National Seal Corp.

National Labor Relations Board - Board Decisions

Mar 8, 1941

30 N.L.R.B. 188 (N.L.R.B. 1941)

In the Matter of NATIONAL SEAL CORPORATION and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LONG ISLAND CITY LODGE 295, A. F.
OF L.
Case No. C-1726.-Decided March 8, 19.111
Jurisdiction : metal closure manufacturing industr$,. •,
Unfair Labor Practices
Interference, Restraint, and Coercticei: anti-union statements
Collective Bargaining: refusal to cooperate with union In determining majority
representative; refusal to grant exclusive recognition to majority representa-
tive ; refusal to embody understandings reached in a signed agreement,;
attempts to undermine authority of union by appealing directly to employees.
Remedial Orders: affirmative order to bargain with union and upon request to
embody understandings reached in a signed agreement; reinstate, upon request,
striking employees with back pay from date of refusal to reinstate.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees of the respondent, including machinists, tool and die makers, die
setters, packers, stampers, inspectors, general helpers, miscellaneous machine
operators, shipping and receiving employees, production clerks, and the porter,
excluding office and clerical employees, supervisors, supervisory foremen and
salesmen.
Mr. Mark Lauter, for the Board.
Kotzen, Mann and Siegal, by Mr. Abraham Mann, of New York
City, for the respondent.
Mr. Edward V. Broderick, of New York City; and Mr. Paul
Hutchings, of Washington, D. C., for the Union.
Mr. Edward Scheumemann, of counsel. to the Board.
DECISION
AND
ORDER'
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Machinists, Long Island City Lodge 295, A. F. of L.,
herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Second Region
(New York City), issued its complaint dated August 2, 1940, against
National Seal Corporation, herein called the respondent, alleging
30 N L. R B., No 27.
188
'1'INTATIONAL' SEAL CORPORATION 189
that'the respondent liad engaged in and was engaging in unfair labor
practices 'affecting commerce within the meaning of Section 8 (1)
and' (5) and Section 2 (6) and (7) of the National'Labor Relations
Act, 49 •Stat. 449, herein called the Act. Copies of the complaint,
accompanied by notice of hearing, were' duly served upon ' the
respondent and the Union.
The complaint alleged, in substance, (1) that on or about March
7, 1940, and thereafter, the respondent urged, persuaded, and warned
its employees to refrain from aiding, becoming, or remaining mem-
bers; of the Union, and threatened them _ with discharge or other
reprisals if they engaged in activity on behalf of the Union;-.(2)
that. on or about March 26, 1940,--and at all times thereafter, the
respondent refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit; and
(3) that the unfair labor practices of the respondent caused and
prolonged a strike of its employees which began on March 28,' 1940.
On August 14, 1940, the respondent -filed its' answer in ` which it
admitted some of the specific facts alleged in the complaint, denied
that it had engaged in any unfair labor practices, and alleged affirm-
atively that it had bargained collectively with the Union.
Pursuant to notice, a hearing was held in New York City from
'August 19 to August 22, 1940, inclusive, before George Bokat, the
Trial Examiner duly designated by the Board. The Board, the re-
spondent, and the Union were represented by counsel and partici-
pated 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
the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On November 8, 1940, 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) and (5).
of the Act, and recommended that the respondent cease and desist
from such violations and. take appropriate affirmative action. On
December 19, 1940, the respondent filed exceptions to the Intermediate
Report.
On December 19, .1940,, pursuant to, notice, a hearing .was held
before the Board 'iri Washington, D. 'C., . for 'the purpose of oral
argument. The respondent and the Union were ' represented ..by
counsel and presented argument.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the exceptions to the Intermediate Re-
port and, save as the exceptions are consistent 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
1. THE RESPONDENT AND ITS BUSINESS
, The respondent, a New York corporation with its principal office
and place of business in Brooklyn, New York, is engaged in the
manufacture, sale, and distribution of metal closures for glass and
tin containers and related products. In July 1939, the respondent
was organized as the successor to National Seal Co., Inc. herein
called the Old Company. The Old Company was formed. about
January 1, 1920. On June 1, 1927, the accounting firm of F. Gordon
Blackstone & Company took over the active management of the
Old Company to protect the interests of the estate of one of the
stockholders in the Old Company. In July 1939, the Old Company
transferred its entire assets to a holding company called National
Closure Corporation which in turn transferred all the assets to the
respondent. The respondent, thereafter, continued the-business of
the Old Company with the same plant, equipment, employees, man-
agement, and assets. F. Gordon Blackstone, president of the Old
Company, and Herbert Wainwright, vice president, became presi-
dent and vice-president, respectively, of the respondent.
In 1939 the 'respondent purchased raw materials valued at approxi-
mately $200,000 from outside the State of New York. Such ma-
terials constituted approximately 60 per cent of the total volume
of raw materials used by the respondent. In the same period the
respondent -sold and shipped finished products -valued at approxi-
mately $500,000 to points outside the State of New York. Such
sales constituted approximately 50 per cent of the total volume of
the respondent's sales during that period. The respondent admits
that it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Long Island City Lodge
295, is a labor organization affiliated with the American Federation
of Labor, herein called the A. F. of L. It admits to membership
employees of the respondent.
