J.H. Stone & Sons

National Labor Relations Board - Board Decisions

Jul 31, 1941

33 N.L.R.B. 1014 (N.L.R.B. 1941)

In the Matter of NORMAN H. STONE, MARVIN N. STONE AND JEROME
H. STONE, JR ., DOING BUSINESS AS J. H . STONE & SONS and INTERNA-
TIONAL PRINTING PRESSMEN AND ASSISTANTS ' UNION, BOX AND
CARTON LOCAL #415
Case No. C-1861.-Decided July 31, 19411
Jurisdiction : corrugated shipping container manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: influencing employees against union by:
statements of respondent's attorney at plant mass meeting of employees; vol-
untary granting of vacations and pay raises ; urging employees to' elect
"monitors" to act as their representative for the purpose of handling griev-
ances ; preparation and coercive submission to employees of individual con-
tracts of employment, each containing a blank for the designation of a
bargaining "representative"-interfering with Board election by : questioning
employees concerning their union affiliation and by sending letters containing
statements calculated to affect employees' choice in election.
Remedial Orders : employer ordered to cease giving effect to individual contracts
of employment and to give written notice of their invalidity to each employee
who signed such a contract.
Mr. Stephen M. Reynolds, for the,Board.
Jacobson, Merrick, Nierman c Silbert, by Mr. David Silbert and
Mr. Robert B. Shapiro, of Chicago, Ill., for the respondent.
Mr. Robert L. Kelley, Jr., of Chicago, Ill., for the Union.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TIIE CASE
Upon amended charges duly filed by International, Printing Press-
men and Assistants' Union, Box and Carton Local #415, herein
called the Union, the National Labor Relations Board, herein called
the Board, by Isaiah S. Dorfman, Acting Regional Director, for the
Thirteenth Region (Chicago, Illinois), issued its complaint, dated
February 10, 1941, against Norman H. Stone, Marvin N. Stone 1 and
1 Designated as Marvin H. Stone in the complaint but corrected by stipulation at'the
hearing.
33 N. L. R. B., No. 180.
1014
NORMAN H. STONE 1015
Jerome H. Stone, Jr., doing business as J. H. Stone & Sons, Chicago,
Illinois, herein called the respondents, alleging that the respondents
had engaged in and were engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondents and the Union.
Concerning the unfair labor practices the complaint, as amended
during the hearing, alleged, in substance, that the respondents : (1)
from about April 4, 1939, to date, warned and discouraged their em-
ployees from joining or becoming active in the Union; (2) questioned
their employees about their union membership and activities; (3)
called a meeting of their employees on August 5, 1939, during work-
ing hours and made statements disparaging unions; (4) about May
3, 1940, distributed a letter to their employees to discourage union
membership and 'activity and to influence and coerce them to vote
against the union in an election to be conducted by the Board on May
8, 1940; and (5) caused their employees from about August 7, 1939, to
date to enter into certain individual contracts, thereby violating the
rights guaranteed to said employees under Section 7 of the Act.
On March 1, 1941,2 the respondents filed an answer which, in effect,
denied all allegations of unfair labor practices and affirmatively
averred : (1) that the individual contracts were offered to and ac-
cepted by employees who desired them and such contracts did not
constitute an unfair labor practice; (2) that the contract issue as
alleged in the complaint was moot; (3) that a prior adjudication in
a representation case involving the same parties 3 is a bar to the
present proceeding; and (4) that delay on the part of the Union in
filing charges with the Board based on the meeting in the plant on
August 5, 1939, the individual contracts, and the letter of May 3,
1940, is a bar to the present proceeding.
Pursuant to amended notice, a hearing was held in Chicago, Illi-
nois, on March 3, 4, and 5, 1941, before P. H. McNally, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the Union, and the respondents were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. At the commencement of the
hearing, the Trial Examiner denied the motion of the respondents to
dismiss the-complaint, based upon (1) prior adjudication in the repre-
z The Regional Director on February 14, 1941, entered an order extending the time for
answer to March 3, 1941.
3 Matter of Norman H. Stone, Marvin H . Stone, and Jerome H. Stone , Jr., doing business
as J. H Stone & Sons and International Printing Pressmen and Assistants ' Union, Boa
and Carton Local #415, 25 N. L R B. 19.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentation case of all matters in the complaint,4 and (2) delay on
the part of the Union in filing charges with the Board concerning
the plant meeting of August 5, 1939, the individual contracts, and
the letter of May 3, 1940. During the course of the hearing the
Trial Examiner made a number of rulings on other motions and on
objections to the admission of evidence. Motion of the Board's coun-
sel to conform the pleadings to the proof was granted. At the con-
clusion of the Board's case and at the close of the hearing the
respondents moved to dismiss the complaint. The motions were de-
nied. The Board has reviewed all the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. -
On April 11, 1941, the Trial Examiner filed his Intermediate Re-
port, copies of which were served upon all the parties, in which he
found that the respondents had engaged in and were, engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondents cease and desist from their unfair labor
practices and give notice to each of their employees who has signed
an individual contract of employment that such contract will not in
any matter be enforced or attempted to be enforced, that the employee
is not required to deal with the respondents through the "representa-
tive" named in the contract, and that such discontinuance of the
contract is without prejudice to the assertion of any legal rights the
employee may have acquired under the contract. Exceptions to the
Intermediate Report were filed by the respondents.
