Knickerbocker Plastic Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1953

104 N.L.R.B. 514 (N.L.R.B. 1953)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
KNICKERBOCKER PLASTIC CO., INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT LODGE NO. 727
and PLAYTHINGS, JEWELRY AND NOVELTY WORKERS
INTERNATIONAL UNION, CIO; PLAYTHINGS, JEWELRY
AND NOVELTY WORKERS INTERNATIONAL UNION, LOCAL
223, CIO; AND AMALGAMATED PLASTIC TOY AND
NOVELTY WORKERS UNION, LOCAL 801, OF THE PLAY-
THINGS, JEWELRY AND NOVELTY WORKERS INTER-
NATIONAL UNION, CIO, Parties to Contract. Case No. 21-
CA-1111. April 30, 1953
DECISION AND ORDER
On September 15, 1952, Trial Examiner Martin S. Bennett
issued his Intermediate Report in the above-entitled proceeding,
finding that Respondent had engaged in and was engaging in
certain unfair labor practices, and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the Intermediate Report attached hereto. There-
after Respondent; Playthings, Jewelry and Novelty Workers
International Union, CIO, and Amalgamated Plastic Toy and
Novelty Workers Union, Local 801, of the Playthings, Jewelry
and Novelty Workers' International Union, CIO,1 parties to the
contract; and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
The Board2 has reviewed the rulings made by the Trial
Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions and briefs, and the
entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner,3 with
the additions4 and modifications6 noted below.
1 The International and Local 801 are herein referred to as the CIO.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor
Relations Board has delegated its powers in connection with this case to a three - member
panel [Members Houston. Murdock. and Styles].
We find no merit in the Respondent 's exceptions to the Intermediate Report relating
to the validity of certain cards designating the Union as the representative of particular
employees. In this category is the card of Ila McEvoy, who, the Respondent contends, re-
voked her designation by going through the picket line. Cherokee Hosiery Mills, 93 NLRB
590. Nor does the fact that the Respondent's name was omitted from a card or was written
by a person other than the signer invalidate the designation where, as here, the signers at
all times material have been employees of the Respondent. Similarly, it is not material that
some cards were postmarked with a date prior to the date signed , as the evidence reveals
that these cards were distributed to the employees, signed by them, and received by the
Union between February and July 1951. Nor are union-designation cards fatally defective
merely because the international but not the local is named as bargaining representative.
Dolores, Inc., 98 NLRB 550.
Although the General Counsel has excepted to the Trial Examiner's failure to count
as valid two designation cards signed by employees who signed similar cards for another
labor organization in May 1951 , we find it unnecessary to pass upon this issue as its resolu-
tion would not, in any event, affect the Union's majority standing.
41n addition to the Trial Examiner's finding that the Respondent on several grounds
violated Section 8 (a) (2) of the Act by entering into a union-security agreement with the
6 Footnote on next page.
104 NLRB No. 71.
KNICKERBOCKER PLASTIC CO., INC. 515
ORDER
Upon the entire record in the case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respond-
ent, Knickerbocker Plastic Co., Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International As-
sociation of Machinists, District Lodge No. 727, as the
exclusive representative of all its employees in the appropri-
ate unit with respect to wages, rates of pay, hours of em-
ployment, or other conditions of employment.
(b) Recognizing Playthings, Jewelry and Novelty Workers
International Union, CIO, or Local 801 affiliated therewith, as
the representative of any of its employees for the purpose of
dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of em-
ployment.
(c) Performing or giving effect to its contract of September
27, 1951, with the CIO or to any modification, extension,
supplement, or renewal thereof, or to any superseding agree-
ment with said labor organizations. Nothing in this Order,
however, shall be deemed to require the Respondent to vary
or abandon those wage, hour, seniority, or other substantive
features of its relations with its employees, established in
performance of said contract, or to prejudice the assertion by
the employees of any rights they may have under such agree-
ment.
(d) Discouraging membership in International Association of
Machinists, District Lodge No. 727, by discharging employees,
terminating medical or hospitalization plans, or refusing to
reinstate any of its employees because of their union member-
ship or activities; by discharging employees because theyhave
given testimony before the National Labor Relations Board; or
by in any other manner discriminating in regard to hire or
tenure of employment, or any term or condition thereof.
CIO, we find that such conduct also constitutes independent violations of Section 8 (a) (1)
and 8 (a) (3). Ferro-Co Corporation, 102 NLRB 1646 ; John B . Shriver Company , 103 NLRB 23.
As the contract between the Respondent and the CIO was illegal because of the latter's
failure to achieve compliance with Section 9 (f), (g), and (h) of the Act, we do not find it
necessary to pass upon or to adopt the Trial Examiner's dictum that the contract, despite
its maintenance-of-membership clause, otherwise "contained legal union-security language."
5 We note and correct the following minor misstatement or inadvertent error in the In-
termediate Report, which does not affect the Trial Examiner's ultimate conclusions or our
concurrence therein: The Trial Examiner excluded one Shuss from the complement of pay-
roll employees employed on July 6, 1951 , on the ground that this employee had quit on May 31,
1951. The record shows, in fact, that Elizabeth Shuss rather than A. L. Shuss, the em-
ployee listed on the payroll , had quit on that date . We therefore add this employee to the
total of 317 employees found by the Trial Examiner to have been employed on July 6, 1951,
finding the total to be 318. The following obvious typographical error in the Intermediate
Report is noted and corrected : Page 528 , line 8, is corrected to read , " The first group
of 228....•'
5 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) In any manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization,
to form labor organizations , to join or assist International
Association of Machinists, District Lodge No. 727, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with International
Association of Machinists, District Lodge No. 727, as the
exclusive representative of all the employees in the afore-
described appropriate unit with respect to wages, rates of
pay, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Offer to Mary Ann Goff, Blanche Rounsavell, and to all
of the employees discharged on July 10 and 11, 1951, immediate
and full reinstatement to their former or substantially equiva-
lent positions and restore the medical and hospitalization
insurance benefits enjoyed by them prior to the date these
benefits were discontinued, without prejudice to their seniority
or other rights and privileges, in the manner set forth in the
section of the Intermediate Report entitled "The Remedy."
(c) Make whole Goff, Rounsavell, and all of the employees it
discharged on July 10 and 11, 1951, for any loss of pay each
may have suffered by reason of the discrimination against
them; and in the event any of the discharged strikers incurred
medical and hospitalization expenses which would have been
covered by the canceled medical and hospitalization plans,
make them whole for such expenses, in the manner set forth
in "The Remedy."
(d) Withdraw and withhold all recognition from the CIO as
the representative of any of its employees in the within-
described appropriate unit for the purposes of collective
bargaining with respect to wages, rates of pay, hours of
employment, or other conditions of employment.
(e) Upon request make available to the National Labor
Relations Board or its agents, for examination or copying, all
payroll records, social-security payment records, timecards,
personnel records and reports, and all other records necessary
for a determination of the amounts of back pay due under the
terms of this Decision.
(f) Post at its plant in Glendale, California, copies of the
notice attached to the Intermediate Report and marked "Ap-
KNICKERBOCKER PLASTIC CO., INC. 517
pendix A."6 Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after
being signed by Respondent ' s authorized representative, be
posted by it immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall be
taken by Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(g) File with the Regional Director for the Twenty-first
Region, within ten (10 ) days from the date of this Order, a
written report setting forth in detail the steps that Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed insofar as it alleges that Respondent
has discriminated against Ethel Demogines.
IT IS FURTHER ORDERED that the complaint against
Playthings , Jewelry and Novelty Workers International Union,
Local 223 , CIO, be , and it hereby is , dismissed in its entirety.
6 This notice, however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The recommendations of a Trial Examiner " and substituting
in lieu thereof the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges having been duly filed by International Association of Machinists , District Lodge
No. 727 , herein called Machinists or the Union, against Knickerbocker Plastic Co ., Inc.,
herein called Respondent , the General Counsel of the National Labor Relations Board issued
a complaint dated December 27, 1951 , against Respondent . This complaint , upon which the
instant proceeding is based , alleged that Respondent had engaged in unfair labor practices
within the meaning of Section 8 (a) (1), (2), (3), (4), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat . 136, herein called the Act. Copies of the charges,
complaint , and notice of hearing thereon were duly served upon Respondent and the parties
to contracts , Playthings , Jewelry and Novelty Workers International Union , CIO; Playthings,
Jewelry and Novelty Workers International Union, Local 223 , CIO; and Amalgamated Plastic
Toy and Novelty Workers Union , Local 801 , of the Playthings , Jewelry and Novelty Workers
International Union, CO.'
I Actually , the second amended charge , dated December 20, 1951, and the complaint were
the first documents to be served upon the party to the contract and that service was made
on Local 223 ; in this respect , it maybe noted that Local 801 was not chartered until September
5, 1951, and that the official papers from its parent organization did not arrive in California
until after September 18. Furthermore , Local 223 is a New York City local which is under
contract with the parent or affiliated company of Respondent in that city . Although Local
223, which was on notice of this hearing, chose not to appear , a joint appearance was made
in behalf of its parent International Union and in behalf of Amalgamated Plastic Toy Workers
Union, Local 801, affiliated with the aforenamed International Union . As will appear, the
latter two organizations are actually the parties in interest who are signatory to the con-
tract of September 27, 1951, which is attacked herein, and such interest was fully litigated
in this proceeding . Unless otherwise designated , these two organizations will be referred
to herein as the CIO.
283230 0 - 54 - 34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specifically, the complaint, as amended, alleged that Respondent has: (1) Refused to bargain
collectively with Machinists on May 15, 1951, and thereafter, as the duly designated repre-
sentative of a majority of the employees in an appropriate unit; (2) discharged Mary Ann
Goff on June 18, 1951, and Blanche Rounsavell on June 25, 1951, because they had joined and
assisted Machinists, had engaged in concerted activities, and had given testimony before the
Board in Knickerbocker Plastic Co., Inc., 96 NLRB 586, (3) discharged Kara Mather on
June 25, 1951, and Ethel Demogines on August 22, 1951, because of their union and concerted
activities; (4) discharged Its employees who had engaged in a strike on or about July 9,
1951, in protest of Respondent's unfair labor practices, thereby prolonging said strike, and
rejected their unconditional application for reinstatement on or about March 24, 1952; (5)
on or about July 26, discriminatorily discontinued hospitalization and medical coverage plans
of its striking employees; (6) on or about September 1. 1951, did sponsor and promote the
CIO among its employees and has since that date dominated, assisted, contributed support to,
and interfered with the administration of said organization; (7) entered into an illegal col-
lective-bargaining agreement with the CIO on or about October 1, 1951, (8) commencing on
June 9, 1951, did interfere with, restrain, and coerce its employees by (a) attempting to
induce its striking employees to return to work by threats of reprisal and promises of reward
and benefits; (b) stating that it would not enter into a contract with Machinists, would operate
without said organization, and soliciting and permitting solicitation during working hours, of
membership cards for various labor organizations while denying these privileges to Machin-
ists, the foregoing conduct serving to prolong and extend the strike of July 9, 1951.
The answers of the CIO and Respondent denied the commission of any unfair labor prac-
tices by Respondent, the answer of the latter assigned reasons for the respective discharges,
which are discussed hereinafter, and admitted that Respondent's agent had stated that it
would not bargain with Machinists.
Pursuant to notice, a hearing was held from May 7 through May 20, 1952, at Los Angeles,
California, before the undersigned Trial Examiner, Martin S. Bennett, duly designated by
the Associate Chief Trial Examiner. All parties were represented by counsel, who were
offered full opportunity to be heard, toexamineand cross-examine witnesses, and to introduce
evidence bearing on the issues. At the close of the General Counsel's case, the under-
signed granted his motion to dismiss the case against Mather, no testimony having been
presented with respect thereto. At the conclusion of the hearing, the parties were offered
an opportunity to present oral argument and to file briefs and/or proposed findings and
conclusions with the undersigned Oral argument was waived and briefs have been received
from Respondent and the CIO.
Upon the entire record of the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Knickerbocker Plastic Co ., Inc., is a California corporation which maintains its principal
office and place of business at Glendale , California , where it is engaged in the manufacture,
sale , and distribution of plastic toys. During 1950 , Respondent purchased materials , equip-
ment, and supplies valued in excess of $ 500,000 , all of which was shipped to its plant from
points outside the State of California . During the same period , Respondent produced, sold,
and shipped to points outside the State of California products valued in excess of $ 1,000,000.
The undersigned finds that Respondent is engaged in commerce within the meaning of the
Act.
11. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District Lodge No. 727; Playthings, Jewelry and
Novelty Workers International Union, CIO; Playthings, Jewelry and Novelty Workers In-
ternational Union, Local 223, CIO; and Amalgamated Plastic Toy and Novelty Workers Union,
Local 801, of the Playthings, Jewelry and Novelty Workers International Union, CIO, are
labor organizations admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the prior cases
The issues presented herein stem from the attempt of Machinists to organize the em-
ployees of Respondent who apparently had theretofore been unrepresented for the purposes
KNICKERBOCKER PLASTIC CO., INC. 519
of collective bargaining . This organizational campaign has resulted in previous proceedings
before the Board and the issues litigated in the present hearing arise from the second round
or installment, as it were , of this campaign. Since the present issues include allegations of
discriminatory discharges of employees because they had given testimony in the original
proceeding , the undersigned will set forth the history of this earlier litigation. The facts are
found in the Board 's decision in Knickerbocker Plastic Co., Inc., (21-CA-891, 21-RC-1380)
96 NLRB 586. The undersigned has not, as requested by the General Counsel, inspected the
actual transcript of the testimony in that proceeding inasmuch as, in his opinion, the Board
decision adequately reflects the history of all matters germane herein.
