M. M. Joffee Co.

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1568 (N.L.R.B. 1947)

In the Matter of MAx M. JOFFEE, TOBY JOFFEE, AND JAKE LEVINE,
JOINTLY AND SEVERALLY, D/B/A M. M. JOFFEE COMPANY AND MAJESTIC
METALCRAFT COMPANY and INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA (UAW-CIO)
Case No. 17-C-145.-Decided August 21, 1947
Messrs. Harry L. Browne and Phil E. Thompson, for the Board.
Cohen, Schnider, and Weinstein, by Messrs. Joseph Cohen and
Charles Schnider, of Kansas City, Kans., for the respondents.
Mr. Oscar Geltman, of counsel to the Board. -
DECISION
AND
ORDER
On October 16, 1946, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondents Max Joffee and Toby Joffee had engaged in and were
engaging in certain unfair labor practices and recommending that
they cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the respondent Jake Levine had
not engaged in unfair labor practices within the meaning of the Act,
and recommended that the complaint be dismissed as to him. There-
after, the respondents Max M. Joffee and Toby Joffee filed exceptions
to the Intermediate Report and a supporting brief. On May 12, 1947,
the Board, at Washington, D. C., heard oral argument by counsel for
the respondents Max M. Joffee and Toby Joffee; the Union did not
appear.
The Board as reviewed the rulings of the Trial Examiner and finds
that r-) prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the excep-
tions and brief, the contentions advanced at oral argument, and the
entire record in the case, and, to the extent consistent with the Decision
and.Order herein, hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
74 N. L. R. B., No. 246.
1568
M. M. JOFFEE COMPANY 1569
1. We find that the respondent, Max M. Joffee, by his statements and
conduct, as set forth in the Intermediate Report,' interfered with, re-
strained, and coerced his employees in the exercise of their rights under
Section 7 of the Act, and thereby violated Section 8 (1) of the Act.
2. We agree with the Trial Examiner that the closing of Max M.
toffee's plant on November 15, 1945, the attendant discharge of the
employees at than plant, and the removal of the business by Toby
Joffee to a new location were actions taken by these respondents in
order to avoid bargaining with the Union.
The respondents contend that the M. M. Joffee Company plant was
closed down on November 15, 1945, because (1) Max M. Joffee "was
not making any money" during the 2-month period immediately pre-
ceding the shut-down; (2) the Union had behaved improperly (a)
by calling a strike to force recognition, instead of waiting for a sched-
uled consent election; (b) by violating an agreement to wait 90 days
before asking for a wage increase; (c) by causing unrest and turmoil
in the plant; (d) by causing a "slow-down" in plant production; and
(e) by insisting upon the reinstatement of an employee who had been
discharged; (3) there was difficulty in procuring supplies; and (4)
production operations were costly and "very inefficient" at the M. M.
Joffee Company plant, due to poor plant lay-out. We reject conten-
tions numbered 1, 2 (b), 2 (d),2 3,3 and 4,4 above, on the ground that
they have no basis in fact. While the Union called a strike to compel
recognition and also demanded reinstatement of a discharged em-
ployee, these were activities protected by the Act and do not, there-
fore, afford a legitimate basis for employer retaliation. We find, as
did the Trial Examiner, that "bickering" and "fussing" existed among
the employees in the plant, but that it was due to personal differences
between them which had no relation to union activities. In view of
' This Includes Max M. toffee's conduct on September 21, 1945, in announcing a shut-
down of his plant and paying off his employees . Although the Union induced him to
reopen the plant promptly on the next day and the employees suffered no loss of pay,
we are - convinced and find that Max M. Joffee engaged in such conduct because of the
employees ' union activity.
8 We do not credit testimony by the respondents ' witness, Margaret Webb, that she heard
a union representative instruct employee Walker to slow down production , and that she
subsequently heard Walker so advise employees Stokesbury and Alexander . This testimony
was denied . There is credible testimony by Webb and the respondents ' witness, Theresa
Stewart, iot mentioned in the Intermediate Report, that , on occasions when Walker ob-
served Stokesbury and Alexander wasting time , Walker was annoyed and complained to
Webb ar.I S*^wart about such inattention to duty.
3There is no indication in the record that any more difficulty in securing supplies existed
at the time in question than before or after that time.
4 Even if we assume that the lay-out of the M. M. Joffee Company plant was poor, we
find, for the reasons set forth in the Intermediate Report and disclosed herein, that the re-
spondents would not have closed that plant and removed its operations to Shawnee absent
a desire to avoid dealing with the Union.
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that these differences existed, at most, during a single month,"
most of which preceded the 2-month period during which Max M.
Joffee allegedly "was not making any money," e we find that the ex-
istence of these differences did not motivate the respondents in their
decision to close down the M. M. Joffee Company plant.
We find it significant that the respondents attempted, by Max
Joffee's statement on November 15, 1945, that the business had been
sold to "several different parties" and by Toby Joffee's statement on
November 19, 1945, that the business had been sold to "strangers," to
conceal the fact that Toby Joffee was the new owner of the business.
Significant, also, is the fact, not mentioned in the Intermediate Report,
that, from the testimony of Max M. Joffee and Toby Joffee, it appears
that the decision to transfer and relocate the business was made at or
about the end of October, 1945, close to the date on which a wage-
increase agreement with the Union, covering M. M. Joffee Company
employees, became operative 7 Max M. Joffee's opposition to the
Union is apparent from his coercive statements and conduct as dis-
closed by the record; among other things, as found above, Max M.
toffee closed his business and discharged his employees on September
21, 1945, because of the employees' union activity. That Toby Joffee,
similarly, was motivated by anti-union bias is evidenced by the fact,
as found by the Trial Examiner, that, after her removal to Shawnee,
she gave employment only to those employees of the M. M. Joffee
Company "who repudiated the Union, or were only nominally its
members." Upon the basis of the entire record, we are convinced
that it was the object of both these respondents, as part of the trans-
action whereby the business was transferred to Toby Joffee, to rid
the business of the incubus which, to them, the Union represented; and
we find that the discharge of his employees by Max M. Joffee, and the
transfer to a new location by Toby Joffee, were steps taken by these
respondents to accomplish a jointly conceived plan to get rid of active
union adherents.
Although we do not agree with the Trial Examiner's finding that
the respondent Toby Joffee was engaged in a joint venture at the M. M.
Joffee Company, we agree that she stood in the relation of employer
to the workei^s at the M. M. Joffee Company within the meaning of
a Thee differences involved employees Stokesbury and Alexander on the one hand, and
Webb and Stewart on the other . All of these employees were members of the Union. The
record discloses that both Webb and Stewart were employed approximately 1 week before
the end of August, 1945 ; both quit on September 22, 1945, which antedated the shut-down
by almost 2 months.
9
Max M. Joffee testified that he "was not making any money" during the last 2
months that he was in business , I. e., the 2-month period immediately preceding November
15, 1945.
° This agreement, made on October 18, 1945, was effective as of November 1, 1945. It
provided for increases in employees' wages "if and when" certain production levels were
reached in the plant. On and after November 1, 1945, the employees were paid the wage
Increases specified in the agreement.
M. M. JOFFEE COMPANY 1571
Section 2 (2) of the Act, and that she is jointly and severally liable
with her husband for the unfair labor practices accompanying the
shut-down of the M. M. Joffee Company and the transfer of business
operations from Kansas City. Accordingly, we find that the respond-.
ents Max M. Joffee and Toby Joffee are jointly and severally respon-
sible under the Act for the discharge of M. M. Joffee Company em-
ployees on November 15, 1945. By such conduct, the respondents Max
Joffee and Toby Joffee discriminated with respect to hire and tenure
of employment to discourage membership in the Union, within the
meaning of Section 8 (3) of the Act, thereby. interfering with,
restraining, and coercing their employees in the exercise of the rights
guaranteed in Section 7, of the Act, in violation of Section 8 (1)
thereof.
We agree with the Trial Examiner that Toby Joffee's refusal to
reinstate the discharged employees named in the complaint, when on
November 19, 1945, employment for them was requested, was moti-
vated, not by the efficiency or inefficiency of these employees, or any
other legitimate consideration, but by "the same considerations which
impelled the closing of the Joffee Company and the move to Shawnee."
Having knowingly participated in the effectuation of an unfair labor
practice pursuant to which these employees had been discriminatorily
discharged, the respondent Toby Joffee was under an obligation to
rectify the unfair labor practice by giving employment to the said
employees.8 We do not regard as controlling the fact that, on the
date on which employment was requested of Toby, Joffee for these
employees, there was no work then available for them at Toby Joffee's
plant,9 inasmuch as that situation was directly due to this respondent's
attempt to evade her obligations under the Act by removing to a new
location in order to escape the Union. We find, therefore, that by
refusing, on November 19, 1945, to reinstate the discharged employees
named in the complaint, the respondent Toby Joffee discriminated
with respect to hire and tenure of employment to discourage member-
ship in the Union, within the meaning of Section 8 (3) of the Act,
thereby interfering with, restraining, and coercing her employees in
the exercise of the rights guaranteed in Section 7 of the Act, in viola-
tion of Section & (1) thereof.
