarily laid off were to be included on the
list of eligible voters. The undersigned finds in the omission of Harden's name
an act by the respondents similar in intent to their delay in posting the official
notices of election and in compiling the eligibility list. The purpose was plainly
to interfere with plans for the election and to adversely affect the Union's pros-
pect of success in the election. By June 5, it may fairly be inferred, the respond-
ents knew of Harden's selection to act as observer for the Union at the election.
That they possessed such knowledge before the election is shown by the other-
A. I asked Mr. Szerlip why his name did not appear on the list, and he said he
would call me back when he phoned me back he said the man was laid off. I said
was it a temporary lay off, and he said no. I said the union informed me Harden
had not received a release, and Mr. Szerlip said all people laid off receive releases.
0
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wise inexplicable attack by Szerlip on both Harden and Perito, the union observ-
ers, in his June 7 speech before the election. The inference is further supported
by the fact that Morgenstern immediately on the opening of the polls questioned
Harden's right to serve as union observer Moreover Szerlip came at once to the
polls to support Morgenstern 's protest when its rejection by Kearns was reported
to him. The undersigned finds that Szerlip's action on June 5 constituted a dis-
charge of Harden motivated by a desire to exclude Harden from participation in
the election as a union observer
On the evening of June 6, Harden made a speech at the union meeting in
which he argued, inter alts, that there was need for union representation in
the respondents' plants since wage, safety, and health conditions were in need
of improvement. Nothing in the record indicates that Harden went beyond
the limits of legitimate union activity. Szerlip received garbled accounts of
this speech next morning Thereafter he assembled the employees at each plant
and, after refuting Harden's supposed misstatements, attacked his efficiency as
a work man and decried his ability to hold a job. The animus against Harden
expressed by Szerlip to the employees assembled at each plant was directly
aroused by Harden's legitimate union activities It found further expression
when Szerlip went to the polling place and in the presence of a dozen employees
loudly announced that Harden had been fired and that his continuance as a
Union observer would render the election a farce The conclusion is inescapable
that Hai den's union activities affected in substantial degree both the respondents'
decision to discharge him and their later refusal to rehire him. The undersigned
not'•s that while the engraving' department was overmanned on May 29, 1944,
there was a continuing shortage of manpower in the respondents' plant. The
polishing department, where Harden had been an efficient workman, hired a
dozen employees after March 1943 Yet the respondents made no move to
recall Harden.
The discharge of Fred Harden by the respondents on June 5, 1944, is found
to have been discriminatory, based on his union membership and activity By
such action the respondents have discriminated in regard to his hire and tenure
of employment: have discouraged membership in a labor union; and have inter-
fered with, restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act
D Additional acts of interference, restraint, and coercion
When the union started its organizational campaign in 1943, Szerlip came
to Kirk and rlue.tionecl him regarding his membership Kfik answered that he
had joined. Nothing further was said"
About January 1944, Szerlip also questioned Bulin about the Union, asking
if he intended to, join Bulin replied that he had done so. Szerlip thereupon
said "something like" that Bulin was a big fool to join °G As noted above, Szerlip
at the representation proceeding on April 13, 1944, evinced knowledge that both
Kirk and Bulin were members of the Union at that time
Sometime in January 1944, as Kirk testified, Moss calve to him in the shop
and asked him not to attend a union meeting. Kirk agreed not to do so. Moss,
thereupon, said, "You will go over and ask Howie I Schleenbecker] to do the
same." Kruk said, "You approach Howie yourself" floss thereafter went to
65 These findings aie based on credited and uncontroverted testimony by Kirk.
°' Bulm, called as a witness by the Board, was a very reluctant witness However, since
lie testified to the above facts in unequivocal fashion and Szerlip did not deny the incident.
his testimony is credited.
HENRY MOSS & COMPANY 151
Schleenbecker and conversed with him. There is partial corroboration for this
testimony by Kirk since Schleenbecker testiflad , as stated in detail above, that
Moss came to him 'in January 1944, and asked what he intended to do about the
Union. Moss did not specifically deny this teslimony by Kirk and Schleenbecker
and it has been credited by the undersigned.