NATIONAL SEAL CORPORATION 191
III. THE UNFAIR LABOR PRACTICES
A. Background
In .July 1935, Automatic Metal Cap, Production Workers' Union
affiliated with the A. F. of -L., attempted to organize the employees
of the Old Company. Shortly after the organization began, Wain-
wright stated to James Doweiko, foreman of the production depart-
ment, that the employees were forming a union, and instructed him
to discharge three of the union leaders or to require them to cease
talking about the Union. On July 8, 1935, the employees went on
strike, and Wainwright then asked Doweiko to use his influence to
persuade the employees to return to work. Doweiko succeeded in
causing 60 of the strikers to return to work. After the strike, Wain-
wright instructed Doweiko to discharge one Randazzo and Frances
Contini, two employees who had been active in the strike. Doweiko
discharged Contini, and did not rehire Randazzo after the strike.
The respondent advanced no reason for such action, and it is appar-
ent from the record that the respondent was motivated.by -hostility
to the Union in terminating the employment of Randazzo and
Contini.
Late in 1935, the Old Company entered into a written agreement
with a labor organization of its employees known as Employees
Association of the National Seal Company. The agreement which
provided for certain terms and conditions of employment, contained
a provision "that the employer has the right to hire or discharge
anyone for any reason or for no reason and regardless of his affilia-
tion, or non-affiliation, with any union." The agreement was exe-
cuted for the respondent by Wainwright and Blackstone. The record
does not reveal the duration either of the agreement or the
association.2
In 1937, United Electrical and Radio Workers of America, affili-
ated with the Congress of Industrial Organizations, attempted to
organize the employees of the Old Company. Early in the summer
of 1937 Wainwright remarked to Doweiko that the employees were
organizing again. In the fall of 1937, Doweiko promoted Frances
Lehane,3 from the factory to the production office. Two or three
' The events refereed to in this section relate to the labor policies of the Old Company
Since Wainwright executed the labor and management policies of the Old 'Company and, also
of-the present respondent , his activities with reference • to'the self-organization of the em-
ployees ' of the Old Company are helpful in evaluating the good faith of the respondent,
acting through him, in its dealings with the Union involved in this 'proceeding
2 Autom-tic Metal Cap Production Workers ' Union filed a charge with the Board in 1935,
and the Board issued a complaint but was restrained from holding a hearing due to an
injunction obtained by the Old Company No heating was eves held on this charge and
complaint
$ Also referred to in the record as Frances Leo
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks later Wainwright told Doweiko, "Jimmie, take this girl out
of the production office immediately. She is in the union." Doweiko,
accordingly, demoted Lehane to the factory. He then selected
another employee, Amy Massa, as production clerk. A few days
after she was employed in the office, Doweiko loaned her to one
Olney, an engineer, who needed clerical assistance. A few days later,
Olney told Doweiko,,"You put me in an awful mess. This girl is
union." Take her out completely. Put her back in the factory. The
boss tol'd' me to say that." Doweiko, accordingly, transferred Massa
back to the factory.4
B. Interference, restraiAt, and coercion
On March 1, 1940, Wainwright informed Doweiko that the em-
ployees had accused him of favoritism and that he was therefore
demoted to the job of assistant foreman. On or about March 4,
1940, the Union began organizing the employees. On March- 7,
1940, Doweiko joined the Union. On the same' day Wainwright'
,summoned Doweiko to his office and in the presence of one Vann,
Blarcom, a salesman, informed Doweiko that he had heard that the
employees were joining the Union and that Doweiko had joined.
Wainwright then instructed Van Blarcom to take Doweiko to his
office "and explain to him more thoroughly about the situation."
Van Blarcom took Doweiko to his office and stated, "Jimmie, by
joining the union it won't help you much. You will only be double-
crossing the company." Van Blarcom also told Doweiko that "There
is a bigger job for you in the future here." 5
We find that the respondent, by these activities and statements of
Wainwright and Van Blarcom on March 7, 1940, interfered with,
restrained, and coerced its employees in the exercise of rights guar-
anteed in Section 7• of the Act.
C. The refusal to bargain
1. The appropriate unit.
The Board and the respondent stipulated at the hearing that the
production and maintenance employees of the respondent, including
41n 1937, the Board issued a complaint against the Old Company based upon charges
filed by United Electrical and Radio Workers of America, but for reasons which the record
does not reveal no hearing was ever held thereon.
c-It is apparent from all the testimony that Van Blarcom, although only a salesman, was
closely identified with management He appeared as a representative of the respondent at
various meetings between the respondent and the Union. Moreover, it is clear from the
above-mentioned instructions given Van Blarcom by wainwright that wainwright author-
ized Van Blarcom to make the statements related above to Doweiko. We find that in
making the statements to Doweiko, Van Blarcom was acting for the respondent
14
- NATIONAL SEAL CORPORATION 193
machinists, tool and die makers, die setters, packers, stampers, in-
spectors, general helpers, miscellaneous machine operators, shipping
and .receiving employees, production clerks, and the porter, exclud-
ing office and clerical employees, supervisors, supervisory foremen
and salesmen, constitute an appropriate unit. We find that such
employees at all times material herein constituted, and that they
now constitute, a unit appropriate for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and that said unit- insures to
the employees of the respondent the full benefit of their right to
self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act.
2. Representation by the Union of a majority in the appropriate
unit
The respondent employed approximately 139 employees within the
appropriate unit on March 26, 1940. The respondent and the Board
,stipulated at the hearing that 111 employees within the appropriate
unit had authorized the Union to bargain for them on that date.
