National Motor Rebuilding Corp.

National Labor Relations Board - Board Decisions

Jan 15, 1940

19 N.L.R.B. 503 (N.L.R.B. 1940)

In the Matter of NATIONAL MOTOR REBUILDING CORP.' and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 15, A. F. OF L.2
Cases Nos. C-1360 and R-1.319-Decided January 15, 1940
Motor Rebuilding Industry-Interference, Restraint, and Coercion: anti-union
statements ; persuading employees to refrain from forming or joining unions ;
persuading employees to sign individual contracts ; circulation of anti-union
petition among employees-Company-Dominated Union: attempts to initiate and
form, dominate, and interfere with Balleisen type of bargaining committees ;
disestablished as agency for collective bargaining-Contract: collective, with
organization found to be company dominated, void ; "Yellow dog" ; em-
ployer ordered to cease and desist from giving effect thereto and to
notify in writing each employee who signed of their invalidity-Strike:
caused by employer's unfair labor practices-Employee Status: strikers-
Discrimination: withholding pay increases from employees who refused to sign
illegal contracts; discharges and lay-offs to discourage union activity; refusal
to reinstate laid-off employees because of refusal to sign individual contracts and
opposition to a company-dominated union ;-charges of alleged discriminatory
lay-offs dismissed as to five persons-Unit Appropriate for Collective Bargain-
ing: production employees excluding supervisors and electrical employees ; no
controversy.as to-Reprc entativcs: proof of choice: comparison of application
cards with pay roll ; majority status not affected by withdrawals induced by
respondent's unfair labor practices-Collective Bargaining: refusal to recognize
union ; refusal to negotiate with union; good faith ; submission of individual
contracts as counterproposals not evidence of; ordered to bargain and to enter
into signed agreement if understanding is reached-Reinstatement Ordered:
strikers, laid off, discharged and employees refused reinstatement; displacement
of newly hired employees ; preferential list-Back Pay: awarded laid off, dis-
charged and employees refused reinstatement ; computation of : period between
Intermediate Report and Order excluded as to those employees Trial Examiner
found no discrimination-Remedial Order: special form of : grant of pay increases
discriminatorily denied employees.
Mr. Millard L. Midonick, for the Board.
Kotzen, Mann cC Siegel, of New York City, by Mr. Abraham Manna,
for the respondent.
Mr. Pawl Hutchings, of Washington, D. C., for the Union.
Mr. Edward Scheunontann, of counsel to the Board.
'Incorrectly designated National Motor Rebuilding Corporation in the Pleadings and
corrected by motion at the hearing.
z Incorrectly designated as A. F. of L. District No. 15 International Association of
Machinists in the petition and corrected by motion at the hearing.
19 N. L. R. B. No. 56.
503
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CA SE
On November 9, 1938, International Association of Machinists, Dis-
trict No. 15, A. F. of L., herein called the Union, filed with the. Re-
gional Director for the Second Region (New York City) a petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of National Motor Rebuilding Corp.,
Brooklyn, New York, herein called the respondent, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act.
On November 29, 1938, the Union filed with the Regional Director
charges which, as amended by charges filed on January 24, and March
8, and 10, 1939, alleged that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7)
of the Act.
On December 21, 1938, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Sections 3 and 10 (c) (2),, and Article II, Section 37 (b),
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, consolidated the complaint and representation cases and
ordered the Regional Director to conduct an investigation of repre-
sentatives and to provide for an appropriate hearing upon due notice.
Upon the charges and amended charges duly filed by the Union, the
Board by the Regional Director, issued its complaint dated January
31, 1939, and its amended complaint dated March 8, 1939, further
amended March 11, 1939, against the respondent alleging that it had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (2), (3), and (5) and
Section 2 (6) and (7) of the Act: Copies-of the, amended complaint.
as amended, and the petition, accompanied by notices of hearing
thereon, were duly served upon the respondent, the Union, and the
Collective Bargaining Committee of the Employees of National Motor
Rebuilding Corporation, herein called the Committee.
The complaint, as amended, alleged in substance (1) that the re-
spondent persuaded, threatened, and coerced its employees to sign
individual contracts of employment, to become members of an organi-
zation formed and sponsored by the respondent, and to refrain from
becoming or remaining members of the Union, and kept under sur-
NATIONAL MOTOR REBUILDING 'CORPORAT'ION 505
veillance the meetings and meeting places of the employees who were
members of the Union; (2) that on or about October 7, 1938, the re-
spondent initiated, formed, sponsored, dominated, and contributed
support to the Committee; (3) that on May 3 and October 14, 1938,
and on January 9 and February 24, 1939, the respondent laid off and
discharged 19 employees and refused to reinstate some of them because
they joined and assisted the Union and refused to join or assist the
Committee; (4) that on October 15, 1938, because of the discriminatory
discharges on October 14, 4 employees went on strike, and that 2 of
them have remained on strike from that date to the date of the issuance
of the complaint; (5) that the respondent on March 1, April 1, October
26, November 1, and December 1, 1938, and at all times thereafter,
refused and continues to refuse to bargain collectively with the Union,
the exclusive representative of the employees in an appropriate unit;
and (6) that by its afore-mentioned acts the respondent interfered
with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
On February 8, 1939, the respondent filed its answer denying the
unfair labor practices alleged and the necessity and propriety of an
investigation and certification of representatives. The respondent
urges as separate and distinct defenses: (1) that the Union is a
stranger and an interloper and has no right to file charges under the
Act; (2) that the respondent has complied with the Act, and that the
action of the Union in filing the petition and charges fostered indus-
trial unrest and undermined the respondent's business thereby dimin-
ishing employment; (3) that the activities of the respondent do not
affect commerce, within the meaning of the Act, and the Board there-
fore has no jurisdiction; and (4) that the complaint is defective in that
the original charge is not annexed to the complaint 3 and the amended
charges, annexed to the complaint, do not contain clear and concise
statements of the facts constituting the alleged unfair labor practices.
The answer concluded by moving that the complaint be dismissed.
The motion is hereby denied.
Pursuant to notice, a hearing was held in New York City from
March 13 to 20, 1939, inclusive, before I. L. Broadwin, the Trial Ex-
aminer duly designated by the Board. The Board and-the respondent
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course-of the hearing the Trial Examiner made a number
of rulings on motions and on objections to the admission of evidence.
The Board has reviewed these rulings and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
$ The amended charges in this proceeding were not supplementary to the original charge
but in substitution therefor.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 13, 1939 , the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. He found
that the respondent had engaged in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (2), (3), and (5) of
the Act, and recommended that the respondent cease and desist from
these violations, disestablish the Committee and withdraw recognition
from it, reinstate with back pay the employees discriminatorily dis-
charged, and proceed to bargain collectively with the Union. He also
found that some of the discharges alleged in the complaint were not
discriminatory and recommended that the complaint be dismissed as-
to them.