The organizational campaign commenced in mid-1950 and Machinists filed a petition for
certification of representatives in Case No. 21-RC-1380, on June 23 of that year. Respondent
agreed to a consent election which was held on September 6 and 7 and was lost by the Union
by a narrow margin . Machinists thereafter filed exceptions and, on January 31, 1951, the
Board directed that a hearing be held on same. Charges of unfair labor practices were also
filed by Machinists and a complaint alleging violations of Section 8 (a) (1), (2), and (3) of the
Act was issued on January 17,1951, and was later amended on March 19. The two proceedings
were consolidated for the purpose of a hearing which was held from April 2 to 20, 1951. The
Trial Examiner's report issued on May 29, 1951, wherein the allegations of the complaint
were substantially upheld. The Board handed down its Decision on October 2, 1951, and in
substantial agreement with the Trial Examiner found in essence that Respondent had (1)
engaged in an intensive campaign of interference, restraint, and coercion during the period
preceding the election, (2) had illegally given assistance and financial support to a labor
organization, viz, Wage Earners Committee of the USA, Inc.; and (3) had discriminatorily
discharged two employees on September 7 and October 2, 1950. The Board further set
aside the election conducted on September 6 and 7, 1950, and stated it would direct a new
election among the employees of Respondent "When the Regional Director advises the
Board that the circumstances permit a free choice of representatives...."
As will appear below, Mary Ann Goff and Blanche Rounsavell, whose discharges were
litigated in the instant case, testified in the earlier hearing, and the Board Decision as well
as the Intermediate Report of the Trial Examiner , adopted by the Board, reflect the sig-
nificant nature of their testimony
B. The organizational campaign continues
Prior to setting forth the sequence of events, it may initially be noted that although the
undersigned has given complete consideration to the facts litigated herein, it is deemed
unnecessary to set them all forth in this report. On some aspects of the case, the conflicts
of testimony are irreconcilable. Some of these have not been resolved because they could not
affect conclusions already overwhelmingly supported by a preponderance of credited testi-
mony
The organizational activities of Machinists apparently came to a temporary halt after the
filing of the objections to the election on September 13, 1950, but resumed sometime in
January 1951, according to organizer Delmar Gordon. This activity included the distribution
of handbills at the plant as well as the solicitation of signatures for union-authorization
cards. The latter, introduced in evidence and discussed hereinafter in more details, show
that the signing of the cards during 1951 commenced in February; the cards largely reflect
dates in the period from February to June of that year. These cards were either mailed
back directly to Gordon or turned over to him by union adherents in the plant who col-
lected them from the signers thereof.
The first attempt in 1951 by Machinists to achieve recognition took place on March 20
when Gordon wrote to President White of Respondent via registered mail. Gordon stated
that Machinists represented a majority of Respondent's employees, requested recognition
as bargaining agent, requested a meeting, and offered to prove the union majority through
any disinterested party. White did not reply to or acknowledge this letter. On May 15 Gordon
again addressed a letter to White. This letter was identical with that of March 20 and was
also sent by registered mail; it, too, was ignored.
At this point reference is made to one of the conflicts in testimony described above.
Grand Lodge Representative Skagen of Machinists testified that he met with President White
in April 1951 at Levy's restaurant and again in June at the Brown Derby restaurant, both
located in Los Angeles. White's testimony was diametrically opposed with respect to the
sequence of the meetings, although at some places therein he appeared to agree with Skagen
that the meeting at Levy's took place in April, and admitted that he was confused concerning
these dates and months. White also disagreed concerning the identity of those who were
present and as to what was said. The undersigned considers a resolution to be unnecessary,
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inasmuch as White admitted in his testimony that at the meeting at Levy's he informed
Skagen that he would never recognize Machinists . Moreover , at the Brown Derby meeting,
he admittedly rejected Machinists ' offer to submit a contract and stated that he would not
sign a contract with them. The undersigned also deems it immaterial whether the statements
were made in April or June. The fact is that White admittedly made them on one or the other
occasion at a time material herein.
Activity by Machinists among the employees continued during May with the solicitation of
signatures and the holding of at least several meetings of employees . Late in May , Gordon
telephoned President White and, inter alia , stated that Machinists represented a majority of
the employees and that it had designation cards to prove same . Gordon referred to organi-
zational activity at the plant by United Rubber , Cork, and Linoleum Workers, CIO, and
asked White if he intended to recognize that organization . White referred Gordon to his
lawyer , but refused Gordon' s request for the attorney ' s name.: The record does not disclose
the precise nature and extent of the Rubber Workers' activities at Respondent ' s plant,
although it is apparent that some organizational activity took place.
Mary Ann (;off was discharged on June 18 and Blanche Rounsavell on June 25. Their
allegedly discriminatory discharges are treated below . On July 5, the employees voted to
strike in protest of these discharges as well as the alleged refusal to bargain and em-
powered a committee, to call a'strike when its members saw fit . The committee voted on July
6 to strike on July 9. On July 6, President Snider of Machinists telephoned White and ex-
pressed concern over the scheduled strike . Snider stated that he desired to prevent a strike;
that Machinists was willing to submit evidence of their majority representation; that new
cards had been signed by employees; that Machinists represented a majority; and that it
would like to hold a conference with White. The latter replied that he had nothing to say to
Snider and that he would have to speak to White' s attorney . Snider asked for the attorney's
name and White replied that Snider would find out soon enough and refused to supply the name.
White did not testify concerning this talk with Snider , but generally denied that he refused to
inform the union representatives of the identity of his attorney. His testimony is rejected
and that of Snider has been credited.
On Monday, July 9, a number of employees of Respondent went on strike pursuant to the
Machinists ' strike vote. Goff and Rounsavell participated in the strike activities and in the
picketing which commenced at Respondent 's plant . On July 10 and 11 Respondent wired 138
named employees as follows : "Your failure to report to work today was without our per-
mission. Unless you are at work Wednesday regular working hour we will consider that you
have voluntarily terminated your employment with us ." This wire met with an immediate
response from Machinists, which on July 12 sent the following letter to Respondent:
Please be advised that as heretofore represented to you, the undersigned Union is the
Collective Bargaining Representative , and also the authorized representative on behalf
of your employees , for not only negotiating wages, hours and conditions of employment,
but also in connection with the present dispute with your company.
Please be further advised that as such representative , and on the behalf of each em-
ployee individually , none of said employees have terminated his employment with your
company, or have ceased to consider himself an employee of your company. On the other
hand, said employees , as employees of your company , are merely respecting the present
picket line around your premises . As soon as said picket line is removed , the under-
signed , as your employees , will be ready , willing and able to return to your premises for
a resumption of their several duties.
Contrary to the wording of the telegram sent by you to each of said employees, they
are definitely not resigning or terminating , but on the other hand, consider themselves
as continuing employees , but respecting the present picket line.
That the wire of July 10 and 11 was intended to effect a permanent severance of employ-
ment is amply demonstrated by the record. Respondent's personnel records show that on
July 31 it terminated employees who did not report for work during the strike. In addition,
Office Manager Bernice McCreary testified with respect to the entry "7/31/51 strike"
appearing on the personnel record of an employee who had received the wire, that this
z White, here as elsewhere , denied that he refused to supply the name of his attorney.
His denials are not credited . His testimony was frequently inconsistent . His dilatory tactics
with respect to Machinists are clearly evidenced on numerous occasions and, as will appear
below, he made similar statements on other occasions , particularly to President John Snider
of Machinists, a clear and meticulous witness whose forthright testimony has been credited
in full.
KNICKERBOCKER PLASTIC CO., INC. 521
employee had worked until the time of the strike , had not reported thereafter , and did not
report after the wire had been sent . She further testified that " It means she didn' t return to
work. That was the time they terminated all of that group ... She was on the payroll up
until the time the strike started and she did not return to work after she received a ...
[wire] . She was automatically terminated ." Her testimony concerning the status of other
employees disclosed identical treatment and disposition of their cases.
On July 26 , 1951, all employees who had received the wire but ha8 not returned to work
prior to July 26 were notified by Respondent by mail that their ". . . hospitalization coverage
under the Blue Cross Plan and your medical coverage under the American Motorists In-
surance Company Plan will be terminated by this Company ...." This is further evidence,
in the view of the undersigned , that the wire of July 10 and 11 meant precisely what it said on
its face and that it was not a maneuver . It is clear and the undersigned finds that on July
10 Respondent discharged those strikers who had not returned to work and that it reaffirmed
this decision on July 26.
C. The discharges
1. Mary Ann Goff
Mary, Ann Goff entered Respondent ' s employ as an assembler at the rate of 75 cents per
hour . She received hourly increases of 5 cents every 3 months until she reached the rate of
$1, and thereafter received 5-cent increases in January and September 1950, this making a
total of $ 1 . 10 per hour . It appears that her raise in January 1950 put her on a scale above
that of her coworkers , because Foreman Fred Smith instructed her at the time not to men-
tion her raise since no one else had received it.
Her work was highly regarded and on two occasions in 1950 as well as on one in 1951, she
was asked to become an assistant to the floorlady . Goff declined each of these offers on the
ground that the proffered position did not involve an immediate raise in pay .3 Goff was
regularly assigned to work on samples , these being new models for,the market which re-
quired particular care . She was also one of several girls customarily selected for over-
time work on Saturdays . Goff was admittedly an excellent worker and, according to Vice-
President Hersey, was one girl in one thousand who had ability to lead help . According to
Foreman Smith , Goff had ". . . ability ... She is a woman who can use her head . She can
think while some girls you have to tell them every operation they do . She knew the operation
on every job we had . She was qualified to do it ." When asked if Goff was competent on all
the jobs she handled. Smith replied , " She was , I would say , as good as any I have got."
Goff 's termination on June 18 , 1951 , stemmed from her refusal to work on a particular
operation. Respondent claims that she quit , but its answer admits , the evidence demonstrates,
and the undersigned finds that she was in fact discharged on June 18.
Goff was most prominent in the organizational campaign of Machinists . She attended one
of the first meetings in July 1950 , was elected to a committee , and distributed union-au-
thorization cards. This card distribution continued during the second stage of the campaign
in 1951 and she, together with Blanche Rounsavell , whose discharge is discussed below,
received cards from Union Organizer Gordon, distributed them in the plant , and turned in
signed cards to Gordon . The record indicates that she and Rounsavell were leading union
adherents and most active in its behalf.
Goff testified for the General Counsel in the hearings held from April 2 to 20 , 1951, dis-
cussed hereinabove . Both the adverse Board Decision and the adopted Intermediate Report
reflect the damaging nature to Respondent of her testimony . A finding that Section 8 (a) (1)
of the Act had been violated was based upon her testimony attributing certain statements to
President White . It was found that White had stated he knew of Goff's union activities and
that he knew the identify of those who attended union meetings and what took place, thus
fostering the impression that Respondent was engaged in surveillance of Machinists ' activities.
Goff's testimony also attributed statements to Vice -President Hersey which demonstrated
his animosity toward labor organizations . She gave other testimony , credited by the Trial
Examiner , which attributed to Hersey a refusal to deal collectively with the employees; this
testimony , it may be noted , was contrary to Hersey ' s version , which was rejected at that
proceeding . Again, Goff testified, and the -- Trial Examiner found, that President White
announced on September 7, 1950 , that he would fight the union "with every drop of blood in
my veins and every penny in my pockets" and coupled this with the announcement of a blanket
pay raise . The undersigned accordingly finds that Goff ` s testimony inevitably played a sub-
8 Vice - President Hersey testified that Goff received the three offers. The testimony of
Foreman Smith that there was only one offer, in 1950, is not accepted.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial and damaging role in the adverse decision to Respondent by the Board in the pro-
ceeding.
The circumstances of her discharge are as follows: Goff 's customary assignment was on
the assembly of water guns . In August 1950, she was transferred to the repair of rejected
jet guns. According to Goff , she disliked the assignment because it required her to stand on
concrete all day , whereas, at her regular assembly work, she could sit down . It was also
dirty work , necessitating the use of pliers, metal cutters , and a mallet in order to take apart
the guru. This assignment lasted until Christmas when the manufacture of jet guns ceased and
Goff was returned to the assembly of water guns.
She remained at this work until June 1951 when , production of jet guns having resumed,
Foreman Smith asked her, on June 7, to return to this repair work . He stated that the girl
who, had been performing the work was not available for several days. Goff asked if some-
one else was available , pleading that she was not in good health at the time; Smith then
asked her to help him out for the day and Goff agreed . At 10 o' clock that morning , as Goff
was at work on jet gun repairs , Smith approached her and asked if she could stand the heavy
work ; Goff replied that she could not. Smith asked her to sign a statement that she could
not endure the work , claiming that the front office desired the statement . Goff refused to
sign one , stating that she would inform the front office of the reasons for her inability to
handle the job if management so desired and asked her for same. Smith replied that Goff
would have to suffer the consequences , whereupon Goff pointed out that her physical con-
dition, if she took on the job , was such as to prevent her from working more than 3 or 4
days a week . Goff testified , and the undersigned finds, that she was actually not in good health
at the time. 4
Goff worked at jet gun repair for the remainder of the day . That evening she received word
that her sister in Sacramento was ill . She immediately telephoned Foreman Smith at his home
and informed him that she was needed immediately in Sacramento and did not know the extent
of her visit but would endeavor to return as soon as possible . Smith replied that this would be
"perfectly all right ." Goff went to Sacramento and returned on Thursday , June 14. She
telephoned Smith at the plant on that date and asked him if it would be agreeable for her to
report on Monday , June 18 , inasmuch as she was very tired . Smith replied that this would be
satisfactory and inquired concerning her sister's condition.