The undersigned finds that by these acts and utterances of Szerlip and Moss,
and by the course of conduct pursued by the respondents preceding and during
the election conducted by the Board on June 7, 1944 , as set forth above, the
respondents have interfered with, restrained , and coerced their employees in
the exercise of the rights guaranteed in Section 7 of the Act 54
IV. TIIE EFFECT OF THE UNFAIR L\BOI: PRACTICES UPON COMMERCE
It is found that the activities of tire respondents set forth in Section III,
above, eccuiring in connection with the operations of,the respondents described
in Section I, above, have a close, intimate , and substantial relation to, trade,
traffic, and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor practices
the undersigned will recommend that they cease and desist therefrom and take
certain affirmative actions found necessary in order to effectuate the policies
of the Act.
Since it has been found that acts and utterances of the respondents have so
affected the Board election held on June 7, 1944, that it did not fairly reflect
the untrammeled wishes of the respondents' employees, it will be recommended
that this election be set aside.
It has been found that the respondents discharged Howard Schleenbecker
and Fred Harden and thereafter refused to reinstate them for the reason that
they joined and assisted a labor organization and engaged in concerted activi-
ties for the purposes of collective bargaining and other mutual aid and pro-
tection It will be recommended that the respondents offer these employees
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges
they may have. It will be further recommended that the respondents make
them whole for any loss of pay they may have suffered by reason of respondents'
discriminatory action, by payment to each of them of a sum of money equal to
the amount he normally would have carried as wages from the date of his
discriminatory discharge to the date of the respondents' offer of reinstatement,
less his net earnings n during said period.
61 At the hearing, the Board further contended that certain utterances of Working Fore-
man Dolphin were ascribable to the respondents and constituted interference, restraint or
coercion. Dolphin was included in the appropriate unit under the Board's decision in the
representation proceeding. He voted on June 7, 1943. On the whole record, the mmdei-
signed finds that Dolphin's utterances were not ascribable to the respondents, but rather
occurred in the legitimate exchange of opinions with his fellow workmen Accordingly. no
merit is found in this contention by the Board
68 By "net earnings" Is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining a oik and working else-
where than for the respondent, which would not have been incuired but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N L. R B. 440. Monies received for work performed upon
Federal, State, county, municipal, or other work-relief projects sliall be considered as earn-
ings. See Republic Steel Corporation v. N. L. R B , 311 U S 7.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findings of fact and upon the entire record In
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Metal Engravers Union is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Howard Schleenbecker and Fred Harden, thereby discouraging membership
in a labor organization, the respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (3) of the Act.
3. 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 and are engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondents, B. F. Moss, George Moss, Arthur
Szerlip, and L. H. Szerlip, co-partners doing business under the trade name and
style of Henry Moss & Company, and their officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Metal Engravers Union or
any other labor organization by discriminating in regard to hire and tenure
of employment or any terms or conditions of employment of their employees ;
(b) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form labor organ-
izations, to join or assist International Metal Engravers Union or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective
bargaining, or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Howard Schleenbecker and Fred Harden immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges;
(b) Make whole these employees for any loss of pay they may have suffered
by reason of respondents' discrimination against them by payment to each of
them of a sum of money equal to the amount which he normally would have
earned as wages from the date of the respondents' discriminatory discharge
to the date of the respondents' offer of reinstatement, less his net earnings
during said period ;
(c) Post at their plants in Brooklyn, New York, copies of the notice attached
hereto marked "Appendix A." Copies of said notice to be furnished by the
Regional Director of the Second Region shall, after being duly signed by the
respondents' representative, be posted by the respondents immediately upon
receipt thereof and maintained by them for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees
19 See footnote 58, supra.
HENRY MOSS & COMPANY 153
are customarily posted. Reasonable steps shall be taken by the respondents
to insure that said notices are not altered, defaced, or covered by any other
material;
(d) File with the Regional Director for the Second Region on or before
ten (10) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondents have
complied with the foregoing recommendations.
It is recommended that the election held by the Board on June 7, 1944, be
set aside.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondents notify said Regional Director
in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to
take the action aforesaid
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions,or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of the order transferring the case to the Board.
CHARLES E PERSONS,
Trial Examiner.
Dated May 28, 1945.
APPENDIX A
N. L. R. B . 577 (9-1-44)
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce, our employees
in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist -------------------- or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
We will offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the dis-
crimination.
Howard Schleenbecker
Fred Harden
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
B. F. Moss, GEORGE Moss, ARTHUR SzERIaP and L. H SZFRaIP, co-partners,
doing business under the trade name and style of HENRY Moss &
COMPANY (Employer)
Dated------------------------ By-------------------
(Representative) (Title)
NorE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the selective service act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.