Norristown Box Co.

National Labor Relations Board - Board Decisions

Jun 19, 1941

32 N.L.R.B. 895 (N.L.R.B. 1941)

In the Matter of NORRISTOWN Box COMPANY and INTERNATIONAL
BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS,
LOCAL 422
Case No. C-1844.-Decided June 19, 1941
Jurisdiction : paper box manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; circulation of
pamphlet, "Facts about the Wagner Act," misleading version of employees'
rights : acting as invitation and stimulus to formation of company-dominated
union ; questioning of employees concerning union membership and activities ;
offering to employees and granting to one of them an increase in pay as an
inducement to cease union activities.
Company-Dominated Union: formation of, for the purpose of defeating legiti-
mate union's organizational campaign ; supervisory employees active in for-
mation ; pamphlet issued by employer distorting rights under Act served
to invite and give impetus to formation ; support found in hostility expressed
to outside organization and membership ;herein, and refusal to bargain with
such organization.
Collective Bargaining: majority established by membership cards : defections
therefrom caused by unfair labor practices-refusal to recognize union because
of rival claim of dominated organization.
Discrimination: discharge for union membership and activity ; charge of
alleged discriminatory reinstatement after unfair labor practice strike dis-
missed as to one employee.
Remedial Orders : withdraw recognition and disestablish dominated union; order
to bargain collectively ; reinstatement with back pay for employee discrimi-
nated against.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding management, office, supervisory, sales employees, and truck
drivers; contentions of company-dominated organization disregarded; part-
time production worker included in unit over union's objection.
Mr. Jerome I. Macht, for the Board.,
Hillegass di Moran, by Mr. J.,B. Hillegass, of Norristown, Pa., for
the respondent.
Mr. Louis H. Wilderman, of Philadelphia, Pa., Mr. H. W. Sullivan,
of Worcester, Mass., and Mr. Herbert S. Thatcher, of Washington,
D. C., for the Union.
Mr. Malcolm A. Hoffmann, of counsel to the Board.
32 N L. R. B., ? o.148.
895
896 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and . amended charges duly filed I by Interna-
tional Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local.
422, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Fourth
Region (Philadelphia, Pennsylvania), issued its complaint dated
January 13, 1941, against Norristown Box Company, Norristown,
Pennsylvania, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices affect-
ing commerce, within the meaning of Section 8 (1), (2), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. The complaint, containing a notice
of hearing, was duly served upon the respondent, the Union, and the
Norristown Box Company Employees Association, herein called the
Association.
With respect to the unfair labor practices, the complaint alleged
in substance that (1) during September 1940 and thereafter, the
respondent caused to be formed, interfered with, and dominated the
formation and administration of the Association and contributed sup-
port to it by (a) causing to be circulated among its employees a
pamphlet entitled "Facts About the Wagner Act" setting forth mis-
leading interpretations of the Act; (b) questioning employees con-
cerning their membership in and activities on behalf of the Union
and making derogatory remarks against the Union; (c) instigating
the formation of and urging its employees to become members of the
Association; (d) soliciting membership for the Association on the
plant premises during working hours; (e) offering an increase in
pay to certain employees in order to induce them to cease their activ-
ities on behalf of the Union; and (f) permitting the Association to
solicit members during working hours while denying the Union the
same privilege; (2) on or about October 17 and 21, 1940, and there-
after, the respondent refused to bargain collectively with the Union
as the exclusive representative of its employees in all appropriate
unit concerning rates of pay, wages, hours of employment, and other
conditions of employment; (3) as a result of these acts of the respond-
ent, the employees went on strike on or about October 26, 1940; (4)
i The original charge was filed on October 11, 1940 ; an amended charge on October 28,
1940; a second amended charge on November 18, 1940; a third amended charge on January
3, 1941; and a fourth amended charge on January 13, 1941.
NORRISTOWN BOX COMPANY 897
the respondent refused on or about December 23, 1940, to reinstate
Ida Lishman to her former position, and on or about January 9, 1941,
to reinstate Charles Morris to his former position, and continued to
refuse to reinstate these employees because of their concerted
activities.