On October 4 and 9, 1939, the respondent and the Union, respec-
tively, filed exceptions to the Intermediate Report.
On October 31, 1939, pursuant to notice, a hearing was held before
the Board in Washington, D. C., for the purpose of oral argument.
The Union appeared and presented oral argument.
The Board has considered the exceptions and, save as they are con-
sistent with the findings, conclusions, and order set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE RESPONDENT AND ITS BUSINESS
The respondent is a New York corporation with its principal office
and place of business in Brooklyn, New York. It is engaged in re-
building and selling old automobile motors. It employs about 40
persons.
The respondent purchased materials valued at $25,694.48 during the
6-month period ending October 31, 1938, and obtained 30 per cent in
value- of such materials outside the State of New York. Its sales
totaled $50,866.11 in value for the same period, and it shipped over
40 per cent in value of manufactured products to States other than
New York. Seventy-five to 90 per cent of the respondent' s sales are
made through Sears, Roebuck & Co., as a result of advertising in the
catalog of that company.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District No. 15, is a labor
organization affiliated with the American Federation of Labor. It
admits- to membership production employees of the respondent.
The Collective Bargaining Committee of the Employees of National
Motor Rebuilding Corporation is an unaffiliated labor organization.
NATIONAL MOTOR REBUILDING 'CORPORATION 507
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the Committee; and the
individual contracts
On or about and after January 1938 as found below, the Union had
as members a majority of the respondent's production employees.
About the middle of March 1938, Frank Wernersbach, who performed
the duties of plant superintendent for the respondent,4 called James
McKeon, Michael Gazza, Anthony Cafiero, and Frank Haslach into the
office of Herman Rudnick, president of the respondent, and told them
that Rudnick wanted to know the Union's demands. McKeon was
the employee most active in organizing the Union. Gazza, Cafiero,
and Haslach were foremen. They had all signed union application
cards. Cafiero mentioned some demands the Union might make and
Wernersbach replied that Rudnick would never grant them. Shortly
after the meeting the three foremen told McKeon that they were
"through with the Union." Haslach added, "if you string along, I will
try to get you more money." McKeon refused, saying, "I'm in it and
I think I'll stick with it."
Shortly after the meeting in Rudnick's office, Hyman Lehman, a
director of the respondent, asked George Rebecchi, one of the em-
ployees, whether he had signed a union application card. Rebecchi
admitted he had. Lehman asked, "Who made you, sign?" Rebecchi
replied that nobody had. Lehman then said, "Do you like your
job?" Rebecchi replied, "Yes." Lehman thereupon said, "Who made
you sign, Mr. McKeon?" and Rebecchi denied again that his
membership in the Union had been secured through coercion.
A few days thereafter Wernersbach brought a petition to the plant
and showed it to some of the employees. The petition had been
drawn by Rudnick following a form created by L. L. Balleisen,
secretary of the Brooklyn Chamber of Commerce. The petition,
addressed to the respondent, purported to notify it that the under-
signed employees had elected a bargaining committee to represent
them, with authority to enter into a contract "provided it contains
substantially the provisions outlined to us by the management," and
that the representative authority of any other organization was
thereby superseded. The Union threatened to file charges with the
Board. The respondent took no further steps with respect to the
petition until the following October.
On October 7, 1938, Rudnick called a meeting of the, employees in
the shop and delivered a talk in which he stated that it was necessary
4 The respondent denies that Wernersbach is a supervisory employee ; however, the
evidence clearly shows. and we find, that he exercised supervisory powers, including the
power to hire and discharge.
508- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the Fair Labor Standards Act that a collective bargaining
committee be set up. He presented to the assembled employees a
petition similar to the one which the respondent had circulated in
March. At the conclusion of Rudnick's speech, Wernersbach sug-
gested that the employees elect a bargaining committee in accordance
with the petition. Accordingly, the assembled employees selected
Foremen Gazza and Cafiero and Constantine Hastalis and George
Rebecchi to constitute the Committee. Most of the employees signed
the petition under Wernersbach's observation as they left the room.
On October 10 Rudnick presented a proposed collective; bargaining
contract to the Committee. The contract was drawn by Rudnick
from forms prepared by Balleisen. Our description of the Balleisen
contract in Matter of National Licorice Company and Bakery and
Confectionery Workers International Union of America, etc.,5 de-
scribes the contract offered here : "It was to be signed by each iii-
dividual employee. The benefits of the contract were limited to
those employees who signed. In return, the signers relinquished
the right to strike and the right to demand a closed shop or signed
agreement with any union. They also agreed to accept a procedure
not necessarily involving the Union in the settlement of labor dis-
putes, thereby eliminating the Union as a possible agency for
collective bargaining."
The next day, October 11, Albert Davey, an employee, called a
meeting in the shop. At the meeting, the employees unanimously re-
jected this contract, and elected Davey and William Blauth to the
Committee in place of Foremen Cafiero and Gazza. Davey solicited
suggestions from the employees, and on the basis of these suggestions,
drew a proposed contract to be submitted to the respondent.
On October 14 the Committee called on Rudnick to present its
proposal. Rudnick refused to recognize or confer with it on the
asserted ground that it did not represent the employees because of the
change in its personnel. On the same day, 16 employees were laid
off under circumstances which we discuss below.
In January 1939 Rudnick again circulated individual contracts of
employment identical with those presented to the Committee in Octo-
ber, with the exception that the Committee designated on the contract
as the bargaining representative consisted of Foremen Cafiero and Has-
lach and William Blauth and Arthur Zarakas. There is no evidence
in the record that these persons were elected by the employees to serve
on the Committee.
Twenty-one employees signed the contracts. They received increases
in their hourly rates of pay, accordingly, effective on or about Janu-
6 7 N. L. R. B. 537 , enf'd as mod ., National Labor Relations Board v. National Licorice
Co. 104 F. ( 2d) 655 (C. C. A. 2).
NATIONAL MOTOR 'REBUILDING IGORPORATION 509
ary 13, 1939. The five or six employees who refused to sign the indi-
vidual contracts did not receive pay increases. Rudnick and the
supervisory employees persistently urged them to sign the contracts,
and called their attention repeatedly to the fact that they would
receive increased wages when they did sign.
The Committee named in the Balleisen contracts as the "collective
bargaining representative of the employees" had no rights or duties.
It had no constitution or bylaws, charged no dues, had no officers or
headquarters, and possessed no membership records. The Committee
was composed at all times of one or more supervisory officials, with
the exception of the occasion in March, when Davey and Blauth were
elected to replace Michael Gazza and Cafiero and, on that occasion,
Rudnick refused to recognize it.