On March 28, 1940, most of the employees of the respondent par-
ticipated in a strike called by the Union. The respondent does not
deny and we find that the strikers remained employees within the
meaning of Section 2 (3) of the Act." By April 3, 1940, the Union
had' 123 members within the appropriate unit. ' On April 3, 1940,
the respondent, in its negotiations with the Union, recognized that
the Union had obtained a majority of the employees within the ap-
propriate unit by offering to recognize it as sole collective bargaining
representative.
Beginning on April 9 ; ,1940, strikers began returning to work be-
cause of the respondent's unfair labor practices hereinafter set out.
On May 9, 1940, the respondent posted on its bulletin boards a state-
ment of labor policy containing terms of employment which it had
offered to the Union. The statement made no reference to recog-
nition of the Union. On May 29, 1940, the respondent stated to the
union representatives that it would recognize the Union only as the
representative of its employees who were members of the Union.
Seventy-seven of the 123 employees who had joined the Union on or
before April 3, 1940, had returned to work at the time of the hearing.
The, reshondeilt contends that at the time of the hearing the Union
no longer represented a` majority of the employees and argues in sup-
port thereof that the 77 employees by returning to work during the
9 See N L R . B v Mackay Radio & Telegraph Co., 304 U S. 333 , rev'g 92 F ( 2d) 761,
and aff'g , Matter of Mackay Radio & Telegraph Co and Amer¢ can Radio Telegraphists
Ass'n , etc, 1 N' L. R B. 201.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continuance of the strike repudiated their designation of the Union as
collective bargaining representative. None of the employees, at the
time of the hearing, had withdrawn their membership in the Union
or had notified it or the respondent that they no longer desired the
Union to act as their bargaining representative,, and,in view of the
respondent's unfair labor practices heretofore and hereafter set out,
we find that if there were, in fact, any defections from the Union,
they are attributable to such unfair labor practices and must be dis-
regarded in determining the representation by the Union of a majority
of the employees in the appropriate unit."
We find that on March 26, 1940, and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees in the appropriate unit for the purposes of collective bar-
gaining and, pursuant to Section 9 (a) of the Act, 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
a. Chronology of events
On March 14, 1940, the Union wrote to the respondent, stating that
it represented a majority of the respondent's employees and request-
ing that the respondent enter into negotiation's for a collective bar-
gaining contract.
Upon receipt of the Union's request, Wainwright conferred with
Blackstone, president of the respondent, and discussed with him
whether the Union represented a .•inajorityr of the, employees. On
March 18, 1940, the respondent replied by letter which read in part
as follows:
In reply to your letter of March 14, please be advised we doubt
that your union represents a majority of our employees because
' The respondent contends that the Union had not acted upon the applications for mem-
bership in accordance with its constitution and that many of the striking employees who
ieturned to work paid no dues to the Union and were by virtue of its constitution, no longer
membeis with respect to the latter contention, the record shows that the Union had sus-
pended dues payments during the strike. Moreover, the asserted failure of employees or
the Union to comply with the bylaws of the Union respecting membership is not decisive of
the issue whether they have designated, and continue to designate, the Union as their bar-
gaining representative See N. L. R. B v Benjamin Fainblatt, etc, 300 U S 601, rev'g
18 F (2d) 615 (C C A. 3), and aff'g, Matter of Benamin Famblatt, etc, and International
Ladies Garment, WorLers Union, etc, 1 N L R B 864, Mattes of C. M DeKay, etc, and
International Brotherhood, etc, 2 N L R'13. 231
8N L. R B v Bradford Dyeing Association, 310 U S 318, rev'g 106 F (2d) 119
(C. C A. 1), and enf'g Matter of Bradford Dyeing Association (U S A ) ('a corporation)
and Textile 1Porlers Organi inq Comniittec of the C 1 0 , 4 N I. R B 601 Intl Ass'n
of Naehintst' v N L R B, 311 U S 72 aft'g 110 F (2d) 20 (App D C ) ent'g Matter
of The 5errick Corp and Intl, Union, etc , 8 N L R B 621
NATIONAL SEAL CORPORATION 195-
to date our employees have not informed us of any such affiliation
and have not in the recent past presented any grievances to us.
Since you claim to represent some of the employees and there-
fore we assume that they.ha,%ye some,grievances,-we have arranged
to meet with you and those of our employees who have such
grievances, at our office on Tuesday, March 26, at 4: 15 p. in.
On March 19, 1940, the Union informed the respondent in substance
that the Union represented a majority of the employees and desired
to discuss wages, hours, and working conditions; and that if the re-
spondent intended to bargain with the Union, the respondent should
call the union representatives for a conference. On March 21, 1940,
the respondent by letter asserted an intention to bargain with the
Union.
On March 23, 1940, the Union filed with the Board its petition for
investigation and certification. Thomas Carey, the organizer, for
the-Union, testified that the petition was•filed because.the•respondent
had questioned the Union's majority. On March 25, 1940, a field
examiner for the Board sent a letter to the respondent, informing it
that a petition had been filed by the Union "to investigate the ques-
tion that has arisen concerning the representation of your employees,"
and, suggesting that the respondent appear at the Boaid's Regional
Office on March 29, 1940. The Regional Office also sent a letter to
the Union requesting that it be present on the same day.
On March 26, 1940, a union committee consisting of four employees,
together with Carey, met with Wainwright, Van Blarcom, and one
O'Reilly, the respondent's sales manager, representing the respondent.