The respondent filed an answer dated January 22, 1941, in which it
admitted the allegations concerning the nature of its business, denied
that it had committed any unfair labor practices, and affirmatively
averred that (1) it permitted a pamphlet to be circulated entitled
"Facts About the Wagner Act" but that said pamphlet set forth a
true interpretation of the Act ; (2) it did everything within its power
up to October 17, 1940, to circulate its personal opinion that it did
not desire any labor organization of any kind in its plant, but there-
after ceased this activity on the advice of an investigator of the Board ;
(3) it questioned its employees concerning their activities on behalf of
the Union and urged them to cease such activities because of "unfair
practices" indulged in by its employees on behalf of the Union, ex-
pressing "purely personal opinions"; (4) it agreed to recognize any
group certified by the Board as the exclusive bargaining represent-
ative of its employees following requests by both the Union and the
Association for recognition; (5) it reinstated Ida Lishman, but when
she reported for work on December 23 it was impossible immediately
to put her to work on the machine she had previously operated,
whereupon she left, but on January 13, 1941, the respondent reinstated
Lishman at the request of a representative of the Board; and (6) it
reinstated Charles Morris and instructed him to report for work on
December 23, but he stated that he might be unable to work that day
and agreed to so inform the respondent on December 22, but the re-
spondent heard nothing from Morris until January 9, 1941, and on
January 10 discharged him for not reporting as ordered.
Pursuant to notice, a hearing was held at Norristown, Pennsylvania,
on January 30, 31, February 14 and 15, 1941, before Webster Powell,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the respondent, and the Union were represented by coun-
sel and participated in the hearing. The Association did not appear
at 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. Motions by counsel for the Board to conform the
complaint, and by counsel for the respondent to conform its answer
to the proof, in minor particulars, were granted. During the course
of the hearing the Trial Examiner made rulings on motions and on
objections to the admission of evidence. At the close of the hearing,
counsel for the respondent moved that the complaint be dismissed, and
that all secondary evidence introduced when primary evidence was
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available not be considered. The Trial Examiner 'reserved ruling on
these motions, and denied them in his Intermediate Report. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby
affirmed.
On March 26, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent, the
Union, and the Association, in which, as mentined above, he denied
certain motions made by the respondent upon which ruling had been
reserved, and found that the respondent had engaged 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, and recom-
mended that the respondent cease and desist from its 'unfair labor
practices, disestablish the Association, upon request bargain collectively
with the Union, offer full reinstatement to Charles Morris, and make
him whole for loss of pay resulting from his discriminatory discharge,
and further recommended that the complaint be dismissed in so far
as it alleged discrimination against Ida Lishman.
On April 1, 1941, the respondent filed exceptions to the Intermedi-
ate Report and to the record. On May 8, 1941, pursuant to notice, a
hearing was held before the Board at Washington, D. C., for the pur-.
pose of oral argument. The respondent and the Union appeared,
presented oral argument, and otherwise participated in the hearing?
The Board has considered the exceptions of the respondent to the
Intermediate Report and to the record, the arguments of the respond-•
ent in support thereof and of the Union in opposition thereto, and,
except in so far 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
I. THE BUSINESS OF THE RESPONDENT
Norristown Box Company is and has been continuously since 1902
a Pennsylvania corporation with its principal office and plant in
Norristown, Pennsylvania, where it is engaged in the manufacture.
sale and distribution of set-up and folding paper boxes. The prin-
cipal raw materials used at this plant are paper, paper box board, glue,
twine, and braid. During 1940 the gross volume of the respondent's
purchases of such raw materials amounted to approximately $73,500,
70 per cent of which was obtained from outside the State of Penn-
2 The respondent submitted a "Memorandum of Decisions in Support of Oral Argument"
which has been considered by the Board.
NORRISTOWN I OX COMPANY 899
sylvania. During 1940 the respondent's sales of its finished prod-
ucts amounted to approximately $162,500. Approximately 1 per cent
of these products was sold and shipped to firms outside the State of
Pennsylvania, and approximately 75 per cent was sold to wholesalers
whose places of business were located in Pennsylvania, and shipped
by them to customers located outside the State of Pennsylvania. The
respondent concedes that it is engaged in interstate commerce within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED.
International Brotherhood of Pulp, Sulphite and Paper Mill Work-
ers, Local 422, is a labor organization affiliated with the American
Federation of Labor, admitting to membership production and main-
tenance employees of the respondent.
Norristown Box Company Employees Association is an unaffiliated
labor organization, admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Charles Morris, one of the respondent's employees, had been re-
quested by a number of his fellow workers to act as their spokesman
in the formation of a labor organization. Accordingly, early in
September 1940, Morris met with Morris Wray, an international rep-
resentative of the Union, and discussed formation of a local at the
respondent's plant; thereafter Morris was active in trying to obtain
members for the Union. The first organizational meeting of the
Union was held on September 24,1940.