3. We do not agree with the Trial Examiner's finding that the
conduct A the respondents, Max M. Joffee and Toby Joffee, in closing
down the M. M. Joffee Company plant and discharging the employees
on November 15, 1945, was violative of Section 8 (5) of the Act, inas-
much as, prior to the shutting down of the plant, there had been no
refusal, by those respondents to bargain with the Union. We shall,
therefore, dismiss the complaint insofar as it alleges that Max M.
8 N. L. R. B. v. Cluek Brewing Company, 144 F. (2d) 847 (C. C. A. 8).
ON. L. R. B. v. aluek Brewing Company, supra.
1572 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
Joffee refused to bargain collectively within the meaning of Section
8 (5) of the Act.
We agree, however, with the Trial Examiner, that the respondent
Toby Joffee, on November 19,1945, refused to bargain collectively with
the Union, within the meaning of Section-8 (5) of the Act. It is
clear, as found by the Trial Examiner, that Toby Joffee was the
successor to the,business of M. M. Joffee Company, notwithstanding
the removal to Shawnee Y° On November 19, 1945, the Union repre-
sented a majority of the employese of Toby Joffee, doing business as
Majestic Metalcraft Company. On that date, Toby Joffee's non-
supervisory working force consisted of three employees, all of whom
had been employed by Max M. Joffee up to November 15, 1945, the
date on which his plant ceased operations. All these employees had
been members of the Union while employed by Max M. Joffee.1r Al-
though, upon announcement of the shut-down of the M. M. Joffee
Company plant, two of these employees, Fisher and Baber, had asked
for and received from the Union's steward a refund of union dues, the
record indicates that the Union still considered these employees to be
its members as of November 19, 1945.12 In any event, their withdrawal
from the Union could not have affected its majority status because the
Union had such status without the adherence of Fisher and Baber,
the other adherents, Walker, Stokesbury, Alexander, and Smith,
having been unlawfully discharged and thus entitled to employee
status. Moreover, assuming that Fisher and Baber had repudiated
the Union, such repudiation, following on the heels of the respondent's
unfair labor practices, was ineffective to destroy the majority status
of the Union.13
. We conclude that Toby Joffee, as successor to the business of M. M.
Joffee Company, was under obligation, upon request, to bargain with
the Union as representative of the employees of that business,14 and
that her refusal to bargain, on November 19, 1945, as set forth in the
10 In this connection the record discloses , in addition to the factors noted in the Inter-
mediate Report , that shortly before the removal to Shawnee, Toby Joffee arranged with
Max M. Joffee's sales agent to fill orders for M. M. Joffee Company brackets by supplying
brackets of her own construction.
11 These three employees had been engaged in production and maintenance operations at
the M. M. Joffee Company plant . Pursuant to a collective bargaining agreement between
M. M. Joffee Company and the Union , dated and executed on September 26, 1945, and to
run at least 1 year, all production and maintenance employees then employed by the com-
pany were required to join the Union within 7 days from the date of the agreement, and
all production and maintenance employees thereafter hired were required to join the Union
immediately upon being hired.
12 In February 1946 , the Union wrote to these employees and requested them to pay their
back dues ; and in March 1946, the Union , by letter , requested Max M. Joffee to see to it
that back dues owed by these employees were paid.
'I N. L. It. B. v. Bradford Dyeing Association , 310 U. S. 318 ; Franks Brothers Company
v. N. L. R. B., 321 U. S. 702; N. L. It . B. v. Burke Machine Tool Company , 133 F. ( 2d) 618
(C. C. A. 6) ; N. L. It. B. v. Chicago Apparatus Company, 116 F. (2d) 753 (C. C. A. 7).
14 See, e. g., Matter of Simmons Machinery Co., 65 N. L. It. B . 1373; Matter of The
Northwest Glove Co., Inc., et al ., 74 N. L. It. B. 1697.
M. X. JOFFEE COMPANY 1573
Intermediate Report, constituted a violation of Section 8 (5) of the
Act. Upon the entire record, we find that, on November 19, 1945, and
all times thereafter, the respondent Toby Joffee refused to bargain
collectively with the Union as the exclusive representative of her
employees in an appropriate unit, within the meaning of Section 8 (5)
of the Act, and thereby interfered with, restrained, and coerced her
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
THE REMEDY
1. We shall order the respondent Toby Joffee to offer to the dis-
charged employees named in the complaint 1°'immediate employment
at her plant in the positions held by them before their discharge or in
substantially equivalent positions, without prejudice to seniority or
other rights and privileges previously enjoyed, discharging, if neces-
sary, all non-supervisory employees employed by the respondent Toby
Joffee with the exception of Leona Fisher, Harriet Baber, and William
Tennal, and to make whole the discharged employees named in the
complaint for any loss of pay they may have suffered by reason of the
respondents' discrimination against them, by payment to each of them
of a sum of money equal to the amount which she would normally
have earned as wages during the period from November 15, 1945, the
date of the discriminatory discharges, to the date of the offer of em-
ployment by Toby Joffee, or by Max M. Joffee, as provided below, less
her net earnings during such period. Inasmuch as the respondent
Max M. Joffee has withdrawn from ,the business of manufacturing
metal products, we shall not order him to reinstate now the aforesaid
discharged employees. We shall, however, order Max M. Joffee,
jointly and severally with Toby Joffee, to make whole the aforesaid
discharged employees for any loss of pay they may have suffered, in
the manner above indicated.16 In the event that the respondent Max
M. Joffee has resumed or hereafter resumes operation of his former
business, we shall order him, jointly with the respondent Toby Joffee,
and severally, to offer employment to the discharged employees in the
manner stated above. In the event of such resumption of operations
by Max M. Jofree, we shall order the respondent Max M. Joffee, jointly
with Toby Joffee, and severally, to make whole the discharged em-
ployees named in the complaint for any loss of pay they may have
suffered during the period from November 15, 1945, to the date of
an offer of employment by either of the said respondents or to the
15 Those refererd to are Gayle Walker, Doris Irene Stokesbury , Jennie Alexander, and
Birdie Smith.
16 N. L. R. B. v. Gluek Brewing Company, supra. However , in case neither Max M.
Joffee nor Toby Joffee offers reinstatement, the period of Max M. JofFee's liability for back
pay will end as to any given dischargee if and when such dischargee obtains substantially.
equivalent employment elsewhere.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date when.each of them obtains substantially equivalent employment
elsewhere."
2. The Trial Examiner found that, in addition to the commission
of other unfair labor practices, the respondent Toby Joffee refused
to bargain with the Union, within the meaning of Section 8 (5) of the
Act, on November 15, 1945, and on November 19, 1945. Although, as
noted above, we do not agree that the said respondent violated Section
8 (5) of the Act on November 15,1945, we have found that, on Novem-
ber 19, 1945, and at all times thereafter, she refused to bargain with
the Union within the meaning of Section 8 (5) of the Act. Accord-
ingly, as recommended by the Trial Examiner, we shall order the
respondent Toby Joffee to cease and desist from refusing to bargain
collectively with the Union as the exclusive representative of all em-
ployees in the appropriate unit at her Shawnee, Kansas, plant, and,
upon request, to bargain with the Union as the exclusive representative
of such employees.
3. We are of the opinion that the conduct of the respondent Toby
Joffee, in participating with the respondent Max M. Joffee in a plan
pursuant to which the M. M. Joffee Company employees were dis-
criminatorily discharged, in refusing to employ the discharged em-
ployees named in the complaint at Shawnee when employment for
them was requested, and in refusing to bargain with the Union, dis-
closes an attitude of opposition to, and an intention to defeat, the
broad purposes of the Act. Because of said respondent's conduct
and its underlying purpose, we are convinced that her unfair labor
practices found are related to the other unfair labor practices pro-
scribed by the Act, and that danger of their commission in the future
is to be anticipated from her conduct in the past. In order, there-
fore, to effectuate the policies of the Act and to protect the rights
of the employees thereunder, we shall order her to cease and desist
from in any manner infringing upon the rights guaranteed in Section
7 of the Act.