Pursuant to notice and at the request of the respondents, a hearing
was held before the Board at Washington, D. C., on June 5, 1941,
for the purposes of oral argument. The respondents were repre-
sented by counsel and 'participated in the argument. The Board has
considered the exceptions to the Intermediate Report and the argu-
ments advanced before the Board, and, in so far as the exceptions
are inconsistent with the findings, conclusions, and order set forth
below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Norman H. Stone, Marvin N. Stone, and Jerome H. Stone, Jr.,
co-partners doing business as J. H. Stone & Sons, are engaged in the
k Objections filed by the Union in the representation case were overruled by the Board in
that proceeding. Aside from the fact that no unfair labor practices were adjudicated In
that proceeding, the objections raised therein by the Union did not involve the acts of
Interference alleged in the complaint.
NORMAN H. STONE 1017
manufacture and sale of corrugated shipping containers, with their
principal office and place of business in Chicago, Illinois. The mate-
rials used in the respondents' manufacturing operations are jute,
kraft, chip straw board and other materials, -approximately 65 per
cent of which is annually shipped to them from points outside the
State of Illinois. Approximately 5 per cent of the products manu-
factured by the respondents is annually shipped to points outside the
State of Illinois. Their purchases of raw materials in 1939 were
valued at approximately $850,000, while their sales for the same
period totalled about $1,400,000.
II. THE ORGANIZATION INVOLVED
International Printing Pressmen and Assistants' Union, Box and
Carton Local #415, is a labor organization affiliated with the Ameri-
can Federation of Labor, and admits to membership employees of
the respondents.
III. THE UNFAIR LABOR PRACTICES
Interference, restraint, and coercion
1. The meeting in the plant on August 5, 1939
According to the testimony of the respondents' superintendent,
there were sporadic union discussions among employees during the
latter part of 1938 and the first of the year 1939. In April 1939,
Hetzer, an organizer for the Union, began soliciting employees of
the respondents to join the Union by meeting them at 'their homes.
On August 4, Hetzer visited the office of Shaeffer, then attorney
for the respondents, and (1) made a demand that the Union be rec-
ognized as the exclusive bargaining agent of the respondents' em-
ployees; (2) presented a proposed contract from the Union respecting
wages, hours, and conditions of employment; and (3) turned over to
Shaeffer the signed union membership application cards executed
by the respondents' employees so that Shaeffer might assure himself
that the Union represented a majority. Shaeffer, at this meeting,
counted and returned the cards and admitted that the Union had a
majority. He advised Hetzer, in effect, that the matter of recogni-
tion and the contract would be presented to the respondents and
that Hetzer should call at Shaeffer's office the following Monday
(August 7) for a definite statement as to the respondents' position 5
On Saturday, August 5, shortly after 1 p. in. when the plant op-
erations had been closed down for the weekend, the respondents
5 The findings in this paragraph are based upon the uncontradicted testimony of Hetzer
which is credited by the Board.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assembled their employees in the plant to hear a speech by Jacobson,°
attorney for the respondents.7 Jacobson made a "long speech" during
which he read the National Labor Relations Act, cited government
statistics showing the amount of time lost by workers due to strikes
in industry and told the employees, in effect, (1) that they were free
to join or not join a union; (2) that their choice in this respect could
be freely exercised because the respondents would see to it that they
were not forced to join the Union ; and (3) that the employees at
their option could bargain with the respondents either individually
-or collectively through an agent; and (4) that the respondents had
decided to grant vacations with pay to the employees. Ballots were
then distributed to the assembled workers in order that they might
vote: (1) to work the year round with the same pay without striking
and (2) to select "monitors." 8 The result of the balloting was not
established, but it does appear that monitors were selected by the
employees. The purpose of the election of "monitors" was that they
should prepare vacation schedules and should act as representatives
of the employees in the handling of grievarices.9 The "monitors" did
promptly prepare the vacation schedules, and the employees were im-
mediately granted vacations in accordance therewith.