In short, the petition, the contracts, the Committee, and the re-
spondent's actions with respect to them hereinabove and hereinbelow
further set forth, represent the familiar Balleisen pattern *of em-
ployer interference, restraint, coercion, support, domination, and
discrimination.' We find that the respondent dominated and inter-
fered with the formation and administration of the Committee and
contributed support thereto and that the respondent by these activi-
ties, by the limitations on union activity imposed by the individual
contracts, and by the other acts and statements set forth above, inter-
fered with, restrained, and coerced its employees in the exercise of
the right of self-organization, to form, join, or assist labor organiza-
tions, 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 guaran-
teed in Section 7 of the Act.
B. Discrimination
1. Wage increases
We have pointed out above that the respondent granted wage in-
creases to the employees who signed the individual Balleisen contracts
and thereby authorized the Committee to bargain for them. The
respondent withheld increases to the employees listed in Appendix
°Ma.tter of Hopwood Retinning Co., Inc. and Metal Polishers, Buffers, Platers, and
Helpers Int., Local 8 and Teamsters' Union, Local 548, 4 N. L . R. B. 922 enf 'd, National
Labor Relations Board v. Hopwood Retinning Co., 98 F. ( 2d) 97 (C. C. A. 2) ; Matter
of National Licorice Co. and Bakery and Confectionery Workers Int. Union of Amer.
Local 405, 7 N. L. R. B. 537 enf'd as mod. National Labor Relations Board v. National
Licorice Company , 104 F. ( 2d) 655 (C. C. A. 2) ; Matter of American Manufacturing Co.,
eto. and Textile Workers' Organ. Comm. C. I. 0., 5 N. L. R. B. 443, enf'd National Labor
Relations Board v. American Manufacturing Co., 106 F. (2d) 61 (C. C. A. 2) ; Matter of
Jacobs Bros . Co. and United Elec. and Radio Workers of Amer. , Local 1226, 5 N. L. R. B. 620;
Matter of Atlas Bag and Burlap Company , Inc. and Milton Rosenberg , etc., 1 N. L. R. B. 292.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"A," because they would not sign the illegal Balleisen contracts or
authorize the company-dominated Committee to bargain for them.
It is clear that the respondent discriminated against these employees
in order to encourage membership in the Committee, and to discour-
age membership in the Union.
Accordingly, we find that the respondent by withholding pay in-
creases from the employees listed in Appendix "A" discriminated in re-
gard to their hire and tenure and terms and conditions of employment,
thereby encouraging membership in a labor organization, discourag-
ing membership in another labor organization and interfering with,
restraining, and coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
2. James McKeon
Jain s McKeon was discharged on May 13, 1938, and he has not been
reinstated. The Trial Examiner found that this discharge and failure
to reinstate were discriminatory. The respondent takes exception.
McKeon was the leading member of the Union at the respondent's
plant and an outspoken opponent of the Committee. It will be re-
called that in March 1938 Foremen Gazza, Cafiero, and Haslach aban-
doned the Union following a conference with Wernersbach, and that,
at that time, McKeon refused to "string along" with them despite
Haslach's promise to try to get him more money if he did "string
along." In May 1938 the respondent granted McKeon an increase
in wages and Haslach promised him steady employment. At this time
Ha.slach stated to McKeon : "We want to make it a big happy family
here." McKeon replied : "The only way I will be happy is to have
the A. F. of L. in here." Shortly thereafter, on May 13, Foreman
Haslach discharged McKeon. McKeon asked why he was being
discharged and Haslach replied : "You know what for."
The respondent contends that McKeon was discharged because of
lack of work, and because he could not get along with his foreman.
There is no showing that work had declined at the time of the dis-
charge, nor is there any evidence of insubordination on the part of
McKeon, other than Rudnick's vague and unsupported statements that
McKeon was "running all over the shop," and that he "didn't know
whether McKeon was boss or Haslach was boss." The record shows
that McKeon was an efficient workman and had been praised by
Rudnick himself.
We find that the respondent, by discharging and failing to reinstate
McKeon, discriminated in regard to his hire and tenure of employ-
ment thereby discouraging membership in a labor organization, en-
couraging membership in another labor organization, and interfering
_NATIONAL MOTOR REBUILDING CORPORATION 511
with, -restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act.
At the time of his lay-off McKeon received $30 per week. He had
earned approximately $32.00 per week for 2 weeks' work for another
company, and $3.00 per day for 2 weeks' jury duty in the Supreme
Court and 1 month's jury duty in General Sessions, from the date of
his discharge to the date of the hearing.
3. The October 14, 1938, lay-off.
On October 14, 1938, the respondent laid off 16 employees : Frank
Onorio, Albert Davey, H. Donaldson, A. Becker, N. Grillo, S. Onorio,
A. Golembeski, H. Weiner, J. Petra.usky, A. Pasternak, E. Tasso, D.
Giacalone, C. Wozne, A. Ferrante, B. Ladner, and J. Concilio.7 The
Trial Examiner found that these lay-offs were discriminatory. The
respondent takes exception.
These employees had signed application cards for the Union. On
October 7 they signed Rudnick's petition asking that the Committee
be formed. On October 10 they rejected the individual contracts
Rudnick offered. On October 11 they approved Davey's proposal and
participated in the election to the Committee of two persons in place
of Foremen Haslach and Cafiero. On October 14, the day that Rud-
nick refused to recognize the Committee as thus constituted, Werners-
bach told these employees that they were being laid off. He gave them
no specific reason for the lay-off, but told them that there might be
work in a few days.
On October 15 Hastalis asked Wernersbach "if the fellows would
sign that contract, Mr. Rudnick's contract, would they have been
working?" Wernersbach replied, "Yes." He further added, "Why
don't you play ball with the boss? If you would have played ball
you would have been working there now;" Wernersbach testified as
follows in this connection :
Q. And do you remember saying you should have played ball
with the boss, do you remember that?
A. Yes; I might have said something like that; something like
"playing ball." It might have been something in that respect.
Q. Did you have anything in mind with reference to anything
particularly, when you said that if you did say it?
A. The only thing I had in mind was, I know these fellows so
well, I couldn't understand what was the matter with them. I
had nothing in mind.
7 The spelling of some of the names of these employees varies throughout the pleadings
and the record . We have adopted the spellings as they appear on the respondent's pay
roll.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 26 John Hurley, the union organizer, in a conference
with. Rudnick, charged that the mass lay-off was in effect a lock-out.
Rudnick did not deny this accusation at the time.
The respondent contends that the employees were laid off because
business had fallen off. and there was a surplus of motors in the shop
awaiting orders. The evidence shows that business decreased and that
the respondent signed a mortgage on October 1 in, order to meet its
pay roll. These considerations, however, are outweighed by the cir-
cumstances surrounding the lay-off and other facts revealed by the
record. There had been a much greater decline in business in June
and July and there is no evidence that employees were laid off or
discharged at that time. Also several of the employees testified that
there was the usual and normal amount of work to be done on
October 14. The events with respect to the Committee and the
Balleisen contracts immediately' preceding the lay-offs, and Werners-
bach's statements immediately thereafter, make it abundantly clear
that the employees were laid off for their membership and activity
in the Union and their opposition to the Committee. The mass lay-
off was a part of the respondent's attempt at that time to compel its
production employees to cooperate with the Committee, as formed and
dominated by the respondent.
