National Casket Co., Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1936

1 N.L.R.B. 963 (N.L.R.B. 1936)

In the Matter of NATIONAL CASKET COMPANY, INC. and CASKET
MAKERS UNION 19559
Case No. C-11.-Decided June 20, 1936
Casket Industry-Interference , Restraint or Coercion : threat to transfer plant ;
persuading employees to resign from union ; villifying union organizers and
leaders; expressed opposition to labor organization , threats of retaliatory
action ; propaganda against union-Discrimi/nation : discharge ; refusal to re-
instate following discriminatory discharge prior to July 5, 1935-Reinstatement
Ordered, Non -Strikers : employee discharged ; employees refused reinstatement
following discriminatory discharge prior to July 5, 1935-Back Pay: awarded.
Mr. Daniel B. Shortal for the Board.
Greene & Hurd, by Mr. Richard T. Greene and Mr. Giddings
Howd, of New York City, for respondent.
Mr. Joseph Rosenfarb, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 23, 1935, Casket Makers Union 19559, hereinafter called
the union, filed with the Regional Director for the Third Region a
charge that the National Casket Company, Inc., Oneida, New York,
hereinafter called the respondent, had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8, subdivisions (1) and (3), and Section 2, subdivisions (6)
and (7) of the National Labor Relations Act, approved July 5,
1935. On November 4, 1935, the Board issued its complaint, signed
by the Regional Director for the Third Region. The complaint and
accompanying notice of hearing were duly served upon the respond-
ent and the union. The complaint alleges, in substance, that the
respondent on different dates, discharged Rudolph Lechner, Anson
Harrington, Clarence D. Snyder, George W. Brooks, Fred W. Cor-
bin, John R. Brooks, Leo F. Schmutz, and has refused and is refus-
ing to employ and to reinstate them for the reason that they had
joined and assisted the union and had engaged in concerted activities
with other employees in the Oneida plant of the respondent for the
purpose of collective bargaining and other mutual aid and
protection.
963
964 NATIONAL LABOR RELATIONS BOARD
Thereafter, the respondent filed its answer to the complaint. The
answer denied that it discharged or laid off the employees mentioned
in the complaint or refused to reinstate them for the reason that
they joined and assisted a labor organization and engaged in con-
certed activities with other employees of the respondent for the
purpose of collective bargaining and other mutual aid and protec-
tion, and alleged that, with the exception of Leo F. Schmutz, who
was discharged for cause, all the employees were laid off. For a
separate defense, the respondent alleged that the National Labor
Relations Act is unconstitutional and void as applied to the cir-
cumstances of this case.
Pursuant to the notice, a hearing was held in Syracuse, New York
on November 25, 26 and 27, 1935, before William R. Walsh, duly
designated as Trial Examiner by the Board. Full opportunity to
be heard, to cross-examine witnesses and to produce evidence bear-
ing upon the issues was afforded to all parties.
On December 16, 1935, the Board, deeming it necessary in order
to effectuate the purposes of the National Labor Relations Act,
ordered that the proceedings be transferred to and continued before
it in accordance with Article II, Section 35, of National Labor Re-
lations Board Rules and Regulations-Series 1. Thereafter, a brief
was filed by counsel for the respondent. Upon the request of the
Board, the respondent submitted employment information from
its books, and counsel for the respondent agreed that such informa-
tion would be part of the record in the case.
Upon the record in the case, the stenographic report of the hear-
ing, and all the evidence, including oral testimony, documentary and
other evidence offered and received at the hearing and thereafter, the
Board makes the following :
FINDINGS OF FACT
1. THE RESPONDENT AND ITS BUSINESS
The respondent has been since August 6, 1890, a corporation or-
ganized and existing by virtue of the laws of the State of New York,
having a plant and its principal place of business in the City of
Oneida, County of Madison, State of New York. It is engaged in the
production, sale and distribution of caskets. It has plants for the
production of caskets and funeral accessories in various parts of the
United States. About 11 of these plants produce wooden caskets.