4. As noted above, we do not agree with the Trial Examiner's
finding that the respondent Max M. Joffee, by closing down his plant
on November 15, 1945, violated Section 8 (5) of the Act. We have
found, however, that this respondent's purpose in closing his plant
on November 15, 1945, was to avoid bargaining with the Union. We
are c.f the opinion that his coercive statements and conduct, as set
forth in the Intermediate Report, disclose an attitude of opposition
to, and an intention to defeat, the broad purposes of the Act. Be-
cause of the said respondent's conduct and its underlying purpose,
we are convinced that his unfair labor practices found are related to
14 Our order is not to be construed to require the payment of back pay more than once
to any individual dischargee.
M. M. JOFFEE COMPANY 1575
the other unfair labor practices proscribed by the Act, and that danger
of their commission in the future is to be anticipated from his con-
duct in the past. In order, therefore, to effectuate the policies of
the Act and to protect the rights of the employees thereunder, we
shall order Max M. Joffee, in the event that he has resumed or here-
after resumes his former business: (a) to cease and desist from dis-
couraging membership in the Union by discharging or otherwise
discriminating against any employee because of his union activity;
(b) to cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act; (c) to post appropriate notices;
and (d) to make the usual compliance reports, as hereinafter more
fully set forth. In addition, Max M. Joffee will be under obligation
to bargain collectively with the Union in the event of such resumption
of operations.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent Toby Joffee, doing business
as Majestic Metalcraft Company, Shawnee, Kansas, and her agents,
successors and assigns :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America (UAW-CIO) as the exclusive representative of all her
production and maintenance employees, excluding clerical employees
and supervisory employees, with respect to grievances, labor disputes,
rates of pay, wages, hours of employment, and other conditions of
employment ;
(b) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO), or any other labor organization of her employees,
by discharging or refusing to reinstate any of her employees, or by
discriminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of their employment;
(c) In any other manner interfering with, restraining, or coercing
her employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO), or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America (UAW-CIO) as the exclusive representative of all em-
ployees in the aforesaid appropriate unit at her Shawnee, Kansas,
factory, with respect to grievances, labor disputes, rates of pay, wages,
hours of employment, or other conditions of employment;
(b) Offer immediate employment at her plant to Gayle Walker,
Doris Irene Stokesbury, Jennie Alexander, and Birdie Smith in the
positions held by them before their discharge or in, substantially
equivalent positions, without prejudice to seniority or other rights
and privileges previously enjoyed, discharging, if necessary, all non-
supervisory employees employed by the said respondent with the
exception of Leona Fisher, Harriet Baber, and William Tennal.;
(c) Make whole Gayle Walker, Doris Irene Stokesbury, Jennie
Alexander, and Birdie Smith for any loss of pay they may have
suffered by reason of the discrimination against them, by payment
to each of them of a sum of money equal to the amount which she
normally would have earned as wages during the period from No-
vember 15, 1945, the date of the discriminatory discharges, to the
date of the respondent's offer of employment, less her net earnings
during such period;
(d) Post immediately at her plant in Shawnee, Kansas, copies
of the notice attached hereto, marked "Appendix A." 18 Copies of
said notice, to be furnished by the Regional Director for the Seven-
teenth Region, shall, after being duly signed by the respondent Toby
Joffee, be posted immediately upon receipt thereof and maintained
by her for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by the respondent. Toby
Joffee to insure that said notices are not altered, defaced, or covered
by any other material;
(e) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
she has taken to comply herewith.
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Boa: d hereby orders that the respondent, Max M. Joffee, formerly do-
ing business as M. M. Joffee Company, Kansas City, Missouri, and his
agents, successors, and assigns, shall take the following affirmative
action which the Board finds will effectuate the policies of the Act :
(a) Jointly and severally with the respondent Toby Joffee, make
whole Gayle Walker, Doris Irene Stokesbury, Jennie Alexander, and
19 In the event that this Order Is enforced by court decree, this notice shall be amended
by inserting before the words, "A DECISION AND ORDER" the words "A DECREE OF
THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING . . ."
M. M. JOFFEE COMPANY 1577
Birdie Smith for any loss of pay they may have suffered by reason of
the discrimination against them, by payment to each of them of a sum
of money equal to the amount which she normally would have earned as
wages during the period from November 15, 1945, the date of the dis-
criminatory discharges, to the date of an offer of employment by the
respondent Toby Joffee, or to the date when each obtains substantially
equivalent employment elsewhere, as the case may be, less her net earn-
ings during such period;
(b) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
he has taken to comply herewith.
In the event that the respondent Max M. Joffee has resumed.or here-
after resumes operation of his former business, he shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO), or any other labor organization of his employees,
by discharging any of his employees or by discriminating in any other
manner in regard to their hire or tenure of employment, or any term or
condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO), or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer immediate employment to Gayle Walker, Doris Irene
Stokesbury, Jennie Alexander, and Birdie Smith in the positions held
.by them before their discharge or in substantially equivalent positions,
without prejudice to seniority or other rights and privileges previously
enjoyed, discharging, if necessary, all non-supervisory employees em-
. ployed by the- said respondent with the exception of Leona Fisher,
Harrie- Baber, and William Tennal;
(b) Jointly and severally with the respondent Toby Joffee, make
whole Gayle Walker, Doris Irene Stokesbury, Jennie Alexander, and
Birdie Smith for any loss of pay they may have suffered by reason of
the discrimination against them, by payment to each of them of a sum
of money equal to the. amount which she normally would have earned
as wages during the period from November 15, 1945, the date of the
discriminatory discharges, to the date of an offer of employment by
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either of the respondents or to the date when she obtains substantially
equivalent employment elsewhere, less her net earnings during such
period;
(c) Post immediately at his place of business copies of the notice
attached hereto marked "Appendix B." 19 Copies of said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by the respondent Max M. Joffee, be posted
immediately upon receipt thereof and maintained by him for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees customarily are posted. Reason-
able steps shall be taken by the respondent Max M. Joffee to insure
that said notices, are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order in the event
that he has resumed business or from the future date, if any, when
he resumes operation of his former business, what steps he has taken
to comply herewith.
AND IT IS FURTHERED ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the respondent, Max M. Joffee,
violated Section 8 (5) of the Act, and that the complaint be, and it
hereby is, dismissed in its entirety as to the respondent Jake Levine.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW-CIO), or any other labor organiza-
;,ior_, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
78 In the event that this Order is enforced by court decree , this notice shall be amended
by inserting before the words "A DECISION AND ORDER" the words "A DECREE OF
THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING * * *"
M. M. JOFFEE COMPANY 1579
WE WILL OFFER to the employees named below* immediate employ-
ment, in the positions held by them before their discharge from
the plant of Max M. Joffee, doing business as M. M. Joffee Com-
pany, or in substantially equivalent positions, without prejudice
to seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the
discrimination.
*Gayle Walker Doris Irene Stokesbury
Jennie Alexander Birdie Smith
WE WILL BARGAIN collectively upon request with the, above-named
union as the exclusive representative of all employees in the bar-
gaining unit described herein with respect to rates of pay, hours
of employment or other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is: All production and main-
tenance employees at the Majestic Metalcraft Company, Shawnee,
Kansas, excluding clerical employees and supervisory employees.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
MAJESTIC METALCRAIT COMPANY,
Employer.
Dated ---------------- By TOBY JOFFEE.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to an Order of the National Labor Relations Board, and
in order to effectuate the policies of the National Labor Relations Act,
I hereby notify my employees that :
I 'WILL NOT in any manner interfere with, restrain, or coerce my
en_phyees in the exercise of their right to self-organization, to
form labor organizations, to join or assist INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW-CIO), or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
1580 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD
I WILL. OFFER to the employees named below* immediate, employ-
ment, in the positions held by them before their discharge from
the plant of Max M. Joffee, doing business as M. M. Joffee Com-
pany, or in substantially equivalent positions, without prejudice
to seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the
discrimination.
*Gayle Walker Doris Irene Stokesbury
Jennie Alexander Birdie Smith
All my employees are free to become or remain members of the
above-named union or any other labor organization. I will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
MAX M. JOFFEE,
Dated------------------------ Employer.
This notice must, remain posted for 60 days from the date hereof,
and must not,be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messers. Harry L. Browne and Phil E. Thompson, for the Board.
Cohen, Schnider, and Weinstein, by Messrs. Joseph Cohen and Charles Sch.nider,
of Kansas City, Kans., for the respondents.