We find that the respondent on October 14, 1938, discriminated
in regard to the hire and tenure of employment of the above-named
employees, thereby discouraging membership in a labor organization,
encouraging membership in another labor organization, and inter-
fering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act. Although Pasternak,
Becker, Concilio, and Tasso did not testify at the hearing, the evi-
dence fully establishes the right of each of them to the same relief
as the other 12, and we so find.
Six of these employees were reinstated by the respondent. Five
of them are listed in Appendix "B." 8 The record reveals that during
the period from the lay-off on October 14 to the dates when they
were reinstated respectively, N. Grillo and D. Giacalone had earned
nothing, and S. Onorio had earned approximately $25. The record
does not reveal how much, if anything, Pasternak, and Tasso earned
during that period. The remaining 10 employees, who ware laid
off on October 14 and who are listed in Appendix "C", were not
reinstated. The record reveals that from the' date of the lay-off to
the date of the hearing, Davey earned approximately $87.50 up to
January 17, 1939, and 50 cents per hour up to the date of the hearing;
Wozne, approximately $1.00 per week; Ladner, approximately $30;
8 The sixth , Frank Onorio , was discharged subsequent to this reinstatement . His case
is further discussed below.
NATIONAL MOTOR R-EBU1LDI__S7G CORPORATION 513
Petrausky, approximately $66.00; Donaldson, approximately $20.00;
and that Golembeski and Weiner had earned nothing during that
period. The record does not reveal how much, if anything, Becker,
Concilio, and Ferrante had earned during the same period.
4. The strike and the alleged offers of reinstatement
On October 15 Frank Gore, George Rebecchi, Lawrence Gazza, and
Constantine Hastalis, went on strike in protest against the discrim-
inatory lay-offs of the previous day. We find that these employees
remained employees within the meaning of Section 2 (3) of the Act.
We find further that this strike was caused by unfair labor practices
of the respondent.
As we find below, the respondent engaged in unfair labor practices
within Section 8 (5) of the Act by refusing to recognize or to bargain
with the Union, and by dealing with its employees individually. On
October 26 the Union requested Rudnick to negotiate with respect
to the reinstatement of the laid-off employees, and with respect to
an agreement on wages and conditions of employment. Rudnick
replied in substance that the condition of his business would not
allow him to deal with any union.
Thereafter and at different times, the respondent by letter re-
quested individual employees to return to work. It was thus vir-
tually impossible for the individual employees, who were at that
time picketing the respondent's plant in protest against the respond-
ent's unfair labor practices, to ascertain whether the respondent
intended to reinstate all of them or only a few individuals. Several
of the employees testified that they did not return to work when they
received the letters because they did not know whether other
employees had also received offers of reinstatement. In addition
they feared that, by returning individually, they would be forced
again to capitulate to the respondent's unfair labor practices. That
their fear was justified is borne out by subsequent unfair labor prac-
tices of the respondent which we have set forth above. Under these
circumstances, we hold that if the respondent intended to offer un-
conditional reinstatement to its employees, it was under a duty to
notify the Union of that intent. Its action in sending individual
offers to different employees at different times can only be construed
as an attempt by the respondent to break the collective opposition
of its employees to the unfair labor practices by dealing with them
individually. We cannot, therefore, consider the letters to be un-
conditional offers of reinstatement.
514 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
5. Michael Gazza
Michael Gazza, assistant foreman in charge of the V-8 department,
was discharged on January 7, 1939. The Trial Examiner found that
this discharge was not discriminatory . The Union takes exception.
On November 15, 1937 , Michael Gazza signed an application card
for the Union. He withdrew after the meeting in Rudnick's office
in March 1938. In the same month he was elected as one of the four
members of the Committee . He withdrew from this position, as did
Foreman Cafiero, at the request of the other employees.
In January 1939, Rudnick again requested employees , including
the foremen , to sign individual contracts . On January 5 Rudnick
discussed these contracts with the employees in charge of depart-
ments, including Michael Gazza . On January 6 Wernersbach assem-
bled the employees and told them that those who signed the contracts
would receive pay increases . On January 7 Michael Gazza was
discharged . Lawrence Gazza , Michael's brother, and a group of other
employees went to Haslach and asked why Michael had been dis-
charged. Haslach at first stated that he did not know but later said,
"Mike was fired because something was said at the meeting the night
before." He told them they could go in and see Rudnick "but it
wouldn't do any good."
On Monday , January 10, Lawrence Gazza and the same group went
to see Rudnick. In response to Lawrence Gazza's question .as to why
Michael had been discharged , Rudnick replied , "that Mike didn't
tell him about the contract when they had the meeting of the heads
of departments on Thursday night, but on Friday morning he had
gone over to Frank Haslach and Frank WVernersbach and told them
that he didn 't like the contract."
The respondent contends that Michael Gazza was discharged be-
cause the amount of work in his department had decreased . Rudnick
admitted, however, that on other occasions when work in the V-8
department had become slack Michael Gazza had been transferred
to other departments . In view of this admission , Michael Gazza's
position of responsibility , his previous regular and satisfactory em-
ployment ,. and Haslach's and Rudnick's statements with respect to
the reason for his discharge , we find that the respondent discharged
Michael Gazza because of his opposition to the respondent's inter-
ference with and domination of the Committee.
We find that the respondent , by discharging Michael Gazza, dis-
criminated in regard to his hire and tenure of employment , thereby
discouraging membership in a labor organization and encouraging
membership in another labor organization, and interfering with,
NATIONAL MOTOR REBUILDI'l-KG CORPORATION 515
restraining , and coercing its employees in the exercise of rights guar-
anteed in Section 7 of the Act."
6. The February 24, 1939, lay-offs
The respondent laid off 13 employees on February 24, 1939. The
amended complaint alleged that these lay-offs were discriminatory
as to five employees : Frank Onorio, S. Onorio, D. Giacalone, N.
Grillo, and Lawrence Gazza, herein called charging employees. The
Trial Examiner found that these lay-offs were not discriminatory.
The Union takes exception.
The charging employees, other than Lawrence Gazza, were among
those laid off on October 14, 1938. They were reinstated on various
dates thereafter. Lawrence Gazza was among those who went on
strike on October 15, 1938. He was reinstated on or about December
1, 1938.
The five charging employees contended that they were laid off on
February 24, 1939,-because they refused to sign the Balleisen con-
tracts. Of the 13 employees who were laid off on February 24, 1939,
however, 7 had signed the individual contracts. The record is silent
as to the remaining employee. Three of the 13 employees were later
reinstated. One of these three had signed an individual contract, and
two had not. In view of these facts, and in the absence of any evi-
dence that the five charging employees were singled out because of
their refusal to sign individual contracts, we are not persuaded that
they were discriminatorily discharged.