On the morning of September 24, Morris and another employee,
Harold Love, were called to the office of J. W. Lysinger, president of
the respondent. James C. Ray, Jr., secretary-treasurer and plant
superintendent, was also present. Ray testified that :
We brought them up to the office and asked them what they knew
about the organization that was going on in the plant.
They told us that they were making efforts to organize the plant
in the AFL. And we asked what the trouble was, and they
told us that they felt that they would like to organize the plant,
words to that effect.
Morris testified that Lysinger also told Love he had taken him off the
truck because he did not want him to join a union, that "I have be-
friended you, and you turn around and do a thing like this to me."
When Lysinger and Ray asked Morris what the trouble was, he told
them "Damn poor wages, and we want the union recognized in the
448692-42-vol. 32-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant." Ray testified, and we find that he replied, "There is not
going to be no union in here," and "I wasn't in favor of . . . organ-
ization of any trade."
The union meeting on September 24 was attended by about 25
employees, several of whom signed membership cards at the meeting.
On about September 25 Russell Lukens, foreman over the entire
second floor of the plant 3 and admitted by the respondent to be a
supervisory employee, spoke to Dorothy Hendricks, an employee
under his supervision, while she was working at her machine, and said,
"Well, Ida [Lishman] did not get you to come to the meeting last
night, did she, Dorothy?" When she asked Lukens how he knew
it, Lukens replied, "I was over at the drugstore; I saw her try to
get you to come."
At about the time of the first or second meeting of the Union,
Lukens asked Detwiler, an employee who worked under his super-
vision, while he was at work, whether or not he was going to the
meeting. Detwiler answered, "I don't see anything to hold me back,"
whereupon Lukens said to him :
Nothing to hold you back . . . Why not have one of our own
here and not have no outsiders coining in and running our busi-
ness for its? . . . I think we will be much better off.
During this same period, Lukens asked Mildred Caparella, in the
hearing of Mabel Symons, both employees working under him, while
they were at work, whether or not Caparella was going to join the
Union. She replied that she did not know, that he should ask Sy-
mons about it. Lukens replied to that, "I would not ask her ; she was
in the first row at the first meeting; she is all sewed up." Lukens
then asked Caparella whether she would forget about the Union if
she got a raise in pay. She told him she had heard there was going to
be an increase anyway. He then said, "Well, if you would get still
more money than that, will you forget about the Union ?" She told
him she did not know. She never joined the Telnion, however, and
did subsequently join the Association.
Lukens admitted that he asked several girls whether they were
going to join the Union. Walter Pi.ckell, a supervisory employee 4
also asked some of the employees who worked under him if they had
joined the Union.
On September 28 Morris was again called to the office, where
Lysinger and Ray sought to question him about the organization of
the plant. Later that day Lysinger spoke to Morris at his machine,
8 The plant has only two floors, referred to generally as the basement floor and the
second floor.
a Pickell is in charge of the wrapping department on the second floor with about 8 or
10 girls working under his supervision,
NORRISTOWN BOX COMPANY 901
disparaged the Union, and stated he hoped that there would be no
strike. The record does not indicate that at this time the,, had been
talk of a strike. On the same day, just before closing time, Lysinger
called Morris away from his machine to a secluded corner of the
room and asked him, "If I give you a raise or give you union rates,
will you cease activities?" Morris explained that he was not organ-
izing the -plant, that the American Federation of Labor was, but he
admitted that he had joined the Union. When, ii few minutes later,
Morris 'got his pay for the week he found his rate had been increased
from 40 to 50 cents an hour, effective the entire week. A.number of
employees, including Morris, had received raises of about 3 cents an
hour about 2 weeks before, on September 13, 1940. Howe\'er, the
increase of 10 cents an hour given Morris on September 28 was not
a general increase. Morris had been transferred from cornercutting
to a scoring machine only a week before he got this increase. , Ray
testified that Morris' pay was increased because "it was in, another
week, I believe, that he would be experienced." Of the five em-
ployees, including Morris, who operated scoring machines, two were
paid more and two less than Morris. In view of Lysinger's conver-
sations with Morris, and from all the other circumstances, it seems
clear, and we find, that the respondent increased Morris' pay on
September 28 for the purpose of inducing him to cease his union
activities.5
In the latter part of September or early October, the respondent
circulated to employees in the plant copies of a pamphlet entitled
"Facts About the Wagner Act." 6 which read in part as follows :
DON'T BE MISLED BY FALSE STATEMENTS
Everyone should know their rights under the Wagner Act.