One of these is the plant in Oneida, New York. The selling branches
of the respondent are located all over the United States. The re-
spondent is the biggest unit in the industry. An official of the re-
,spondent testified that the respondent does 11% of the total business
DECISIONS AND ORDERS 965
of the industry, even though the number of burial casket companies
increased from 348 to 703 during the depression because of the
influx into the casket making business of concerns which were suf-
fering from contraction of their regular business in wood products.
It appears from the annual statement of the respondent for the
year ending June 30, 1935 that its total assets at that time amounted
to $13,253,530.21, the profit for the year was $289,885.74, and that
dividends paid during the year amounted to $413,469.00 on preferred
stock and $190,110.00 on common stock.
The Oneida plant of the respondent produces wooden caskets of
'various types of wood. The greater part of its raw materials, most
of which consists of lumber, is obtained from points outside of the
State of New York. Some lumber is obtained from Canada and
South America. About 33% of the production of the Oneida plant
is shipped to points outside of the State of New York.
The caskets manufactured by the Oneida plant are shipped to
selling branches of the respondent on order of these branches. With
rare exceptions, no caskets are shipped by the Oneida plant directly
to the customers of the respondent. The caskets are not entirely
completed in the Oneida plant of the respondent. The hardware and
lining of the caskets are added at the selling branches of the re-
spondent before sale "to funeral directors. Shipments from the
Oneida plant to the various selling branches of the respondent in-
volve no money transactions between the plant and the selling
branches. The shipments, however, are made in pursuance of an
operating plan laid down by the executive officers of the respondent.
In 1932 the net profit on the capital invested in the Oneida plant
was a little over one-half of one per cent. In 1933, the net profit
was 9%. In 1934, the net profit rose to 15%, due principally to the
rise in prices of inventory on hand
The respondent advertises in publications of national circulation
such as the Saturday Evening Post, The Forum and the Woman's
Home Companion.
The respondent's operations generally and in the Oneida plant
constitute a continuous flow of trade, traffic and commerce among
the several States.
II. THE UNION AND ITS ORGANIZATION
In February, 1934, the employees of the respondent in the Oneida
plant began to be interested in organizing a union. The employees
had several meetings with Michael Walsh , organizer for the Ameri-
can Federation of Labor, at which the purposes and functions of
labor organizations were discussed. The employees involved in the
966 NATIONAL LABOR RELATIONS BOARD
complaint in this case were the leaders of the movement to organize
the union. In May, 1934, a charter was obtained from the Ameri-
can Federation of Labor, and Casket Makers Union 19559, a labor
organization, was formed. Leo F. Schmutz, Clarence D. Snyder,
Fred W. Corbin and John R. Brooks were four of the seven em-
ployees of the respondent to whom the charter was issued. The
first officers of the union, elected in May, 1934, were Leo F. Schmutz,
president, John R. Brooks, vice-president, Fred W. Corbin, treas-
urer, Rudolph Lechner, financial secretary, and Clarence D. Snyder,
trustee.
Frequent union meetings were held, notice of which was given in
the local papers. However, no formal notice of the organization
of the union was at any time given to the respondent, and at no
time did the union request the respondent to bargain collectively.
This attempt to keep the organization of the union and its activities
secret was explained by the employees of the respondent involved
in this complaint as actuated by fear of hostility on the part of the
management and a consequent desire to keep union activities under
cover until such time as the union was stronger.
All of the production and maintenance employees in the Oneida
plant of the respondent were eligible to join the union. The em-
ployees involved in the complaint actively solicited members for
the union, with the result that in the fall of 1934 the membership
consisted of about 60% to 65% of the total of about 265 employees
in the Oneida plant. Leo F. Schmutz, the president of the union,
testified that thereafter the membership decreased rapidly, as a
result of the unfair practices of the respondent, so that at the
time of the hearing there were only about seven members, barely
sufficient to retain the union charter.
III. THE BACKGROUND OF THE UNFAIR LABOR PRACTICES-{THE DISCHARGES
With the exception of Rudolph Lechner, all the employees named
in the complaint were discharged before July 5, 1935. Therefore,
the refusal to reinstate them after that date and not their discharges
is the subject of the complaint. However, it is necessary to consider
the circumstances surrounding the discharges because of the light
they may throw upon the refusal to reinstate.