The complaint also alleged that the respondent discriminatorily
refused to reinstate the charging employees. The respondent's pay
roll introduced in evidence shows that S. Onorio, D. Giacalone, and
N. Grillo have returned to work. We shall, therefore, dismiss this
allegation of the complaint as to them. Lawrence Gazza and Frank
Onorio have not been reinstated. Gazza requested reinstatement
during the same week in which he was laid off. He asked Foreman
Haslach at that time why he had not been "picked to come back
instead of the other fellows," since most of those who were reinstated
were new men who had been hired since December 1, 1938. Haslach
replied, "Well, you wouldn't satisfy the boss." Gazza and Onorio
returned again during the week of March 6-13, 1939, and in substance
had the following conversation with Haslach :
He [Frank Onorio] asked Mr. Haslach why this Al Pasternack
was kept in there babbitting when he was kept out, so Haslach
said, "You know why."
' Cf. Matter of American Potash and Chemical Corp . and Borax and Potash Workers'
Union No . 20181, 3 N . L. R. B. 140, enf ' d 98 F. ( 2d) 488 (C. C.'A. 9).
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So I [Lawrence Gazza ] told Frank fOnorio], "Because you
wouldn't sign the contract ," and Frank asked Mr . Haslach was
that right and Mr. Haslach said, "That 's right." He nodded his
head.
A new employee , Joseph Kolonics, was hired on March 3, which is
on or about the time Gazza and Onorio applied for reinstatement.
In view of these facts we must , and do, conclude that Gazza and
Onorio were. refused reinstatement because they opposed and refused
to sign the individual contracts.
We find that the respondent discriminated in regard to the hire
and tenure of employment of Lawrence Gazza and Frank Onorio by
refusing to reinstate them, thereby discouraging membership in a
labor organization , encouraging membership in another labor organi-
zation, and interfering with, restraining , and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act. We find
that the record does not support the allegations of the complaint that
the respondent discriminated in regard to the hire and tenure of
employment of Frank Onorio, S. Onorio, N. Grillo, D. Giacalone,
and Lawrence Gazza by discharging them on February 24, 1939, and
by refusing to reinstate S. Onorio, N. Grillo and D. Giacalone,
thereby discouraging membership in a labor organization.
C. The refusal to bargain collectively
1. The appropriate unit
The complaint, as amended , alleges that the production employees
of the respondent in its Brooklyn plant, excluding clerical, mana-
gerial , and supervisory employees , countermen , and drivers constitute
a unit appropriate for purposes , of collective bargaining . The answer
does not deny the allegation.
We find that the production employees of the respondent in its
Brooklyn plant, excluding clerical ; managerial , and supervisory em-
ployees, countermen, and drivers constitute a unit appropriate for the
purposes of collective bargaining and that said unit insures to em-
ployees of the respondent the full benefit of their right to self -organi-
zation and collective bargaining and otherwise effectuates the policies
of the Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges, the answer denies, and the Trial Examiner
found that the Union at all times represented a majority of the re-
spondent 's employees in the appropriate unit. The respondent
excepted to the finding.
NA'T'IONAL MOTOR REBUILDING CORPORATION 517
The respondent's pay roll introduced in evidence shows that from
January 1, 1938, to the date of the hearing the maximum number of
employees in the appropriate unit at any one time was approxi-
mately 50. The Union introduced in evidence 52 application cards
signed by employees of the respondent.10 Although many of the
cards are undated, McKeon testified that he witnessed the signatures
of all those who signed, with the exception of three employees who
handed him their signed cards in person, and that all but three or
four of the cards had been signed prior to or about January 1, 1938.11
A comparison of the application cards with the respondent's pay roll
from January 1, 1938, to the date of the hearing shows that the Union
at all times during that period represented a majority of the employees
in the appropriate unit.
On March 31 and October 26, 1938, the Union requested the re-
spondent to bargain with it as the exclusive representative of the
respondent's employees. Both times it offered to prove to Rudnick
that it had been designated by a majority. On both occasions Rud-
nick stated his willingness to accept the Union's word that it repre-
sented a majority.
The respondent contends, however, that the employees, by signing
the petitions drawn by Rudnick, which purported to supersede any
authority given by the signers to any other organization, and by.
signing individual contracts, had repudiated their membership in
the Union.
As we have found in Section III B, the respondent engaged in
unfair labor practices by insisting that the employees sign the peti-
tions and the individual contracts. The necessary effect of this
course of conduct was to coerce employees into designating the Com-
mittee as bargaining agent by signing the petitions and the contracts.
It is clear that the petitions were circulated by supervisory employees
of the respondent who urged the employees to sign and offered them
wage increases as inducements.
On the present record of interference, restraint, coercion, dis-
crimination, and the effects thereof, we hold that the petitions and
the individual contracts do not constitute valid designations of the
Committee or genuine rescissions of the authority of the Union. The
number of signatures on these petitions and contracts registers noth-
10 This number includes all those who signed cards from January 1 , 1938 , to the date
of the hearing, and due to fluctuations in the pay roll includes some employees who were
not employed on any given date but who were employed on other dates.
u Respondent contends that these cards are not applications for membership in the
Union which filed charges since they are headed "Application for membership. Auto-
mobile Machinists Lodge , No. 447 ." However the cards themselves and the undisputed
testimony show that Automobile Mechanics Lodge , No. 447 and International Association
of Machinists , District No. 15 , A. F. of L ., the charging Union , are one and the same
organization.
283030-41-vol. 19--34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing more than the success of the respondent's campaign to form and
assist the Committee. The labor organization with which the re-
spondent is obligated to bargain within Section 8 (5) is the one
which by Section 9 (a) has been designated by a majority of the
respondent's employees for the purposes of collective bargaining.
The Union has been thus designated and this record reveals no
genuine withdrawal of such designation. A company-coerced choice
of a labor organization is clearly inoperative.12 It is equally clear
that a company-coerced defection from a labor organization is
invalid.- To hold otherwise would be to allow the respondent to
avoid its obligation under Section 8 (5) by the simple expedient of
violating Section 8 (1), (2), and (3). Accordingly, we find that
on and after January 1, 1938, the Union was the duly designated rep-
resentative of the majority of the employees of the respondent, and
that there is no showing that this designation was ever validly revoked.
We find that on January 1, 1938, and at all times thereafter the
Union was the duly designated representative of a majority of the
respondent's employees in a unit appropriate for collective bargaining
and pursuant to Section 9 (a) of the Act was the exclusive repre-
sentative of all employees in such unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
3. The refusal to bargain
On March 13, 1938, John Hurley and Samuel Newman, representa-
tives of the Union, visited Rudnick's office, informed him that they
represented a majority of the respondent's employees, and, in sub-
stance demanded that the respondent cease its activities in regard to
the petitions. Rudnick replied that he was not in a position to "have
any labor relations with any union" because of the infancy of the
industry and his inability to pay mechanics' wages, and that he could
not negotiate an understanding with respect to wages and hours of
labor with any labor organization.
