N. P. Nelson Iron Works, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1948

80 N.L.R.B. 788 (N.L.R.B. 1948)

In the Matter of N. P. NELSON IRON WORKS, INC. and IRON WORKERS
ASSOCIATION, INDEPENDENT
Case No. 2-C-6820.-Decided November 24,1948
DECISION
AND
ORDER
On January 6,1948, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices 2 and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.3
The Board 4 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as herein modified.
1 The power of the Board to issue a Decision and Order in such a case as the instant one,
where the charging union has not complied with the filing requirements of Section 9 (f),
(g), and (h) of the Act, as amended , was decided by the Board in Matter of Marshall and
Bruce Company, 75 N. L. R. B. 90. The Respondent 's motion to dismiss the complaint on
this basis is therefore denied.
2 Both the General Counsel and the Respondent filed exceptions to the Trial Examiner's
conclusion that the Respondent's unfair labor practices in violation of Section 8 (1) and
(3) of the National Labor Relations Act, did not also constitute violations of Section 8 (a)
(1) and (a) (3) of the Act as amended by the Labor Management Relations Act, 1947.
Sections 8 (1) and 8 ( 3) were reenacted , insofar as here material , as Sections 8 (a) (1)
and 8 (a) (3) of the Amended Act. We conclude , therefore, that the liability of the
Respondent continued under Section 8 (a) (1) and (a) (3) of the Amended Act.
8 The Respondent's request for oral argument before the Board is denied , as the record,
including briefs, adequately presents the position of the parties.
d Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has
delegated its powers in connection with this case to a three -man panel consisting of the
undersigned Board Members [ Chairman Herzog and Members Houston and Gray].
80 N. L. R. B., No. 125.
788
N. P. NELSON IRON WORKS, INC.
ORDER
789
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act as amended, the National Labor
Relations Board hereby orders that the Respondent, N. P. Nelson
Iron Works, Inc., Clifton, New Jersey, and its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Iron Workers Association, Inde-
pendent, or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Iron Workers Association, Inde-
pendent, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
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 George Van Ess immediate and full reinstatement to his
former or a substantially equivalent position without prejudice as
to his seniority or other rights and privileges;
(b) Make whole George Van Ess for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages during the period from the date of
his discharge to the date of the Respondent's offer of reinstatement,
less his net earnings during such period;
(c) Post at its plant at Clifton, New Jersey, copies of the notice
attached to the Intermediate Report, marked "Appendix A." 5 Copies
of such notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately on receipt thereof and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
This notice , however , shall be, and it hereby Is, amended by striking from the first
paragraph thereof the words , "The Recommendations of a Trial Examiner," and by sub-
stituting in lieu thereof the words , "A Decision and Order ." In the event this Order is
enforced by decree of a United States Court of Appeals , there shall be inserted before the
words, "A Decision and Order," the words , "A Decree of the United States Court of Appeals%
Enforcing."
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered by
any other material;
(d) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Bertram Diamond , for the Board.
Mr. John F. Dumont , of Little Falls, N. J., for the respondent.
Mr. Bernard Cherny, of Jersey City, N. J., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on December 20, 1946, by Iron Workers Association, In-
dependent, herein called the Union, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Second Region (New York,
New York), issued its complaint dated June 24, 1947, against N. P. Nelson Iron
Works, Inc., Clifton, New Jersey, herein called the respondent, alleging that the
respondent had engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and charge, a notice of hearing, and an order postponing hearing
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent, in violation of Section 8 (1) and (3) of the Act, dis-
charged George Van Ess on December 18, 1946, and has since refused also to
reinstate him, because Van Ess joined or assisted the Union or engaged in other
concerted activities for the purposes of collective bargaining or other mutual
aid or protection. In its answer, the respondent admitted certain allegations
of the complaint, denied the commission of any unfair labor practices, and
asserted that George Van Ess was discharged "for cause."