Many misleading statements and propaganda are being circu-
lated. In order to give you actual facts and to prevent mis-
understanding, you will find presented below some questions and
answers, supported by official statements of those who sponsored
the bill in Congress.
Question. Am I required to join a labor union?
Answer. No. You are not required to join or pay dues to any
organization of any kind. Senator Walsh of Massachusetts,
who piloted the bill through the Senate, said:
The bill does not require or request any employee. to join
any organization of any kind, shape or character. It does
s All of the statements of the respondent's officials and supervisors set forth above «ere
admitted or undenied unless otherwise indicated.
6 Counsel for the respondent stated at argument before the Boaid that the pamphlets
circulated had been obtained fi out the National Association of Manufacturers
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not seek to encourage or bring about the establishment. of
any, labor organization under any employer where there is
now none. , . - • I •
Question. May I elect to deal directly with my employer and
not deal through a labor organization?
Answer. Yes. The Supreme Court of the United States says
that the Act "does not prevent an employer from making such'
individual contracts as he may "elect to make directly with
individual employees."
Question. What about employee representation plahs and other
forms of group action for dealing with management?' Are they
permitted?
Answer. Yes, ' they are definitely permitted. Nothing' 'in the
Act prohibits existence 'of representation plans confined to a
single plant or employer. The form of organization is left
entirely to the employee. The committee on Labor, of the United
States' House of Representatives said in reporting the measure :
Nothing in the bill prohibits the formation, of a company
union, if by that term is meant an organization of workers
confined by their own volition to the boundaries of a par-
ticular plant or employee.
Although' this document expressly purports to inform employees
of "their rights under the Wagner Act," no reference to the funda-
mental rights of self-organization and collective bargaining guaran-
teed by the Act appears therein. On the contrary, the document
states, in effect, that employees are not required to join any labor
organization, but may elect to deal with the employer directly or
through an inside union. Emphasis here expressed upon what the
provisions 'of the Act do not purport to do, under the guise of "pre-
venting misunderstanding"- concerning the employees' rights under
the Act, rather than upon the positive principles and the rights which
the Act establishes, as well as the subtle statement of "the right" of
employees to form a "company union," serves to mislead employees
reading the document concerning, the true principles and purposes of
the Act.
Circulation of this pamphlet, at a time when the Union first at-
tempted to organize the respondent's employees, served to memorialize
for these employees the respondent's admitted hostility to the Union,
otherwise frequently 'expressed by statements of its officials and super-
visors. Moreover, it is reasonable to infer that the pamphlet was
NORRISTOWN BOX COMPANY 903
designed to and did act as an invitation and impetus to the respondent's
employees to form a "company union," its language instilling the false
belief that such an organization is sanctioned by the Act, and we find
this to be the respondent's material objective in circulating the
pamphlet. We find further that the pamphlet, achieved the effect
desired.7-- Circulation of the pamphlet so viewed manifests itself as
one of the varied elements in the respondent's campaign to discourage
membership in the Union. We conclude, under the circumstances of
this case, as in many prior cases with reference to similar documents
that the respondent by circulation of "Facts About the Wagner Act,"
interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.'