On October 26, 1938, Hurley and Newman requested Rudnick to
bargain with the Union. Rudnick reiterated the position he had
taken at the meeting of March 13, 1938, and added that the only way
he could come to an agreement with his employees was by an
individual contract with each employee.
On October 27, 1938, the Union submitted to the respondent a
proposed contract providing for exclusive recognition and for other
12C/. National Labor Relations Board v . Stackpole Carbon Co., 105 F . (2d) 167
(C. C. A. 3).
13 National Labor Relations Board v. Arthur L. Colten etc., 105 F. (2d) 179 (C. C. A. 6) ;
National Labor Relations Board V. American Manufacturing Co., supra footnote 6.
NATIONAL MOTOR REBUILDING 'OORPORATION 519
terms with respect to working conditions. Thereafter, on November
1, at another conference, Rudnick rejected substantially all of its
provisions, including the provision for exclusive recognition. He
repeated again his determination to sign individual contracts with
each employee and not to sign a collective agreement with the Union.
The union representatives nevertheless left the proposed contract with
him and asked him to submit a counterproposal.
On December 1 Hurley and Newman again went to Rudnick's
office and asked if he had reconsidered their proposal, and if he was
willing to submit a counterproposal. Rudnick gave the union rep-
resentatives a mimeographed copy of the Balleisen contract which he
had requested each individual employee to sign and, according to
his own testimony, stated : "I have no counterproposal, other than a
certain contract. There is what I would like in a counterproposal."
The union representatives then left and no further conferences were
held. We have already found in this and other cases, that the
solicitation of signatures to such individual contracts is an unfair
labor practice intended to discourage membership in a union. Conse-
quently, it is perfectly clear that the submission of such a contract
as a counterproposal is not an evidence of bona fide collective
bargaining or of the respondent's good faith.
In short, the respondent, in response to the Union's demand for
collective bargaining and for exclusive recognition, refused to recog
nize the I7nion, to negotiate with the Union in a_ good-faith effort to
arrive at understandings with respect to terms of employment and
to embody such understandings, if reached, in a collective agreement.
It rather forestalled collective bargaining by imposing upon its em-
ployees individual contracts which prevented them from bargaining
collectively through the Union, and allowed them to deal with the
respondent only as individuals or. through the company-inspired
and dominated Committee.14
We find that the respondent refused to bargain collectively with
the duly designated representatives of a majority of its employees
in the appropriate unit in respect to rates of pay, wages, hours of
employment, or other conditions of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
UMatter of American Manufacturing Co., etc . and Textile Workers' Organizing Com-
mittee;f Matter of Hopwood Retinning Co. and Metal Polishers . Buffers, Platers and Helpers
Union, etc.; Matter of National Licorice Co . and Bakery and Confectionery Workers Union,
etc.; supra footnote 6.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial relation to trade, traffic, and commerce among the several
States, and led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since we have found that the respondent has engaged in unfair
labor practices, we shall order it to cease and 'desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act and restore as nearly as possible the condition that existed
prior to the commission of the unfair labor practices.
We have found that the respondent dominated and interfered
with the formation and administration of the Committee and con-
tributed support thereto. In order to remedy this unlawful condition
the respondent must withdraw all recognition from the Committee
for the purposes of dealing with the respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment,
and other conditions of employment. We shall, therefore, order
the respondent to disestablish the Committee as such representative.
We have found that the individual contracts signed by the respond-
ent's employees were intended to and did impede the efforts and right
of the employees to form, join, or assist labor organizations and
to engage in concerted activities for their mutual aid and protec-
tion, and we have also found that the respondent, by'its officers and
supervisory employees, persuaded and coerced its employees to sign.
the individual contracts. To restore the status quo and to free the
respondent's employees from the restraint and interference involved
in and exerted by these illegal contracts, we shall order the respond-
ent to give written notice to each employee who signed such a con-
tract that the contracts are invalid and void because they were
entered into pursuant to an unfair labor practice within the mean-
ing of the Act, that they will therefore be discontinued as a term
or condition of employment and will not in any manner be enforced
or attempted to be enforced, and that the employees are not re-
quired or expected to deal with the respondent through the "rep-
resentatives" named in the contracts. We shall also order the
respondent to post appropriate notices in its plant advising its
employees to the same effect. This part of our order will extend
to any modification, continuation, extension, or renewal of the
individual contracts.
We have found that the respondent discriminated against the em-
ployees listed in Appendix "A" thereby encouraging membership in
the Committee and discouraging membership in the Union, by
withholding from them wage increases because they refused to sign
NATIONAL MOTOR REBUILDING CORPORATION 521
individual contracts renouncing the Union and designating the Com-
mittee as collective bargaining representative. We shall order the
respondent, accordingly, to make whole these employees by granting
to them the increase in their wages which they would have received
during the time they worked for the respondent had the respondent
not thus discriminated against them. We shall also include the pay
increase in any orders of back pay covering the period in which the
employee would have been working and been eligible to receive the
pay increase had the respondent not thus discriminated against him.
We have found that the respondent discriminated in regard to the
hire and tenure and terms and conditions of employment of Michael
Gazza and the employees listed in Appendix "B" and Appendix "C."
Since the respondent has already reinstated the employees listed in
Appendix "B," we shall not order the respondent to reinstate them.
The respondent, however, has not reinstated Michael Gazza nor the
employees listed in Appendix "C." ' We shall, therefore, order the
respondent to offer to Michael Gazza and to the employees listed in
Appendix "C" reinstatement to their former positions or substan-
tially equivalent positions. The offer of reinstatement shall be with-
out prejudice to their seniority and other rights and privileges and
shall be effected in the following manner : All employees hired during
or after the discharge, lay-offs, and strike in question shall, if neces-
sary to provide employment for those to be offered reinstatement, be
dismissed. If thereupon, by reason of a reduction in force, there is
not sufficient employment immediately available for the remaining
employees, including those to be offered reinstatement, all available
positions shall be distributed among such remaining employees in
accordance with the, respondent's usual method of reducing its force,
without discrimination against _ny employee because of his union
affiliation or activities, following a system of. seniority to such ex-
tent as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution, for
whom no employment is immediately available, shall be placed upon
a preferential list prepared in accordance with the principles set
forth in the previous sentence, and shall thereafter, in accordance
with such list, be offered employment in their former or substantially
equivalent positions, as such employment becomes available and
before other persons are hired for such work.
We shall also order the respondent to make whole the employees
listed in Appendix "B" and Appendix "C" for any losses of pay
they may have suffered by reason of the respondent's discrimination
against them by payment to each of the employees listed in Ap-
pendix "B" and Appendix "C" of a sum of money equal to that'
522 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
which he would normally have earned as wages from the date of
his discharge or lay-off to the date of his reinstatement, less his net
earnings 15 if any, during said period.