Pursuant to notice, a hearing was held in New York City on October 15, 16, and
17, 1947, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The Board, the respondent, and the Union participated in the
hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. At the
beginning of the hearing, the undersigned granted an unopposed motion by
counsel for the Board to amend the complaint to allege that the facts pleaded
in the complaint constituted unfair labor practices not only within the meaning
of Section 8 (1) and (3) of the Act but also within the meaning of Sections 8
(a) (1) and 8 (a) (3) of the Labor Management Relations Act of 1947. The
undersigned also granted an unopposed motion by counsel for the respondent
to amend the answer to include a denial of this amendment to the complaint. At
the end of the Board's case, the undersigned denied a motion by counsel for the
respondent to dismiss the complaint on the grounds (a) that the Union had
failed to comply with the affidavit requirements of Section 9 (h) of the Labor
Management Relations Act of 1947; and (b) that the evidence adduced by coun-
sel for the Board failed to sustain the allegations of the complaint by a reason-
able preponderance of the evidence. At the end of the hearing, the undersigned
granted unopposed motions to conform the pleadings to the proof in such formal
N. P. NELSON IRON WORKS, INC. 791
matters as the spelling of names and dates. The hearing was closed after oral
argument before the undersigned by counsel for the Board and counsel for the
respondent' Since the conclusion of the hearing, counsel for the respondent
filed a brief which the undersigned has considered.
Upon the entire record in the ease and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, N. P. Nelson Iron Works, Inc., a New Jersey corporation, is
engaged at Clifton, New Jersey, in the manufacture, sale, and distribution of
construction machinery and related products. During the year preceding the
hearing, the respondent purchased steel, iron, and other materials of a value in
excess of $100,000, approximately 50 percent of which was shipped to the plant
from points outside the State of New Jersey. During the same year, the total
value of the respondent's finished products was approximately $250,000, of which
approximately 75 percent was shipped to States other than the State of New
Jersey.
The respondent admits, and the undersigned finds, that the respondent is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Iron Workers Association, Independent, is a labor organization admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
George Van Ess was employed by the respondent from sometime in 1941 until
his discharge on December 18, 1946. In 1944, he and four other employees or-
ganized the Union, which, since December 11, 1944, has continuously represented
the respondent's employees under successive contracts with the respondent. Van
Ess also served as the Union's treasurer for a year beginning in October 1945,
and then, in October 1946, 2 months before his discharge, he became the Union's
shop steward and a member of its negotiating committee.
In the beginning of November 1946, the Union notified the respondent in
writing of its desire to negotiate a new contract to become effective on December
11, 1946, the first anniversary and earliest possible termination date of their
then current contract. On November 5, 1946, the Union's negotiating committee,
including Van Ess, presented to the respondent's president, N. P. Nelson, and
its general manager, Arnold Nelson, a demand for a general wage increase under
the proposed new contract. In the course of seeking to justify this demand
with respect to each category of the respondent's employees, the Union's commit-
tee asserted that some of them worked as mechanics. General Manager Nelson
disagreed, saying that the only mechanics employed by the respondent were its
superintendent, Aksel Pedersen, and its assembly foreman, Karsten Florin.
Thereupon, Van Ess denied that the supervisors were mechanics, stated that
1 Counsel for the Union was not present at the close of the bearink . On the last day of
the hearing, before the conclusion of the testimony, counsel for the Union requested that
be be excused to attend to other business . At the same time he asserted his reliance upon
counsel for the Board in the continuance of the proceeding and support of the complaint
and urged that the hearing continue even in his absence.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they depended upon the advice of the men under them, and concluded with the
remark, "You know, there are two kinds of mechanics, a half-assed mechanic
and a mechanic." On the following day, Van Ess voluntarily apologized for
this remark.
Despite further conferences between the Union's committee and the Nelsons,
no agreement on contract terms was reached by December 16, 1946.2 On the eve-
ning of that day, the Union's members voted to go on strike. During the lunch
hour of the following day, December 17, Van Ess and Walter Shaky, the Union's
president, orally informed President N. P. Nelson and General Manager Arnold
Nelson of the strike vote President Nelson asked Van Ess whether the vote
had been conducted by secret ballot or a show of hands. According to Van Ess'
testimony, he said this was information concerning union activities which he
was not permitted to disclose. President Nelson and General Manager Nelson
testified, however, and the undersigned credits their testimony, that Van Ess re-
torted, "That is none of your damned business." According to General Manager
Nelson, "that was a hard pill to swallow," and he and President Nelson, after
conferring with Superintendent Pedersen that afternoon, decided that Van Ess
should be discharged at the close of work the following day, which was the end
of the workweek. Pursuant to this decision, General Manager Nelson dis-
charged Van Ess just before quitting time on December 18, 1946.