7 See Section III B , infra.
8 Matter of West Texas Utilities Company and International Brotherhood of Electrical
TVotkers, 22 N L R B 522, enf 'd as mod , National Labor Relations Board v. West
Texas Utilities Company, May 2, 1941, (C. C A' 5) ; Matter of Jasper Blackburn Products
Corp . and District No. 9 International Association of Machinists , affiliated with the Ameri-
can Federation of Labor, 21 N L R B 1240 ; Matter of Moore -Lowly Flour Mills
Company and Flour Mill and Cereal Workers Union No . 20601, affiliated with the American
Federation of Labor, 21 N L R B 1040 ; Matter of Goshen Rubber and Mf'g Co. and
United Rubber Workers of America, 11 N L R. B 1346 , enf'd as mod . 110 F . ( 2d) 432
(C. C. A. 7) ; Matter of Western Felt Works , a Corporation and Textile Worl. ers Organiz-
ing Committee , Western Felt Local, 10 N. L . R B 407 , Matter of Pure Oil Company and
International Union Local 265, 8 N. L. R . B 207 ; Matter of Mocl -Judson -Toehringer
Company of North Cat olina, Incorporated and American Federation l o f Hosiery Workers,
North Carolina District , 8 N. L R. B '133 ; Matter of Nebel Knitting Company, Inc. and
American Federation of Hosiery Workers , 6 N. L. R. B. ; 284, enf'd as mod 103 F. ( 2d) 594
(C. C. A 4) ; Matter of Simplex Wire and Cable Companl, and Cable Workers Federal
Local Union 21020, affiliated with the A F L, 6 N. , 'L. R B. 251 , Matter of Mansfield
Mills, Inc. and Textile Workers Organizing Committee , 3 N. L R. B . 901. See Matter
of McGoldrick Lumber Company , a corporation ; Industrial Employees ' Union, Inc., a cor-
poration ;' and Industrial Employees' Union, Inc., Local No. 76, District 9, and Lumber and
Sawmill Workers Union , Local No 2552, et al, 19 N. L . R B , 887
° We rest this finding not alone on the circulation or contents of the pamphlet but evalue
the pamphlet in context with the remarks of Ray , Lysinger , Lukens ; and Pickell recited
above , and conduct of the respondent above set forth , discouraging membership in the
Union and indicating preference for a labor organization "of our own " We find no merit
to the respondent 's contention that the remarks of its supervisors "were purely the personal
opinion of the individuals making them" and so not violative of the Act The "whole
congeries of facts '," here presented establish a course of conduct of a plainly interfering
and coercive character National Labor Relations Board V. Link -Belt Co , 61 S Ct: 358,
361, rev'g 110 F. (2d) 506 (C. C. A. 7) and enf'g Matter of Link -Belt Company and
Lodge 1604 of Amalgamated Industries of Iron , Steel and Tin Workers of North America,
through the Steel Workers Organizing Committee , affiliated with the Committee' for In-
dustrial Organization, 12 N. L. R B 854 An employei "may not , by word or conduct,
coerce his employee or in any way obstruct his effort to organize his own union or inter-
fere with his union activities " National Labor Relations Boat it v. Sunshine Mining Co ,
110 F ( 2d) 780 , 786 (C C A 9 ), Celt den , 312 U S 678 , 312 U S 714 , enf'g Matter
of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers,
7 N L. R. B . 1252 We do not consider the above statements of the iespondent ' s officials
to its employees as mere expressions of opinion or of ordinary import "Considered in
the light of the iespondent ' s superior economic position , these statements carried the un-
mistakable hostility . . . of the employer against independent determination and free
fiction of the employees in matters of self -organization ." Matter of Brown Shoe Com-
pany, Inc., and its wholly owned subsidiary , Moench Tanning Company, Inc . and National
Leather Workers Association Local #44, affiliated with the Committee for Industrial
Organization, 22 N L R B 1080, p. 11 and cases there collated, footnote 11;
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent in its answer admits that it circulated "Facts about
the Wagner Act," . . . "in the hope that no organization of any kind
would be formed." - The respondent also admits "that it did everything
in its power up to and including October 17, 1940, to circulate its
personal opinion to the effect that it did not desire any labor organiza,
tion of any kind whatever to be formed in its plant," asserting that
thereafter it became neutral after consultation with a Board investi-
gator. The answer further admits questioning employees concerning
union activities, derogatory remarks against activities on behalf of the
Union, and that the respondent urged its employees to cease such activi-
ties, but the respondent "alleges that its remarks were directed against
the unfair labor practices indulged in by its employees on behalf of the
Union, to will by pressurizing its employees into becoming members"
etc. The meaning of the respondent's assertion in justification of its
admitted interference with its employees' exercise of their rights to self-
organization is unclear. , We find no merit to the respondent's defense
to the acts hereinafter found to constitute unfair labor practices and
observe that.the record is barren of any evidence of misconduct by
the Union.
We find that the respondent, by the anti-union statements set forth
above, by questioning its employees about their union membership and
activities,10 by offering to its employees and by granting to one of them
an increase in pay as an inducement to cease union activities, by circu-
lating a distorted and incomplete account of the rights of the employees
under the Act with the intention of inviting formation of a company-
dominated union and discouraging membership in the Union, has inter-,
fered with, restrained, and coerced its employees in the exercise of their
rights,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 purposes of collective
bargaining and other mutual aid and protection as guaranteed in
Section 7 of the Act.