In the early part of January, 1935, the employees involved in
this case who had been discharged by the respondent and two others,
Ben Howe and Theodore Taylor, made a complaint to the Buffalo
Regional Labor Board of the oldiational Labor Relations Board
that they had been discriminatorily discharged. Hearings were held
before the Regional Board in January, and on March 29, 1935, the
old National Labor Relations Board ordered the reinstatement of
DECISIONS AND ORDERS 967
Clarence D. Snyder, George W. Brooks, John R. Brooks, Anson
Harrington and Fred W. Corbin. Howe and Taylor failed to ap-
pear at the hearing in Buffalo, and were later reemployed by the
respondent.
IV. THE UNFAIR LABOR PRACTICES
Rudolph Lechner was discharged on July 15, 1935. He had been
financial secretary of the union since its formation, and had been
active in its organization and in the solicitation of members. He was
a member of the shop committee which called upon William A. Kraus,
manager of the Oneida plant, relative to the reinstatement of Snyder
and Brooks. He has been employed by the respondent for eight
years, and was the chief trucker in the plant. His place has now
been filled by a new employee.
The reason assigned by the respondent for Lechner's discharge was
his habit of tardiness. Lechner admitted that he was often late in the
mornings, but testified that although this had been so over a period of
years, he had never been warned. Furthermore, he explained that his
tardiness did not interfere with his work, since there would not be
any work for him anyway for some time in the morning.
On or about July 9, 1935, Harrington, who had been discharged in
December, 1934, asked Mr. Knaus to reemploy him, but Mr. Knaus
refused. Harrington testified that on this occasion Knaus told him
he had made a mistake by listening to radicals like John Brooks,
Corbin and Walsh, the organizer for the American Federation of
Labor, and that, since he had joined in with them, he would have to
take the consequences. Knaus also said that Brooks and the rest of
the men made a mistake when they joined the union. Harrington
communicated this conversation to Brooks.
Mr. Knaus admitted that he had talked with Harrington, but denied
the conversation as related by Harrington. He testified that he
offered Harrington a job at other work in the mill which would pay
not over 50¢ an hour, but that Harrington refused this offer, saying
that he could make more money elsewhere. Harrington denied that
such an offer had been made to him.
In August, 1935, John Brooks, then president of the union, dele-
gated Schmutz and Snyder to see Knaus about reinstating the em-
ployees who had been discharged. On or about August 19, 1935,
Schmutz and Snyder called at Knaus' home. They inquired if they
could obtain reemployment if the union were dropped and the past for-
gotten. Knaus replied that there was no chance for them to be reem-
ployed, since they listened to "the man from Washington," (meaning
the investigator for the old Board), and to the organizer of the
American Federation of Labor. He added that "the company does
97571-36-vol 1-62
968, NATIONAL LABOR RELATIONS BOARD
not forget so easily", and advised those discharged to look for work
elsewhere. Knaus denied that 'anything was said about the union
during this conversation.
With the exception of Lechner, all the men named in the complaint
were discharged in November and December, 1934, and in February,
1935. In November, there were 260 employees, in December, 267, in
January, 1935, 250, and in February, 1935, 259. This does not sup-
port respondent's contention that some of the men were laid off be-
cause of slackness of business. Similarly, when we consider employ-
ment during the period in which it is alleged that the respondent en-
gaged in the unfair labor practices charged in the complaint, and the
period immediately following, we find that in July, 1935, there were
244 employees, in August, 253, in September, 250, in October, 257, and
in November, 253. If the respondent is correct in its contention that
some of the men were laid off because of lack of work, why were they
not called back to employment when the respondent was increasing
its force? '
Furthermore, the employment figures furnished by the respondent
reveal that during and subsequent to the period when the respondent
refused to reinstate the men there was an increase in the number of
employees in each of the respective departments in which they were
employed before their discharge. Thus the records of the stock cut-
ting department where Harrington had been employed, and to which
he was refused reinstatement on or about July 9, 1935, show the fol-
lowing :
1935
Wood
rough-
mg ma-
chines-
Men
working
Wood
finish -
ing ma-
chines-
men
working
Total-
Men
work-
ing
1935
Wood
rough -
ing ma-
chines-
Men
working
Wood
finish-
ing ma-
chines-
Men
working
Total-
Men
work.