Goff reported for work on the morningofJune 18 and , apparently on the assumption that she
would not be returned to jet repair work, concerning which she had complained, started to
resume her assembly duties. Smith soon appeared on the scene and instructed her to return
to repair.' work on jet guns. Goff replied that she and Smith had discussed that previously and
that she had helped him out for 1 day, June 8, as he had requested ; that Smith had other
girls available who were much stronger than she ; and that he ought to assign another girl to
this task that Goff, because of her condition , found so strenuous . Smith, as he had on June
8, asked Goff to sign a statement . Goff refused , stating that they had discussed that before
as well. Smith replied that she had refused to sign a statement and that she was also refus-
ing to perform her job . Goff protested that she had handled this work for 5 months in 1950.
Smith posed the issue by asking , " Are you refusing the job? "; Goff replied that she was.
Smith left the scene and Goff resumed her assembly work . Approximately 2 hours later,
Vice-President Hersey appeared , together with Smith , and Hersey instructed Goff, as the
latter testified , " to pick up my check as I was all through ." Goff asked Hersey the reason
for her termination and he replied that it was because she had refused the job . Goff pointed
out that it was a novel situation for Respondent to discharge people for this reason . Hersey
brought up the fact that Goff had declined opportunities for promotion , but Goff pointed out
that these opportunities had not involved a raise in pay. At about this point in the conversa-
tion, Hersey stated: "and you have not been here for a week ." Goff protested that she had
spoken to Smith about her absence and had received permission to be absent . To this Hersey
mumbled an unintelligible reply ,5
4Goff was a clear , forthright, and most impressive witness whose testimony has been
credited in full. Smith's testimony was in substantial agreement with hers , but departed
from it in some respects ; in those instances , the testimony of Goff has been credited and
adopted.
sRespondent argues , based upon the testimony of Hersey and Smith , that Hersey informed
Goff she had refused an assignment, and had ; thereby quit her employment . Firstly, their
versions where conflicting with Goff's have not been accepted ; secondly , even if credited,
the use of the term "quit" by Hersey is insignificant. The crux of the matter is what action,
if any, was taken on this occasion, and the undersigned finds that Goff was actually dis-
charged by Hersey, as, in fact, Respondent 's answer admits.
KNICKERBOCKER PLASTIC CO., INL., 523
Goff proceeded to the plant office for her paycheck . Office Manager McCreary asked her
to sign a statement to the effect that she was voluntarily terminating her employment and
Goff, a woman of considerable spirit , refused , stating that she had not quit but rather had
been discharged ; although McCreary testified herein she was not questioned concerning this
conversation . Hersey testified that he asked Goff to come to the office after she had cooled
off to discuss the matter ; that she agreed ; but that she did not appear . According to Smith,
when the conversation ended Hersey led Goff out of the plant.
Goff' s testimony discloses that she spoke to Hersey on the following day, June 19, on the
telephone ; asked if Smith had informed him that she, Goff , had received permission to be
absent ; and that Hersey stated he had been so informed . On this occasion , according to
Goff, Hersey asked her to come to the plant and talk over her employment withhim. Goff
then stated that Hersey was unable to do anything for her ; this however drew no commit-
ment from Hersey . Goff did state that she would appear at the plant but then failed to do so.
The undersigned believes that Hersey has confused the two occasions and so finds. It is
further found that this vague telephone conversation on June 19 did not constitute an un-
conditional offer of reinstatement by Hersey , the very minimum treatment to which Goff
was entitled , but at best merely an invitation to discuss the matter.
Conclusions
As has been demonstrated , Goff was an early and outstanding advocate of Machinists in
an organizational campaign which Respondent resisted bitterly and which resulted in a
previous unfair labor practice proceeding before the Board . Goff was equally prominent in
the second stages of the campaign and the prior Board Decision demonstrates that Respond-
ent knew of her union activity. This is highlighted by the damaging testimony she supplied
for the General Counsel at the prior hearing in April of 1951.
Her ability as an employee need not be dwelled upon . The testimony of Foreman Smith and
Vice - President Hersey portrays her as a paragon of ability and efficiency who was competent
at every task in the plant and who was at the very least the equal of any other employee.
Goff, moreover , worked upon Respondent ' s sample merchandise , obviously a job calling for
great skill . It is clear that Goff, an employee of 31 years tenure in Respondent ' s employ, was
the type of employee whom an employer would normally exert considerable effort to retain
in its employ. This is all the more significant in a plant , as this, which was marked by con-
siderable labor turnover.
Against this background , the cause for the discharge advanced by Respondent , namely, her
refusal to accept a work assignment , is singularly unimpressive . Goff, in poor health of an
apparently temporary nature , had previously been transferred in 1950 from her customary
assembly work to the repair of jet guns . On June 7 , 1951 , when she was again transferred to
the job, she was fully familiar with the nature of the work and asked , in view of the state of
her health , that this work be assigned to someone else . Although she finally agreed to per-
form the job on that date , Foreman Smith later that morning unsuccessfully attempted to
procure a signed statement from her to the effect that she could not perform that type of
work . Moreover , Respondent has not shown the purpose for which it sought the statement and
there is no evidence that such statements were ever sought or used on any other occasions.
As the testimony of Hersey elsewhere discloses that the plant was run on a most informal
basis , and Respondent's personnel and payroll records , discussed hereinafter in more detail,
most assuredly bolster that conclusion , this attempt to procure the statement is viewed as a
decided departure from standard operating procedure.
On June 18 Goff returned to work , only to be confronted with another assignment from
Smith to work on jet gun repair . Here , again , Smith attempted to procure a statement from
Goff that she was unwilling to perform the job. The latter , adverting to her plea of poor
physical condition, which she had raised on June 8 . protested that girls in better physical
condition were available for the job . Significantly , Goff's testimony with respect to her
physical condition is entirely unchallenged. Hersey discharged Goff for refusing the job
transfer , although there is uncontroverted testimony from Goff that other girls refused job
transfers and were not disciplined therefor . In fact, the testimony of Blanche Rounsavell
shows that she had on one occasion refused a job transfer without discipline or reprimand of
any, nature And even though the evidence preponderates against Respondent without this
added factor , it is noteworthy that Hersey attempted to improvise a reason for the discharge
of Goff by intimating that she had been absent without permission , despite the fact that such
a contention has not been raised in Respondent's answer . 6 Significantly , all this activity
6 Nor would it make any difference if Goff, as contended by Respodent , had quit her job.
The facts present herein would warrant a finding that she had been constructively discharged.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against Goff took place after she had testified against Respondent in April 1951 , and after
she had become prominent in the renewed organizational campaign by Machinists.
Foreman Smith in effect contended that this repair work required intelligence and that the
employees who had handled the job during Goff s absence in June had not done so satisfactorily.
On the other hand Smith admitted that any man with a little training could do the job, and that
any girl "who could use her head" could handle it. This does not demonstrate to the under-
signed that Goff was the only person in the plant who could do the job.
Nor does this mean that an employer is not free in the normal operation of its business
to assign and place its employees as it sees fit. This basic right, however , may not be
utilized as a pretext for the discriminatory elimination of an employee because of her union
activities , and the undersigned is convinced on the facts present herein that such is pre-
cisely the case here . The repeated attempts in 1951 to place Goff on this onerous job,
despite her claim of poor health, and to procure a statement from her concerning her in-
ability to perform the work , demonstrates that this was a case of improper and unlawful
motivation.
The undersigned deems it incredible that Hersey , in a plant marked by turnover, would
discharge Goff, the employee he praised as one in one thousand and whom he had selected
several times for promotion , because of her unwillingness to handle an onerous job which
was of a temporary nature , as the record demonstrates . Where her ability was so marked
in all phases of Respondent ' s operations, the undersigned believes and finds that , absent a
discriminatory motive to punish Goff because of her testimony and her union activities, she
would not have been discharged on June 18 . Significantly , an adverse Intermediate Report
in the prior proceeding was handed down by the Trial Examiner on May 29, 1951, and it
reflected the damaging nature of Goff s testimony . Furthermore , the persistent efforts to
compel Goff to perform a job which her health made difficult , warrant the conclusion that
Respondent was attempting to make her status untenable . Stated otherwise, it was attempt-
ing to provoke her resignation , which under these facts would have constituted a construc-
tive discharge . These views are only bolstered when attention is paid to the treatment of
Blanche Rounsavell who was discharged 1 week later under circumstances hereinafter set
forth.
The undersigned finds therefore that Respondent discriminatorily discharged Goff on
June 18 , 1951, in order to discourage membership in and activity on behalf of Machinists and
because Goff had given testimony under the Act. It is further found that by the foregoing
conduct Respondent has interfered with , restrained , and coerced its employees in the exercise
of the right to self-organization , to join or assist labor organizations , and to bargain through
representatives of their own choosing . N.L.R.B. v. May Department Stores Co ., 154 F. 2d 533
(C. A. 8), cert. denied 329 U. S. 725; N.L.R.B. v. Bird Machine Co., 161 F. 2d 589 (C. A. 1);
East Texas Steel Castings Co., 99 NLRB 1339 ; and Editorial " El Imparcial" Inc., 99 NLRB
8.
2. Blanche Rounsavell
Blanche Rounsavell entered Respondent ' s employ in September 1946 as an assembler.
She received a 5-cent raise every 3 months until she attained the rate of $ 1 and, in Septem-
ber 1950, was raised to $1.05 an hour . Although Foreman Smith at one point in his testimony
denied that he had ever stated she was one of Respondent ' s best workers , her production
totals discussed below demonstrate that at the very least her production was superior to that
of many of her coworkers . She was discharged on June 25, 1951.
Rounsavell, like Goff , became an early supporter of Machinists . She signed a card and
distributed and collected cards from employees throughout the protracted Machinists'
campaign. According to Rounsavell , she distributed 40 to 50 designation cards among em-
ployees . And, as in the case of Goff, Rounsavell played a prominent roll in the prior unfair
practice proceeding . She was a witness for theGeneral Counsel during the hearings conducted
from April 2 to 20 , 1951, and testified on three occasions. Her testimony , it is clear, was
similarly of a highly damaging nature to Respondent . Thus , her testimony implicated Presi-
dent White and Vice -President Hersey in certain acts of assistance to an unaffiliated labor
organization which the Board found to have been illegally assisted and supported by Re-
spondent ; the remedy in the decision included a direction to Respondent to withhold all
recognition from that labor organization. Rounsavell also presented testimony attributing
to Vice- President Hersey statements announcing the institution of an insurance plan; the
latter was found by the Board to have been unlawfully motivated and timed. She further
testified that Hersey had threatened a group of employees , including herself , as a result
of their efforts to persuade another employee to join Machinists, and that Hersey, in the
presence of Rounsavell , threatened the group with discharge if certain information was not
divulged . The Board specifically made 8 (a) (1) findings based upon this testimony.
KNICKERBOCKER PLASTIC CO., INC. 525
On June 18 Rounsavell fell ill with influenza and did not report for work. She telephoned
her floorlady , Laureta Schumacher ; informed her that she was ill; and asked Schumacher to
notify Foreman Smith of her condition and inability to report for work . This , Rounsavell
credibly testified , was her practice , namely, to notify the floorlady when she was to be
absent . Rounsavell was ill for 1 week and reported for work on June 25. She performed
her customary duties that day without any comment from management.
At the close of the day, Foreman Smith appeared on the scene and presented Rounsavell
with her paycheck . Rounsavell asked Smith why she was being released and the latter replied
that it was because she had failed to call in during her absence. Rounsavell immediately
protested that she had notified Schumacher of her absence and asked Smith if Schumacher had
informed him of her call . Smith did not reply to this query and Rounsavell then stated that
she believed she was being discharged as the result of her testimony in the prior Board
proceeding . Smith did not respond and immediately walked away. As will appear, the under-
signed believes that Rounsavell correctly evaluated at least one of the causes behind her
termination.
Conclusions
Respondent ' s answer alleges that Rounsavell was discharged for two reasons: (1) Exces-
sive absenteeism , and (2) spending a disproportionate amount of time in the ladies lounge.
With respect to the latter, Respondent introduced no evidence of such conduct on the part of
Rounsavell and she, a clear and concise witness , credibly testified that she never went to the
restroom and smoked as many of the girls did, and that she did not go to the restroom over
twice daily. Moreover , this purported reason was not mentioned to Rounsavell at the time of
her discharge which was, on the contrary, pegged squarely upon another ground . Accordingly,
the undersigned finds the claim not only to be unsubstantiated, but further that it was not the
true cause for her discharge See N.L.R.B. v. Idaho Refining Co., 143 F. 2d 246 (C. A. 9);
Stokely Foods, Inc., 91 NLRB 1267, enfd. 193 F. 2d 736 (C. A. 5); and Anchor Rug Mills,
85 NLRB 765.
Nor does Respondent's other ground of excessive absenteeism , advanced in its answer,
stand up under scrutiny. Its records demonstrate that Rounsavell's attendance was particu-
larly good . Thus, she was not absent during 1950 until the week ending November 26. She
missed 6 working days between that time and the end of the year, but the record does not
disclose whether this was of Rounsavell's choice or as the result of a reduction in operations
during the holiday season. She was absent 1 day in January and 1 in March and, during the
prior hearing while under subpena by the General Counsel, missed considerable time during
the weeks ending April 8 and 22. Thereafter, she missed 1 day during the week of May 20
and 1 during the week ending June 3. Even assuming that these absences , save for the time
spent at the prior hearing , resulted from choice rather than lack of work, they clearly were
not excessive. Moreover, the terminal remarks by Foreman Smith are silent concerning
any excessive absences on the part of Rounsavell He referred solely to her purported failure
to report her illness during her last absence . Accordingly, the undersigned finds that the
last assigned reason for Rounsavell 's discharge was not the true reason therefor.