STATEMENT OF THE CASE
Upon 9.n amended charge, filed July 2, "1946, by International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO), herein called the Union, the National Labor Relations Board , herein,
called the Board, by its Regional Director for the Seventeenth Region ( Kansas
City, Missouri), issued its complaint dated July 10, 1946, against Max M. Joffee,
Toby Joffee, and Jake Levine, herein called the respondents, alleging that the
respondents, and each of them, while doing business in Kansas City, Missouri
and in Shawnee, Kansas, under the trade names of M. M. Joffee Company and
Majestic Metalcraft Company, respectively, had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint and the charge, accom-
paniecU y notice of hearing, were duly served on the respondents and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that: (1) on or about September 6, 1945, and at all times thereafter, the respond-
ents refused to bargain with the Union although the Union was at all times mate-
rial the exclusive bargaining representative of the employees in an appropriate
unit; (2) the respondents on or about November 15, 1945, discriminatorily dis-
charged Gayle Walker, Doris Irene Stokesbury, Jennie Alexander, and Birdie
Smith, and, on or about November 19, 1945, discriminatorily refused to reinstate
them ; and (3) from about August 31, 1945, the respondents disparaged and
expressed disapproval of the Union, interrogated their employees concerning
union membership, threatened to discontinue their business because of the Union,
urged employees to oppose the Union in a scheduled collective bargaining elec-
M. M. JOFFEE COMPANY 1581
tion, and locked out employees, all for the purpose of discouraging membership
in and activity on behalf of the Union. Thereby, allegedly, the respondents inter-
fered with, restrained, and coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act; unlawfully discriminated in regard to the
hire and tenure of employees ; and unlawfully refused to bargain collectively with
the majority representative of their employees.
The respondents filed separate answers. Respondent Max M. Joffee, in his
answer, admitted certain of the jurisdictional allegations of the complaint with
respect to him and the M. M. Joffee Company, denied knowledge of or interest in
the operations of the Majestic Metalcraft Company, and denied the commission
of unfair labor practices. Respondent Toby Joffee admitted certain of the juris-
dictional allegations of the complaint with respect to her and the Majestic Metal-
craft Company, denied knowledge of or interest in the operations of the M. M.
Joffee Company, and denied the commission of unfair labor practices. Respond-
ent Jake Levine, in substance, denied all of the allegations in the complaint and
denied, specifically, knowledge of or interest in the operations of, the M. M.
Joffee Company or the Majestic Metalcraft Company.
Pursuant to notice, a hearing was held in Kansas City, Missouri, on August
13, 14, 15 and 16, 1946, before the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the respondents were represented
by counsel and participated in the hearing' All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. At the close of the Board's case in chief, counsel
for the respondents moved the dismissal of the complaint in its entirety. The
undersigned denied this motion with respect to Max M. Joffee and Toby Joffee,
with permission to renew at a later point in the hearing, but granted it with
respect to Jake Levine. When the motion was renewed as to Max M. Joffee and
Toby Joffee at the close of the hearing, the undersigned reserved ruling. The
motion is hereby denied. A motion by Board's counsel to conform the pleadings
to the proof in formal matters was granted without objection. Counsel for the
Board and for the respondents argued orally on the record and on August 23,
1946, all parties were granted until September 5 to file briefs ; on September 5,
the time was extended to September 10. Briefs have been received from counsel
for the Board and for the respondents.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned, makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDLNTS
A. Jurisdiction
'The business kn-wn as the M. M. Joffee Company, herein called the Joffee Com-
pany, was located and operated in Kansas City, Missouri, from about May 1,
1945 to November 15, 1945. During this period, the Joffee Company was engaged
in the iuannfacture and sale of metal and glass wall brackets and window
brackets entailing the use of steel strips, boxes, glass, and paint exceeding $10,000,
in value, approximately 80 percent of which was shipped to the Joffee Company
from points outside the State of Missouri. During the same period, sales of
finished products exceeded $28,000, in value, of which approximately 75 percent
was shipped from Kansas City, Missouri, to points outside the State of Missouri.
' Although no appearance was entered in its behalf, a representative of the Union at-
tended all sessions of the hearing and was called as a witness by counsel for the Board.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondents admit that the Joffee Company was engaged in interstate com.
merce within the meaning of the Act.
The business known as the Majestic Metalcraft Company, herein called Ma-
jestic, began operations on November 17, 1945, at Shawnee, Kansas, where it
was and is engaged in the manufacture and sale of wall brackets, flower stands,
fishing rods, and other metal products. During the period from November 17,
1945, to August 12, 1946, Majestic's purchases of raw material consisting prin-
cipally of wire, aluminum rod and tubing, and other metals, exceeded $15,000,
in value, of which more than 80 percent was received from points outside the
State of Kansas. During the same period, Majestic's sales exceeded $30,000,
in value, of which approximately 85 percent was shipped to points outside the
State of Kansas. The respondents admit that Majestic. is engaged in interstate
commerce within the meaning of the Act.
B. The employers
In the fall of 1944, Max M. Joffee borrowed $2,000 from Jake Levine, his
father-in-law, for the purpose of engaging in business. After some unsuc-
cessful experience, Joffee, about May 1, 1945, established the Joffee Company
and began the manufacture of wall and window brackets. During the operation
of this company, Joffee appears to have been the principal managerial force
and, so far as the record reveals, the sole recipient of the profits. Clearly,
Max M. Joffee stood in the relationship of employer to the workers at the Joffee
Company. There is no contrary contention.
During the life of the Joffee Company, Respondent Toby Joffee spent a por-
tion of her time at this operation, frequently signed the company's pay-roll
checks, and advised in the selection of personnel. In the negotiations with
the Union which led to the signing of a collective bargaining agreement, she
played an active and determinative part, evaluating the Union's demands and
advising her husband, Max M. Joffee, as to his action with respect to them.
During and before these negotiations, Toby Joffee was identified by her husband
as a partner in the Joffee Company although she did not sign any of the agree-
ments which were reached? In this context, it is clear that Toby Joffee with
respect to the employees of the Joffee Company was an employer at least within
the meaning of Section 2 (2) of the Act, and it is so found.
It is the contention of the Board's Trial Attorney both in argument and brief,
that Toby Joffee either was actually a partner in the Joffee Company or that
having been held out to be such, the respondents are now estopped from making
a contrary contention. In the opinion of the undersigned, actual partnership,
in the sense that she possessed an interest in the Joffee Company separate from
that of her husband, has not been proved. The doctrine of estoppel is not essen-
tial to the conclusions reached herein.
Shortly prior to November 15, 1945, Toby Joffee arranged with her husband
for the transfer of the machinery and equipment of the Joffee Company, and
shortly after that date, moved the machinery together with the usable stock to
Shaw.iee, Kansas, about 12 miles away, where she had purchased a building
for manufacturing purposes. Three or four weeks later, as Majestic Metalcraft
Company, she began production of various metal items, among them wall brackets
similar to those manufactured by the Joffee Company. Max M. Joffee aided his
wife in the purchase of materials for Majestic, spending as much as 10 to 15
2 These findings are based upon the credited testimony of Gayle Walker, John Rinken-
baugh, and Frank Dowell. Max M. Joffee's denial that he held out his wife to be one of the
owners of the business is inconsistent with his own testimony that he told the union repre-
sentatives he would not make an agreement without her approval.
M. M. JOFFEE COMPANY 1583
percent of his time in this fashion but so far as the record reveals took no other
part in the actual direction of the operations. After November 15, he devoted
the greater portion of his time to commission sales of a proprietary medicine
for a firm which he had long represented. It is clear and is found that Toby
Joffee was and is the employer of the workers at the Majestic Metalcraft Com-
pany. The record does not, however, convince the undersigned that Max M.
Joffee was similarly situated in that respect.
Jake Levine, as has been stated, furnished the capital which enabled Max M.
Joffee to launch the Joffee Company and later assisted in financing Majestic.
Records in evidence indicate that these capital advances have been repaid and
there is a complete lack of evidence tending to show that Levine in any way
interested himself in the management of the two companies. It is found that
Levine was not and is not the employer of any of the individuals who were on
the pay roll of either company. Subsequent reference herein to respondents
will be to Max M. Joffee and Toby toffee only.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, affiliated with the Congress of International Organi-
zations, is a labor organization admitting to membership employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
A. Concerning employees of the .Toffee Company
1. Interference, restraint, and coercion; the refusal to bargain
In the early weeks of the operations of the Joffee Company the 2 or 3 workers
were housed in a single room where all processes were performed. Within a
short time, with increasing business and correspondingly increasing personnel,
additional' space was acquired so that by the end of August, 1945,8 the 5 or
6 workers engaged in the manufacture and finishing operations were located
in a room separate from but within 35 or 40 feet of the 2 or 3 engaged in pack-
ing and shipping. At about this time, some of the workers became convinced of
the need for organization and 3 of them, Gayle Walker, Margaret Webb, and
Theresa Stewart, went to the office of the Union to get information in that
connection. As a result, a meeting of employees was held at which all but one
or two signed union designation cards.' On or about August 31, two of the
union officials, John E. Rinkenbaugh and Frank Dowell, demanded recognition,
telling Max Joffee that a majority of his employees were members of the Union.