lug
July July-Continued
Friday, 5------------ 7 4 11 Saturday, 20--------- 1 0 1
Saturday , 6---------- 6 2 8 Monday, 22 --------- 29 14 43
Monday, 8---------- 1 2 3 Tuesday, 23 --------- 29 14 43
Tuesday , 9---------- 1 2 3 Wednesday , 24------ 30 14 44
Wednesday, 10------ 1 2 3 Thursday, 25-------- 29 14 43Thursday, 11-------- 1 0 1 Friday, 26 ----------- 29 14 43Friday, 12 ----------- 1 0 1 Saturday , 27--------- 1 0
,
1
Saturday 13 --------- 1 0 1 Monday , 29--------- 29 14 43
Monday, 15 --------- 27 14 41 Tuesday, 30--------- 29 13 42
Tuesday ,
16---------
27 15 42 Wednesday, 31------ 29 14 43
Wednesday, 17 --- 27 15 42 August-------------- 31 16 47
Thursday 18--------- 29 15 44 September----------- 32 16 48
Friday 19 ------------ 29 15 44 October------------- 32 16 48
The cabinet department where Corbin was employed and the var-
nish and lacquer department where Schmutz, Snyder, John Brooks
and George Brooks were employed show this record:
The respondent refused to reinstate any of these men on or about August 19, 1935.
DECISIONS AND ORDERS 969
935
Hardwood
casket cab-
inet depart-
ment-Men
working
Hardwood
casket var-
nish and
lacquer de-
partment-
Men work-
ing
935
Hardwood
casket cab-
met depart-
ment-Men
working
Hardwood
casket var-
rash and
lacquer de-
partment-
Men work-
mg
August August-Continued
Thursday, 1______________ 1 29 2 46 Monday, 19 -------------- 35 46
Friday, 2_ ________________ 29 46 Tuesday , 20______________ 35 46
Saturday , 3______________ 1 2 Wednesday , 21___________ 35 46
Monday, 5_______________ 29 45 Thursday, 22 ------------- 35 47
Tuesday , 6_______________ 29 46 Friday, 23---------------- 34 47
Wednesday , 7____________ 30 45 Saturday, 24_____________ 5 2
Thursday, 8______________ 30 45 Monday , 26 -------------- 35 47
Friday, 9_________________ 30 45 Tuesday , 27 -------------- 35 47
Saturday , 10_____________ 1 2 Wednesday , 28 ----------- 35 46
Monday , 12______________ 31 46 Thursday, 29_____________ 35 48
Tuesday , 13______________ 31 46 Friday, 30 ---------------- 35 48
Wednesday , 14 ----------- 32 46 Saturday , 31 3------------ 30 31
Thursday, 15_____________
16 .............Friday
30
31
45
45 September --------------- 36 48,
Saturday , 17_____________ 1 2 October --------------- -__ 38 451
1 One ( 1) foreman included throughout list
2 Two (2) foremen included throughout list
3 These men worked this Saturday , when the factory usually is idle, and did not work the following
Monday, which was Labor Day
4 On October 31 six men were added to the force in this department and worked that day. They were
not included in the total of 51
NoTn.-Force in Varnish and Lacquer Department includes three truckers 2
2Rudolph Lechner , the chief trucker , was discharged on July 15, 1935 , it is therefore
immaterial whether there was a vacancy for him at the time he was refused reinstatement
by the respondent.
Even a cursory examination of the following table reveals that
after the discharged men had been refused reinstatement, men were
being hired by the respondent to do the same work previously done
by them :
Men hired after August 19, 1935.1 This information obtained from company's
card index of wage rates
Name Date hired Payroll no Assignment
Clinton Root 2 ------------------------------- 7-17-35 213 Inspector , Fin. Dept.