Carey stated that the Union represented a majority of the employees
and was ready to bargain collectively for them. Wainwright referred
to the letter he had received from the Regional Office of the Board
notifying him that the petition had been filed and requested that
Carey explain its meaning. Carey explained that the Union had filed
the petition because the respondent had asserted doubt concerning its
status as majority representative, and that if the respondent was
still doubtful, the Union • was ready and willing to submit proof to
the Board at the March 29 conference at the Regional Office "either
by a cross-check of cards with the applications for membership, or if
the Board decided, and he [Wainwright] wished, an election."
Wainwright replied that since they were already meeting together,
it was unimportant, and asked.that the Union present its demands.
He also asked Carey again whom he represented. Carey replied that
lie represented a' majority of the employees, and Wainwright an-
swered that he had no proof of that. Carey again(suggested that they
44013'-42-Vol 30-14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
let the matter of representation rest until the March 29 conference
at the Regional Office, at %v1iich time it could be decided whether or
not the Union represented a majority of the employees. WTannwright
repeated that the matter of recognition ii as unimportant, and again
asked what the Union desired. Carey replied that the Union Was
there to bargain collectively for all the employees and that "the first
part of the bargain was recognition of our union as the sole exclusive
bargaining agency . . ." Wainwright stated, in substance, that lie
had no desire to go to the Board's Regional Office on the 29th of
March. He stated further that he had no authority to recognize the,
Union as the sole collective bargaining agency without first consulting
the other officials of the respondent. He admitted at the hearing,
however, that he did have such authority without consultation with
the other officers if the Union presented proof that it was majority
representative. Wainwright asked if it would be satisfactory for him
to notify-the Union on March 28 whether or not the respondent would
recognize it as collective bargaining agency, in order to avoid ap-
pearing at the Board's Regional Office on the 29th. Carey replied
that Wainwright had had from March 14, the date of the Union's
first letter, until the 26th, to determine whether or not the respondent
would recognize the Union, and that the Union desired a reply by
the 27th. The- parties agreed that Wainwright would call Carey by
telephone on the afternoon of the 27th to inform hin-r whether or
not the respondent would recognize the Union. Dun-mg the course
of the conference Wainwright stated "In the back of my head there
isn't a doubt that you have a majority." 13
Wainwright testified that he did not "particularly" desire time to
consult Blackstone in order to determine whether he should recognize
the Union, but that he "wanted a little time in which to think,.about
it." At the time Wainwright promised to give the Union his answer
on March 27, 1940, he already had an appointment with Blackstone
for March 28, 1940. Wainwright did not inform the Union that his
appointment was for March 28, 1940. Moreover, althoulph there is
The above account of the March 26 conference is based upon Carey' s testimony wain-
wright, who testified for the respondent concerning the conference . denied that the proposed
meeting at the Regional Office on the 29th was discussed of that he stated that the respond-
ent did not desire to attend He admitted , however . that during the conference he did refer
to the letter which he had received from the Regional Office wainwright denied further
that he stated that he had no doubt the Union represented a maioiity of the employees
The Trial Examiner stated in his Intermediate Report "At the hearing . the demeanor of
both these witnesses [Carey and Wainwright] was carefully noted Carey was forthright,
consistent , and plausible . On the other hand Wainwright was someww hat inconsistent and
contradictory . For these reasons, the undersigned accepts Carey 's testimony as being sub-
stantially in accord with the facts ' In N iew of the findings of the Trial Examiner, and
upon the entire record, we do not credit Wainwiight ' s testimony where it differs substan-
tially from that of Carey, and we find that the conference on 11Lirch 26, 1940 proceeded
substantially as set out above
NATIONAL SEAL 'CORPORATION 197
no showing that Blackstone was unavailable on March 27 , 1940, Wain-
wright made no attempt to confer with him prior to the time at
which he was to give the Union the respondent 's answer to the request
for recognition.
On the afternoon of March 27 , 1940, Carey telephoned Wainwright
and Wainwright stated "The situation remains exactly as it re-
mained last night . I suggest you call later tomorrow ." Carey re-
plied that he would see Wainwright at the Regional Office on the
29th; Wainwright stated that neither he nor any representative of
the respondent would appear at the Regional Office but "that is none
of your concern . We will let matters remain as they are." 10
In the afternoon of March 27 , 1940, Carey reported to a union meet-
ing the result of his negotiations with Wainwright. The members of
the Union discussed the respondent 's refusal to recognize the Union as
collective bargaining representative . Some of the members at the
union meeting stated that the Company was stalling and that it had
followed the same procedure in 1935 and 1937. The members present
unanimously , passed a motion "that nobody report for work on Thurs-
day, March 28, until the Company recognized the Union , granted a
closed shop , seniority rights , a written agreement, and reinstated John
Steward."
On the morning of March 28 , 1940, none of the employees reported
for work and the plant was closed down. On the same day the re-
spondent wrote to the Regional Office in part as follows :
This morning , without warning , the union has called a strike.
Since we have not refused to bargain with them nor to recognize
them at the moment as the representation [sic] of our employees
who are members of their organization , we fail to see how this
matter can be of concern to your Board . If the union desires to
carry on further negotiations with us, they are free to do so, and
if they will write to us we will arrange for further conferences.