General Manager Nelson testified that their decision to discharge Van Ess was
based mainly upon Van Ess' refusal to obey the orders of Foreman Karsten
Florin, but was also founded in part upon his "insults" to management in the
conversations of November 5 and December 17, and upon his inability to get
along with some of the men in his department. General Manager Nelson further
testified that, when he discharged Van Ess, lie gave these reasons to Van Ess and
the members of the Union's negotiating committee, whom Van Ess immediately
summoned to his support.3 Van Ess and two of the Union's committee testified,
however, and the undersigned credits their testimony, that the Nelsons told them
merely that Van Ess had been discharged because "he had insulted manage-
ment at the first negotiating meeting," and that he had not been discharged
earlier because "they (the Nelsons) had to digest it."
Van Ess was the only painter employed by the respondent and, while not
painting, filled in as an extra member of the assembly crew. General Manager
Nelson, Superintendent Pedersen, and Foreman Florin testified generally that
Van Ess was a good painter, but that he habitually wandered about the shop
away from his work, that he openly resented and opposed the orders and
authority of his foreman, Karsten Florin, and that on a number of occasions be-
fore his discharge, he had been reprimanded and warned of discharge by Super-
intendent Pedersen, and General Manager Nelson.
Florin testified as to only four specific instances in which he had difficulty
with Van Ess concerning orders, all of which occurred within a month after
Florin became foreman in August 1946, and, therefore, apparently not later than
in September 1946. He testified that, on the first of these occasions (and only
on this one occasion), Van Ess told him that he would not take Florin's orders;
2 The parties eventually did agree upon, and execute, a contract in late December 1946
or early January 1947, pre-dating it December 11, 1946.
3 In answer to a letter from the Board' s Regional Director advising the respondent of the
filing of the charge in the instant case, Jean Nelson , the respondent's secretary , informed
the Regional Director in a letter dated December 27, 1946, which was 9 days after the
discharge , that Van Ess had been discharged because of "rank disregard and disrespect for
supervision."
N. P. NELSON IRON WORKS, INC. 793
that on the second occasion, Van Ess, on returning to work after a day's ab-
sence, objected to Florin's having assigned assembly-worker Steve Plesco to
substitute for Van Ess as painter on the preceding day, and told Florin that
"nobody was allowed to paint when he [Van Ess] was not there"; that, on the
third occasion, Van Ess demurred to Florin's order to paint certain buckets or
chutes with the sprayer, saying that they could be painted by hand; and that,
on the fourth occasion, Van Ess told Florin that a boom could be painted the
following day instead of that afternoon as Florin had ordered. General Man-
ager Nelson testified that, in the last mentioned incident, Van Ess in fact com-
pleted the painting that afternoon. Although Florin testified that, upon objecting
to painting the boom that afternoon, Van Ess "fooled around," he admitted on
further examination that Van Ess' "fooling around" consisted of what Florin
termed to be "more or less" unnecessary work with the assembly crew. Florin
also admitted in his testimony that, although he would "hesitate," Van Ess
eventually performed his work according to Florin's orders ; that the difficulties
between him and Van Ess could be described as disagreements as to the manner
in which work should be done ; that, in the case of the buckets or chutes, they
had previously been painted by hand, as Van Ess suggested ; and, finally, that
Florin never reprimanded Van Ess for his opposition to Florin's orders.
In addition to this testimony concerning Florin's alleged difficulties with Van
Ess, General Manager Nelson and Superintendent Pederson testified that they
overheard Van Ess berate Plesco for substituting for him on the occasion m0n-
tioned by Florin, and that General Manager Nelson told Van Ess that the work
had to be done and that if Van Ess did not like it, he should look for another job.
General Manager Nelson, who fixed the time of this incident as the middle of
September 1946, testified that this was the only time he reprimanded Van Ess.
Florin, according to his own testimony, never reprimanded Van Ess either
for wandering about the shop or for opposing his orders, although he asserted
that he reported instances of each type of conduct four or five times to Super-
intendent Pedersen. Pedersen testified that, although he himself had noticed
Van Ess wandering about the shop every day from the time Pedersen became
superintendent in April 1946 until Van Ess was discharged in December, he
"warned" Van Ess only three or four times. Pedersen further testified that
he also spoke to Van Ess three or four times about the latter's attitude toward
Florin's orders ; that Van Ess expressed to Pedersen his resentment at having
to take Florin's orders because, he said, Florin did not know what he was
doing ; that Pedersen warned Van Ess he would be discharged, whereupon
Van Ess said he would try to follow Florin's instructions ; and that Pedersen
reported the substance of each of these conversations with Van Ess to General
Manager Nelson, several times with the recommendation that Van Ess be dis-
charged. It is significant that, according to the testimony of both Superintend-
ent Pedersen and General Manager Nelson, the latter, upon receiving these
reports and recommendations, commented as late as a week before Van Ess'
discharge, that Van Ess was a good painter and asked Pedersen to try to
straighten him out. There is no testimony that Van Ess in any way thereafter
incurred the displeasure of any of the respondent's representatives until, a
week later, he bluntly rebuffed President Nelson's request for information on
the conduct of the Union's strike vote, the incident which admittedly precipi-
tated consideration of Van Ess' discharge.