Hubert Boyles _______________________________ 7-24-35 84 Mill.
William Flanagan ____________________________ 7-24-35 83 Mill
Edward James _______________________________ 7-31-35 193 Spray helper , Finish Dept.
Theodore J Banoritz _________________________ 8- 2-35 133 Cabinet maker.
Donald W Griesmyer_______________________ 8-12-35 105 Yard
J Leo Hess---------------------------------- 8-12-35 67
Anthony Fuzzari2--------------------------- 8-14-35 144 Cabinet Dept.
Gerald M Cole______________________________ 8-19-35 127 Cabinet maker
Michael Graszler _____________________________ 8-19-35 62 Trucker , Varnish Dept.
Raymond F Miller __________________________ 8-20-35 167 Cabinet maker
Laurence Kline______________________________ 8-22-35 151 Wood operator, Mill
Cornelius Crowe_ ____________________________ 8-27-35 184 Spray helper , Varnish Dept.
Frank Brewster 2_____________________________ 9- 3-35 133 Cabinet maker
John Gontarz ________________________________ 9-12-35 146 Cabinet Dept.
Ronald Dean ________________________________ 9-17-35 4 Yard
Wellington Fawcett 2 ------------------------ 9-26-35 225 Trucker , Varnish Dept.
Joseph Fura 2-------------------------------- 9-26-35 23 Yard.
Earl Mattraw ________________________________ 10- 1-35 220 Trucker, Finish Dept.
Harry Saltman_ ______________________________ 10- 4-35 232 Helper, Hardwood
Fritz Kremer ________________________________ 10- 7-35 191 Stainer , Varnish Dept
Victor Walzak _______________________________ 10- 7-35 145 Cabinet maker.
Forest Greenland ____________________________ 11- 9-35 81 Mill.
Leland F Mason____________________________ 12-18-35 227 Trucker, Varnish Dept
Hugh W Jones______________________________ 1- 7-36 293 Shipping Dept.
Carl Heuvel__________________________________ 1- 9-36 282 Carving
George Allen--------------------------------- 1-10-36 56 Mill
Myron Johncon______________________________ 1-10-36 16 Yard
Barney Walzak______ ________________________ 1-20-36 165 Cabinet maker.
Harold Lander ------------------------------- 1-21-36 162 Yard.
Tony Malone________________________________ 1-21-36 17 Yard
Vinant Rogers------------------------------- 1-22-36• 18 Yard
Sidney W Warren___________________________ 1-29-36 280 Cabinet maker
Paul Schader--------------------------------- 3-10-36 47 Mill
2 Including some hired shortly before August 19th 2 Former employees.
970 NATIONAL LABOR RELATIONS BOARD
It is obvious from the respondent's own employment records that
the failure to reinstate the complainants could not be due to a lack
of jobs for them.
The Board is of the opinion, ,from the evidence adduced, that in
discharging Rudolph Lechner on July 15, 1935, in refusing employ-
ment to Harrington on July 9, 1935, and in denying reinstatement
to all of the employees named in the complaint, the respondent dis-
criminated against its employees in regard to hire and tenure of
employment, thereby discouraging membership in a labor organiza-
tion, and interfering with, restraining and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
To this conclusion, two objections are urged in behalf of the re-
spondent, aside from the arguments on constitutional grounds : (1)
No notice was given to the respondent of the existence of the union
and the identity of its membership; (2) the discharge or layoff in
each case was based upon sufficient grounds which had no connection
with union activities.
There was no claim that notice of the existence of the union was
given to the respondent. However, the record is replete with evi-
dence which shows not only a knowledge on the part of the manage-
ment of the existence of the union and the identity of its leadership,
but also an active hostility on its part to unionization of the plant.
Notices of meetings of the union appeared in the local newspapers.
Members of the shop committee consisting of Leo Schmutz, John
Brooks, Clarence Snyder and Rudolph Lechner had met with Mr.
Knaus in December, 1934 relative to the reinstatement of John
Brooks; Schmutz testified that on that occasion Knaus said that "if
he had to let the men run the place he might just as well close the
factory", and warned that the respondent was contemplating moving
the Oneida plant to New Jersey, adding, "If we close it, I will have
a job managing that plant but you fellows won't have a job."