Carey came to the Regional Office of the Board for the conference
scheduled on March 29 , 1940. No representative of the respondent ap-
peared. On the same day the Union wrote a letter to the respondent
stating that it was willing to commence collective bargaining negotia-
tions immediately and that it had withdrawn its petition for certifi-
cation in view of the fact that "100 per cent of the employees are out
on strike.", The Union also sent to the respondent a copy of a pro-
posed agreement . The respondent replied to the Union 's letter, and
w wainwright denied that the conference scheduled for March 29, 1940, was mentioned
in the conversation and testified that he merely told Carey he had no answer for him and
requested more time,in which to consult with Blackstone . For the reasons stated in the
preceding footnote , we do not credit Wainwrigbt 's testimony in this respect , and find that
the conversation w as substantially as described by Carey and set out above
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that it would agree to meet with the Union on April 3 , 1940, in
order to discuss the Union 's proposed agreement . The respondent in
its letter also stated :
Your letter contains an erroneous statement when you say that the
company refused to bargain collectively with you as representa-
tive of its employees. The company arranged for a conference
which did take place at our office on Tuesday, March 26, at
4: 15 p. in. By so doing we were under the impression that we
had recognized you as the bargaining agency. You at that time-
demanded that we recognize you as the sole bargaining agency.
We informed you that that was immaterial since we have not
refused to negotiate with you and that if during the course of the
negotiations it was proven to us that you did represent the major-
ity that under the law we had no choice in the matter and would
recognize you as such. We also told you that we would be pleased
to consider any grievances or demands that you had to make but
you refused to even present any grievances or demands and it
was your actions that ended that conference on March 26.
Prior to the conference on April 3, 1940, Wainwright and Black-
stone considered the Union 's proposed contract and wrote out a state-
ment consisting of counter proposals to it. Wainwright had_
authority to revise the counter proposals except with respect to pay
increases, a closed shop,, and the incorporation of any agreement in a
written contract, without further consultation with Blackstone. On
April 3, 1940, a committee of the Union consisting of four employees
and Carey met with Wainwright, Van Blarcom, and O'Reilly. Wain-
wright stated that the respondent had received a copy of the Union's
proposals and had formulated counter proposals which the respond-
ent desired that the Union refer to the employees. He also stated :
"I am not empowered to change the counterproposals because this has
been arrived at after serious deliberation by the people concerned in
this company and these are the Company's proposals." Wainwright
thereupon read the respondent's counter proposals which agreed to
recognize the Union as the exclusive representative of the employees
for a period of 1 year, and to grant 1 week's vacation with pay, rejected
the Union's demand for a closed shop, pay increases, a stricter seniority
policy, settlement of disputes by arbitration and modified its proposal
concerning overtime. The concluding paragraph of the counter pro-
posals provided as follows:
The company cannot agree to enter into a written contract with
any union or its employees due to the fact that it must feel free-
and it must be unencumbered in the event that business-conditions
warrant it to liquidate or sell its business under the best possible-
NATIONAL SEAL CORPORATION 199
terms. However, if the terms as outlined by us are acceptable to
you we would be pleased to write you a letter to that effect and that
these terms would be the policy of the company in the future and
that we would agree to maintain them as long as the employees do
not strike against the company. The company would also agree
not to lock out its employees although it must retain the right to
increase or decrease its working staff according to its best
judgment.
On the same day the union committee reported on the conference-to
,a, meeting of the Union. The respondent's counter proposals were
-discussed at the meeting, and the Union voted to reject consideration
of the counter proposals unless the respondent would agree to embody
understandings reached in a written agreement.
Carey telephoned Wainwright and told him that the Union had
unanimously rejected the counter proposals. Wainwright replied that
he thought the respondent could make further concessions on the
seniority problem. Carey replied that the Union did not believe that
seniority or any other concessions of the respondent would be observed
unless the respondent were willing to reduce them to writing in the
form of an agreement. Wainwright reiterated the respondent's posi-
tion that it could not enter into a written agreement with the Union
and stated "You know how you can get in touch with me." Carey
replied, "The same thing is true of me." 11
On April 5, 1940, the respondent appealed directly to its employees
by sending a letter to each of them and a copy to the Union. The
respondent stated in the letter that the only question between the
Union and the respondent was that of a closed shop, and that the
respondent could not agree to a closed shop. The respondent also
stated that it had agreed generally with the propositions advanced by
the Union pertaining to hours, overtime, recognition, vacations with
pay, and seniority. The letter concluded with the following
paragraph : -
The company hereby offers you your former job under the condi-
tions and terms outlined to your representatives and we request
you to return to work immediately. We hope you will not come
to hasty conclusions but will give this deep consideration and that
you will decide to .accept the conditions that the company has
presented to your representatives.
11 Wainwright testified that Carey told him in the telephone conversation that the Union
agreed to all counter proposals except those with reference to the closed shop and seniority,
and that Carey, upon Wainwright's suggestion, stated that he would attempt to persuade
the union members to reconsider their position on a closed shop. For the reasons stated in
previous footnotes, and in view of the findings of the Trial Examiner, we do not credit
Wainwright's testimony in this respect
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It i`s evident , from the facts heretofore set out, that the statements con-
tained in the letter to the employees were misleading and inaccurate,,
particularly in so far as the letter stated that the only issue remaining
between the Union and the respondent was that of a closed shop, and
that the respondent had agreed with the'Union's proposals respecting
hours, overtime , and seniority.
On or about April 9, some of the strikers began to return to work,
and the respondent began to hire new workers to replace those on
strike. In addition to its letter , of April 5, heretofore referred to, the
respondent attempted to induce its employees to return to work by
sending a representative from the Murray Hill Detective Agency to-
gether with the superintendent of the respondent , Ralph H. Stone, to
the homes of the strikers . One of the strikers, Mary Halligan, testi-
fied without contradiction and we find that one Walsh, a representative
of the detective agency, and Stone called at her home.on April 7, and
invited her and two other strikers to return to work the following
morning. Walsh informed Halligan and two other strikers that the
respondent desired "to get about 10 per cent of the older employees
back to work" so that they could "break in" some new girls whom the
respondent intended to hire.