Although not raised in its answer and not a part of the factual picture with respect to her
termination , Respondent adduced testimony concerning several potential reasons for
Rounsavell' s discharge . Thus, Foreman Smith claimed that Vice-President Hersey had
reprimanded Rounsavell for excessive talking on several occasions during the first quarter
of 1951. Hersey, however , testified that he had reprimanded her on one occasion during May
or June 1951 . He claimed that Rounsavell at the time invited him to discharge her if he
viewed her talking so unfavorably , but that he did not; moreover , it is clear, even on the face
of Respondent's present contention, that Rounsavell would not have been terminated absent
the incident in June. Accordingly, the undersigned finds that this reason was not a cause
for her discharge.
Foreman Smith also gave some dubious testimony to the effect that Rounsavell had partici-
pated in excessive talking during the entire 4 years that she worked under his supervision.
This testimony the undersigned is unable to credit ; had the talking actually taken place as
testified by Smith and had it been regarded so seriously by him, it is difficult to believe that
this Respondent , which finally terminated Rounsavell without warning or notice , would not
have taken appropriate action at the time rather than to have tolerated it for 4 years. This
contention is therefore found to be devoid of merit and it is further found that this did not
constitute the true reason for her discharge.
Smith also provided testimony to the effect that Rounsavell once told him she could turn
out 1,600 units of production if she received a wage increase . This, it is assumed, con-
stitutes a claim by Smith that Rounsavell was loafing on the job . However , Smith admitted
that Rounsavell' s regular production was 1,300 to 1,350 units, this agreeing with her testi-
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony that she averaged 1,300 to 1,400 units. Moreover , Rounsavell uncontrovertedly testified
that some of the girls turned out substantially less than 1,300 units of production and that 1
girl who produced but 1 ,000 units was still in Re'spondent ' s employ. Thus, Smith' s testimony
does not stand up under scrutiny , and moreover , this reason , if it be such, was not advanced
at any time prior to the present hearing . Accordingly , the undersigned finds that it was not
the true reason for her discharge.
Turning to the remaining contention , namely , Rounsavell' s allegedly unreported absence
from June 18 to 25, the facts supporting Respondent ' s position are equally unimpressive.
Smith testified that Rounsavell had not reported her absence to him. On the other hand,
Rounsavell credibly testified that she had reported her absence to Floorlady Schumacher. as
was her custom , and that she so informed Smith on June 25 when he handed her her check.
Schumacher , although apparently still in Respondent ' s employ, was not called as a witness.
Had her testimony not comported with that of Rounsavell , it would have been relatively simple
for Respondent to adduce this fact . It is reasonable therefore to infer that her testimony
would have supported Rounsavell in this respect . Rounsavell' s testimony that she reported
her absence to her floorlady , according to practice , is thus unchallenged and is credited.
Nor was any evidence presented that Respondent had a plant rule relative to call-ins by
absentees . See Wallick and Schwalm Company , 198 F . 2d 477 (C. A. 3).
When note is taken of Rounsavell ' s tenure, dating back almost 5 years, her good attendance
record , and, as the undersigned finds , her desirability as an employee , Smith' s position
herein becomes untenable . In a plant marked by considerable turnover of personnel, as was
this, the undersigned deems it incredible that Smith would not have investigated Rounsavell's
claim that she had reported her illness . Certainly the means were very much at hand. All
Smith had to do was to ask the floorlady if Rounsavell was telling the truth. There is no
evidence that he did and the undersigned believes that Smith did not because he chose not to.
Significantly , when Rounsavell returned home on June 25, after her discharge , she telephoned
Schumacher , as she testified , and ascertained that Schumacher had notified Smith of her
absence In view of the foregoing , the undersigned finds that Smith's testimony herein is not
worthy of credence.
Inasmuch as Respondent ' s reasons for the discharge of Rounsavell have been demonstrated
to be trivial, not related to the circumstances of her discharge , and devoid of merit, one
need not look far to ascertain , on a preponderance of the evidence , what was the true reason
for her discharge . Rounsavell played an active role in the Machinists ' organizational campaign
and had provided damaging testimony against Respondent in the prior unfair labor practice
hearing . An adverse Intermediate Report in that case had been handed down by the Trial
Examiner on May 29 , 1951. The undersigned therefore finds that Respondent availed itself
of Rounsavell' s illness and resulting absence as a pretext for eliminating a leading union
adherent from its employ, just as it did in the case of Goff.
The undersigned finds that Respondent discriminatorily discharged Blanche Rounsavell on
June 25 because of her membership in and activities on behalf of Machinists , in order to
discourage union membership and activity , and because Rounsavell gave testimony under the
Act. It is further found that by the foregoing conduct Respondent has interfered with, re-
strained , and coerced its employees i i the exercise of the right to self -organization , to join
or assist labor organizations , and to bargain through representatives of their own choosing.
N. L.R.B, v. Smith Victory Corp., 190 F. 2d 56 (C. A. 2), N. L. R. B. v. Condenser Corp., 128
F. 2d 67 (C. A. 3); Roxboro Cotton Mills, 97 NLRB 1359; and Mathews Lumber Co., Inc., 96
NLRB 322.
C. The refusal to bargain
1. The appropriate unit
The complaint alleges and the parties stipulated that all production , maintenance, shipping,
and receiving employees of Respondent at its Glendale plant , including experimental and
tool and die shop employees , but excluding office and clerical employees , watchmen , guards,
supervisors , and professional employees , constitute a unit appropriate for the purposes of
collective bargaining . The undersigned finds that the above -described unit, which is in effect
the common industrial unit , constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
The agreement of the parties concerning the appropriateness of the unit does not extend to
the issue of majority representation. In fact , the record contains many exhibits and much
KNICKERBOCKER PLASTIC CO., INC. 527
testimony relative to the employee status of various personnel. This results from the un-
willingness of the parties to stipulate or agree as to who comprised the complement of
personnel on any given date. Respondent's payroll records are incomplete in that they dis-
close only those persons who received checks in a given week and do not disclose or list
employees who were absent, ill, on sick leave, industrial accident cases, and the like.
In order to ascertain the identity of these other persons within the complement of per-
sonnel and their employee status, recourse was had largely to other evidence from Re-
spondent's personnel records. The undersigned has endeavored to achieve some degree of
clarity from this involved factual picture. The problem, of course, is actually two-fold; it
requires a determination of the numerical composition of the unit and then, on the basis
thereof, a determination of the validity of the designation cards by employees within the unit,
concerning which many other contentions have been raised.
Turning to the first issue, the complaint alleges that the Union has been the majority
representative of the employees of Respondent since May 15, 1951. The incomplete payrolls
introduced in evidence reflect payroll periods for the weeks ending May 13 and July 8, 1951,
respectively. The undersigned has endeavored to compute the figures and evaluate the facts
as of the latter date, which is the date when matters came to a head during this stage of the
organizational campaign by Machinists.
Respondent's payroll for the week of July 8 contains 315 names. The exhibit received in
evidence which reflects this payroll contains 337 names. These consist of the 315 conceded
by Respondent to be correct, plus 22 others. These 22 additions are the names of employees
concerning whom testimony was provided by Respondent's Office Manager McCreary. It
should first be noted, however, that the figure of 315 must be reduced to 314; one of those
named, Shuss, quit Respondent's employ on May 31.
Of the 22 names, Ni. Garcia and G. Palmisano, have not been counted as employees on the
crucial date. The first quit on June 21 and the second, it appears, was ill after June 23, 1951.
The record does not disclose that she was on sick leave, in which event she would have been
included, and the issue has been resolved in Respondent's favor. In addition, the name of a
third, Nogrady, is a duplication and has not been counted. The remaining 19 were largely
persons who were working up to the time of the strike on July 9, some few were on sick leave
at the time; and some were industrial injury cases under treatment. With respect to these
19, the undersigned finds that they had a reasonable expectation of continued employment and
that they were employees within the unit at the time. Whiting Corp., 99 NLRB 117; Sexton
Welding Co., 96 NLRB 454; and Puerto Rico Condensor Corp., 89 NLRB 1570. Cf. Sargent
and Co., 99 NLRB 1318.7
To the previously resulting total of 333 are to be added the names of Goff and Rounsavell.
Their employment was discriminatorily terminated by Respondent, and they accordingly
remained employees within the meaning of the Act To this total of 335 may be added 11
others who were actually working on July 8 and, in fact, the inclusion of their names is urged
by Respondent. Their names are Nichols, Hintz, McGarry, Cavanaugh, Hanson, Hansen,
Juardo, Mazzeo, Reynolds, Ritchie, and Contreras. Other names proffered by Respondent as
part of this group already appear on the payroll.
From the resulting figure of 346 has been subtracted a group of 29 conceded to be super-
visory, sales, and office personnel. Several stipulations, actually including 36 names in these
categories, were received, but 7 of those named do not appear on the July 8 payroll. As a
result the undersigned has deducted 29 names from the total, this leaving a net result of
317 names. The undersigned finds them to have been the complement of personnel within the
appropriate unit during the payroll week ending July 8, 1951. In so finding it is only fair to
point out that the possibility of minor errors in this computation exists, in view of the
1 The undersigned believes that it would unduly burden an already lengthy report to itemize
and treat separately with each case. Suffice it to say that the names have been tabulated and
computed. Consideration has been given to and an analysis made of each case where a
name has been added to the payroll. The undersigned has further in mind that all this could
have been obviated by an election at which the individual cases could have been worked out.
This however was rendered impossible by the unfair labor practices of Respondent in con-
nection with the previous election wherein Machinists attempted to demonstrate its majority
status.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of the persons in the unit who possess the same surname ; however, the computa-
tion is substantially correct.8
As stated , there were 317 employees within the appropriate unit during the payroll week
ending on Sunday , July 8 , 1951 . This figure actually reflects the complement between Monday.
July 2, and Friday. July 6, with the possibility that some worked on Saturday , July 7. As evi-
dence of the union majority in the appropriate unit , the General Counsel offered in evidence a
number of union-authorization cards designating Machinists as the bargaining representative.
These cards were in 2 groups . The first group of 238 reflects signatures in 1951, and a second
group of 13 cards reflects signatures in 1950.
Treating first with the larger group, the testimony of Union Organizer Gordon , supported
by that of Goff. Rounsavell , and Elizabeth Norton, discloses that these cards were distri-
buted in the plant subsequent to January 1951; in fact , the dates on the cards start during the
month of February . All were signed and mailed in to Gordon who turned them over to a
field examiner of the Board . in the latter part of June 1951. Gordon admittedly received and
turned over several cards to the field examiner after that date ; 4 of the cards bear dates in
July, 1 on July 8, 2 on July 9, and 1 on July 14. They, accordingly , have been excluded from
the computation of'umon representation during the workweek ending July 7.
With respect to the remainder of the first group , the evidence thus discloses that these
cards were in the possession of the Board prior to the demand for recognition on July 6,
discussed hereinafter . Several of the signers identified their own signatures and some they
had witnessed . Evidence with, respect to the remainder was presented in the following
manner . Martin Zimring , a field examiner for the Board for 10 1 years, testified that on
approximately 100 occasions during his tenure he had compared the signatures on groups of
union -designation cards with corresponding signatures on company records or canceled
payroll checks ; that the occasions for this comparison arose in the line of duty when there
was a question concerning the authenticity of signatures during the conduct of a crosscheck
of union cards for the purpose of ascertaining a union majority.
He further testified that he had compared the signatures of the cards in this group, as
well as those in the second group of 13, with the signatures appearing on Respondent's
canceled payroll checks and employment forms , these being company records supplied by
Respondent . Zimring found all but nine of the cards in the first group to be in the same
handwriting as that appearing on the company records . With respect to the second group,
he found all but several to be in the same handwriting as that appearing on the corresponding
company record.
In those cases where the handwriting did not match to his satisfaction he made no negative
finding ; he restricted his conclusion solely, in view of the absence of a satisfactory exemplar
or the fact that the signature was a printed one, to a declination to find that the authorization
card bore the authentic signature of the designated employee . However, in a majority of the
instances where Zimring did not make a finding of genuineness, the General Counsel called
those persons as witnesses and they proceeded to identify their signatures on the cards. In
view thereof, Zimring's affirmative identification of the great majority of the cards becomes
all the more persuasive.
Although not all of the cards identified by Zimring have been relied upon by the under-
signed , for other reasons set forth below , at this point consideration will be given to Re-
spondent ' s basic objection to the receipt in evidence of these groups of cards; this objection
is predicated upon the purported lack of a foundation for their receipt . However, the Cali-
fornia decisions do not support Respondent 's position herein . See °ction 1944 of the Code
of Civil Procedure . In Newell's Estate , 75 C. A. 554, the court cite Jones on Evidence with
approval to the effect that a witness identifying handwriting need not belong to any particular
calling or profession . It held that the only requirement was that the business opportunities
and intelligence of the witness should be such as to enable him to have reasonable skill in
the judging of handwriting . In People v. Daniels , 85 C. A. 2d 182, 192 P. 2d 788 , where the
issue was the identification of the signature on a deed, the court held that a police officer
who worked on a check detail qualified as an expert on handwriting . The court stated that
8 The General Counsel attempted to show that certain leadmen and floorladies included
in the unit are supervisory personnel. Respondent's contention that this group had none of
the prerogatives or indicia of supervisors is somewhat suspect inasmuch as this claim
places Respondent in the position of running a plant of this size and with some departments
on more than 1 shift, with but 7 foremen or supervisors. However, the preponderance of the
evidence does not support the finding urged herein by the General Counsel. See Englander
Co., 100 NLRB 164.