In 1934, Harrington told his foreman, Charles Rooney, that he had
been appointed on a committee to meet with the management. He
also told Rooney that the employees of the plant were organized.
Harrington testified that Rooney made no reply.
Fred W. Corbin testified that in April, 1934, his foreman, Steve
Burley, called him into Knaus' office and that Knaus told him that he
felt that Corbin was dissatisfied. Knaus tried to dissuade Corbin
from joining the union, saying that union organizers were smoking
expensive cigars on the workmen's money, and that if the employees
made "unnecessary demands", the respondent would shut down the
plant and move the factory to another city. Knaus then warned
Corbin that he had men advising him of everything that happened.
Knaus denied this conversation.
DECISIONS AND ORDERS 971
Corbin further testified that on one ocasion when he happened to
mention the subject of organization to Mr. Nellis, a foreman, in the
presence of other workmen, Nellis warned him, "For Christ's sake,
don't mention that word again in this shop because if the boss hears
you mention that word you will be fired right on the spot and I am
instructed to look out for that."
Snyder testified that while he was at work one day in May, 1934,
a foreman, Mr. Schwartz, told him that he had just seen his name on
the list of agitators on Mr. Knaus' desk. Mr. Schwartz denied this
conversation.
From these instances it is apparent that the.management of the
respondent was well informed of the existence of a union and of the
identity of its leadership.
Since the evidence is indisputable that after July 5, 1935, the re-
spondent knew of the existence of a union and the union activities
of the employees named in the complaint, it is not indispensable to
the case against the respondent to show that the respondent pos-
sessed such knowledge at the time of the original discharges. Knaus
himself admitted that he came to know of the existence of the union
and the connection of the discharged employees with it during the
time of the hearing in Buffalo on the old complaint in January,
1935.
That the management was not indifferent to the question of
unionism in the plant, as Knaus attempted to make out in his testi-
mony, is shown by the circulation among the employees of a letter
dated February 28, 1934, from the president of the respondent, advis-
ing the employees to read a small booklet which accompanied the
letter. The booklet, called "Labor and Management", recommended
by the president, extolled the virtues of the open shop and company
unions and denounced labor unions as inimical to American ideals
and the self-interest of the workers.
The respondent assigns various reasons in each case for the dis-
charge or layoff of the employees, which the respondent claims to be
the real reasons motivating the respondent's action in each case, and
which have nothing to do with the union activities of the employees.
However, in view of all the circumstances in the case, these reasons
lack persuasiveness.
Clarence D. Snyder, a charter member and trustee of the union
who helped to organize it, had worked for the respondent as a brush
varnisher for 14 years. In the fall of 1934 the respondent substituted
spraying for application of varnish by brush. The management
promised to give Snyder an opportunity to do spraying, but dis-
charged him on November 16, 1934, without having done so, although
it does not appear that the spraying process was of such a technical
972 NATIONAL LABOR RELATIONS BOARD
nature that he could not have learned it quite as easily as a new, man.
George Brooks was active in the organization of the union and the
solicitation of members. He had been in the employ of the respond-
ent for 31 years. He worked in the finishing department and operated
that department on a contract basis. On December 5, 1934, when the
respondent substituted direct employment in the finishing department
for the contract method of payment, Knaus notified Brooks by letter
that he was laid off.
Brooks was the highest paid man in his department. Upon being
discharged, he offered to accept a lesser amount, or one equal to that
of the rest of the men in the department. Knaus refused his offer
on the ground that his continuing to work for lower wages would
make him a discontented worker. On June 12, 1935, the respondent
notified Brooks that his name was being stricken from the group
insurance roll.
Fred W. Corbin, a charter member and treasurer of the union, had
been in the employ of the respondent for three years as a cabinet
maker. He was one of the highest paid and most expert men in his
department. In December, 1934, a very short time before he was laid
off, he was promoted to the job of inspector, and his place was taken
by another workman. A short time thereafter, the inspection section
of the cabinet department was abolished, and by letter dated Decem-
ber 14, Knaus notified Corbin that he was laid off until further
notice. He was not given a chance to resume his work in the cabinet
department. On June 12, 1935 he was also advised that his name
was being discontinued on the group insurance roll of the respondent.