On April 12, 1940, Ernest W. Lanoue, a mediator of the New
York State Board of Mediation , wrote to the Union and the respond-
ent inviting them to a conference for the purpose of attempting to
settle the strike. The Union accepted the invitation , but the re-
spondent declined, and in its letter again stated that the only issue
remaining between the respondent and the Union was that of a closed
shop and that a further meeting would serve no useful purpose.
At a meeting of the Union on April 29, 1940 , the members dis-
cussed the respondent 's letter of April 5. Despite the bargaining
committee's denial of the statement contained in the letter that the
only issue remaining between the respondent and the Union was that
of a.closed shop, the members passed a motion instructing the bar-
gaining committee to ascertain from Wainwright whether the re-
spondent had agreed to all the Union's proposals except the closed
shop: On April 30 , 1940, Carey and the bargaining committee met
with Wainwright. At the conference, the respondent again took the
same position as 'it did on ` April 3, 1940 , with respect to the demands
of the Union, except that Wainwright stated the respondent might
be willing to make some concession on the seniority problem. At
the request of the committee , Wainwright also agreed to supply -a
statement to. the Union stating the conditions under which , the re-
spondent would reinstate ' the strikers.
On May 1, 1940 , Wainwright sent a letter to the Union containing
a statement of labor policy which the respondent intended to follow.
NATIONAL SEAL ' CORPORATION 201
The statenient,,in substance, contained the proposals presented by the
respondent on^ April 5, 1940; and affirmed - on April 29, 1940. The
statement concluded as follows:
The Company will adhere to the' above-mentioned policy as
long as the workers do not go out on strike or engage in strike
activities against it.
On May 2, 1940, the Union rejected the terms and conditions set
'forth in the aforesaid letter, primarily because the respondent still
refused. to incorporate them in the form of a written agreement. On
May 3, 1940, Carey notified Wainwright that the Union would not
consider the proposals unless contained in the form of a binding
written agreement. - Wainwright replied that he could do nothing
further.
On May 7, 1940 , the respondent again 'sent a letter to all of its
'employees still on strike with the exception of members of the bar-
gaining committee , again requesting them to report for work not later
than Friday, May 10. The letter stated "We would appreciate you
informing us prior to May 10 whether or not you intend to work for
us again."
On May 9, 1940 , the respondent put into effect the labor policy
outlined in its letter of April 5 , 1940, and posted a copy of the terms
on the bulletin board. The notices as posted eliminated the clause
recognizing the Union as the "sole collective bargaining agency" of
the respondent's employees.
On May 9, 1940, the Union prepared a form letter for the signature
of the striking employees in reply to the respondent 's letter of May
7. The letter stated that the employees signatory intended to return
to work "as soon as the present controversy . . . is settled to our
mutual satisfaction ." On the same day, the Union wrote to the
respondent calling attention to the fact that a number of the em-
ployees on strike had not received a copy of the May 7 , 1940, letter
and stating for them that they would be willing to return to work
upon the settlement of the strike.
On May 25, 1940, the Union wrote to the respondent requesting, a
conference in an attempt to settle the strike. On May 29, 1940, the
bargaining committee of the Union met with the respondent's offi-
cials. At the meeting, Wainwright read to the representatives of
the Union a prepared statement in the form of a letter to the Union
identical with that of the May 1 , 1940, letter , theretofore given to,the
Union, with the exception of the recognition clause. The respondent
in its statement proposed to "recognize your union only as the repre=
sentative of those of our employees who are members of your union,
and since the number of our employees in your union is merely a
202, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minority of our workers, you may only present grievances on their
behalf." After some discussion of the respondent's proposals a re-
presentative of the Union asked, "In other words, this is take it or
leave it." Wainwright replied "That is correct." The Union
rejected the respondent's proposals.
b. Concluding findings
Wainwright at the first conference on March 26, 1940, refused to
recognize the Union as exclusive bargaining representative until it
proved that it represented a majority of the employees. At the out-
set, we may note in this connection that Wainwright admitted to the
Union, in subsance, on March 26, that he had no doubt of its majority
designation. Moreover, assuming that the respondent entertained a
bona fide doubt thereof, it was at least under obligation to cooperate
with the Union in a good-faith effort to resolve such doubt and to
determine whether the Union actually represented a majority.12 This
obligation the respondent failed to satisfy. Thus Wainwright, for
the respondent, evaded the issue by insisting that the question of
recognition was "immaterial." Thereafter, he rejected the Union's
proposal to determine the question at the Regional Office on March
29, 1940, and failed to propose any reasonable alternative. Although
Wainwright informed the Union on March 26 that he had no au-
thority to recognize the Union as exclusive representative without
first consulting the respondent's other officials, he in fact had such
authority. Wainwright admitted at the hearing that his alleged
motive for requesting a postponemnent-a desire to confer with other
company officials-was not his true motive in making such request,
and it does not appear that he attempted to confer with other officials
prior to the time at which he was to communicate to the Union the
respondent's decision with respect to the issue of recognition. Wain-
wright failed to keep his promise that such decision would be made
by March 27. Finally, on that day he refused again to`,appear'at
the Regional Office or to propose any alternative except further delay.