KNICKERBOCKER PLASTIC CO., INC. 529
the witness need not follow the profession of a handwriting expert and that it was only neces-
sary that in the vocation followed by the witness he be called upon to make frequent com-
parisons of handwriting. See also Hobbs Wall and Co., 30 NLRB 1027, 1042.
Returning to the instant case, the undersigned is of the belief and finds that the field
examiner had the business opportunities to make frequent comparisons of handwriting and
also had the intelligence to do so. In fact , his experience in the analysis of handwriting was
peculiarly with the identical problem presented in this case, namely, establishing the au-
thenticity of signatures on union-designation cards. Respondent did not attempt to dispute
the authenticity of the signatures by calling any witnesses on the topic, expert or otherwise.
although, certainly with respect to the purported signers still in its employ, the means was
very much at hand . Cf. N.L.R.B. v. Wallick & Schwalm Co., supra . Moreover , as stated,
Respondent is in a particularly poor position to object to this particular method of proof
of a union majority, for it was Respondent's prior unfair labor practices which prevented
the conduct of a free election and, as a result of which, the General Counsel chose to proceed
in the present manner . In view of the foregoing considerations , the undersigned rejected
Respondent 's contention and received the cards in evidence. 9
In computing the total of cards, the undersigned, still treating with the first group, has
passed upon various of the cards as follows: The card of Betty Beard, General Counsel's
Exhibit No. 231, was received inasmuch as her signature to the card was witnessed. The card
of Elvera Cisneros, General Counsel's Exhibit No. 228, although undated has been received;
her card was among those distributed and received in the period from February through June
1951.
The undersigned has not included in his computation of valid designation cards General
Counsel 's Exhibits Nos. 73 and 78, these being the cards of Frank Coate, dated March 20, 1951,
and Aline Gaide, dated March 12, 1951. Although these were authentic and in fact Gaide identi-
fied her card, the record indicates that Coate and Gaide signed cards for another labor organi-
zation, Rubber Workers, in May of that year . The undersigned doubts whether this constitutes
a repudiation of the designation card for Machinists and is inclined to believe that it is more
indicative of an alternative designation, but Board policy appears tobethe contrary. Ace
Sample Card Co., 46 NLRB 129, Central Paint& Varnish Works, 43 NLRB 1193, and Pennsyl-
vania Handbag Frame Co., 41 NLRB 1454.
Seven of the signers of valid cards , Moses, Digati, Minneci, Long, Stine, Campos, and
Hamilton, signed duplicate cards ; hence only one card for each has been counted and the
duplicates have been disregarded . With respect to a number of cards signed and dated during
the February through June period of 1951, the names of the signers do not appear on the
July 8 payroll. Although the payroll was admittedly incomplete, it has been necessary to rely
thereon, save where it has been amplified by testimony. In those instances where there was
no amplifying testimony, the cards , although received in evidence, have not been counted.
The card of Ethel Demogines , General Counsel's Exhibit No. 216, has not been counted; she
quit Respondent 's employ on May4andwas not rehired until August 9 . 1951. Four other cards,
those ofMather,M. Garcia, Palmisano , andBorquez , have not been included in the computation;
these four either left Respondent 's employ or were discharged during the month of June 1951.
Another card, that of Lillian Montanez, has not been included . Although she identified her
signature on a card dated March 13, 1951, and apparently worked for Respondent thereafter,
she did not appear on the payroll of July 8. Her testimony does not disclose that she was still
in Respondent 's employ on July 8, and accordingly the issue has been resolved in Respondent's
favor.
Having eliminated the foregoing, the remainder of the first group of designation cards re-
ceived in evidence total 163 , a majority of the 317 previously found to constitute the personnel
in the appropriate unit at the time pertinent herein . See N.L.R.B. v. Somerset Shoe Co., 111
F. 2d 681 (C. A. 1); Dolores, Inc., 98 NLRB 481; Cuffman Lumber Co., 82 NLRB 296; Lewis
Motor Co., 80 NLRB 1134; Robeson Cutlery Co., 67 NLRB 481; Hobbs Wall and Co., supra;
and Jamestown Metal Equipment Co., 17 NLRB 813.
There still remains the second group of 14 cards, the majority of which, in the view of the
undersigned , are to be added to the foregoing total; this figure is immediately reduced to 13,
however, in view of there being 2 cards for Troy Boone, only 1 of which has been counted.
Nine of these cards were signed in June 1950; of the remaining 3, 2 were signed in July and 1
in September of that year. It will be recalled that this was during the initial stages of the
organizational campaign by Machinists which culminated in an election in September 1950.
This election was lost by the Union as a result of Respondent's unfair labor practices and the
election was later set aside . The campaign resumed in January or February of 1951, as here-
9Sigmficantly , Respondent promptly recognized the CIO in the following September on the
basis of a card check conducted by a State employee in the same manner as Zimring.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inabove described . Under these circumstances , the undersigned deems this group of cards to
be reasonably current cards signed in support of Machinists during the same organizational
campaign and properly receivable in evidence , although, as will appear , some have not been
included for other reasons . See Safeway Stores, Inc ., 99 NLRB 48.
Two of the cards, those of Long and Minneci are duplicates , and the cards of these two
employees have already been counted as part of the larger and later group; hence, their cards
in this group, General Counsel's Exhibits Nos. 257 and 261, have not been counted . Two cards,
those of Donald Hanson and Robert Lange , General Counsel 's Exhibits Nos. 256 and 262, are
undated; the signers are still in Respondent 's employ . As these cards must have been signed
no earlier than mid-1950 , when Machinists' organizational started , they have been included
herein; although Hanson was not on the July 8 payroll, the testimony of Office Manager
McCreary demonstrates his employee status at that time.
The card of Elizabeth Haven, General Counsel's Exhibit No. 258, has been counted ; she too,
as shown by McCreary's testimony , was an employee , although not listed on the July 8 payroll.
The card of Frank Firmat , General Counsel 's Exhibit No. 250, and dated June 15, 1950, has
been counted . Firmat was found in the prior Board proceeding to have been discriminatorily
discharged on September 7, 1950, and Respondent is apparently still resisting compliance with
and enforcement of that decision ; Firmat, of course , remained an employee after his dis-
criminatory discharge.
The remaining cards, seven in number , those of V. M. Davis , M. G. DeLongfield , Valone,
McDaniel , Jefsen, T. Boone, and R. S. Montanez , have been included. Montanez was drafted in
November 1950 into the Armed Services from Respondent 's employ . He has been home twice
on furloughs during 1951 , and during each of these worked at the plant. Under these circunr
stances, the undersigned finds that Montanez has a reasonable expectation of returning to
Respondent's employ. His signature, it may be noted, was identified by his wife, L.
Montanez. to
In view of the foregoing considerations , the undersigned finds that during the actual work-
week ending July 6 or 7, 1951 , Machinists was duly designated by 174 of the 317 employees in
the above-described appropriate unit, these constituting a clear majority therein. It is
found that as of that date and at all time thereafter , Machinists , by virtue of Section 9 (a) of
the Act was and now is the duly designated representative of the employees in the above-
described appropriate unit for the purposes of collective bargaining with respect to rates of
pay, wages , hours of employment , or other conditions of employment.
3. The refusal to bargain
Respondent admitted in its answer that it refused to bargain with Machinists , although not
conceding the commission of any unfair labor practices. The facts in this case not only bolster
the admission, but also establish the commission of an unfair labor practice in this respect.
It is deemed cumulative and unnecessary to detail the host of evidence demonstrating Re-
spondent 's unwillingness to recognize and deal with Machinists and, accordingly , only enough
to establish Respondent 's attitude herein is set forth.
As found above , the election held in September 1950 was set aside as the result of Re-
spondent 's unfair labor practices . The organizational campaign was resumed by the Union and,
on March 20 , Organizer Delmar Gordon wrote to Respondent , requested recognition as
bargaining agent for a plantwide unit, requested a meeting , and offered to prove Machinists'
majority through a disinterested party; this request was ignored . On May 15, 1951 , Gordon
sent an identical letter to Respondent and this, too, was ignored . There were a number of
telephone conversations between various officials of the Union and President White and Vice-
President Hersey of Respondent on the topic of recognition . It is sufficient to point out that
White admittedly said during meetings in April and June with Representative Skagen of Ma-
chinists that he would never recognize Machinists and that he refused to sign a contract with
Machinists . Moreover , President Snider of Machinists telephoned White on July 6 in an
attempt to avert a strike which had been voted in protest of the discharges of Goff and
Rounsavell as well as the refusal to recognize Machinists . Snider asked White to meet with
him, stating that Machinists represented a majority of the employees , and urged him to do so
in order to avoid a strike . Snider stressed the fact that he was willing to submit evidence that
io The original computation of 163 cards in the first group included the card of Juan
Valdez, dated February 25, 1951, who was drafted into the Armed Services on April 3.
He, of course , is entitled to reemployment under Federal legislation covering returning
servicemen . On the other hand, the undersigned is uncertain whether the decision in W. W.
Holmes Co., 72 NLRB 39, reflects current Board policy on this issue . In any event, the
inclusion or exclusion of his card would not affect the result herein.
KNICKERBOCKER PLASTIC CO., INC. 531
the Union represented a majority of the employees and would submit such evidence to White.
The latter refused to say anything to Snider , but merely referred him to his attorney, whom
he refused to identify . The record amply demonstrates that this was purely a dilatory and
evasive tactic frequently indulged in by White and that the statement of referral to his attorney
was not uttered in good faith . Significantly . White expressed no doubts at the time as to
whether Machinists did in fact represent a majority of the employees . All demands for rec-
ognition were for a plantwide unit and no issue has been raised as to any misunderstanding on
that score ; in fact there was none.u
The undersigned finds that the refusal to bargain with Machinists was not caused by any
doubt concerning the number of employees who had designated Machinists as their bargaining
representative . As will appear below, the CIO did not commence, actual organizational activities
at Respondent ' s plant until September of 1951 ; hence this could not have been a legitimate
operative factor in Respondent ' s decision. The prompt recognition of the CIO in September,
discussed below , on the basis of the same type of card check proposed by Machinists , demon-
strates that it was the labor organization , Machinists , that Respondent objected to and not
whether or not it had a majority.
Respondent ' s conduct was rather a positive rejection of the entire principle of collective
bargaining , inasmuch as it was contrary to the wishes of a majority of its employees. More-
over, where , as here, the attitude of Respondent was in effect that it would not bargain with
Machinists under any conditions , it cannot now plead that sufficient proof of a majority was
not furnished it. Lebanon Steel Foundry v. N. L. R. B., 130 F . 2d 404 (C. A. D. C.), cert.
denied 317 U. S. 659 , and N . L. R. B. v. Clarksburg Publishing Co., 120 F. 2d 976 (C. A. 4).
Significantly , on July 9, after the start of the strike , President Snider attempted to settle the
issue of representation with both Vice-President Hersey and President White of Respondent.
Snider offered to meet with White, but the latter refused, merely repeating that Snider would
have to see his attorney , and refused to identify the latter . That the strike had started did not,
of course , excuse Respondent from its duty to bargain with the majority representative.
N. L. R. B. v. Deena Artware, Inc., 198 F . 2d 645 (C. A. 6).
The undersigned finds, therefore , that Respondent ' s refusal to recognize and deal with the
Union on July 6 constituted a reaffirmation of its prior similar conduct . The undersigned
further finds that on July 6, 1951 , and at all times thereafter, Respondent has refused to bar-
gain collectively with the Union and has thereby interfered with , restrained , and coerced its
employees in the exercise of the rights guaranteed by the Act.
D. The strike
1. The facts
As heretofore found, Goff and Rounsavell were discriminatorily discharged by Respondent
on June 18 and 25, 1951, respectively. From March 1951 on, as well as in 1950, Machinists
had been attempting in vain to achieve recognition from Respondent, and on July 5 the matter
came to a head. According to the credited testimony of Gordon, 2 meetings were held at the
union hall on that date, 1 for each shift. Gordon addressed identical remarks to each meeting
and informed the employees that there had been discharges for union activities, naming Goff
and Rounsavell , and that Respondent was still refusing to bargain with Machinists. Interna-
tional Representative Skagen also spoke of the futile attempts to achieve recognition and of
Respondent's expressed intent to resist organization by Machinists. The union representatives
asked the assemblage to consider a strike vote.
The vote was taken and was unanimously in favor of a strike. A strike committee was
chosen and empowered to call a strike when its members deemed it necessary. On the follow-
ing day, July 6, the committee met and voted to call a strike for the morning of July 9. Later
on the day of July 6, President Snider attempted to avert the strike by telephoning President
White of Respondent and pointing out that hewas willing to meet with him and present evidence
of the majority representation by Machinists. White rejected Snider's request for a meeting
and the attempt to avoid a strike failed. Clearly, this refusal to meet on July 6 constitutes by
itself a refusal to bargain and was an added cause for the strike, which presumably Snider
was in a position to call off.
The strike started on the morning of July 9 and picket lines were established at the plant.