It is a strange coincidence that the department to which Corbin was
promoted was abolished a short time after his transfer.
John B. Brooks was discharged on December 21, 1934. He was
active in the organization of the union and was elected its vice-
president in May, 1934, at the time of its organization. He was later
elected president. He was a member of the shop committee consti-
tuted in November, 1934, and which met in December, 1934 with Mr.
Knaus relative to the reinstatement of Snyder and himself. He
worked for the respondent for seven years, and was regularly em-
ployed, except for an occasional half-day or day's vacation and the
annual shutdown period of two weeks in June of each year. At the
time of his discharge he was a trucker, but for some time he had been
employed in the finishing department as a rubber. On December 21,
1934, he was given a letter stating that due to the dropping off of
orders he was being laid off until further notice. Three truckers
remained in the trucking department, all of whom had been em-
ployed by the respondent for a shorter period of time than Brooks
had been.
DECISIONS AND ORDERS 973
It was testified in behalf of the respondent that Brooks was laid
off because he was neither a good rubber nor a good trucker. The
respondent also contended that its policy was to promote workers
from the trucking department to other jobs, but that Brooks was
54 years old and incapable of being advanced.
Anson Harrington was discharged on December 21, 1934. He was
active in organizing the union and solicited members for it. He
has been employed by the respondent for 17 years, and had been a
stock cutter for a number of years. No complaint was found with
his work. A. foreman of the respondent testified that Harrington
was discharged because he was earning a very high rate of pay in
his department, was not versatile, and it was necessary to cut down
the number of men in the department. The charge of lack of versa-
tility is of too tenuous and vague a nature to merit discussion. Al-
though he was physically disabled by the loss of his right leg below
the knee, this impairment had occurred at the age of 11 and he
had always been able to do a full day's work. His work is now
being done by the man who had previously been his helper.
Leo F. Schmutz was discharged on February 22, 1935. He had
been elected president of the union upon its organization and was
active in the solicitation of members among the employees. He had
been employed intermittently by the respondent for 15 years, and
was in the finishing department, where he did touching up work.
The reason assigned for his discharge was that he had sold lottery
tickets among the employees. However, he had been engaged in
selling lottery tickets for only a few weeks before he was discharged
and only to help out another employee, who for some reason was
unable to sell tickets himself. Some time before his discharge he
had told Mr. Knaus of his good fortune in winning $1,000. in the
lottery, whereupon Mr. Knaus had congratulated him upon his
good luck. Other employees were also engaged in selling lottery
tickets, but were not discharged. Furthermore, Schmutz did not
sell lottery tickets during working hours, and at no time was he,
or the employees as a body, warned not to sell tickets. The desire
of the respondent's management to protect its employees from being
exploited by lotteries would have been equally served if Schmutz
had been given a warning before he was discharged. Instead, even
though he knew that Schmutz had sold lottery tickets, Knaus at-
tempted to get from Schmutz an affidavit that the latter had never
done so, in return for a promise to reemploy him. It is difficult to
see what advantage such an affidavit would have had over a forth-
right promise by Schmutz to refrain in the future from engaging in
this practice.
974 NATIONAL LABOR RELATIONS BOARD
If each case stood alone the reasons assigned for the layoff or
dismissal might have a certain plausibility, but the Board finds it
difficult to believe that, by sheer coincidence, the officers of the union,
the shop committee and those active in the organization of the
union and the solicitation of union members were all discharged
within a short period and were thereafter refused reemployment,
while two other employees who had been discharged and had made
complaints to the old Board but who had failed to testify against
the respondent, were subsequently reemployed.
Any explanation therefore of the occurrences in this case which
does not take into consideration the active hostility of the respond-
ent to the unionization of its Oneida plant, leaves too much to
chance and too little to design.