We shall enter the same order with respect to Michael Gazza except
that, since the Trial Examiner found that he was not discriminated
against and recommended the dismissal of the complaint with respect
to him, we shall exclude from the computation of his back pay, the
period from September 13, 1939, the date of the Intermediate Report,
to the date of the Order herein. This is in accord with our usual
rule.16
We have found that the respondent discriminated in regard to
the hire and tenure of employment of Frank Onorio by discharging
him on October 14. We have also found that he was reinstated and
again discharged on February 24, 1939. We have found that the
respondent discriminated against him by refusing to reinstate him
after his second discharge. We shall, therefore, order the respondent
to offer to Frank Onorio reinstatement to his former or substantially
equivalent position without prejudice to his seniority and other rights
and privileges to be effected in the manner set forth above. We shall
also order the respondent to make him whole for any loss of pay
he may have suffered by reason of the respondent's discrimination
against him, by payment to him of an amount equal to that which
he would normally have earned as wages from October 14, 1938,
the date of the first discrimination, to December 8, 1938, the date
of his reinstatement, less his net earnings 17 during said period, from
the date of the respondent's refusal to reinstate him after his second
discharge to September 13, 1939, the date of the Intermediate Report,
and from the date of the Order herein to the date of the offer of
reinstatement.
We have found that Lawrence Gazza, Constantine Hastalis, George
Rebecchi, and Frank Gore went on strike because of the respondent's
unfair labor practices. Frank Gore and George Rebecchi have not
"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
elsewhere than for the respondent , which would not have been incurred but-for his unlaw-
ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Saunnill Workers' Union, Local 2590, 8 N . L. R. B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work-
relief projects are not considered as earnings , but as provided below in the Order, shall
be deducted from the sum due to the employee , and the amount thereof shall be paid over
to the appropriate fiscal agency of the Federal , State, county , municipal , or other gov-
ernment or governments which supplied the funds for said work-relief projects. Matter of
Republic Steel Corp . and Steel Workers' Organizing Committee , 9 N. L. R . B. 219, enf'd
Republic Steel Corp ., etc. v. National Labor Relations Board , 107 F . (2d) 472 (C. C. A. 3).
18 Matter of D. R. Hafelfinger Co ., Inc. and United Wall Paper Crafts of North America,
Local No. G, 1 N. L. R. B. 760.
17 See footnote 15, supra.
NATIONAL MOTOR REBUILDING CORPORATION 523
been reinstated. We shall therefore order the respondent upon appli-
cation to offer to Frank Gore and George Rebecchi immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges,
to be effected in the .manner set forth above. Since the respondent
reinstated Constantine Hastalis after the strike, we shall not order
the respondent to reinstate, him. The respondent also reinstated
Lawrence Gazza after the strike. We have found, however, that
he was later discharged and that the respondent discriminated
against him by refusing to reinstate him after that discharge. We
shall therefore order the respondent to offer to Lawrence Gazza
reinstatement to his former or a substantially equivalent position
without prejudice to his seniority and other rights and privileges
to be effected in the manner set forth above. We shall order the
respondent to make Lawrence Gazza whole for any loss of pay he
may have suffered by reason of the respondent's refusal to reinstate
him after his second discharge by payment to him of a sum equal
to the amount which he normally would have earned as wages from
the date of this refusal to reinstate him to the date of the offer of
reinstatement, less his net earnings 18 during said period. Since the
Trial Examiner found that the refusal to reinstate him was not
discriminatory, however, we shall, in accord with our usual practice.
exclude from the computation of his back pay the period from
September 13, 1938, the date of the Intermediate Report, to the date
of the Order herein.
We have found that the discharges of Lawrence Gazza, Frank
Onorio, S. Onorio, D. Giacalone, and N. Grillo on February 24, 1939,
and the subsequent failure to reinstate S. Onorio, D. Giacalone, and
N. Grillo were not discriminatory. We shall, therefore, dismiss these
allegations of the complaint.
We have found that the respondent refused to bargain collectively
with the Union as the exclusive representative of its employees in
the appropriate unit. We shall, therefore, order the respondent,
upon request, to bargain collectively with the Union and, if under-
standings are reached, to embody such understandings in a signed
agreement.
THE PETITION
Since we shall order the respondent to bargain collectively with
the Union, upon request, we need not consider the Union's petition,
which will accordingly be dismissed.
1S See footnote 15, supra.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings ' of fact and upon the
entire record in the case , the Board makes the following::
CONCLUSIONS OF LAW
1. International Association of Machinists , District No. 15, A. F.
of L., and The Collective Bargaining Committee of the Employees
of National Motor Rebuilding Corporation are labor organizations
within the meaning of Section 2 (5) of the Act.
2. The production employees of the respondent 's Brooklyn plant,
excluding clerical , managerial , and supervisory employees , counter-
men, and drivers , constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 ( b) of the Act.
3. International Association of Machinists , District No. 15, A. F.
of L., was on March 31 , 1938, and at all times thereafter has been,
the exclusive representative of all employees in such unit for the
purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
4. by refusing to bargain collectively with International Associa-
tion of Machinists , District No. 15, A. F. of L. as the exclusive repre-
sentative of its employees in the appropriate unit, the respondent .
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (5) of the Act.
5. By dominating and interfering with the formation and admin-
istration of, and contributing support to The Collective Bargaining
Committee of the Employees of National Motor Rebuilding Cor-
poration , the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (2) of the Act.
6. By discriminating in regard to hire and tenure and terms and
conditions of employment of its employees , thereby discouraging
membership in International Association of Machinists, District No.
15, A. F. of L ., and encouraging membership in The Collective Bar-
gaining Committee of the Employees of National Motor Rebuilding
Corporation , the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( 3) of the Act.
7. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( 1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
NATIONAL MOTOR REBUILDING 'CORPORATION 525
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the. National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, National Motor Rebuilding Corp., and its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of The Collective Bargaining Committee of the Employees
of National Motor Rebuilding Corporation, or the formation or
administration of any other labor organization of its employees,
and contributing any support to The Collective Bargaining Commit-
tee of the Employees of National Motor Rebuilding Corporation, or
to any other labor organization of its employees;
(b) Recognizing The Collective Bargaining Committee of the
Employees of National Motor Rebuilding Corporation as the
representative of any of the employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of employment;
(c) Discouraging membership in International Association of
Machinists, District No. 15, A. F. of L., or any other labor organ-
ization of its employees by discharging, laying off, or refusing to
reinstate any of its employees, or 'in any other manner discriminating
in regard to hire or tenure of employment or any term or condition
of employment;
(d) Giving effect to any agreement which it may have entered
into with or through The Collective Bargaining Committee of the
Employees of National Motor Rebuilding Corporation in respect
to rates of pay, wages, hours of employment, or other conditions of
employment ;
(e) Refusing to bargain collectively with International Associa-
tion of Machinists, District No. 15, A. F. of L., as the exclusive
representative of the production employees in its employ at its
Brooklyn, New York, plant, in respect to rates of pay, wages, hours
of employment, and other conditions of employment;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, 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 as guaranteed in Section 7 of the National
Labor Relations Act.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from The Collective Bargaining
Committee of the Employees of National Motor Rebuilding Corpora-
tion as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or conditions of
employment, and completely disestablish The Collective Bargain-
ing Committee of the Employees of National Motor Rebuilding Cor-
poration as such representative;
(b) Give separate, written notice to each of its employees who has
signed an individual contract or any modification, continuation, or
extension thereof that such contract was entered into pursuant to
an unfair labor practice, within the meaning of the National Labor
Relations Act, that it is invalid and void, that it will therefore be
discontinued as a term or condition of employment and will not in
any manner be enforced or attempted to be enforced, and that the
employee is not required or expected to deal with the respondent
through the "representative" named in the contract;
(c) Upon request, bargain collectively with International Asso-
ciation of Machinists, District No. 15, A. F. of L., as the exclusive
representative of its production employees in its Brooklyn plant,
excluding clerical, managerial, and supervisory employees, counter-
men, and drivers, in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment;
(d) Offer, upon application, to Frank Gore and George Rebecchi,
and, without application, to the employees listed in Appendix "C"
and to Michael Gazza, Lawrence Gazza, and Frank Onorio immedi-
ate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority and other rights
and privileges, such offer to be effected in the manner set forth in
the section entitled "The remedy" above;
(e) Make whole the employees listed in Appendix "A" for any
losses of pay they have suffered because the respondent withheld
from them the same pay increase which it granted to the employees
who signed individual contracts by payment to each of them of a
sum of money equal to the pay increase which he would have re-
ceived during the time he was working, had the respondent not so
discriminated against him;
(f) Make whole the employees listed in Appendix "B" and in
Appendix "C"' for any loss of pay they may have suffered by reason
of the respondent's discrimination in regard to their hire and tenure
and terms and conditions of employment, by payment to each of
them, respectively of a sum of money equal to that which he would
NATIONAL MOTOR
REBU
ILDING OORPORAT'ION 527
have earned as wages, including the wage increase effective at the
time it was granted to the employees who signed individual con-
tracts, during the period from the date of the discrimination to
the date of reinstatement , less his net earnings 19 during said period;
deducting , however, from the amount otherwise due to each of the
said employees , monies received by said employees during said
period for work performed upon Federal, State, county , municipal,
or other work -relief projects, and pay over the amount so deducted
to the appropriate fiscal agency of the Federal, State , county, munic-
ipal, or other government or governments which supplied the funds
for said work -relief projects;
(g) Make whole Michael Gazza and Lawrence Gazza for any
loss of pay they have suffered by reason of the respondent's dis-
crimination in regard to their hire and tenure and terms and con-
dition; of employment , by payment to each of them of a sum of
money equal to that which he would have earned as wages, including
the wage increase effective at the time it was granted to the em-
ployees who signed individual contracts, during the period from
the date of the discriminations to September 13, 1939, the date of
the Intermediate Report of the Trial Examiner, and from the date
of this Order to the date of the offer of reinstatement , less their net
earnings 20 during said periods ; deducting , however, from the
amount otherwise due to each of the said employees monies received
by said employees during said periods for work performed upon
Federal, State , county, municipal , or other work-relief projects, and
pay over the amount so deducted to the appropriate fiscal agency
of the Federal , State, county , municipal, or other government or
governments which supplied the funds for said work -relief projects;
(h) Make whole Frank Onorio for any loss of pay he has suffered
by reason of the respondent 's discrimination in regard to his hire
and tenure of employment (1) by payment to him of a sum of money
equal to that which lie would have earned as wages during the period
front October 14, 1938, the date of the first discrimination , to December
8, 1938, the date of his reinstatement , less his net earnings 21 during
said period , and (2 ) by payment to him of a sum of money equal to
that which he would have earned as wages, including the pay increase
effective at the time it was granted to the employees who sighed indi-
vidual contracts , from the date of the second discrimination to the
date of the Intermediate Report of the Trial Examiner , and from the
date' of this Order to the date of the offer of reinstatement , less his net
"See footnote 15, supra.
20 See footnote 15, supra.
21 See footnote 15, supra.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnings 22 during said periods ; deducting , however, from the amount
otherwise due to him, monies received by him during said periods for
work performed upon Federal , State, county , municipal , or other work-
relief projects , and pay over the amount so deducted to the appropri-
ate fiscal agency of the Federal , State, county , municipal , or other
government or governments which supplied the funds for said work-
relief projects;
(i) Make whole Frank Gore and George Rebecchi for any losses
of pay they may suffer by reason of the respondent 's failure to re-
instate them within 5 days of their application for reinstatement pur-
suant to the terms of this Order;
(j) Post immediately and in conspicuous places in each department
of the respondent 's plant, and maintain for a period of at least sixty
(60) consecutive days from the ' date of posting , notices stating : that
the respondent will cease and desist as provided in paragraphs 1 (a),
(b), (c), (d), (e), and (f ) of this Order; that the respondent will
take the affirmative action set forth in paragraphs 2 (a), (b), (c). (d),
(e), (f), (g), (h), and (i ) of this Order; and that employees are free
to remain or become members of International Association of Machin-
ists, District No. 15, A. F. of L.;
(k) Notify the Regional Director for the Second Region in writing
within ten ( 10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint in so far as it alleges
that S. Onorio, D. Giacalone , N. Grillo, Lawrence Gazza, and Frank
Onorio were discriminatorily discharged or laid off on February 24,
1939 , and that S . Onorio, D. Giacalone , and N . Grillo were subse-
quently discriminatorily denied reinstatement , and the petition for
investigation and certification of representatives be, and they hereby.
are, dismissed.
MR. WILLIAM M. LEISERSON concurring :
I concur in the foregoing decision in this case , but I am of the
opinion that the petition for certification of representatives filed by the
Union should have been withdrawn or dismissed before the Board
proceeded- upon the Union's charge that the respondent had engaged
in unfair labor practices contrary to Section 8 (5) of the Act.
APPENDIX A
S. Onorio Lawrence Gazza
D. Giacalone Frank Onorio
N. Grillo
22 See footnote 15, supra.
NATIONAL MOTOR REBUILDING GORPOIL TION 529
APPENDIX B
N. Grillo A. Pasternak
S. Onorio F. Tasso
D. Giacalone
APPENDIX C
A. Davey B. Ladner
H. Donaldson A. Becker
A. Golembeski J. Concilio
Henry Weiner J. Petrausky
C. Wozne James McKeon
A. Ferrante
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