After some discussion, agreement was reached that a consent election be con-
ducted under the auspices of the Board on September 7 to determine the Union's
majority in a unit, embracing all non-supervisory employees engaged in manu-
facturing and shipping operations. Almost immediately after, receiving the
Union's demand, Max Joffee made inquiry of his employees concerning their
action saying, "Well, why didn't you see me first? . . . A union might not be a
good thing in here ... I might have to go out of business if the union comes
in." A day or two later, he asked Walker, the leading exponent of organization
among the employees and later the Union's steward in the shop, to persuade
8 Unless otherwise stated, all dates mentioned herein are during 1945.
Those signing were Harriet Baber, Margaret Webb, Theresa Stewart, Juanita Norrid,
Doris Irene Stokesbury, Jennie Alexander, and Gayle Walker. Leona Fisher did not join
the Union until such action was required by contract. It is not clear whether Lois Foerste
was an employee at the time of this meeting.
755420-48-vol. 74 101
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees to postpone joining the Union for several months as such action
might cause him to go out of business . He also stated that he had informed his
wife, Toby , then in Colorado , of the union demand and that although this in-
telligence had moved his wife to tears, she had "told him , well, maybe it would
be all right to let the union come in." While posting the customary notices of
election , Joffee remarked in the presence of the manufacturing employees, "Of
course, I can't tell you how to vote , but you all know how I would like for you
to vote and it depends on the way you vote whether I stay in business or not."'
On or about September 5, without awaiting the scheduled election , the employees
struck for recognition . All but two , Harriet Baber and Leona Fisher, joined
in the strike , left the plant , and established a picket line. The strike was short
and successful . After about 20 minutes , Joffee agreed to recognize the Union
and, on the following day, signed a recognition agreement at the Regional Office
of the Board .' On. September 10, the Union sought to negotiate a contract with
Joffee who , however, requested delay until his wife returned from Colorado.'
She did return and participated in negotiations on September 20 resulting in
agreement on the terms of a contract which was signed on September 26. Wages
were left for further discussion and on October 18, a supplemental agreement
was reached entailing a general wage rise conditioned upon the meeting of
production quotas.
Sometime during the work -day on September 21, all workers were paid to
date and notified that the business would no longer be operated . Rinkenbaugh,
learning of this development , met with Joffee and his wife and persuaded them
to continue assuring them that the Union would not be a detriment to their
operation . Business was resumed on the following day. Within a few days, on
separate occasions , two prospective buyers were conducted through the plant by
both the Joffees. The employees learned thereby that the Joffees were consid-
ering the sale of the business . On November 15, all employees were notified
that the business was being discontinued and that all were discharged. In re-
sponse to the inquiry of Employee Birdie Smith , Joffee ' replied, evasively, that
the business had been sold to "several different parties."
According to the credited testimony of Board witnesses, Toby Joffee spent con-
siderable time at the operations of the Joffee Company . While the evidence that
she actually directed the efforts of the workers is unsubstantial , it is clear that
she signed the pay-roll checks in her husband 's absence , played an active and
determinative part in negotiations with the Union leading to the contract and
the supplemental agreement, and admittedly advised and consulted with him on
major questions affecting the operations . Even granting that these circumstances
are not sufficient in themselves to establish her as a partner in that enterprise,
and are consistent with her natural interest in a business from which the family
5 These findings are based upon Walker 's convincing and credited testimony supported
in detail by Board 's witnesses Stokesbury and Alexander . Joffee denied making the state-
ments thus attributed to him but in view of his admitted misgivings concerning the effect
of union organization upon his business , his denial is not credited . Respondents ' witnesses
Webt and Stewart denied that Joffee suggested they vote against the Union but admitted
that he had expressed the wish that employees had consulted him before joining that
organization.
6 Notice of the signing of this agreement was posted in the plant for a period of 5 days
in accordance with Board requirement.
7 Rinkenbaugh testified , credibly, that the delay was requested by Joffee on the repre-
sentation that "his wife's money was in the business and him and her was partners in
the business ." Joffee ' s signature on the recognition agreement was as " Co owner" indicating
that he was not the sole proprietor of the business . In view of Joffee's admission that he
was trying to "stall as long as [he] could " so that he need not bargain with the Union
without benefit of Toby 's advice , the undersigned finds that he secured such delay by
asserting his wife to possess an independent interest in the Joffee Company.
M. M. JOFFEE COMPANY 1585
income was derived , it is found that the determination to close the business was
one which Joffee reached jointly with his wife. It is also clear that for some
time Toby Joffee was convinced that she could operate such a business profitably
and that before the Joffee Company was closed and the employees discharged she
had arranged for the transfer of the business from her husband and had secured
a building in Shawnee , Kansas, to house the machinery and equipment.
Both in Max Joffee 's answer and in the respondents ' brief, it is averred that the
Joffee Company was closed because its operation was no longer profitable. Such
records of that company as were introduced show, however , that it earned a net
profit of more than $4,300 during the six months of its existence . If, in fact,
profits did wane after the employees were organized , the undersigned assumes
that records of the company were available to the respondents to show it . Failure
to offer such records leads to the conclusion that they would not have supported
the averment.
Max Joffee testified that, in addition to the profit factor, other reasons con-
tributed to his decision to close the Joffee Company : principally the tactics of the
Union and the inefficiency and misconduct of the employees . He cited the action
of the Union in calling a strike to force recognition rather than awaiting the
scheduled election ; its insistence upon securing immediate wage increases rather
than waiting for a 90-day period as it allegedly had agreed ; the "turmoil" in the
shop which he attributed to the Union ; and, finally , the alleged instruction by
the Union that the employees "slow down" until a wage increase was granted.
As is hereinafter found, Joffee's decision was not in its true meaning a decision
to close the Kansas City plant but rather to transfer the business to his wife and
to remove it to Shawnee , Kansas. From his testimony above, and as set forth
elsewhere in this report , it is clear that this decision was based in substantial part
upon his objections to the actions of the Union and to its effect upon the employees.
If these objections were to conduct which was lawful and within the protection
of the Act , or if they were mere pretexts , it follows that the transfer of the business
was in derogation of the employees ' rights under the Act.'
Since the Union was , as will appear , on the date of the strike the designated
representative of a majority of the employees in an appropriate unit, it was
entitled as of right to recognition of that status and might lawfully strike for that
purpose ' Concerning the alleged agreement by the Union to forego seeking a
wage increase for 90 days , the testimony is conflicting . The union negotiators
denied entering into such an arrangement although admitting that some such
request was made of them by the Joffees. Respondents ' witness Robert English,
who attended the negotiations in their interest , testified that no agreement was
reached on this point . His testimony is accepted . Concerning the "turmoil" in
the shop and the allegation that the Union advised the employees to "slow down,"
the testimony is again in conflict. Rinkenbaugh and Dowell , the two union offi-
cials accused , denied that such counsel was given ; Walker denied receiving such
advice. On the other hand, Margaret Webb, called by the respondents , testified
that she heard Dowell so instruct Walker and Walker so advise Stokesbury and
Alexander . Another of respondents ' witnesses , Theresa Stewart , testified that
Stokesbury admitted the receipt of such advice from one of the union representa-
tives Webb and Stewart further testified that Stokesbury and Alexander were
inefficient workers who spent much time "primping" in the dressing room, over-
stayed their lunch and rest periods , tampered with the clock to afford then more
leisure at the respondents ' expense, and showed a general disinclination to main-
8Butler Bros. V. N. L. R. B., 134 F. ( 2d) 981, 985 (C. C. A. 7), cert. denied 320 U. S.
789.
9 N L R. B. V National Seal Corporation, 127 F (2d) 776, 777 (C. C. A 2).
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tarn a reasonable work schedule. Both admitted, however, that Walker was an
efficient worker. It is clear that Webb and Stewart disapproved of Stokesbury
and Alexander and that the latter two were resentful. Webb and Stewart quit
their employment on September 2210 because of the "bickering" and "fussing" in
the plant. Both were members of the Union but Webb testified ". . I didn't
care anything about it, because it was to small a place for a union anyhow."