According to the respondents, the employees, prior to August 5,
discussed unionism during working hours to such an extent that it
interfered with production, and during this period many of its em-
ployees sought advice from various supervisors as to their rights
under the Act. The respondents contended that Jacobson's speech
was intended to remove the cause of such discussions and to furnish
the requested advice. In view of the timing of the speech and its
content the Board rejects this contention.io
We find, as did the Trial Examiner, that Jacobson's speech to the
employees was the respondents' answer to the demand for recognition
made by the Union on the previous day; that the respondents' pur-
0 Of Jacobson, Merrick, Nierman & Silbert, attorneys-at-law, who thereafter represented
the respondents in labor matters
7 Superintendent Snyder testified that he could not state whether the employees were
paid for their time while attending this meeting without checking the records
8 On the basis of the uncontradicted testimony of Kulps, an employee, we find, as did the
Trial Examiner, that both these propositions appeared on one ballot.
0 This finding is based upon the testimony of several employees who testified on behalf
of the Board. We agree with the Trial Examiner who accepted such testimony rather
than the testimony of Snyder, the superintendent, to the effect that the monitors were
elected for the sole purpose of arranging vacation schedules
10 In any event, requests by employees for advice do not privilege an employer to make
statements, as did the respondents, which are calculated to interfere with and coerce its
employees in the exercise of rights guaranteed by Section 7 of the Act. See Matter of
Ingram Manufacturing Company and Textile Workers Organizing Committee, 5 N. L R. B.
908; Matter of Wickwire Brothers and Amalgamated Ass'n of Iron, Steel & Tin Workers
of North America, Lodge #1985, through S. W. O. 0., affiliated with the C. 1. 0., 16 N. L.
R. B. 316; National Labor Relations Board v The Federbush Co, Inc, 121 F. (2d) 954
(C. C. A. 2), decided July 18, 1941. .
NORMAN H. STONE 1019
pose in taking a vote to elect monitors was to create grievance
machinery in place of that proposed by the Union; that by the
citation of statistics showing time lost by strikes and the presenta-
tion of the question whether the employees desired steady work with-
out strikes, the respondents intended to convey the impression that
unionization and steady work were mutually exclusive alternatives;
and that the respondents granted vacations with pay for the purpose
of influencing the employees to abandon the Union. That the re-
spondents intended to undermine the Union and to provide themselves
with an excuse for refusing the Union's request for collective bargain-
ing is further indicated by the fact that when Hetzer communicated
with Shaeffer on August 7, to obtain the respondents' answer to the
Union's-request of August 4, he was told that "everything was off,
that he wouldn't have anything further to do with us." We find,
as did the Trial Examiner, that by Jacobson's speech to the employees
on August 5, the respondents interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed under Sec-
tion 7 of the Act.
2. The individual contract
On August 7 or August 8 Superintendent Snyder caused foremen
and other employees to distribute identical blank individual contracts
to all employees of the respondents in the plant. The contract so
distributed read as follows :
EMPLOYMENT CONTRACT FOR 1939
Between J. H. STONE & SONS and ____________________-
Employes.
To promote steady employment at the highest and fairest
wages, to maintain harmony and to prevent strikes and labor
troubles for the worker or management, it is agreed :
1. STEADY EMPLOYMENT. The Company has provided
steady employment for over 14 years, during wars, panics, depres-
sions and prosperity, and the Company hereby employs the
above named Employee, on the same basis of steady employment,
to do the work now or hereafter assigned to him in the --------
department, and he hereby agrees to perform such work efficiently
and properly.
2. WAGES. (a) Wages Provided By Law Will be Paid-
The Company agrees to continue to pay during the year 1939
the same rate of wages per hour, or per production, now being
paid, and the Company will in every respect conform to the
provisions of the Fair Labor Standards Act of 1938, (generally
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known as the National Wage and Hour Law), in respect to
overtime and holiday work.
(b) Guarantee of Best Wages in Industry. The Company has
for 13 years been in the front rank in paying the most wages in
each year, and in raising and paying the highest wages which its
business and competition has permitted, and desires to continue
to do so in the future. Therefore, whenever during the life of
this contract the rate of wages per week for the same kind of
work shall be increased by its three biggest competitors in Chi-
cago, over the rates paid this Employee, the Company agrees
immediately to raise such rate of wages to equal the average
such increased rate.
3. FURTHER INCREASES IN WAGES. The company
further agrees to increase wages of the Employee :
(a) In the event a majority of the Employees in this plant
receive a general increase of wages, then the undersigned em-
ployee shall immediately be entitled to a proportionate increase
in his or her wages.
(b) In the event the operations and business of the Company
shall improve and justify an increase in wages without putting
it at a disadvantage with its three largest competitors, then
there shall be an increase of wages to the undersigned Employee.
(c) To increase wages to recognize special merit and efficiency
of the Employee.
4. NO REDUCTION IN RATE OF PAY. During the life
of this contract the rate of pay shall not be reduced.