In this testimony, Van Ess dealt fully with the various accusations contained
in the testimony of the respondent's witnesses. He denied that he had told
Florin that nobody else should be permitted to work as a painter in the shop,
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although he admitted having said to Florin on this occasion he understood that
all the men were working together and that no one should take a fellow-employee's
job. As to his alleged insistence that buckets be painted by hand in spite of
Florin's orders that they be sprayed, Van Ess testified that there had been a
difference of opinion between him and Florin on the point, and, as Florin also
testified, that the buckets had previously been hand painted. Finally, Van Ess
flatly, and in detail, denied that there was any truth to the rest of the testimony
of the respondent's witnesses concerning his wandering about the plant away from
his work, or his alleged insubordination or disrespect for Florin's orders, or con-
cerning his having been reprimanded.'
Even if it were accepted at face value, the testimony of the respondent's wit-
nesses concerning Van Ess' alleged inattention to his work, his insubordination,
and his reprimands prior to the time of his actual discharge, would not indicate,
as the respondent urges, that Van Ess was discharged for these alleged short-
comings after a series of fruitless reprimands, but rather that they played no
role, that they were resurrected as a pretext for the discharge, and that the dis-
charge was purely and simply the result of Van Ess' having "insulted" the re-
spondent's officials on November 5 and December 17. For, as has already been
noted, all of the alleged instances of insubordination to which the respondent's
witnesses were able to testify, occurred approximately 3 months prior to his
discharge, during which intervening period and as recently as 1 week before the
discharge, General Manager Nelson refused to discharge Van Ess in spite of the
superintendent's recommendation. Then, too, as Florin admitted, aside from
the earliest and unrepeated incident in which Van Ess assertedly said he would
not take orders, Van Ess, an experienced painter, merely made suggestions to
Florin, as to how the work should be done, in fact obeyed Florin's orders ; and
Florin himself never reprimanded him. It would seem that, although perhaps
annoyed, Florin never actually regarded their differences at the time as being
serious enough for discipline, much less discharge. That General Manager Nelson
was clearly of the same opinion is indicated by his refusal to discharge Van Ess
on the superintendent's recommendation. It was only when Florin told President
Nelson that the manner of conducting the Union's strike vote was "none of [Pres-
ident Nelson's] damned business," which the General Manager testified was "a
hard pill to swallow," and which obviously caused the Nelsons seriously to con-
sider his discharge, that the discharge decision was made.
These weaknesses in the testimony of the respondent's witnesses, when con-
sidered in the light of the purpose for which it was adduced, do more than merely
render the substance of the testimony valueless as an explanation of the dis-
charge ; they also demonstrate the unreliability of the testimony when contrasted
with the reasonable testimony of Van Ess. The undersigned, therefore, credits the
denials and explanations of Van Ess rather than the testimony of the respond-
ent's witnesses, and accordingly finds, contrary to the respondent's contentions
and the testimony of its witnesses, that Van Ess had not been insubordinate,
defiant, or resentful of Florin's orders; that he had not wandered about the
shop ; that he had not had difficulties with other employees ; that he had neither
* Thus, Van Ess denied that he had ever wandered from his work ; that he had ever
disobeyed, delayed in obeying, or refused to obey Florin's orders; that he had told Florin
he would not take Florin's orders ; that he had told Superintendent Pedersen that he
resented Florin's orders or that Florin did not know what he was doing ; that he had criti-
cized Plesco for taking his place as a painter ; that he had ever been reprimanded by
General Manager Nelson for not doing his work or for criticizing Plesco ; or that he %N as
ever reprimanded or warned of discharge by Superintendent Pedersen for wandering from
his work or for disobeying or refusing to obey orders.
N. P. NELSON IRON WORKS, INC . 795
been reprimanded nor warned of discharge by the respondent's representatives
on any of these grounds ; and finally that he was not discharged qn December
18 for any of these reasons, but rather and solely because he had "insulted"
the respondent's officials by the statements he made to them on November 5,
and December 17, 1946.