The undersigned concludes that the Union did not establish a "slow-down"
policy in the Joffee Company shop. Even though it may be true that such a plan
was discussed in the presence of Webb and Stewart as a weapon by means of which
Joffee might be persuaded to grant a wage increase, it is clear that Walker did not
participate in such tactics and the conclusion is reasonable that as shop steward,
she reflected the policy of the Union. While the evidence is persuasive that
Stokesbury and Alexander did not display that devotion to their work that Joffee
may have desired, that they did spend time for which they were compensated
on matters not related to their employment, and were to some extent inclined
to argue and bicker with Webb and Stewart, the undersigned is convinced that
their shortcomings were by no means as serious or persistent as Webb and
Stewart claimed In any event they presented no more than a matter of shop
discipline and their conduct could not reasonably have been attributed by Joffee
to the Union 11
The allegation in the complaint that all production and maintenance employees
of the Joffee Company at the Kansas City operation excluding supervisory and
clerical employees constituted an appropriate unit was not controverted. It does
not appear that Joffee employed any workers in maintenance classifications. Six
of the eight or nine workers performed the manufacturing operations ; the re-
maining two or three packed and shipped the products. Although not under the
same roof , the manufacturing employees were separated from the shipping em-
ployees by only a short distance and had frequent opportunity to meet. All appear
to have had substantially the same working conditions and to have enjoyed sub-
stantially the same earnings. Finally, Joffee, by signing the recognition agree-
ment, conceded that all such employees constituted a single appropriate unit. In
consequence, the undersigned finds that all employees of the Joffee Company,
excluding supervisory and clerical employees, at all times material herein con-
stituted a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
The Board's Trial Attorney introduced eight union application-for-membership
cards all dated September 1, 1945, and all bearing apparently original and un-
challenged signatures of Joffee's employees, thus indicating that on September 1, a
clear majority had designated the Union to represent them. Further evidence of
this majority is to be found in that seven of the nine employees joined in the
recognition strike of September 5. The evidence is clear that on September 5, 1945,
and thereafter, the Union was the exclusive representative of the employees of
the respondents for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act and it is so found.
10 Thus they worked only about 3 weeks after the employees organized . The contract
was not effective until September 26
11 Clifford Harvill, Joffee's foreman, who worked in the same small room with Stokesbury
and Alexander, testified that from the time he staited his employment, in mid-August,
until his resignation in early November, Stokesbury and Alexander read magazines during
working hours, spent much time in the rest room, and indulged in "quite a bit of shop talk "
According to the two employees, they sometimes had free time due to breakdowns of equip-
ment! In any event, it is clear that their conduct did not take a turn for the worse with
the advent of the Union.
M. M. JOFFEE COMPANY 1587
2. The discharges
On November 15, all employees of the Joffee Company, then seven in number,
were dismissed. Three of them, as will hereinafter be related, were almost im-
mediately given employment by Toby Joffee and their diseharge§ are not alleged
to have been discriminatory. Walker, Stokesbury, Alexander, and Smith were
not thereafter employed by either respondent. Arguing from the premise that
the operations of the Joffee Company were transferred to escape the Union, to
avoid doing business under the union contract and with employees who had
chosen a bargaining representative, the Board's attorney contends that the
discharge of the four individuals, above named, was discriminatory.
3. Conclusions as to the Joffee Company
The reasons offered for the removal of the operations from Kansas City to
Shawnee have been stated. It has been found that a "slow down" at the Joffee
Company plant had neither been ordered by the Union nor engaged in by the
employees and that the Union had not agreed to a longer postponement of wage
increases than was given. It is found that Joffee's objections to the conduct of the
Union and the employees were, in essence, objections to the exercise of the right
of employees to self-organization which the Act protects. This finding is further
supported by other testimony of Max M. Joffee from which the following is taken:
(Questioning by Mr. Browne concerning the time when Joffee accompanied
his wife to examine the building she later acquired in Shawnee, Kansas, to
house Majestic.)
Q. Was it before or after the plant, the M. M. Joffee Company had closed
down?
A. Well now, I believe it was just about the time I decided I wanted to
get rid of that headache over there.
Q That you wanted to get rid of what?
A The headache over there, the M. M. Joffee Company. I say it was
just about-I believe it was just about the time, just about the time when
we-let's see, just about the time that I-I am pretty sure, just about the
time that I-I am pretty sure, just about the time that I closed up.
Q. Well, was it before or after you got rid of this so-called headache?
A. I believe it was a day or so before I am not sure. I hate to be-
Q. Is that the time you definitely decided to get rid of the business?
A. No. I had been cooking inside ever since I was taken over by the
organization.
Q. What organization?
A The C. I 0 At the time that things began to develop in the shop why
I was just getting to the point where I couldn't do anything.
Q. That is by "organization," you mean the charging union in this case.
U. A. W.-C. I. 0.
A. Well, I mean what they pulled in my particular case. I mean what
particular application was used in my case.
Q. Then when the labor union came in, or shortly thereafter, you decided
just about that'time that you were going to close the business and shut up
shop?
A. No, sir, I didn't. No, sir, I didn't, because my knowledge of what was
in store for me was nil . I mean I didn't-I thought that it would have been
a good thing, I mean after they talked to me and I thought that things would
be all right. No I didn't think of closing up the place then. But as things, as
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you, will later find out, as things went along, why, I was just about taking all
I could stand.
Q. Then you closed your business about November 15th?
A. It was November 15th, yes, sir.
Even though it be admitted that prior to November 15, the respondents bargained
with the Union, closing the plant and transferring it to avoid further dealings con-
stituted a refusal to bargain.12 This is not to say of course that they were under
any legal compulsion to grant the demands of the Union with respect to wages,
to retain in their employ any undesirable workers, whether union members or
not, or to refrain from maintaining proper discipline in the shop. They could
not, however, avoid bargaining by the move to Shawnee.12
By transferring the business of the Joffee Company on November 15 and by
discharging the employees to avoid bargaining with the Union, the respondents
discriminated in regard to the hire and tenure of employment of the individuals
named in the complaint. It has been found that Toby Joffee possessed no interest
in the Joffee Company separate from that of her husband but it is clear and is
found that both respondents acted jointly with respect to its operation. The
decision to transfer business and to establish Majestic was the decision of both.
Toby Joffee, several weeks before that date, had expressed her desire to run the
business and had stated her opinion that she could do so profitably. The actual
closing was not accomplished until, with her husband's assistance, she had
secured another building to house the operations. Considering their joint interest,
it is found that Toby Joffee stood in the relation of employer to the workers at the
Joffee Company and that she is jointly liable with her husband for any unfair
labor practices accompanying the transfer of the operations from Kansas City.
The undersigned finds that by the acts and statements detailed above, Re-
spondent Max M. Joffee interfered with, restrained, and coerced the employees
at the Joffee Company in the exercise of their rights under Section 7 of the Act
and thereby violated Section 8 (1) of the Act. By closing and moving the plant
of the Joffee Company on November 15 the respondents, and each of them, refused
to bargain with the Union and thereby violated Section 8 (5) of the Act. By dis-
charging Walker, Stokesbury, Alexander, and Smith on November 15, in further-
ance of their desire to avoid bargaining with the Union and because of the
membership in and activity on behalf of the Union on the part of those individuals;
the respondents, and each of them, violated Section 8 (3) of the Act.14
B. Concerning Toby Jo7ee and Majestic; the refusal to hiie; the refusal to
bargain
Having arranged with her husband to take over the machinery, equipment, and
usable stock of the Joffee Company, Toby Joffee did so as soon as the Joffee Com-
pany closed. On November 17, she hired Leona Fisher, Harriet Baber, and
William Tennal, all former employees of the Joffee Company, to assist her and
prepared the new location for manufacturing operations. She salvaged some of
the wall bracket stock of the Joffee Company and retained the sales agent of that
company. Production did not get under way, however, for 3 or 4 weeks and the
principal product for the past several months has been fishing rods, an item
never made by the Joffee Company. Initially no additional machinery was
u N. L. R. B. v. Hopwood Retinning Co., 98 F. ( 2d) 97, 100 (C. C. A. 2).
13 N L. R. B. v. Cape County Milling Co., 140 F. (2d) 543 (C. C. A. 8)
14 This is so, even though it may have been that the respondents had a valid reason for
dispensing with the services of Stokesbury and Alexander. The motivation for the dis-
charges was unlawful and the contemporaneous existence of a lawful motivation does not
constitute a defense. Budd Manufacturing Co. v. N. L. R B , 138 F. (2d) 86, 90
(C. C A. 3).
M. M. JOFFEE COMPANY 1589
purchased but apparently new installations have been made from time to time.
The manufacturing processes at Majestic appear to be substantially similar to
those of the Joffee Company and the change in location and product gave rise to
no need for employees of different or higher skills. Baber and Fisher appear
to have continued to work as packers and shippers. Other employees have been
and are engaged in forming, weldixg and painting. The complaint alleges, the
evidence indicates, and in the absence of a contrary contention, the undersigned
finds, that all employees of Majestic other than supervisory and clerical workers,
constitute and at all times since November 17 have constituted, a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
The respondents contend that Majestic is a distinct and separate enterprise
from the Joffee Company ; that Majestic is not the successor to or the "alter ego"
of the Kansas City business. It is further asserted that the decision of Toby
Joffee to establish the shop in Shawnee was motivated by her inability to secure
suitable space in Kansas City and based upon her conviction that the quarters
occupied by the Joffee Company were not suited to efficient or economical opera-
tion. The undersigned finds no merit in the first contention. While it is true
that the principal product of Majestic was never manufactured by the Joffee
Company, the general manufacturing processes have not materially changed.