On July 10 and 11, Respondent wired 138 employees who had failed to report for work after
ti There is evidence that United Rubber, Cork, and Linoleum Workers did some organiza-
tional work at Respondent 's plant in 1951 , the dates of this being uncertain. However, Respon-
dent made no claim based thereon to Machinists at the time, and no evidence of any sub-
stance was developed concerning the nature and extent of this activity.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the establishment of the picket lines , that their failure to report for work had been without
permission and that " unless you are at work Wednesday regular working hours [July 11] we
will consider that you have voluntarily terminated your employment with us.
On July 12, Machinists wrote to Respondent in response to the wire and stated that Machinists
was the authorized representative of the employees not only for the purpose of negotiating
conditions of employment , "but also in connection with the present dispute with your company."
The letter pointed out , as was the fact , that the strikers had retained their employee status;
were merely respecting picket lines , and would return as soon as the lines were removed.
The letter closed by pointing out that, contrary to the wording of the wire, the employees
were not resigning or terminating their employment.
As heretofore found , this wire from Respondent was intended to permanently sever the em-
ployment of the strikers and those who had refused to cross the picket line. Respondent's
personnel records disclose that on July 31 it terminated employees who did not report for
work during the strike and the testimony of Office Manager McCreary shows that anyone who
did not return to work as provided by the wire was "automatically terminated ." The termina-
tion by Respondent , in a letter of July 26, of the hospitalization and medical coverage of those
employees who had failed to heed the wire , demonstrates that the wire of July 10 and 11
meant precisely what it said and that the strikers were discharged on July 10 and 11 and the
decision reaffirmed on July 26 . Moreover , which of these dates was the date of their dis-
charge is immaterial as the remedy in this case would be unaffected.
The picketing continued until sometime in December , although the Union did attempt again
to obtain recognition by a letter requesting same on October 15, 1951. This, like its prede-
cessors, was ignored . In December , the picketing was called off when certain conferences
were held in an effort to settle the strike . These efforts , which appear to have been marked
by Respondent acquiring and disposing of legal counsel in rapid fashion , were unsuccessful.
The strike continued without picketing activity until March 24, 1952, when Machinists wrote
to Respondent , as follows:
Please be advised that each of your striking employees is hereby unconditionally
offering to return to work for your Company.
Will you please advise the undersigned when these employees should report to work or
if you wish you may advise the employees directly the date on which they should return.
Following a consistent pattern , Respondent made no reply to this letter.
2. Conclusions
The employees of Respondent who commenced a strike on July 9, and this group includes
dischargees Goff and Rounsavell who joined the strike and pickets on that occasion, were
immune from discharge inasmuch as they were engaged in a concerted activity protected by
the Act. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U. S. 333. Moreover , as unfair
labor practice strikers , they could not be replaced by Respondent and, in fact, no contention
of this nature has been made . See N.L.R.B. v. Star Beef Co., 193 F. 2d 8 (C. A. 1).
Nevertheless , Respondent discharged this group of strikers , as well as sympathizers who
did not report for work during the strike , because they had engaged in this protected con-
certed activity. It thus discriminated with respect to their hire and tenure of employment in
order to discourage union membership and thereby interfered with, restrained , and coerced
its employees in the exercise of their right to engage in concerted activities for their mutual
aid or protection . N.L.R.B. v. Deena Artware , supra ; Longview Furniture Co., 100 NLRB
3Q1; Buzza -Cardoza , 97 NLRB 1342; and Kallaher & Mee, 87 NLRB 410. As heretofore noted,
whether the discharges took place on July 10 or 26 is immaterial . These were protected
strikers who were discharged and the only issue is one of remedy; the remedy to be discussed
hereinafter will toll back pay during such period that the discharged strikers were unavailable
for employment . Kallaher & Mee, supra
The undersigned further finds that by Its discharge of the strikers Respondent added to the
previous causes for the strike, as it also did by its unlawful recognition of the CIO discussed
hereinafter , and that these flagrant unfair labor practices inevitably resulted in the prolonga-
tion of this relatively long strike.
E. Assistance and support to the CIO
1. The facts
There is no evidence that the CIO conducted any actual organizational activity among the
employees of Respondent prior to September 1951 although, in 1950 and 1951 , representatives
KNICKERBOCKER PLASTIC CO., INC. 533
of the CIO urged Respondent to recognize it, predicating this claim primarily on the con-
tractual arrangement between its Local 223 and Respondent ' s affiliated company in New York
City. in fact, Local 223 attempted on June 19 , 1951 , to intervene in the prior Board proceed-
ing, 96 NLRB 586, and on August 27, 1951 , the motion was denied . Certain other charges and
petitions filed by the CIO, commencing on June 11, 1951 , were not entertained by the Board,
presumably in view of the record and history of this proceeding and its predecessor case.
The record contains some testimony of a most unusual nature relative to the relationship
between President White of Respondent and one Tripode , an international representative for
Playthings , Jewelry and Novelty Workers Union, CIO. White testified that Tripode visited him
sometime during June and July 1951 ; in view of the testimony by Louis Cohen, another in-
ternational representative for the same organization , this visit probably took place after the
middle of June . According to White , Tripode, who did not testify herein, informed White that
he needed $ 1,500 because he was organizing another plant in the area known as Mattel Crea-
tions, that he needed the money at once, and that he was unable to contact his associates in
New York City . White , who had previously met Tripode , promptly gave him a check for $ 1,500.
On the following day White received a promissory note in the mails from Tripode for this
amount . The debt, if it be that , has not been paid and White has not requested payment there-
of. In fact, White has allegedly had no further ,communications with Tripode on the subject
and has taken no steps to collect the sum.
The testimony of Louis Cohen casts considerable doubt on White ' s testimony as to the pur-
pose of this financial transaction . Cohen, who was of equal rank with Tripode , testified that
there was an election at Mattel Creations during the last few days of July ; that he , Cohen,
was assisted by approximately six workers to handle the campaign ; that Tripode' s only con-
nection with the Mattel case was to assist Cohen during the last few days of the campaign.
The undersigned does not credit White 's testimony as to the purpose of this financial trans-
action. However , although the organizational campaign by the CIO at Respondent 's plant
followed not long thereafter , the evidence is insufficient to support a finding that the financial
transaction between White and Tripode is related to the organization of Respondent ' s plant
by the CIO. It is also unnecessary to dwell upon unsupported testimony to the effect that this
money was intended as a bribe for a Machinists ' representative in exchange for dropping the
Machinists ' organizational campaign.
The facts relative to the appearance of the CIO at Respondent's plant for organizational
purposes are also of a most intriguing nature . The testimony of Herbert Barber it and Cohen
amounts to the following. On or about September 4, Barber received a telephone call at the
plant . The caller , who actually was Cohen but did not identify himself , informed Barber that
the latter ' s name had been furnished by another employee ; that he, the caller , had heard there
were difficulties in the plant; and that Barber ought to telephone one Cohen , a CIO representa-
tive, in order to help straighten out the matter . Cohen never identified himself during this
conversation , but did supply Barber with his, Cohen ' s, telephone number.
Barber telephoned Cohen later that morning . Barber' s skepticism with respect to union
organization having been dispelled by Cohen, according to the testimony of the two, they agreed
to meet for lunch and did so on either September 4 or 5, at which time Cohen persuaded
Barber to assist in a CIO organizational campaign . Barber agreed to form a committee; he
returned to the plant and enlisted the aid of an employee , Gonce, for the purpose of selecting
one. The latter chose a committee and on or about the following day the committee visited
Cohen's office , where he outlined an organizational procedure for them to follow . The com-
mittee returned to the plant and commenced to solicit membership in the CIO.
On September 7, Cohen wrote to White, advised him that Local 801 had been designated as
majority representative , and requested a meeting to discuss a contract. Cohen also filed a
representation petition in Case 21 -RC-2161 on or about September 15; this petition remained
pending for some time in the Regional Office and was dismissed in March 1952, on the ground
that this was in essence the same matter with respect to which intervention had not been
permitted in the prior cases.
On September 17, having received no reply to his letter . Cohen telephoned White and re-
newed his request for a meeting . White stated that he was not ready to discuss the matter
and referred Cohen to his attorney, Collins . Cohen telephoned Collins, informed the latter
that the CIO represented a majority of Respondent's employees, and offered to prove it.
it As in the prior case, the General Counsel attempted to establish that Barber was a
supervisor . Although he was a skilled artisan and the only one of his craft in the plant, the
record will not support a finding that he was a supervisor . Despite the fact that his re-
lationship with management, in view of his position as niodelmaker and designer, was
inevitably a close one and closer than that of the rank-and-file production workers, no
reliance has been placed thereon in the ensuing findings.
283Z30 0 - 54 - 35
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collins replied that he would call Cohen back after discussing the matter with his client.
Collins promptly returned the call and agreed to recognize the CIO if it proved its majority
to an impartial body; they agreed to utilize the State of California Conciliation Service.
A meeting was arranged for September 18 at the office of Collins and was attended by
Collins, White, Hersey, an employee committee of 17, and a California conciliator, one
Koven. They agreed to a card check by Koven, who forthwith, in private, apparently devoted
several hours to a comparison of the signatures on the CIO designation cards with those in
company records Significantly, Attorney Collins indicated that he was aware that Machinists
was very much in the picture.
The unit utilized was one of all production and maintenance employees, save clericals,
supervisors, and guards. The record does not show what disposition was made with respect
to professionals whom the parties agreed to exclude from the unit found to be appropriate in
the instant proceeding. Nor does the record disclose what was the fate of experimental and
tool and die shop employees whom the parties likewise agreed constituted a part of the ap-
propriate unit herein. Koven promptly announced that the CIO had been designated by a clear
majority of the employees in the unit, certified the results of the cross check, and Cohen and
Collins agreed to meet on the following morning, at which time Cohen was to present Collins
with a contract proposal. Cohen, in fact, did so on the following morning. Several meetings
were held by the union adherents for the preparation of contract proposals, and there were
several meetings by Cohen and a committee with Collins; present at the latter were White,
Hersey, or both.
On September 27, 1951, the parties entered into a contract, dated September 24, whose
duration was for a 2-year period expiring September 24, 1953, and from year to year there-
after This contract is currently in effect and Respondent has recognized the CIO as bargain-
ing agent since the aforementioned date. Management holds regular meetings with the Union
for the purpose of discussing grievances, and these are attended by Vice-President Hersey.
The contract also contains a wage reopening clause, each party being entitled to 2 reopenings
on a 10-day notice. Indeed, one such reopening, presumably at the request of the CIO, has
already taken place and the parties met on May 1, 1952, to discuss wages. These meetings
were suspended out of deference to the hearings before the undersigned and Cohen testified
that Repondent and the CIO had arranged to resume them upon the conclusion of the instant
hearing. Presumably these meetings have already taken place.
2. Conclusions
As will appear, the position of the General Counsel has been sustained herein upon two
separate grounds. Hence it is deemed unnecessary togo into a potential third ground, namely,
the method by which the CIO organized the plant. Briefly, the record does not in any degree
of substance support the allegation of the complaint that Respondent permitted the CIO to
organize during working hours and assisted it therein. Similarly, it is unnecessary to go into
a potential fourth ground, namely, an analysis of the meetings at which the CIO adherents
presented their demands to Respondent and the treatment of such requests by Respondent.iS
Nor, for the same reason, need the undersigned pass upon the appropriateness of the unit
utilized in the State proceeding. It is sufficient to say that the State proceeding can have no
validity whatsoever in view of the Board having previously preempted this field and being
actually deeply engaged in determining the question concerning representation at Respondent's
plant, not to mention its unravelling of Respondent's unfair labor practices. See Thayer Co.,
et al., 99 NLRB 1122.
(1) It has previously been found that Respondent refused to bargain collectively with
Machinists on and after July 6, 1951, and that its employees then commenced a strike in
protest of this refusal to bargain as well as the discharges of Goff and Rounsavell. Moreover,
the issue of representation had been before the Board since 1950, an election in that year
having been vitiated by Respondent's unfair labor practices, and on May 29, 1951, a Trial
Examiner of the Board had recommended that this election be set aside; this recommenda-
tion was later adopted by the Board on October 2 of that year. Despite this impressive total,
Respondent nevertheless promptly recognized the CIO in September 1951 as the representa-
tive of its employees. The haste with which such recognition was granted is apparent when it
is noted that Cohen addressed his initial communication to White on September 7 and that
recognition was achieved on September 18. To recapitulate, with full knowledge of the
is it is interesting to note that President White, although claiming that under Wage Stabili-
zation Board regulations he could grant the CIO only a 2-cent per hour wage increase, did
nevertheless in the contract grant a 5-cent per hour wage increase.
KNICKERBOCKER PLASTIC CO., INC. 535
Machinists' organizational campaign and, of course, of its own flagrant unfair labor practices
calculated to break up the Machinists' campaign, Respondent promptly recognized the CIO.
Inasmuch as Respondent has strongly attacked the cards relied upon by Machinists as
proof of its majority, it is interesting to note the manner in which the CIO majority was
demonstrated, this being the majority on which Respondent and the CIO rely in support of
their contract. There was no identification of the cards by the signers or witnesses thereto.
There was merely the informal turning over of this group of cards to a State employee who
apparently compared them with exemplars from Respondent's records. Since this type of
proof caused Respondent very little concern when the CIO was involved, the undersigned is
at a loss to see how Respondent in good conscience can attack Machinists' proof of majority
in this proceeding. In the instant case, a field examiner of considerable experience with
handwriting on union-designation cards made the check and testified impressively concerning
his efforts; although the expert qualifications of the State employee are not disclosed by the
record, it is doubted that they were in any degree superior to those of the field examiner.