5. BONUS AND VACATIONS. The Employee shall receive
after one year's continuous service with the Company, one week's
vacation, with pay, at times agreed upon, or such Employee, at
his option, may receive at Christmas time a bonus in a sum
equal to one average week's wages. If the Employee has been
continuously employed in this plant less than 1 year, but 6
months or longer by Christmas, then such Employee, at his
option, shall receive either (1) a bonus pay in proportion to
the then entire time of service or (2), a vacation equivalent
thereto.
6. HOURS AND OVERTIME. 44 hours in conformity with
the law shall constitute a normal week's work. Beginning Octo-
ber 1, 1939 the hours of work shall be reduced to 43 hours. All
time work in excess of such hours shall be paid at the rate of
one and one-half times the normal rate. This includes any
necessary work that must be done on' the following holidays;
New Year's, Labor Day, Decoration Day, Thanksgiving Day,
Fourth of July and Christmas.
NORMAN H. STONE 1021
7. PREFERENCE AND SENIORITY. In case of slack
periods or other requirements of the Company, it reserves the
right to lay off or to stagger available work on a fair and equit-
able basis, but in all such cases the Company with all reasonable
practicability shall give preference to the Employee in re-employ-
ment, and to all others, similarly situated, before any new help
is employed for the same work. DISCHARGE. The com-
pany may discharge without notice, only for such reasonable
and proper causes as are generally accepted and lawful grounds
therefor, including inefficiency, insubordination, dishonesty,
theft, drunkenness or violation of rules of safety or plant
regulations. '
8. ADJUSTMENTS. The Company will endeavor to adjust
with the Employee all complaints and disputes by negotiation, if
possible. If it cannot be so adjusted, the Employee hereby se-
lects __________ as his representative and arbitrator, and the
Company selects its superintendent as its representative, and
they shall promptly hear and adjust all such complaints, or
failing to do so shall select a third disinterested arbitrator, which
three shall promptly hear, adjust and arbitrate every such com-
plaint or dispute. The decision of a majority of such Board
to be final on both Employee and Employer.
9. DURATION OF EMPLOYMENT. This contract shall
remain in full force and effect until December 31, 1939, and then
may be renewed by mutual consent from year to year thereafter
only upon such terms as may be entirely satisfactory to the
Employee and the Company. Dated __________, 1939.
By:
J. H. STONE & SONS,
-------------------------------
Employer
-------------------------------
Employee
Shortly after the distribution of the contracts the respondents
granted a general 8-per cent increase in wages."
The circumstances under which the contracts were submitted were
in themselves coercive. 12 The tender of the contracts shortly after
the Union's request for exclusive recognition, and the unsolicited
11 The terms of the contract , and the wage increase , were made applicable to employees
who rejected as well as to those who signed the individual contracts
13 One employee testified without contradiction that after he had refused on two or three
occasions at the request of his foreman to sign a 1939 individual contract of employment,
Superintendent Snyder requested 'him to sign this contract, stating that although the
acceptance of the contract was not compulsory, practically all the employees had signed
similar contracts . After this conversation the employee signed an individual contract of
employment.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granting of vacations with pay, wage increases, and other 'benefits
made it plain to the employees that the respondents desired them
to sign the contracts rather than to attempt to bargain collectively
through the Union, and had the purpose of persuading them. that
it was unnecessary to join or remain a member of the Union in
order to obtain the benefits that normally result from collective
bargaining.'
One hundred and seven of the one hundred and fifty-two employees
on the pay roll executed the 1939 contract.
Further proof that the respondent caused the individual contracts
to be signed in order to avoid collective bargaining is established
by the undenied testimony of Hetzer that at a meeting in the fall
of 1939 the respondents' attorney, Silbert, stated that the individual
contracts had supplanted and superseded the membership application
cards of the Union.
During the latter part of December, the respondents submitted by
mail to all employees for their acceptance copies of 1940 individual
employment contracts, stating in the letter of transmittal that the
respondents did not desire to influence the employees "as to whether
or not [they] should sign this contract." The 1940 contract was
identical with the 1939 contract except that the workweek was re-
duced from 42 to 40 hours in accordance with the Fair Labor Stand-
ards Act: It was established that 144 of the 163 employees in the
plant executed and returned the 1940 contracts.
During the early part of January 1941, the respondents distrib-
uted contracts to their employees for the current year. The con-
tracts were identical with the 1940 agreements except that time and
one-half would be paid for Sunday work, an additional benefit volun-
tarily granted by the respondents. The evidence establishes that
the contracts were handed out to the employees with their pay
checks or were delivered by the clerk or employee who passed out
the pay checks to the employees. The respondents submitted evidence
showing that as of the date of the hearing 45 of their 201 employees
had executed the 1941 contracts.
The respondents contend that the 1939 contracts were offered to the
employees because due to the enlarged operations of the Company in
the new plant, the respondents had hired new skilled employees who
desired some security or assurance of steady work. According to the
evidence, the respondents in June, July, and August 1939 added some
50 additional employees to their pay roll, some of whom were skilled,
The respondents further stated, in effect, that when they reached the
13 A number of employees testified that they understood that they could sign these indi-
vidual contracts of employment and still retain their membership in the Union. This
testimony does not alter our conclusion stated above.