We find that the respondent on March 26 and 27, 1940, by attempting
to evade, and by refusing to cooperate with the Union in determining,
the issue of majority representation, refused to bargain collectively
with the Union.13
"See N L R B v International Assoeaataon of Machinists , 311 U. S. 72, aff'g Intelna-
ttonal Association of Machinists v. N. L. R. B., 110 F. (2d) 29 (Ct. App. D C.), enf'g
Matter of The Serrick Corp. and International Union, United Automobile Workers of Amer-
ica, etc, 8 N . L It B 621 , N. L R B. V. C. A Lund, 103 F (2d) 815 (C. C. A 8), enf'g
Matter of 'C A Lund Co. and Novelty Workers Union , etc., 6 N L. R. B . 423; Matter of
Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin
Workers , etc, 7 N. L. R. B. 714.
13 Ibid.
NATIONAL SEAL CORPORATION 203
Carey reported the results of the conference on March 26 and 27 to
the union meeting on March 27, and the members of the Union there-
upon voted to strike. The respondent contends that since the minutes
of the meeting recite that the employees voted to strike until the
respondent agreed to certain proposals in addition to recognition of
the Union, the respondent's unfair labor practice in refusing such
recognition was not the cause of the strike. We cannot accept this
contention, since it is undenied that the strike vote was taken after
Carey's report that the respondent had refused to bargain with the
Union, that the members present stated their belief that the respond-
ent had "stalled"' in 1935 and 1937 and was "stalling" in the present
negotiations, and since the refusal of the respondent to recognize
the Union was included in the motion calling for the strike. More-
over, the respondent's refusal to recognize the Union foreclosed the
possibility of negotiations on the Union's other demands, and left the
Union no alternative but to strike for them. We find as did the
Trial Examiner, that the respondent's unfair labor practices caused
the strike which began on March 28, 1940. The strike was thereafter
prolonged by the respondent's continued unlawful refusal to bargain
with the Union.
Although the respondent offered to grant the Union recognition as
exclusive bargaining agency at the April 3 conference, it subsequently
retracted such offer and thereby conntinued its refusal to bargain. The
respondent also revealed its bad faith in the negotiations by its re-
fusal, in effect, to consider any material changes in its "counter-pro-
posals" and by Wainwright's statement to the Union that he lacked
authority to change any proposals when he, in fact, had such authority.
Moreover, the respondent's persistent refusal to embody under-
standings reached in a signed agreement constituted a clear infringe-
ment of Section 8 (5).14
Finally, the respondent demonstrated its refusal to bargain and its
infringement of rights guaranteed to employees by its letters addressed
directly to its employees on April 5, 1940, and May 7, 1940, and by the
activity of Walsh and Stone on April 7, 1940, for by this conduct the
respondent attempted, unlawfully, to undermine the, authority of. the
Union 15
"Y L R B v II J Heinz Co, 311 U S 514 , aff'g N L R B v, H J Heinz Co , 110
F. (2d) 843 (C. C A. 6) ; Matter of Westinghouse Electric Manufacturing Co. and United
Elects teal, Radio cf Machine Workers of America, etc , 22 N L R B 147 In view of
the respondent ' s refusal to reduce any agicement to a binding contract and the other cir-
cumstances disclosed , the Union was clearly justified in refusing to consider such "counter-
proposals "
s See N L R B v Acme dii Appliance Co , Inc, 117 F (2d) 417 (C C A 2), enf g as
rood. Matter of Acme Air Appliance Co, Inc and Local No 1223, etc, 10 N L R B 1385;
Steuat Die Casting Cap v N L R B, 114 F (2d) 849 (C C A 7), cert den 312 U .S.
680 enf'g as mod Matter of Steuai t Die Casting Corporation and United Automobile Worl-
ers of A merica , Local 298, etc, 14 N. L R. B 872 ; N L R B v . Highland Park Mfg. Co.,
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. We find that the respondent on March 26, 1940, and at all times
thereafter refused to bargain collectively with the Union as the rep-
resentative of its employees in an appropriate unit with respect to rates
of pay, wages, hours of employment and other conditions of employ-
ment; that the respondent's refusal to bargain collectively with the
Union caused and prolonged the strike which began on March 28,
1940; and that the respondent by these acts and by its attempts to
alienate its employees from the Union on April 5, and May 7, 1940,
has interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act.
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 respondent
described in Section I above,, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States) and
have led and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
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.
We have found that on March 26, 1940, and at all times thereafter,
the respondent refused to bargain collectively with the Union as the
representative of the employees in the appropriate unit. We shall
therefore order the respondent, upon request, to bargain collectively
with the Union as the exclusive representative of the employees in the
appropriate unit with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and upon request of the
Union to embody any understandings reached in a signed agreement.
We have found that the unfair labor practices of the respondent in
refusing to bargain collectively with the Union on March 26 and 27,
1940, caused and prolonged the strike which began on March 28, 1940.