Moreover, assuming the existence of a majority of CIO cards in September 1951, this fact
is of no avail to Respondent. It had advised its employees in a most emphatic manner that it
would never recognize Machinists, had discharged Machinists' leading adherents, refused to
bargain , and in fact its conduct had resulted in a strike by its employees. It is all too clear
and the undersigned finds that if the employees, in their desire to achieve union representa-
tion, shifted from the labor organization disapproved by Respondent, this shift was caused
by Respondent's unfair labor practices. Such a loss of majority, it is well settled, can be
remedied only by requiring bargaining with the previously established bargaining representa-
tive. Franks Brothers v. N.L.RB., 321 U. S. 512.
The undersigned does not find, despite the suspicious background, that Respondent arranged
for the introduction of the CIO into its plant Nevertheless, it is well established that at the
very least a neutral employer who is confronted with conflicting representation claims must
not negotiate a contract with one claimant until its right to be the bargaining representative
has been finally determined under the Act. Midwest Piping and Supply Co., 63 NLRB 1060. As
stated in that case, "the effect of such conduct is to accord unwarranted prestige and ad-
vantage to one of two competing labor organizations and thereby prevent a free choice of the
employees."
It is all too clear that Respondent not only did this in the present case, but that it did so in
the face of its previous unfair labor practices directed against Machinists, and while on
notice that the Board intended to conduct a new representation election. The undersigned con-
cludes that Respondent deliberately intended and strove to defy the Board and make a farce
of the Board proceedings against it. See Polynesian Arts 100 NLRB 542, and Alaska Salmon
Industry, 98 NLRB 1203.
(2) But Respondent's recognition of the CIO is open to attack on still another ground, in-
asmuch as the contract, as contended by the General Counsel, contains union-security
language and there was, at the time of signing, a failure of compliance by Local 801 with the
provisions of Section 9 (f), (g), and (h), as required by the recent amendments to Section
8 (a) (3) of the Act.
The present agreement was executed on September 27, 1951, by Respondent with both
Local 801 and its International. Local 801 was chartered by its International on September
5, 1951 and received its charter sometime after September 18. Local 801 has never obtained
union-security authorization by virtue of a Board election. Furthermore, even applying
the standards required under the amendments to the Act on October 22, 1951, Local 801
had not, as required by the amendment to the proviso of Section 8 (a) (3) of the Act, achieved
compliance with the provisions of Section 9 (f), (g), and (h) "at the time the agreement was
made or within the preceding twelve months." This was manifestly impossible inasmuch as
Local 801 did not achieve compliance until April 2. 1952.
This presents the issue whether or not the contract contains union-security language. In
so deciding, the undersigned has in mind that Section 8 (a) (3) of the Act flatly and broadly
forbids all forms of discrimination, this being qualified solely by the provisos thereto which
permit discrimination only under certain narrow and clearly specified circumstances.
Section 2 of the contract provides as follows:
All employees, who on the date of this Agreement, are members of the Union in good
standing in accordance with its Constitution and By-Laws, and all employees who be-
come members after that date shall, as a condition of employment, maintain their
membership in the Union in good standing for the duration of this Agreement. Subject
to the pertinent provisions of applicable laws, particularly those set forth in N.L.R.B.
Act as amended 1947.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a recent case . West Steel Casting Co ., 98 NLRB 153 , the Board in passing upon an almost
identical clause said as follows : The contract does not require any employee to become a
union member . For reasons set forth in Charles A. Krause Milling Co., [97 NLRB 536] the
legality of the contract is unimpaired by the fact that it contains no 30 -day escape clause for
employees who were members of the Intervenor on the date of execution of the contract or
thereafter . Nor, for reasons set forth in Davis Motor Company , Inc.. [97 NLRB 125] is the
legality of the contract impaired by the fact that the execution of the union-security clause
was not preceded by a union -shop authorization election, the requirement for such an election
having been eliminated by a recent amendment to the Act."
The foregoing decision does not, however, dispose of the present problem, for in that case
it must be assumed that the union had , previous to entering into the contract , achieved compli-
ance with Section 9 (f), (g), and (h). The problem still remains whether a maintenance-of-
membership provision standing alone constitutes a form of union security which brings it
within the purview of the proviso to Section 8 (a) (3) and requires compliance with the pro-
visions of Section 9 (f), (g), and (h) of the Act as a condition precedent thereto.
In Allied Chemical and Dye Corp ., 97 NLRB 1248 , the Board held , as in the above-quoted
decision, that a maintenance -of-membership clause was in fact a form of legal union se-
curity and did not exceed the limitations on union security imposed by the Act . Inferentially
it follows that compliance with the provisions of Section 9 (f), (g), and (h) was necessary.
However , like the West Steel Casting decision , there was presumably prior compliance
with those provisions add the instant problem was not treated with.
The closest Board pronouncement on the topic appears in Standard Lime and Stone Co., 95
NLRB 628. In that case the employer and the intervenor urged the application of the contract-
bar rule. The petitioner contended that the contract contained a maintenance -of-membership
clause not authorized by an election under the Act prior to its amendment . 14 That contract pro-
vided " All employees in the eligible unit at the plant shall have the right to belong to or not to
belong to the Union , and upon receipt of written authorization from any employee who is a mem-
ber of the Union the Company agrees that such employee shall maintain his membership in the
Union for a period not to exceed one (1) year from the date of the written authorization. ... '
The Board held:
By the terms of the provision , the Employer agrees that employees who have executed the
dues authorization form shall maintain their membership in the Intervenor . The fact
that the provision does not state that maintenance of membership thereafter shall be a
condition of employment does not prevent the provision from operating as a union-
security clause.... In any event , the clear effe&t of the provision is to lead employees
to believe that the authority of the Employer will be applied to require maintenance of
membership . The very existence in the contract of the provision therefore acts as a
restraint upon employees desiring to refrain from union activities within the meaning
of Section 7 of the Act . It Is immaterial that no action has been taken pursuant to the
maintenance of membership provision. . . .
Support for the foregoing view is found in Colonie Fiber , 69 NLRB 589 and 71 NLRB 354,
enforced 163 F. 2d 65 (C. A. 2). Although that case involved the application retroactively
of a maintenance-of-membership clause , it is` clear that a maintenance -of-membership
clause was there considered a form of union security . In view of the foregoing considerations
the undersigned finds that, although this contract between Respondent and the CIO contained
legal union-security language , the parties thereto were not entitled to enjoy the benefits of
same in a contract absent prior compliance with the provisions of Section 9 (f), (g), and (h)
of thh Act. The contract was therefore an illegal contract.
Nor can Respondent contend that application of the union-security clause was deferred.
The contract stated solely that the maintenance-of-membership clause was " subject to the
pertinent provisions of applicable law, particularly those set forth in NLRB Act as amended
1947." It is by now well settled that if a deferment of union-security language is to be
recognized , the contract must contain a specific provision to this precise effect . The lan-
guage in the present contract does not constitute such a deferral clause . Moreover, there
Is no evidence of any nature that the parties intended by this language to defer the application
of this union-security clause . See N. L. R. B. v . Gaynor News Co., 197 F. 2d 719 , (C. A. 2);
Red Star Express Lines v. N. L. R. B., 196 F. 2d 78 (C. A. 2); McGraw and Co., 99 NLRB
695; and National Malleable and Steel Castings Co., 99 NLRB 737. Therefore, the only
14Although in the instant case there was no need for an election , in view of recent Board
decisions , the requirement for compliance with Section 9 (f), (g), and (h) is obviously on the
same footing as its predecessor requirement for a union-security election. See Mellin-
Quincy Mfg., Co., 98 NLRB 457, and Fein's Tin Can Co ., 99 NLRB 158.
KNICKERBOCKER PLASTIC CO.. INC. 537
reasonable interpretation of the clause is that the parties intended to limit the application of
the union-security clause solely to those circumstances under which discrimination would be
permitted under the Act , rather than to defer the application of the entire union - security
clause. See Canada Dry Gingerale , 97 NLRB 597, and H . Muehlstein and Co., Inc.. 98 NLRB 723.
In view of the foregoing considerations , the undersigned finds that Respondent, by granting
recognition to the CIO and entering into a collective -bargaining agreement with it, has
assisted and contributed support to that organization in violation of Section 8 (a) (2) of the
Act, and has thereby interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed In Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.
It is also found, since this contract contained union-security language and was entered into
at a time when the CIO was not authorized under the Act to enjoy the benefits of such an
agreement, that Respondent has thereby independently assisted and contributed support
to the CIO within the meaning of Section 8 (a) (2) of the Act, and that such conduct has inter-
fered with, restrained, and coerced the employees of Respondent . See Mellin-Quincy Mfg.
Co., supra, and Unique Art Mfg., Co., 83 NLRB 1250.
The -uMersigned further finds that Respondent , by granting recognition to the CIO and
entering into an unlawful agreement with said organization at a time when Machinists was
the lawful bargaining representative and was striking in protest of Respondent's prior unfair
labor practices, has added to the previous unfair labor practices which caused the strike.
this inevitably resulting in the prolongation of the strike.
It is further found that the record does not warrant a finding that Respondent 's conduct
herein constituted domination of the CIO.
F. The alleged discriminatory discharge of Ethel Demogines
Ethel Demogines entered the employ of Respondent on April 11, 1951. and quit on May 4,
less than 1 month later . She reapplied for work, was rehired on August 9, and was dis-
charged on August 22. 1951. These dates are taken from Respondent's records rather than
from her testimony which was confused on the topic . Demogines signed a card for Machinists
in April and testified that she distributed several cards to other employees . She attended no
meetings of the Union and did not participate in the strike which commenced after she, of
her own volition, had left Respondent 's employ in May.
According to Demogines , Foreman Smith, on rehiring her in August, instructed her not
to converse with the girls on the picket litre. She originally testified that she had been
addressed by a picket on that day but later stated that her chat with the picket had taken place
3 or 4 days later. About 1 week later , Foreman Smith then asked Demogines, as she testified,
"why did I punch in and talk to Betty . . . He told me not to do it again ." She was allegedly
discharged at the end of that shift by the night foreman , Schnetzler , who informed her that
the reason for her discharge was "because Italked to Betty on the picket line and by punch
the card." (Emphasis added .) Schnetzler did not testify herein; it appears that the nig t
shift commenced while Foreman Smith was on duty and that Schnetzler then took over.
Smith testified that he noted the following statement on the back of Demogines' termina-
tion notice. yi_z, "Checked in at 3:54 then went out and did not return to work until after 4:10 -
she is a very poor worker according to Pete[Schnetzler] and has been absent a lot since
being hired . Thiswasseenby Lee Fred and Pete [ presumably three supervisors .]." Respond-
ent' s records disclose that Demogines worked but 2 days during the week ending August 12
and but 3 in the following week . Smith further testified that he noticed Demogines when she
punched in that afternoon ; that she forthwith left the plant ; and that she was gone for some
time during which she was supposed to be at work.
Conclusions
It would appear that Respondent resented the fact that Demogines had punched in and then
left the plant, thus receiving credit for time that she had not worked . Although there is no
evidence of her purported lack of ability , the record demonstrates that her attendance during
her second period of employment had been poor . And while she had been observed in con-
versation with a picket, on the other hand it must be borne in mind that Demogines had
crossed the picket line and appeared for work during a 2-week period despite the fact that
she had signed a card for the Union.
In sum , the evidence is susceptible of the interpretation that Respondent discharged
Demogines because she engaged in a conversation with a picket , thereby presumably identi-
fying herself with Machinists and the strikers. However, in the belief of the undersigned, the
evidence does not warrant such a finding . Respondent was attempting to operate its plant
in the face of a protracted strike and would presumably retain any reasonably satisfactory
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee The evidence demonstrates that Demogines , whose attendance record had been
poor during her brief second period of employment , was detected in the act of claiming credit
for time that she had not put in on her job. Although the case is somewhat close, the evidence
does not preponderate in favor of a finding that Respondent was discriminatorily motivated
in terminating the employment of Demogines . Accordingly, it will be recommended that
her case be dismissed.
G. Interference, restraint, and coercion; additional
discrimination
(1) The complaint alleges that Respondent discriminated against its striking employees
by notifying them on July 26, 1951, that their hospitalization coverage under the Blue Cross
plan and medical coverage under the American Motorists Insurance Company plan would be
terminated on July 31.
It has heretofore been found that Respondent intended to and did discharge its striking
employees on July 10 and 11 and that it reaffirmed said decision by its letter of July 26. This
letter constituted a notice to discharged employees that their hospitalization and medical plan
coverage had been terminated. It further informed them that they could not continue the
medical insurance because it was a group plan , but that they could, as individuals, continue
the hospitalization plan. In view of the foregoing, the undersigned rejects Respondent's con-
tention that this was a maneuver to procure the return of these employees. The undersigned
finds, as heretofore, that these communications were announcements of a fait accompli and
meant precisely what they said on their respective faces.
It is true that these medical and hospitalization benefits are a form of wages and, obviously,
an employer is not required to finance strikers by remunerating them for work not per-
formed. General Electric Co., 80 NLRB 510. The present case is, however, distinguishable
inasmuch as Respondent discharged these strikers because of their protected concerted
activities; this constituted discriminatory treatment of these employees and, as a part there-
of, Respondent not only deprived them of their direct wage benefits, but also of their hospital-
ization and medical benefits. This, too, constituted a discrimination against its employees
and an interference with their right to engage in concerted activities; the loss of these bene-
fits will be further discussed in the recommended remedy below.