NORMAN H. STONE 1023
conclusion to give the new skilled employees-a contract, they decided to
and did offer such contracts to all employees. We are of the opinion,
however, that the introduction of individual employment contracts
within 3 or 4 days after the Union's request for collective bargaining
was the second step in the respondents' program to defeat the unioni
nation of the plant.
We have found above that the 1939 contracts were the fruit of the
respondents' interference, restraint, and coercion and had the purpose
of defeating unionization of their employees. The 1940 and 1941
contracts were a continuation of this program. The employees were
never advised and had no reason to believe that the respondents had
receded from their anti-union policy. It is therefore found that the
1940 and 1941 contracts, as well as those for 1939, were signed by the
employees, not as a matter of free choice, but as a result of the unfair
labor practices of the respondents in initiating the individual contracts.
Paragraph 8 of the contract reads as follows :
8. ADJUSTMENTS. The Company will endeavor to adjust
with the Employee all complaints and disputes by negotiation, if
possible. If it cannot be so adjusted, the Employee hereby selects
-------------------- as his representative and arbitrator, and
the Company selects its superintendent as its representative and
they shall promptly hear and adjust all such complaints, or failing
to do so shall select a third disinterested arbitrator, which three
shall promptly hear, adjust and arbitrate every such complaint or
dispute. The decision of a majority of such Board to be final on
both Employee and Employer.
We find, as did the Trial Examiner, that the clause in question, in
itself, is violative of the rights guaranteed in Section 7 of the Act.
The terms of this provision preclude an employee from dealing with
the respondents through a representative until after there has been an
attempt at settlement of the dispute by direct dealing between the
respondents and the individual employee. The effect of this restric-
tion is that, at the earliest and most crucial stages of adjustment of any
dispute, the employee is denied the right to act through a representa-
tive and is compelled to pit his individual bargaining strength against
the superior bargaining power of the employer.14
The Board in considering an identical clause stated "It may be seri-
ously doubted whether the so-called `representatives' even if we regard
"A number of witnesses testified that they understood that they could designate any
person or labor organization in the "adjustments" clause of the-contract as their repre-
sentative or that they could refrain from designating any representative. The record
shows that some of the employees designated themselves as their representatives , some
designated certain individuals ; others failed to make any designation ; and, although there
were apparently a number of union members at the plant, none of the employees designated.
the Union as their representative.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them as having been duly designated as such, were empowered by the
contract to act in any capacity other than as arbitrator in disputes
arising under the contract. In any event . . . . the contracts were
characterized by a complete lack of opportunity for collective bar-
gaining between the respondent and the `representatives' of its
employees." 15
In enforcing the Board's Order in the above case the United States
Circuit Court of Appeals for the Seventh Circuit stated, "Moreover,
it is our conclusion that the adjustments or arbitration clause found
in all these contracts, in itself violates the Act in that it has the obvious
effect of restraining the employees in the exercise of their rights under
Section 7 of the Act." 16
3. Questioning employees as to their union membership
About March 15, 1940, Attorneys Silbert"and Shapiro, in the employ
of the respondents, severally interviewed all the respondents' em-
ployees. The employees were summoned to an office in the plant
during working hours and asked by the attorneys whether they had
any unsatisfied grievances against the respondents which they pre-
ferred not to take up with their superiors, whether they belonged to
the Union, if they desired the Union to represent them, and whether
they had signed the 1940 contract. Each employee was also informed
during the interview that he had a right to join a union and that the
respondents had no objections to unions. At the conclusion of the
interviews the employees were requested by the attorneys to sign a
statement containing their answers to the questions propounded. The
attorneys explained at the hearing that such interrogation of the re-
spondents' employees was a "survey" similar to that made by them for
all industrial-relations clients and that the objective of the survey
was to ascertain and adjust complaints or grievances which employees
would not present to a supervisor because they feared retaliation.
Attorney Shapiro explained that, the reason he inquired of the em-
ployees whether they had signed the 1940 contract was that he did
not have the contracts with him-that some of them had been mislaid;
and that the contracts had not been codified. He further stated that
he interrogated the employees concerning their union membership to
ascertain whether the Union had sufficient membership among the
respondents' employees to warrant an election in a pending represen-
tation proceeding. Attorney Silbert stated, in effect, that in making
inquiry regarding union membership, where the union application
' Matter of Superior Tanning Company and National Leather Workers Association,
Local 43, 14 N. L. R. B. 942
11 National Labor Relations Board v. Superior, Tanning Company, 117 F (2d) 881 (C. C A
7), cert. den. 313 U. S. 559.