B. Domination of and interference with the formation and adminis-
tration of the Association
Contemporaneously with the Union's campaign to organize the re-
spondent's employees, one Frank Friend, an employee in the pressing
department, discussed with other employees and also with Supervisor
10 The Board has held that it is an unfair labor practice to question employees as to
their union membership and activity See Hatter of R C Mahon Company and Steel
Workers Organizing Committee (affiliated with the 0 I 0 ), 28 N L R B 619, Matte
of Commonwealth Telephone Company and Theodore R Siplon , Walter F Seidler, and
International Brotherhood of Electrical Workers , 13 N L. R. B 317 : Matter of Trenton
Garment Company and International Ladies Garment Workers Union Local 278, 4
N L. It. B 1186.
NORRISTOWN BOX COMPANY 905
James Jowett, Sr.," the possibility of forming a competing• organiza-
tion'fo•represent the, "respondent's employees. - Friend was advised by
Jowett that theorganization contemplated by Friend was "not unlaw-
ful" under the Wagner Act.'- Nothiilg'was-done, however, about-form-
ing the ' Association • until the' Union had obtained "substantial
membership among the respondent's' employees.
On 'Sunday, October 6, soon after "Facts About the -Wagner -Act"
had been circulated,13 a meeting was held for the purpose of forming a
labor organization of the respondent's employees at the home of Julia
Keely,r' all employee, at which about 30 employees were present.
Frierid'was selected to act as chairman of the meeting. Lewis Huston,
a supervisory employee '15 was present and told the employeesin the
course of their discussion that he thought an independent union of their
own was "a good idea." A paper was passed around the room during
the meeting for those in favor of an inside organization to sign. The
names were later read aloud to those at the meeting. -Everyone present
had signed', including Huston.
As 'appears in Section III A, above, at about this time, Lukens,
suggested to Detwiler, "Why not have [ a union] of our own here and
not have no outsiders coming in and running our business -'for
irs? I think we will be much better off." Moreover ;'"as noted
above, the meeting of October 6 closely followed circulation of "Facts
About, the Wagner' Act," which .we have found acted "as an invita-
tion and impetus to the respondent's employees to form a'company
union." 16 - "We 'find that the meeting of October 6 had its 'origin
iii and 'was to be expected' as a ,result of statements by Lukens and
tither- of the respondent's of$cials,l' as well as ' the circulation of
"Facts About the Wagner Act," all of which directly conveyed to the
respondent's employees management's desire that a company union be
formed. .
Jowett is in charge of the pressroom in the basement He sets up the presses, and
as he is the only employee who his had experience in every department of the plant, he
is utilized also for repairs on machinestin eSeiy department -, Friend and Tressler, press
operators, worked under him and took their orders and instructions from him - We find
that James Jowett, Sr., is a supervisory, employee.
12 Jowett's opinion was admittedly in contradiction to that of "a lot of people" with
whom Friend consulted - -
11 See Section III A, supra - '
14 Sometimes erroneously referred to as Kelly in the record - - '
is Huston is in ,general charge of'the basement floor and in direct charge of the cutting
room, with 10 or 12 men working under him in this department to whom he assigns work
and gives'orders He cannot hire or discharge He can and does ti ansfei• men who do
their work well to jobs,that, pay more money He also recommends the discharge of
unsatisfactory employees Although sometimes in an emergency or when, he has some
spare time he operates a machine, he does so in; the' course' of a year only about '8 br 10
per,,cent.of his time We find that Huston'is a supervisory employee
i° Section III A, supra. ' ' • .