Such development as has occurred is consistent with Toby Joffee's remark to her
husband in late September that "if [she] were given the opportunity that [she]
could enlarge the line and operate a small manufacturing plant." The Joffee
Company was established to produce any article for which its equipment was
appropriate and which would command a profitable market. The same is true of
Majestic. Having taken over the machinery, equipment and stock of the Joffee
Company, having continued to manufacture similar or related items for substan-
tially the same market, and having a continuing need for employees of the same
skills, Toby Joffee was the successor to the Joffee Company, notwithstanding the
removal of the operation to Shawnee.
On or about November 19, Rinkenbaugh, Dowell, Walker, and Alexander visited
Majestic and demanded employment of Toby Joffee for Walker, Alexander, Stokes-
bury, and Smith, the only former Joffee Company workers that she had not
employed. Toby Joffee told them that she and her husband had no authority
to hire; that the business was oivned by strangers." After waiting a short time
for Max Joffee to appear, they left. On December 4, the Union wrote the Joffee
Company at the Shawnee address relating the visit of November 19 and reiter-
ating the demand of reinstatement. Max Joffee refused to accept the letter, but
upon its return, the Union forwarded it to Joseph Cohen, the respondents' at-
torney 36 No reply was made. In addition to Baber, Fisher, and Tennal, hired
on November 17, Toby Joffee hired other workers for full-time employment on
November 26, December 3, December 7, December 15 in 1945 and on January
3, 1946. No offer of employment was made to the individuals named in the
complaint.
"Toby Joffee testified that on this occasion she was asked merely if her husband was in
and that , when she replied in the negative , the four left after a short wait. This explana-
tion is not credited while the union representatives may have preferred to make their
claim to Max Joffee , they were accustomed to dealing as well with Toby Joffee in matters
of bargaining . The undersigned is convinced that Toby Joffee was on this occasion re-
quested to employ walker, Stokesbury , Alexander , and Smith.
1° Joseph Cohen, the respondents' attorney in this proceeding , had been consulted by Toby
'Joffee in connection with the purchase of the Shawnee property. As early as November 24,
1945 , Cohen was representing Max Joffee with respect to the original charge of unfair labor
practices filed in this proceeding.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's attorney contends that the respondents unlawfully refused to
bargain with the Union on November 19, and that Walker, Stokesbury, Alexander,
and Smith were discriminatorily refused employment on that date Having
found that Majestic is a successor to the Joffee Company and that the Union was
the exclusive bargaining representative of the employees of the latter company,
it follows that the Union's status in that respect was not affected by the change
in ownership and location of the business." The representation to the Union
by Toby Joffee that she was not the owner of the Majestic, and that consequently
she had no authority to deal with it in the grievance which the Union then
sought to present, was a refusal by subterfuge to recognize the Union's status and
to bargain within the terms of the Act. The undersigned finds, therefore, that
Toby Joffee on November 19 refused and does now refuse to bargain with the
Union as the exclusive representative of her employees in an appropriate unit
and thereby has violated and is violating Section 8 (5) of the Act.
It has already been found that the respondents jointly were in violation of
the Act in discharging Walker, Stokesbury, Alexander, and Smith from their
employment with the Joffee Company. No defense to the refusal of Toby Joffee
to hire them at Majestic has been asserted except by denial that such a refusal
occurred. It is clear that jobs were open at Majestic on several dates subsequent
to November 19 at which these four individuals could have been employed. The
record shows without contiadiction that Gayle Walker was an efficient and
steady worker and that her performance had been praised by both respondents.
There is no indication that the work record of Birdie Smith at the Joffee Company
was other than good. Stokesbury and Alexander are perhaps more vulnerable
on considerations of efficiency but it is apparent that the varying capabilities of
the applicants were not weighed by Toby Joffee. Leona Fisher and Harriet
Baber, who were hired, appear to have been the only Joffee Company workers
who did not participate in the strike and, to the knowledge of the respondents,
opposed the Union's demand for higher wages. In the presence of Toby Joffee,
Fisher had demanded that the Union refund her dues and accused the Union
of causing the loss of her employment at the Joffee Company. William Tennal
joined the Union at the Joffee Company but there is no evidence that he was
other than a passive member. Considering that those who failed to support
concerted action, who repudiated the Union, or who were only nominally its
members were immediately given employment, while those who formed the core
of the Union's active and militant membership at the Joffee Company, including
the shop steward, were refused such opportunity, the inference is inescapable
that Toby Joffee was motivated in her refusal to give employment to those named
in the complaint by the same considerations which impelled the closing of the
Joffee Company and the move to Shawnee. That Stokesbury and Alexander
may have been less desirable applicants from the standpoint of efficiency or shop
discipline does not appear to have been a factor affecting the refusal to employ
them. All four were denied work because to Toby Joffee they represented the
Union-the organization which she had moved to Shawnee to escape.
The undersigned finds that by refusing employment to Walker, Stokesbury,
Alexander, and Smith, Toby Joffee discriminated in regard to their hire because
of their membership in and activity on behalf of the Union, thereby discouraging
membership in the Union, and that she thereby violated Section 8 (3) of the Act.
1714fatter of South Carolina Granite Company, et al, 58 N L. R B. 1448, 1463 "It is
the employing industry that is sought to be regulated and brought within the corrective
and remedial provisions of the Act. . . . It needs no demonstration that the strife
which is sought to be averted is no less an object of legislative solicitude when contract,
death or operation of law brings about change of ownership in the employing agency."
N L. R B v. Arthur L. Coltea, et al , 105 F (2d) 179, 183 (C. C A 6).
M. M. JOFFEE COMPANY
C. Conclusions as to both respondents
1591
The respondents have vigorously contended that there existed no partnership
arrangement between them either as to the Joffee Company or as to Majestic, and
that the two enterprises must be viewed as entirely unrelated one to the other.
As to the first contention, there is no finding herein that Max and Toby Joffee
were partners in the Joffee Company in the sense that Toby Joffee possessed a
separate and disposable interest in that business. Toby Joffee was, however,
naturally interested in the success of that venture and participated in the
direction of its operations, in the bargaining with the Union, and in the quick
reversal of the decision of September 2'1 to close the operation With her hus-
band's assistance, she arranged for the transfer of the business to Shawnee on
November 15. Under these circumstances, the undersigned is of the opinion
that the lack of a formal partnership arrangement between the respondents
and the assumed fact that Toby Joffee had no direct financial interest in the
toffee Company are not inconsistent with the finding, which is hereby made, that
the respondents were engaged in a joint venture at the Joffee Company. Upon
the entire record, the undersigned is convinced and finds that Majestic was,
however, the venture of Toby Joffee, alone The inference is reasonable, and
indeed conceded, that she felt she could operate the business more efficiently
than her husband; that she could enlarge the line of products manufactured
to enhance the profits. Max Joffee desired to close the business to get rid of
the "headache" which he attributed to the Union and evinced no desire to
continue in a similar operation. Toby Joffee was no less eager to escape her
obligation to bargain collectively but concluded that she could accomplish this and
at the same time continue the business by moving to Shawnee." There she
established no new enterprise; required no new or additional machinery ; or
engaged in any substantially different manufacturing processes.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of the respondents described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and, such of them as have been found to constitute
unfair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair labor
practices it will be recommended that they cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that Max Al. Joffee transferred the machinery, equipment,
and stock of the Joffee Company to his wife. There is nothing in the record-
to indicate that his withdrawal from the business of manufacturing metal products
is temporary or that there is likelihood of a retransfer of the business to him.
The usual requirement, therefore, that an employer reinstate individuals to
the positions from which they were discriminatorily discharged cannot con-
veniently be recommended as to him. Similarly, no recommendation will be made
that he bargain with the Union or disabuse the minds of his erstwhile employees
18 Both respondents realized that this move was in disregard of the rights of their em-
plo3 ees under the Act; hence Max Joffee' s disingenuous reply to Birdie Smith that the
Joffee Company had been sold to "several different parties " and Toby Joffee ' s denial to
Rinkenbaugh that either she or her husband had a proprietary interest in Majestic.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1
of the effects of his unfair labor practices. It does lie within his power, however,
to make whole those named in the complaint for any loss of pay they may have
suffered by reason of the discrimination against them by payment to Walker,
Stokesbury, Alexander, and Smith of a sum of money equal to that which each
would normally have earned as wages from November 15, 1945, the date of the
discriminatory discharges, to the date when each secures or is offered substantially
equivalent employment less the net earnings 10 of each during that period Since
the discharges referred to resulted from the joint action of the respondents,
it will be recommended that Toby Joffee join in the restitution
It has also been found that Toby Joffee, individually, but as part of the same
scheme and pattern, discriminatorily refused to hire the above-named individuals
on November 19, 1945. Inconsequence, it will be recommended that she offer
employment to them at the same or substantially equivalent 20 positions for
which they would have been hired absent discrimination, discharging if necessary
any'workers hired since that date, and make them whole for any loss of pay they
may have suffered by reason of that discrimination by payment to each of them
of a sum of money which each normally would have earned as wages since
November 19, 1945, to the date of the offer of employment less the net earnings v
of each during that period. With respect to back pay, the remedy outlined, herein,
does not contemplate duplicate payments by the respondents nor is it attempted
to prorate such payments nor to require contribution. Jointly and severally, it
will be recommended that the respondents make whole Walker, Stokesbury,
Alexander, and Smith for the net wage loss of each from November 15, 1945.