NORMAN H. STONE 1025
blank was signed, and whether the workers wanted the Union to
represent them, he was prompted by a desire to, ascertain the wishes
of a majority of the employees to the end that if a majority were for
the Union it would be recognized as exclusive bargaining agent by
the respondents. _
These explanations do not justify the respondents' activities. By
their survey the respondents obtained information concerning the
union membership and activities of their employees, thereby invading
a field of union activity reserved by the Act to the employees.17
Moreover, the Board concludes that the real reason for the interro-
gation of the respondents' employees was to inform them that the re-
spondents were still opposed to the unionization of the plant and to
coerce and intimidate them on the eve of a Board hearing 18 which had
been scheduled to determine the then existing question concerning the
representation of employees of the respondents. We find, as did the
Trial Examiner, that the "survey" was in reality another step in the
respondents' program to perpetuate a system of individual contracts
with their employees and to interfere with the exercise of the rights
guaranteed their employees by Section 7 of the Act.
4. The letter mailed to employees on May 3, 1940
In anticipation of an election to be conducted by the Board on
May 8, 1940, the Union, under date of April 24 and May 1, 1940,
addressed letters to employees of the respondents urging them to
vote for the Union. In these letters the Union , inter alia , stated in
effect, (1) that the respondents had fought union organization of the
plant; ( 2) that the individual contracts guaranteed nothing as to
working conditions and wage increases ; and (3 ) that the Union after
being selected the exclusive bargaining agency in the coming election
would present a contract providing for increased wages, seniority,
and other benefits. Under date of May 3, 1940 , the respondents
mailed a letter to all of their employees reading as follows:
J. H. STONE & SONS
DEAR EMPLOYEE : Many of our employees have come to us with
two letters, dated April 24th and May 1st, 1940, signed by union
organizers, and have asked us what these letters are all about.
11 Cf National Labor Relations Board v. New Era Die Co , 118 F. ( 2d) 500 ( C. C. A. 3),
enf'g as mod ., Matter of New Era Die Company and International Association of Machin-
ists Lodge 243 (A. F. of L.), 19 N L. R B. 227 . Matter of F. W. Woolworth Company
and F. W. Woolworth Company of France and United Wholesale & Warehouse Employees
of New York, Local 65, United Retail & Wholesale Employees of America , 25 N. L R B.
1362 , enf d as mod , F. W. Woolworth Company v . National Labor Relations Board, 121 F.
(2d) 658 (C C. A. 2), decided July 2, 1941.
18
The evidence established that about 3 days before the "survey" the respondents had
been officially notified by the Board that a hearing would be held on March 21 , 1940, on a
petition for investigation and certification filed by the Union under Section 9 (c) of the Act.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What is the truth about the contents of these letters and of the
agitation created by these union organizers ? Are the letters
that you have received and the arguments that you have heard
from these people for your benefit?
We want you to know that every employee has the right to
join or to not loin a labor organization . Nothing in this letter
contained is intended to in any manner interfere with that
right, and we do not intend by this letter to influence you one way
or the other. You are entitled to know the truth. We are
sending this letter to your home, so that you may consider its
contents with the members of your family and thereby act for
your best interests.
Here are the facts :
(1) For fourteen years this company has furnished steady
work and more total annual wages to every one of its employees.
(2) In 1938, so as to create more employment , better wages and
better working conditions , we started the construction of our
present plant . With 'a larger working area and more modern
equipment , we were able to pay higher wages and did employ
more people under the best working conditions in the entire box
industry . We are continuously striving to better conditions,
raise wages to the highest levels and still be able to remain in
business and meet competition.
For anybody to try to tell you that if you join their organi-
zation and pay the dues , assessments and other charges they may
require, that they will be able to guarantee you higher pay, with-
out basing such statement on facts is just idle talk . Any reasonable
person will agree that if our cost of production is higher than
that of our competitors we will be unable to stay in business.
(3) So that you would be assured of a wage scale as high
as that paid by any of our competitors , we entered into a con-
tract with you in good faith, covering wages, terms and condi-
tions of employment for the year 1940. In this contract we
guaranteed not to reduce wages, but to raise wages whenever
possible . We recommend that you read your contract again.
We are bound by this contract, we have lived up to it, and we
intend to continue to live up to it.
(4) Every employee who has felt aggrieved on the subject of
either wages , hours of labor or working conditions has had an
opportunity to discuss such grievance with the management,
and we are proud to say that every such grievance has been satis-
factorily adjusted with the employee . Can there be a better
or happier relationship ? We feel that you are better able to
NORMAN H. STONE 1027
adjust whatever grievances you may have directly with the com-
pany. Why pay an outsider to attempt to do this for you?
(5) The organizers have told you in their letters that in
order to have strength you should join a union. The truth is
that out of over fifty million people engaged in employment in
the United States, the American Federation of Labor claims only
four million members, and the C. I. O. only four million mem-
bers. This leaves forty-two million workers who are unaffiliated
with any labor organization. Why have such a large number re-
fused or failed to join a labor organization? Yet, it is conceded
that the workers in the United States of America are the highest
paid and enjoy the finest standard of living in the world.