The evidence reveals a definite conflict between the parties in the
case as to what occurred on many occasions. Such conflict is common
in every type of litigation. The argument of the respondent that
the discharged men had a powerful incentive to tell the best story
they could in order to make out a case of discrimination applies
equally to the witnesses for the respondent. In spite of the ele-
ment of self-interest, the men did not testify that they gave notice
of the existence of the union to the management of the respondent,
although they must have realized that that would be a strong factor
in their favor. Schmutz' refusal to make an affidavit that he had
not sold lottery tickets is another instance of the restraint and
candidness which characterized the testimony of the complainants.
This, however, cannot be said of the attitude of the witnesses for
the respondent, especially that of Knaus. He repeatedly asserted
that until testimony was introduced in this case he had had no ink-
ling whatever of the existence of the union. However, on cross-
examination, he had to admit, though reluctantly, that he knew of
its existence at least since January, 1935, the time of the first hearing
before the Buffalo Regional Labor Board.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, the following con-
clusions of law are made :
(1) Casket Makers Union 19559 is a labor organization, within the
meaning of Section 2, subdivision (5) of the National Labor Rela-
tions Act.
(2) The respondent, by discriminating in regard to the hire and
tenure of employment of Rudolph Lechner, Anson Harrington, Clar-
ence D. Snyder, George W. Brooks, Fred W. Corbin, John R. Brooks
and Leo F. Schmutz, and each of them, and thereby discouraging
membership in the labor organization known as Casket Makers
DECISIONS AND ORDERS 975
Union 19559, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8, subdivision (3) of the Act.
(3) The respondent, by interfering with, restraining and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
(4) The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions (6)
and (7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondent, National Casket Company, Inc., and its officers
and agents shall :
(1) Cease and desist
(a) from discouraging membership in Casket Makers Union 19559
or any other labor organization of its employees by discrimination
in regard to hire or tenure of employment or any term or condition
of employment;
(b) from in any other manner interfering with, restraining or
coercing its employees in the exercise of the right to self-organi-
zation, to form, join or assist labor organizations, 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;
(2) Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Rudolph Lechner, Anson Harrington, Clarence D.
Snyder, George W. Brooks, Fred W. Corbin, John R. Brooks and
Leo F. Schmutz, and each of them, immediate and full reinstate-
ment, respectively, to their former positions without prejudice to
the rights and privileges previously enjoyed;
(b) Make whole said Rudolph Lechner for any loss of pay he
had suffered by reason of the severance of his employment by
payment to him of a sum of money equal to that which he would
normally have earned as wages during the period from the date
of the severance of his employment to the date of such offer of
reinstatement, computed at_the- -wage _rate _he_ was_ paid_at_the time
of such severance, less any amount, if any, which he had earned
subsequent to such severance until the date of such offer of
reinstatement;
(c) Make whole the said Anson Harrington for any loss of pay
he had suffered by reason of the failure of the respondent to rein-
976 NATIONAL LABOR RELATIONS BOARD
state him on July 9, 1935 or thereafter, by payment to him of a
sum of money equal to that which he would normally have earned
as wages during the period from the date after July 9, 1935 on
which any other person was hired to do work formerly done by
him, to the date of such offer of reinstatement , computed at the
wage rate paid to such other person, less the amount , if any, which
he earned during such period;
(d) Make whole said Clarence D. Snyder , George W. Brooks,
Fred W. Corbin, John R . Brooks and Leo F . Schmutz, and each
of them, for any losses of pay they have suffered by reason of the
refusal of the respondent to reinstate them on August 19, 1935 or
thereafter , by payment to each of them , respectively , of a sum of
money equal to that which each would normally have earned as
wages during the period from the date after August 1.9, 1935 on
which other persons were hired to do the work formerly done by
each of them, respectively , to the date of such offer of reinstate-
ment, computed at the wage rate each was paid at the time each
was discharged from employment by the respondent , less the amounts,
if any, earned by each , respectively , during such period;
(e) Post notices immediately in conspicuous places in the Oneida
plant, stating ( 1) that it will cease and desist as aforesaid ; and (2)
that such notices will remain posted for a period of at least thirty
(30) consecutive days from the date of posting.