These statements of Van Ess on November 5 and December 17, which the
undersigned thus finds to have been the causes for Van Ess's discharge on
December 18, 1946, were made by Van Ess as a member of the Union's negotiating
committee, while dealing with the employer on behalf of the other employees
whom the Union represented. Van Ess' criticism on November 5 of the qualifi-
cations and abilities of the supervisors as mechanics, was made during the
course of a bargaining conference in answer to General Manager Nelson's state-
ment that only the supervisors were qualified mechanics, and in support of the
Union's position, sccffed at by the general manager, that some of the rank-and-file
employees, as mechanics, merited the wage increase sought by the Union under
the new contract. It was, therefore, clearly germane to the subject matter of
the bargaining conference. Van Ess' remark on December 17 that it was none
of President Nelson's "damned business" how the Union's strike vote was con-
ducted the night before, was also made by Van Ess as a union representative in the
course of notifying the employer that the Union's members had voted to strike
because of the respondent's failure to meet the employees' contract demands.
Moreover, this latter statement was a justifiable rebuff to an employer who sought
information as to the concerted activities of his employees. Thus, Van Ess'
remarks on November 5 and December 17, which the respondent describes as
"insults to management," were pertinent to Van Ess' representation of the
employees as a member of the Union's committee.
The Act, in its original form and as amended by the Labor Management Rela-
tions Act of 1947, clearly protects the making of such statements by an employee-
representative in the course of his dealing with the employer on behalf of the
employees. For it is the express objective of both statutes to protect the exercise
by the employees of their rights to self-organization and collective bargaining
through representatives of their own choosing, so that differences or disputes
between them and their employers may be resolved by the process of collective
bargaining rather than by tests of strength in strikes or lock-outs. Unques-
tionably, it is essential to the accomplishment of this purpose that, in their
dealings with the employer on behalf of the employees, the employee-representa-
tives be treated on a plane of equality with the employers rather than as sub-
ordinates as they are in the performance of their duties in the plant; that, in
spite of possible offense to the employer, the employee-representatives be per-
mitted the broadest, frankest, and freest possible statement of their positions
and pertinent arguments in such language of vigor and clarity, as comes naturally
to them and seems reasonably related to their objectives as employee-representa-
tives, short of inexplicable or prolonged name-calling or threats of physical
harm or other illegal action ; 5 and, finally, that for the effective exercise of these
rights on behalf of the employees, the employee-representatives be protected
against discrimination or retaliation by the employer. Only by a full acceptance
and observance of these fundamental requirements, can it be hoped that manage-
3 Of course, the employer and his representatives possess a corresponding right to freedom
in their expressions and arguments. And representatives of either party may forcefully
object to the tactics and language employed by the other side so long as they bargain
collectively in good faith as required by the Act and the Labor Management Relations Act
of 1947.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment and labor shall be afforded a reasonable opportunity of coming to grips
with, and ultimately solving, the problems which confront them.
In the light of these considerations, it is apparent that Van Ess' remarks
were well within the permissible and protected limits of the legitimate representa-
tion of employees contemplated by both the Act and the Labor Management Rela-
tions Act of 1947. Indeed, not only was the substance of Van Ess' remarks
pertinent to the proper objectives of Van Ess as a union-committee representative
of the employee's interests, but the language he used, though impolite according
to genteel standards, was mild according to the not-uncommon standards of
conversation in industrial plants.
The undersigned, therefore, finds that the respondent by discharging George
Van Ess on December 18, 1946, because of his remarks of November 5 and Decem-
ber 17, discriminated against him in regard to his hire and tenure of employment,
thereby discouraging membership in the Union and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act. The undersigned further finds that the respondent thereby committed
unfair labor practices within the meaning of Section 8 (1) and (3) of the Act,
which was in effect at the time of the discharge on December 18, 1946. The
reenactment of identical provisions in Sections 8 (a) (1) and 8 (a) (3) of the
Labor Management Relations Act of 1947 occurred subsequent to the discharge
of Van Ess. The undersigned therefore finds that the respondent's unfair labor
practices were not violations of the Labor Management Relations Act of 1947, as
alleged in the amendments to the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act, the under-
signed will recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.'
The undersigned has found that by discharging George Van Ess on or about
December 18, 1946, the respondent discriminated against him in regard to his
hire and tenure of employment, thereby discouraging membership in the Union.