(6) Your company has enjoyed peace and harmony with its
employees for fourteen years. There have been no stoppages,
interruptions or strikes. Have these organizers ever discussed
with you the result of strikes, the amount of time and wages
lost thereby, and the tremendous suffering caused the families of
workers through strikes? The United States Department of
Labor in its report Serial No. R. 1077, entitled , "Strikes in
October, 1939" published in February, 1940, states that there
were 17,532 strikes between 1933 and 1939, resulting in 121,005,-
578 man-days of idleness and in just the paper box industry alone
in the month of October, 1939, there were strikes in nine plants,
resulting in 4,734 man-days idleness for just that month alone.
(7) The letters that you have received from the organizers
have told you that your contracts with the company meant
nothing.
Isn't it a fact that the company gave you an eight per cent IN-
CREASE IN WAGES on October 9, 1939?
Isn't it a fact that your company gave VACATIONS WITH
PAY?
Isn't it a fact that your company has continuously attempted to
BETTER WORKING CONDITIONS?
Isn't it a fact that your company has created accommodations
for RECREATION?
Isn't it a fact that GROUP INSURANCE at low rates has been
established, a substantial portion of the cost of which is paid by
the company?
Isn't it a fact that your company has paid TIME AND A HALF
FOR OVERTIME and TIME AND A HALF FOR SUNDAY
WORK?
Do all of these things indicate that your contracts with this
company moan nothing? Do you believe that an outside or-
ganizer can get you more than this? Isn't it clear that all of
450122-42-val. 33-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the statements made by the organizers in their letters are nothing
more than an attempt to merely tell one side of the story which
may be very misleading? Ever since we entered into a contract
with you we have carried out the terms thereof, and we expect to
continue to do so in the future.
(8) It is not true that any union organizer forced an election
upon us. The fact is that originally, the union organizers asked
the Labor Board to certify the union as the collective bargaining
agency. Our company insisted that each employee has a right
to exercise his democratic privilege and to vote on the question
as to whether he wanted this union or not. As a result of the
hearing, the Labor Board ordered an election to be held on May
8, 1940, at which time we urge each and every one of our em-
ployees to go to the polls and vote.
(9) Your company has arranged to furnish the facilities for
holding the election so that it will be convenient for every one of
our employees to vote.
In conclusion, we want to assure you that we desire to maintain
intact our happy family, and once and for all dispose of the
agitation that has come from strangers who have tried to inter-
fere with the well-being and the comfort of our employees.
Most sincerely,
J. H. STONE & SONS.
The reason for sending the letter as stated in the first paragraph
thereof was amplified at the hearing by Marvin N. Stone who
testified :
This letter was sent out to our employees because they had
come to us to find out whether they would be-well, they came to
us and asked questions, innumerable questions about the agitation
that had been going on in the plant and, apparently, around the
plant insofar as joining a labor union and what their rights were.
Presumably, they were unaware of their rights under the cir-
cumstances, so, therefore, we sent out this general letter to ex-
plain what their rights might be at the time?9
However, in view of the timing of the letter, the innuendos and in-
ferences reasonably drawn from its text,20 and the respondents' other
illegal activity which we found above was designated to thwart union
organization among its employees, we are of the opinion, as was the
Trial Examiner, and we find that the real purpose of respondents in
mailing this letter to their employees was to interfere with, restraint,
w See footnote 10, supra.
20 On cross-examination one of the respondents' witnesses admitted that the letter caused
him to believe that the respondents preferred to have the Union defeated in the Board
election.
NORMAN H. STONE 1029
coerce , and influence them to vote against the Union in the Board elec-
tion held 5 days later.21
During the hearing counsel for the Board and for the respondents
stipulated that the testimony of all employees who had not testified
would be similar to the testimony of those employees called as wit-
nesses by the respondents who testified to the effect that they were of-
fered individual employment contracts without recommendation or
compulsion by the respondents and that neither the respondents' let-
ter of May 3 nor any of its other acts interfered with their free choice
in the Board election on May 8. The respondents argue that this evi-
dence shows that they have not engaged in the unfair labor practices
alleged in the complaint. Such evidence concerning the effect or lack
of effect of the respondents' acts on particular individuals is not, how-
ever, determinative of the issue as to whether or not the respondents'
activity is prohibited by the Act.22
The respondents further contend that the speech of Jacobson, the
"survey" of March 15, and the letter of May 3, 1940, were protected
by the constitutional guarantee of free speech. From the foregoing
findings, it is clear that the respondents by engaging in such activities
intended to and did coerce and intimidate their employees in the ex-
ercise of the rights guaranteed to them under Section 7 of the Act.