It will be recommended that Max M. Joffee participate in remedying this loss
only to the date when each secures or is offered substantially equivalent employ-
ment. Since Toby Joffee can terminate her liability at any time by an offer of
employment to the four individuals, it will be recommended that she make them
whole for the period until such offer is made. It will be further recommended
that Toby Joffee bargain upon request with the Union as the exclusive representa-
tive of her employees in an appropriate unit.
Upon the basis of the above findings of fact and upon the entire record, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. All employees of the respondents at the M. M. Joffee Company and all em-
ployees of Toby Joffee at the Majestic Metalcraft Company, excluding clerical
and supervisory workers with authority to hire, promote, discharge, discipline
or otherwise effect changes in the status of employees or effectively recommend
19 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondents, which would not have been incurred but for her unlawful
discharge and the consequent necessity of her seeking employment elsewhere See Matter
of Crossett Lumber Company, 8 N. L R. B. 440. Monies received for work performed upon
Federal, State, county, municipal, or other work-relief projects shall be considered as earn-
ings See Republic Steel Corporation v. N. L R. B , 311 U. S. 7
20 Employment at a "substantially equivalent" position does not constitute compliance
unless the "same" position no longer exists for the remedial provisions of the Act con-
template the restoration, as nearly as possible, of the situation which would have existed
except for the discrimination See Matter of Chase National Bank of the City of New York,
San Juan, Puerto Rico Branch, 65 N. L R B 827.
n See footnote 19, supra.
M. M. JOFFEE COMPANY 1593
such action , at all times material herein constituted and now constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
3. International Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO) was at all times material herein, and now
is the exclusive representative of all the employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the meaning of Section 9.(a)
of the Act.
4. By refusing to bargain on or about November 15, 1945, with International
Union, United Automobile , Aircraft and Agricultural Implement Workers of
America (UAW-CIO ) as exclusive representative of all employees in the afore-
said appropriate unit , the respondents have engaged in unfair labor practices
within the meaning of Section 8 ( 5) of the Act.
5. By refusing to bargain on or about November 19 , 1945, and thereafter, with
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW-CIO ), as exclusive representative of all employees
in the aforesaid appropriate unit, Respondent Toby Joffee has engaged in unfair
labor practices within the meaning of Section 8 ( 5) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Gayle
Walker, Doris Irene Stokesbury , Jennie Alexander , and Birdie Smith on Novem-
ber 15, 1945, the respondents have engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act.
7. By discriminating in regard to the hire and tenure of employment of Gayle
Walker, Doris Irene Stokesbury , Jennie Alexander , and Birdie Smith on Novem-
ber 19, 1945, respondent Toby Joffee has engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
8. By interfering with, restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents , and each of them,
have engaged in, and Respondent Toby Joffee is engaging in, unfair labor prac-
tices within the meaning of Section 8 (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 Toby Joffee is a successor to Respondent Max M. Joffee and, as
such , is responsible for his unfair labor practices.
11. Respondent Jake Levine was not, and is not, an employer with respect to
the workers at the M. M. Joffee •Company or Majestic Metalcraft Company and the
complaint as to him should be dismissed.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that :
I. The respondents Max M. Joffee and Toby Joffee take the following affirma-
tive action which the undersigned finds will effectuate the policies of the Act :
(a) Make whole Gayle Walker , Doris Irene Stokesbury , Jennie Alexander, and
Birdie Smith for any wage loss they may have suffered by reason of respondents'
discrimination against them on November 15, 1945, in the manner set forth in
the section above, entitled "The remedy" ;
(b) Post immediately at the plant of Majestic Metalcraft Company, Shawnee,
Kansas, copies of the notice attached hereto, marked "Appendix A." Copies of
said notice , to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by the respondents , be posted immediately upon
receipt thereof and maintained for sixty ( 60) consecutive days thereafter , in con-
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spicuous places in the plant including all places where notices to employees are
customarily posed. Reasonable steps shall be taken by the respondents to insure
that said notices are not altered, defaced, or covered by other material ;
(c) Notify the Regional Director for the Seventeenth Region, in writing, within
ten (10) days from the date of the receipt of this Intermediate Report what
steps they have taken to comply herewith.
II. Respondent Toby Joffee, her agents, successors, and assigns shall :
1 Cease and desist from :
(a) Refusing to bargain collectively with International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO),
as the exclusive representative of all employees at the Shawnee, Kansas, plant
in the appropriate unit with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment;
(b) Discouraging membership in International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America (UAW-CIO), or any
other labor organization of her employees by refusing to hire or by discrim-
inating in any other manner in regard to hire or tenure of employ ment or any
term or condition of employment;
(c) In any other manner interfering with, restraining, or coercing her employees
in the exercise of the rights to self-organization, to form labor organizations,
to join or assist International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America (UAW-CIO), or any other labor organ-
ization, to bargain collectively through representatives of their own choosing and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO),
as the exclusive representative of all employees at her Shawnee, Kansas, factory
in the appropriate unit with respect to rates of pay, wages, hours of employ-
ment or other conditions of employment ;
(b) Offer immediate employment to Gayle Walker, Doris Irene Stokesbury,
Jennie Alexander, and Birdie Smith at Majestic Metalcraft Company, at the
same or substantially equivalent positions for which they would have been
hired absent discrimination, without prejudice to seniority or other rights and
privileges that would have accrued to each of them since November 19, 1945,
discharging, if necessary, any workers hired since that date, and make them
whole for any loss of pay each may have suffered by reason of the discrimination
against them on that date, in the manner provided herein in the section entitled
"The remedy" ;
(c) Post immediately at the Majestic Metalcraft Company plant in Shawnee,
Kansas, copies of the notice attached hereto marked "Appendix B." Copies of
such notice, to be furnished by the Regional Director for the Seventeenth Region,
shall, after being duly signed by Toby Jottee, be posted immediately upon
receipt thereof and maintained by her for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by Toby Joffee to insure that said
notices are not altered, defaced, or covered by other material;
(d) Notify the Regional Director for the Seventeenth Region in writing,
within ten (10) days from the date of the receipt of this Intermediate Report,
what steps she has taken to comply herewith.
It is further recommended that the complaint with respect to Jake Levine
be dismissed.
M. M. JOFFEE COMPANY 1595
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify the Regional Director
in writing that they will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring them to take the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations file with the Board, Rochambeau Building, Wash-
ington 25, D C., an original and four copies of a statement in writing, setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203.39
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from
the date of service of the order transferring the case to the Board.
WALLACE E. ROYSTER,
Trial Examiner.
Dated October 16, 1946.
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, we hereby notify the employees of Majestic Metaleraft Com-
pany that:
WE WILL MAKE WHOLE Gayle Walker, Doris Irene Stokesbury, Jennie
Alexander, and Birdie Smith for any loss of pay they may have suffered
as a result of their discriminatory discharge from our employ at the M. M.
Joffee Company on November 15, 1945.
Dated--------------------------
MAX M. JOFFEE,
TOBY JOFFEE,
Employer.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE,
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO),
or any other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below * immediate employment
at the same or substantially equivalent positions at which they would have
been employed on November 19, 1945, without prejudice to any seniority or
other rights and privileges which would have accrued to them since that
date, and make them whole for any loss of pay suffered as a result of the
discrimination.
WE WILL ]BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment , or other
conditions of employment , and if an understanding is reached , embody such
understanding in a signed agreement . The bargaining unit is:
All production and maintenance employees at the Majestic Metalcraft Com-
pany, Shawnee , Kansas, excluding clerical employees and supervisory em-
ployees with authority to hire, promote , discharge , discipline , or otherwise
effect changes in the status of employees , or effectively recommend such
action.
*Gayle Walker Doris Irene Stokesbury
Jennie Alexander Birdie Smith
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
MAJESTIC ME"rALCRAFT COMPANY,
Employer.
By TORY JOFFEE
Dated----------------------------