In order to restore the status quo as it existed prior to the time the
respondent committed the unfair labor practices and in order to enable
the processes of collective bargaining to function, we shall order the
respondent to offer reinstatement, upon application, to the employees
110 Fed ( 2d) 632 (C C. A. 4 ), enf'g Matter of Highland Parl. Mfg. Co . and Textile Work-
ers Organizing Committee, 12 N. L. R. B. 1238; N L . R. B v. Remington Rand, Inc.,
64 Fed. ( 2d) 862 (C: C. A. 2), cert. den. 304 U. S 576 , enf'g Matter of Remington Rand,
Inc. and Remington Rand Joint Protective Board of the District Council Equipment
Workers, 2 N. L. R. B. 626. 1
NATIONAL SEAL. CORPORATION 205
-who went on strike on March 28, 1940, and who have not since been
fully reinstated, to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
dismissing if necessary any persons hired by the respondent after
March 28, 1940, the date of the strike, and,not in the employ of the
respondent on said date. If thereupon, despite such reduction in force,
there is not sufficient employment available for the employees to be
offered reinstatement, all available positions shall be distributed
among such employees without discrimination against any employee
because of his union affiliation or activities; following such a system of
seniority or other practice to such extent as has heretofore been applied
in the conduct of the respondent's business. Those employees, if any,
remaining after such distribution, for whom no employment is imme-
diately available, shall be placed upon a preferential list and ;offered
-.employment in their former or substantially equivalent positions, as
such employment becomes available -and before other persons are
hired for such work, in the order determined among them by such sys-
tem of seniority or other practice as has heretofore been followed by
the respondent.
We shall also order the respondent 'to make whole the employees to
be offered reinstatement for any loss of pay they may suffer by reason
.of the respondent's refusal, if any, to reinstate them or place them
upon a preferential list, as provided above, by payment to each of
them of a stun of money equal to that which he would normally have
earned as wages during the period from five (5) days after his appli-
cation for reinstatement to the date on which he was reinstated or
placed upon a preferential list, less his net earnings,- if any, during
.such period.
Upon the basis of the above findings of fact, and upon the entire
-record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, Long Island City Lodge
295, affiliated with the American Federation of Labor, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. The production and maintenance employees, of the respondent
including machinists, tool and die makers, die setters, packers, stamp-
10 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the respondent's
discrimination against him and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America , Lumber and Sawmill Workers Union , Local 2390 ; 8 N. L R B. 440
Monies received for work performed upon Federal , State, county, municipal or other work-
relief projects shall be considered as earnings . See Republic Steel Corporation v. N L.
R B, 311 U. S. 7.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers, inspectors , general helpers, miscellaneous lllachine operators, ship-
ping and receiving employees , production clerks, and the porter,.
exclusive of office and clerical employees, supervisors, supervisory
foremen, and salesmen, constituted - at all times material herein and
now constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act.
3. International Association of Machinists, Long Island City Lodge-
295, is and at all times since March 26, 1940, has been the exclusive
representative of ah - the employees in tile' above unit, for the purposes
of collective bargaining , within the meaning of Section 9 (a) of
the Act.
4. By refusing on March 26 , 1940, and at all times thereafter, to,
bargain collectively with International Association of Machinists,
Long Island City Lodge 295 , as the exclusive representative of its
employees in such unit , the respondent has engaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8 (5)
of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the-
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices'
affecting commerce within the meaning of Section 2 (6) and (7) of-
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,.
and pursuant to Section 10 (c) of the National Labor Relations Act,,
the National Labor Relations Board"hereby orders that the respondent,
National Seal Corporation, Brooklyn, New York, and its officers,.
agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Association.
of Machinists, Long Island City Lodge 295, as the exclusive represen--
tative of its production and maintenance employees including machin-
ists, tool and die makers , die setters, packers, stampers , inspectors,
general helpers, miscellaneous machine operators , shipping and receiv-
ing employees , production clerks, and the porter , exclusive of office
and clerical employees, supervisors, supervisory foremen, and salesmen ;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the rights of 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 Act.
NATIONAL SEAL CORPORATION 204
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain-collectively with International Associa-
tion of Machinists, Long Island City Lodge 295, as the . exclusive
bargaining representative of all the production and maintenance em-
ployees in the respondent's plant at Brooklyn, New York, -including
machinists, tool and die makers, die setters, packers, stampers, inspec-
tors, general helpers, miscellaneous machine operators, shipping and
receiving employees, production clerks, and the porter, excluding office
and clerical employees, supervisors, supervisory foremen, and salesmen
with respect to rates of pay, wages, hours of employment and other
conditions of employment, and if an understanding is reached on any
such matters, embody said understanding in a signed agreement;
(b) Upon application, offer to those employees who went on strike
on March 28, 1940, and who have not since been fully reinstated, im-
mediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights, or
privileges, in the manner provided in the section entitled "The
Remedy" above; and place those employees for whom employment is
not immediately available upon a preferential list in the manner set
forth in said section, and thereafter, in said manner, offer them employ-
ment as it becomes available;
(c) Make whole the employees specified in subsection (b) above, for
any loss of pay they may suffer by reason of the respondent's refusal,
if any, to reinstate or place them upon a preferential list, pursuant to
subsection (h) above, by payment to each of them of a sum of'money
equal to that which he would normally have earned as wages, during
the period from five (5) days after his application for reinstatement
to the date on which lie is reinstated or placed upon a preferential list,
less his net earnings during said period;
(d) Post immediately in conspicuous places within its plant and
maintain for a period of not less than sixty ( 60) consecutive days from
the date of posting, notices to its employees stating : that the respondent
will not engage in the conduct from which it is ordered to cease and
desist in paragraphs 1 (a)` and ' (b) of this Order and that the
respondent will take the affirmative action set forth in paragraphs 2
(a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Second Region , in writing
within tent (10) days from the date of this -Order, what steps the
respondent has taken to comply herewith.
CHAIRMAN HARRY A. MILLIS took no part in the consideration of the
above Decision and Order.