(2) The record demonstrates that on several occasions Respondent attempted to undermine
the strike and to negotiate with its employees individually Thus, on July 9, President White,
according to the credited testimony of Rounsavell, asked a number of the strikers on the
picket line to return to work. Some minutes later, Vice-President Hersey made a similar
request of the group. Again, on July 10, White urged the group to return to work And, on
September 10 or 11, according to Goff. Whiteconcluded a conversation with her by announcing
that he would never sign a contract with Machinists.
However, an employer is under a continuing duty to take no action which the employees may
interpret as undermining their collective- bargaining representative. N.L.R B. v. Crompton-
Highland Mills, Inc., 337 U. S. 217. Where, as here, the employer has caused its employees
to go on strike as the result of its unfair labor practices, including a refusal to bargain in
good faith, and directly solicits them to abandon their concerted activity, its contempt for
the collective-bargaining process is readily apparent. N L.R.B. v. Lettie Lee, 140 F. 2d
243 (C. A. 9), and Cathay Lumber Co., 86 NLRB 157, enforced 185 F. 2d 1021 (C. A. 5).
The undersigned finds that the foregoing conduct of inducing employees to abandon the
strike was an integral part of a pattern of unlawful opposition to the purposes of the Act
and constituted interference, restraint, and coercion of the employees within the meaning
of Section 7 of the Act. See Texas Co., 93 NLRB 1358.
(3) As heretofore indicated, the record will not support a finding that Respondent solicited
and permitted the solicitation during working hours of membership in other labor organiza-
tions while denying Machinists that privilege.
The CIO did conduct an intensive organizational campaign, but not during working hours.
While on one occasion a foreman directed employees to the office of Barber , the prime
mover in the CIO campaign, it appears tnat a,. employee had asked her floorlady for the
location of the office and that the latter had enlisted the assistance of the foreman. The only
other item of any substance is that the employees who initially visited CIO Organizer Cohen's
office were not docked any pay. In this connection, there was some testimony indicating that
Vice-President Hersey may have known the purpose of the meeting at Cohen's office and
expressed his sympathy therewith. The foregoing having been considered, the undersigned
finds that this allegation of the complaint is not substantially supported by the evidence.
KNICKERBOCKER PLASTIC CO., INC. 539
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with the
operations of Respondent set forth 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 Respondent has engaged in a number of unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the Act.
It has been found that Respondent refused to bargain collectively with Machinists as the
exclusive representative of its employees in an appropriate unit . It will accordingly be
recommended that Respondent, on request, bargain collectively with Machinists as the
exclusive representative of such employees with respect to rates of pay, wages , hours, and
other terms and conditions of employment and, if an understanding is reached, embody such
understanding in a written contract.
It has been found that Respondent unlawfully recognized and gave assistance to the CIO
and unlawfully entered into a contract with said organization containing union-security pro-
visions. It will, therefore, be recommended that Respondent withdraw recognition from the
CIO and cease giving effect to the contract of September 27, 1951, or to any modification,
extension, supplement, or renewal thereof, or to any superseding agreement with said labor
organization. Nothing herein shall be construed as requiring Respondent to vary or abandon
the wages, hours of employment, rates of pay, or other substantive features of its relation-
ship with the employees which may have been established in conformity with said agreement.
It has been found that Respondent discriminated with respect to the hire and tenure of
employment of Mary Ann Goff and Blanche Rounsavell on June 18 and June 25, 1951, respec-
tively, because of their union activities and because they gave testimony under the Act.
It will, therefore , be recommended that Respondent offer them full and immediate reinstate-
ment to their former or substantially equivalent positions, without prejudice to their senior-
ity or other rights or privileges. See The Chase National Bank of the City of New York,
San Juan, Puerto Rico, Branch, 65 NLRB 827. It will further be recommended that Respondent
make them whole for any loss of pay they have suffered by reason of the discrimination
against them by payment of a sum of money equal to that which each would have earned as
wages from the date of the respective discriminations, June 18 and June 25, 1951, to the date
of a proper offer of reinstatement . Said loss of pay shall be computed on a quarterly calendar
basis in accordance with the formula adopted by the Board in F. W. Woolworth Co., 90
NLRB 289. See Crossett Lumber Co., 8 NLRB 440.
It may be noted that Goff and Rounsavell joined the strike of July 9 called in protest of
various unfair labor practices by Respondent, including their discharges. There is evidence
that while Goff was engaged in her strike activities, President White of Respondent offered
on or about August 31, 1951, to restore her to Respondent's employment and that Goff stated
she would be willing to return when the strike was over.
Goff, however, was entitled to pursue the various objectives of the strike and elected to do
so; in fact, at a previous date, July 12, Machinists had notified Respondent that all its striking
employees were willing to return when the picketing and strike was over and that its repre-
sentative status extended to the existing dispute of the employees with Respondent. Hence
Goff, having joined the strike, was entitled to pursue the objectives thereof to the end of the
strike, successful or otherwise. As such she was further entitled to reinstatement at such
time as she made an offer to return to work. Such an offer was made in her behalf by Machin-
ists on March 24, 1952. Thus, she is to be made whole for any loss of pay subsequent to the
date of her discharge up to the time that Respondent offers her reinstatement, less any pay
that may have accrued during the period she was on strike and unavailable for employment.
See Kallaher & Mee, supra. Any unsolicited offer of employment made while the employees
were still on strike dim discharge Respondent's duty to offer reinstatement. See Pecheur
Lozenge Co., 98 NLRB 496.
Having found that the strike of July 9, 1951, was an unfair labor practice strike, and was in
fact prolonged by Respondent's later unfair labor practices, the undersigned will recommend
that Respondent offer immediate and full reinstatement to all of its employees who went on
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike on July 9 and who were discharged on July 10 and 11, 1951. 15 Although there was no
duty on the part of this group of dischargees to apply for reinstatement , such application
was in fact made on March 24 , 1952 . See Thompson Co., 100 NLRB 456. It will be recom-
mended that the group of discharged strikers be made whole for any loss of pay suffered
by reason of the discrimination against them , by payment of a sum of money equal to that
which each would have earned as wages from the date of the discrimination to the date of a
proper offer of reinstatement . This loss of pay is to be computed in the same manner as
that of Rounsavell , heretofore described.
It may be noted that although the strike ended in March 1952 , picketing ceased in December
1951 . Thus, it may be that some , if not all, of the discharged strikers were available for
employment on and after December 1951 . In that event , the period for the tolling of back pay
for wilful losses will terminate in December 1951 , for as dischargees there was no duty on
their part to apply for reinstatement . See Wood Manufacturing Co., 95 NLRB 633, and Root-
Carlin, Inc., 92 NLRB 1313.
It is further recommended , in the event any of the discharged strikers incurred medical
and hospitalization expenses which would have been covered by the canceled medical and
hospitalization plans, that Respondent make them whole for such expenses.
It not appearing that Local 223 has committed any unfair labor practices herein , it will be
recommended that the complaint against it be dismissed.
In the view ,f the undersigned , the unfair labor practices found above manifest on the part
of the Respondent a fundamental and extreme antipathy to the objectives of the Act and warrant
an inference that the commission of other unfair labor practices may be anticipated in the
future . The undersigned will therefore recommend that Respondent be ordered to cease and
desist from in any manner Interfering with, restraining , or coercing Its employees In the
exercise of the rights guaranteed by the Act.
Upon 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 Association of Machinists, District Lodge No. 727; Playthings , Jewelry
and Novelty Workers International Union, CIO ; Playthings and Novelty Workers International
Union , Local 223 , CIO; and Amalgamated Plastic Toys and Novelty Workers Union, Local
801 of the Playthings . Jewelry and Novelty Workers International Union, CIO , are labor
organizations within the meaning of Section 2 (5) of the Act.
2. All production, maintenance , shipping , and receiving employees of Respondent in its
plant at Glendale, California , including experimental and tool and die shop employees, but
excluding office , clerical , and professional employees , watchmen , guards , and supervisors,
constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. International Association of Machinists , District Lodge No. 727, was on July 6, 1951,
and at all times thereafter has been the exclusive representative of the employees in the
afore described appropriate unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing to bargain collectively with International Association of Machinists,
District Lodge No. 727, on July 6, 1951 , as well as at all times thereafter , as the exclusive
representative of Its employees in an appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By granting recognition to Playthings . Jewelry and Novelty Workers International
Union, CIO, and to Amalgamated Plastic Toy and Novelty Workers Union , Local 801, of the
Playthings , Jewelry and Novelty Workers International Union, CIO , and by entering into an
unlawful collective -bargaining agreement with said labor organizations, Respondent has
engaged in and Is engaging in unfair labor practices within the meaning of Section 8 (a)
(2) of the Act.
6. By discriminating in regard to the hire and tenure of Mary Ann Goff, Blanche Rounsavell,
and also all of its employees whom it discharged on July 10 and 11, 1951 , and by discrimi-
natorily canceling the medical and hospitalization plans covering Its discharged employees,
Respondent has engaged In and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
is Two of the dischargees having since deceased, the remedy In those instances is limited
solely to a making whole of their respective estates for loss of pay, if any.
KNICKERBOCKER PLASTIC CO., INC. 541
7. By discriminating against Mary Ann Goff and Blanche Rounsavell because they had
given testimony under the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (4) of the Act.
8. By interfering with , restraining , and coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
10. Respondent has not discriminated with respect to the hire and tenure of employment of
Ethel Demogines within the meaning of Section 8 (a) (3) of the Act.
11. Playthings , Jewelry and Novelty Workers International Union , Local 223 . CIO, has not
engaged in any unfair labor practices.
[Recommendations omitted from publication.]
APPENDIX A
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, as amended,
we hereby notify our employees that:
WE WILL withdraw and withhold all recognition from Playthings , Jewelry and Novelty
Workers International Union , CIO, and from Amalgamated Plastic Toy and Novelty
Workers Union . Local 801 , of the Playthings , Jewelry and Novelty Workers International
Union , CIO, or any successor thereto, as the representative of any of our employees for
the purpose of dealing with us concerning grievances , labor disputes , wages, hours of
employment , or other conditions of employment.
WE WILL NOT perform or give effect to our agreement of September 27, 1951, with
the above-named labor organizations, or to any modification , extension , supplement, or
renewal thereto , or to any superseding agreement with said organizations.
WE WILL bargain collectively on request with international Association of Machinists,
District Lodge No . 727, as the exclusive representative of all employees in the bargain-
ing unit described below with respect to wages, rates of pay, hours of employment, or
other terms and conditions of employment , and if an understanding is reached , embody
such understanding in a signed agreement . The bargaining unit is:
All production , maintenance , shipping , and receiving employees at our plant at Glendale,
California , including experimental and tool and die shop employees , but excluding
office , clerical , and professional employees, watchmen , guards, and supervisors.
WE WILL offer to Mary Goff and BlancheRounsavell and to all employees discharged on
July 10 and 11 , 1951 , immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights and privileges
previously enjoyed and we will make them whole for any loss of pay suffered as well
as for medical and hospitalization expenses incurred as a result of our discrimination
against them.
WE WILL NOT discriminate in regard to hire or tenure of employment, or any term
or condition thereof, against any employee because of membership in or activity on
behalf of International Association of Machinists , District Lodge No. 727.
WE WILL NOT discriminate in any manner against any employee who has given
testimony in a proceeding before the National Labor Relations Board.
WE WILL NOT in any other manner interfere with , restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor organizations , to join
or assist International Association of Machinists, District Lodge No. 727, or any other
labor organization , to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all of such activities , except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming or remain-
ing members of International Association of Machinists , District Lodge No. 727, or of any
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization , except to the extent that this right may be affected by an agreement
executed in conformity with Section 8 (a) (3) of the Act.
KNICKERBOCKER PLASTIC CO., INC.,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
OHIO FERRO ALLOYS CORPORATION and WILLIAM J.
BARICSKA, JAMES VANCHURA, LOUIS BERNARDO,
LEWIS PALMER, WALTER ORZOLEK, DAVID W. MORGAN,
EDWIN LOWE HOOD, PETER A. SAVAGE, KARL W.
KINDBERG, JOHN STAN, FRANK J. KUTKAL, JR., STAN-
LEY ZUBOSKI, EDWARD CHRISTOPHER, PETE DAGRAVE,
EDWIN E. NIXON, CHARLES W. SOLAK, R. R. HELMA,
JAMES A. MILLER, MIKE MORAN, JR., HAROLD GRIMIN-
GER, EDWARD SMITH, CLARENCE HOOD, JR., ANDY
KLIKA, JOHN TAYLOR, WILLIAM J. SIMPSON, LOUIS
ZALENSKI, JOHN A. KALO, HERMAN JOHNSON, WILLIAM
F. SABOTA, JOSEPH W. FRANCZAK, JOSEPH OTTO,
MARY S. JONES, EDWARD DOLEZAL, AND CHARLES T.
MOORE. Case No. 8-CA-650. April 30, 1953
DECISION AND ORDER
On November 20, 1952, Trial Examiner Thomas S. Wilson
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case, and hereby adopts
the Trial Examiner's findings, conclusions, and recommenda-
tions, with the following additions and modifications.t
As stated in the Intermediate Report, the United Mine Workers
struck for recognition at 6 a. m. on November 17, 1951. Later
that morning the Respondent advised the union officers that a
t The Trial Examiner erroneously reported that one of the complainants who took a leading
role in prevailing upon the employees to file charges , had been elected president of the United
Mine Workers ' Local in the Respondent 's plant . The Trial Examiner apparently referred to
employee Lewis Palmer . The record shows, and we find, that Palmer had not been elected
president of the Local and that he had not held any other office in the Union.
104 NLRB No. 73.