Under such circumstances, this contention of respondents is
untenable.23
The Board therefore finds, as did the Trial Examiner , that by the
speech made by Jacobson to the employees at the plant meeting of
August 5, 1939, and the proceedings at said meeting; by causing their
employees to sign individual contracts in 1939, 1940 and 1941; by
questioning their employees concerning their union affiliation in March
1940; and by sending to their employees the letter of May 3, 1940, the
respondents have interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
n In the election of May 8, 1940, out of 166 votes cast the Union received 59.
"Compare • National Labor Relations Board v. Newport News Shipbuilding and Drydock
Company, 308 U. S. 241 ; Matter of Emaco Derrick Equipment Company ( D & B Division)
and Steel Workers Organizing Committees , 11 N. L. R. B. 79; Matter of Washington Tin
Plate Company and Amalgamated Association of Iron, Steel & Tin Workers of North
America, Local No. 1600, 16 N L. R. B 600; Matter of Southwestern Greyhound Lines,
Inc. and Brotherhood of Railroad Trainmen, 22 N L R B 1
as National Labor Relations Board v. Chicago Apparatus Co., 116 F. ( 2d) 753 (C. C. A.
7), in which the Court stated:
Expressions of opinion concerning labor unions , by an employer , . . . may be of
such a nature that their effect is to coerce and intimidate the employees . . . To
hold that such expressions , when employer manifestly intended to give them such an
effect, are not violative of the Labor Act would be to nullify the provisions of the Act
and to thwart the public policy evidenced by said Act.
National Labor Relations Board v. New Era Die Co ., 118 F. ( 2d) 580 (C. C. A 3).
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the respondents set forth in Section III above,
occurring in connection with the operations of the respondents de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act, we shall order the respondents to cease and
desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act and to restore, as nearly as possible, the
conditions which existed prior to the commission of the unfair labor
practices.
We have found that the individual contracts of employment signed
by the respondents' employees in 1939, 1940, and 194124 were intended
to and did impede the employees in the exercise of their right to form,
join, or assist labor organizations and to engage in concerted activities
for their mutual aid and protection, and that the respondents coerced'
their employees to sign the individual contracts. To restore the
status quo aid to free the respondents' employees from the restraint
and interference resulting from the imposition upon them of these
illegal contracts, we shall order the respondents to cease giving effect
thereto and to give to each employee who signed such a contract
written notice, stating: (1) that the contract will not in any manner
be enforced or attempted to be enforced; (2) that the employee is
not required or expected by virtue, of such contract to deal with the
respondents individually or through the "representative" named in
such contract; and (3) that such discontinuance of the contract is
without prejudice to the assertion of any legal rights the employee
may have acquired under such contract.75 We shall further order
the respondents to post notices to the same effect in appropriate places
in their plant. Our order pertaining to the individual contracts will
extend to any modification, continuation, extension, or renewal of the
individual contracts, and to any similar form of contract for a period
subsequent to the date of this decision.
24 Board Exhibits Nos. 4 , 5, and 6 , respectively
0 See National Licorice Co v. National Labor Relations Board , 309 U . S 350; National
Labor Relations Board v Superior Tanning Company, 117 F. ( 2d) 881 (C. C A 7), cert den.
313 U S 559
NORMAN H. STONE 1031
Upon the basis of the above findings of fact and upon the entire
record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAW
1. International Printing Pressmen and Assistants' Union of North
America, Box and Carton Local #415, affiliated with the American
Federation of Labor, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees
in their exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents, Norman H. Stone, Marvin N. Stone, and Jerome H. Stone, Jr.,
doing business as J. H. Stone & Sons, Chicago, Illinois, their agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Interrogating their employees as to their union affiliations
or activities;
(b) Giving effect to the individual contracts of employment or any
modification, continuation, extension, or renewal thereof, or entering
into any similar form of contract with their employees for any period
subsequent to the date of this decision;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection as guaranteed in Section
7 of the National Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Give separate written notice to each of their employees who
has signed an individual contract of employment or any modification,
continuation, extension, or renewal thereof, or any similar form of
contract for any period subsequent to the date of this decision, that
such contract will not in any manner be enforced or attempted to be
enforced, and that the employee is not required or expected by virtue
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c,f such contract to deal with the respondent individually or through
the "representative" named in the contract, and that such discontinu-
ance of the contract is without prejudice to the assertion of any legal
rights the employee may have acquired under such contract;
(b) Post immediately in conspicuous places in each department of
the respondents' plant, and maintain for at least sixty (60) consecu-
tive days from date of posting, notices stating (1) that the respond-
ents will not engage in the conduct from which it is ordered to cease
and desist in paragraphs 1 (a), (b), and (c) of this Order and (2)
that the respondents will take the affirmative action set forth in para-
graph 2 (a) of this Order;
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondents have taken to comply herewith.