Such discrimination "goes to the very heart of the Act,"' and constitutes the
grossest form of violation of the rights guaranteed by Section 7 and generally
protected by Section 8 (1) of the Act. That an employer has deliberately re-
sorted to discrimination, as has the respondent in the present case, indicates not
merely his disposition to commit similar acts of discrimination in the future
but also (1) his broader and basic "attitude of opposition to the purposes of the
These recommendations will, in the opinion of the undersigned , also effectuate the policies
of the Labor Management Relations Act of 1947, in which Congress has reenacted the
provisions of the Act herein found to have been violated, as Sections 8 (a) (1) and 8 ( a) (3).
7N. L. R. B. v. Entwistle Manufacturing Co., 120 F. (2d) 532, 536 (C. C. A. 4). See also,
N. L. R. B. v. Automotive Maintenance Machinery Co., 115 F. (2d) 358, 363 (C. C. A. 7).
N. P. NELSON IRON WORKS, INC. 797
Act to protect the rights of employees generally,"' and (2) the consequent likeli-
hood of his resorting to the lesser acts of interference, restraint, and coercion
with these rights as guaranteed by Section 7 and protected by Section 8 (1) of
the Act? These preventive purposes of the Act will be thwarted unless the
Board's order is coextensive with this threat. In order, therefore, to make,
effective interdependent guaranties of Section 7, to prevent industrial strife
which burdens and obstructs commerce, and thus to effectuate the policies of the
Act, the undersigned will recommend that the respondent cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act.
It will also be recommended that the respondent offer George Van Ess im-
mediate and full reinstatement to his former or substantially equivalent posi-
tion 30 without prejudice to his seniority or other rights and privileges ; and that
the respondent also make George Van Ess whole for any loss of earnings suffered
by him by reason of the respondent's discrimination against him by payment to
him of a sum of money equal to that which he would normally have earned as
wages from the date of the discrimination against him, to the date of the offer
of reinstatement less his net earnings" during that period.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Iron Workers Association, Independent, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of George
Van Ess, and thereby discouraging membership in Iron Workers Association,
Independent, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, or coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has committed no unfair labor practices in violation of
Sections 8 (a) (1) and 8 (a) (3) of the Labor Management Relations Act of 1947.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent, N. P. Nelson Iron Works, Inc., a
New Jersey corporation, Clifton, New Jersey, its officers, agents, successors and
assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Iron Workers Association, Independent, or
in any other labor organization of its employees, by discriminatorily discharging
8 May Department Stores Company v. N. L. R. B., 66 S. Ct. 203, 213, 326 U. S. 376.
9 See N. L. R B. v. Express Publishing Company, 312 U. S. 426, 437.
10 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position." See Matter of The Chase National Bank of the City of New York, an Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827.
11 See Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 497-498.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment;
(b) In any other manner interfering with , restraining , or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Iron Workers Association, Independent, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to George Van Ess immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges, and to make him whole for any loss of pay he may have
suffered by reason of the discrimination of the respondent against him by pay-
ment to him of a sum of money equal to that which he normally would have
earned as wages from the date of the respondent's discrimination against him
to the date of the offer of reinstatement, less his net earnings during such period ;
(b) Post at its plant in Clifton, New Jersey, copies of the notice attached hereto,
marked "Appendix A." Copies or said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by the respondent,
be posted by it immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the respondent to insure that said notices are not altered, defaced, or
covered by any other material ;
(c) Notify the Regional Director for the Second Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days-from the
date of the receipt of this Intermediate Report the respondent shall notify said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the re-
spondent to take the action aforesaid.
The undersigned further recommends the dismissal of the amendments to the
complaint alleging that the respondent committed unfair labor practices in
violation of Sections 8 (a) (1) and 8 (a) (3) of the Labor Management Rela-
tions Act of 1947.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the
Board, Rochambeau Building, Washington 25, D. C, an original and six copies of
a statement in writing setting forth such exceptions to the Intermediate Report
and Recommended Order or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report and Recommended Order. Immediately upon the filing
of such statement of exceptions and/or briefs, the party filing the same shall
serve a copy thereof upon each of the other parties. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as re-
quired by Section 203.85. As further provided in said Section 203.46, should any
N. P. NELSON IRON WORKS, INC. 799
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.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived for
all purposes.
WILLIAM F. SCHARNIKOw,
Trial Examiner.
Dated January 6, 1948.
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 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
organizations, to join or assist IRON WORKERS ASSOCIATION INDEPENDENT,
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 and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
George Van Ess
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.
N. P. NELSON IRON WORKS, INC.,
Employer.
Dated---------------------------- By-------------------------------------
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not.
be altered, defaced, or covered by any other material.