ig Ibsd - , _ t
906 DECISIONS OF NATIONAL LA BOR RELATIONS BOARD
About a week after the meeting at Keeley's house, the Association
engaged, an attorney, Julian Barnard, who prepared the Articles of
Association and Bylaws., This, document was circulated for signs-
ture on October 15 and for the 'next few days. Among those who
signed it were supervisors, Huston and Pickell. Huston later, some-
time in November or December, paid a dollar to the Association,
which covered his 25-cent initiation fee and his dues of 25, cents a
month for' 3 months. ,
Friend and Tressler were the most active organizers on behalf
of the, Association, particularly. Friend, who was elected its first presi-
dent. Several employees testified that during the first part of Octo-
ber they frequently 'saw Friend, who, worked in the basement, talking
to the girls in the wrapping department on the second floor. Al-
though the record does not precisely reveal the' substance of Friend's
remarks, the record, makes apparent and we find that Friend in
talking to girls in the wrapping department'acted on behalf of the
Association, solicited or caused the solicitation of Association mem-
bership, and otherwise conducted' Association affairs. According to
the uncontradicted testimony of Ethel Law, on one occasion early
in October,; Friend gage his sister, Lillian Friend, a piece of card-
board and told, her to• "Make,sure you get the girls', names, all the
names on it." , A little later, Lillian Friend told Law she had to tell
her brother something,, and when Law, asked what, it was, she an-
swered,. "It is ,something concerning the shop union." Following
this conversation, a„ piece of cardboard headed, "Those • of you not
interested, in Union, please sign," was, circulated in. the plant. It
was, signed,during, working hours by eight girls, all of whom became
members of,the Association. , • ,
Lukens and. Friend claimed that,Friend's work took him to differ-
ent parts of the plant, and that he went to the wrapping department
to repair wrappers, particularly during the rush season, which is
from August to Christmas. Friend admitted, however, that while
he, was there he talked to his wife and his sister, both of whom
worked in the wrapping department, and to "a few other friends,"
but denied that he asked anyone during these conversations to join
the Association. Lukens testified that Friend was not' supposed to
engage in conversation with the operators, except with regard to 'his
work, and that he never reprimanded Friend for violating this rule
because he' never saw him doing so. Pickell did not -testify. In
view of all'the testimony about Friend's' activities in the plant, how-
ever, and, in view of Friend's unconvincing explanation of what he
talked about on the second' floor in October' 1940; in view of'Pickell's
preference for the Association as evidenced by his signing the, Ar-
ticles of Association, and in view of Luken's statements evidencing
NORRISTOWN BOX COMPANY '907
his ,preference for an inside organization , we are convinced , and find,
as did the Trial Examiner , that Friend carried on his organizing
activities on behalf of the Association openly in the plant during
working hours with the knowledge and sanction of supervisory
employees.
Huston testified that in the early part of October he spoke to several
of the employees who worked under his supervision , in the plant,
individually , at their machines , as follows :
I told them there was two "fractions" on the floor, and .. .
One was for the outside union, and I said, "One is for the inside
union ." I says, "You can suit yourself . I am just letting you
know what is in there, what you are going to 'hit . . . so that
you can form your own opinion."
Huston admitted that he had warned these employees that mem-
bership in the A . F. of L . might lead to "more or less blackballing
them" when applying for work alsewhere. He, also admitted that
he had urged upon his employees the desirability of joining "an
independent ," under which , "you can pick your own committee and
take to the management questions yourself ," while cautioning that
representation by the A. F. of L. would mean "the ones on the outside
would bring [such questions ] to the management." Huston also
pointed out that the dues paid to the A. F. of L . would "go out of
town" whereas if they paid it into an independent union it would
stay in town and "they could spend it themselves ." Dougherty was
one of the employees with whom Huston thus conversed . Huston
testified that when "I mentioned it to him about the two factions on
the floor," he remarked, "I did not come here to pull unions, I came
here to work." In addition to the conversations described ' above, it
is undenied that Huston also solicited employees in the plant to join
"our shop union."
According to three of the Board witnesses,"s whose testimony is
undenied , during the period when both organizations were competing
for members , Lukens and Huston, in addition to their statements
encouraging membership in the Association , displayed an unmis-
takably hostile attitude toward those employees who had joined the
Union. They made this hostility felt in a number of ways, but par-
ticularly by permitting Association members to talk together in the
plant while assiduously prohibiting members of the Union from doing
so. We find that by these acts the respondent favored and supported
the Association in its organizational activities while discouraging
membership in the Union.
18 Symons, Ethel Law, and Ida Lishman.
I
908 DECISIONS OF NATIONAL LABOR REI:ATIONS BOARD
On October 17, 1940, after 40 signatures had been obtained to 'the
Articles of Association, Barnard, the Association's attorney, requested
recognition of the Association as the exclusive bargaining agent.
When the Union a few days later requested recognition as the bargain-
ing agent of the employees, the respondent's answer to both organiza-
tions was that it had received' requests fdr recognition from two
organizations claiming to represent a majority of the employees, and
that it would recognize whichever organization obtained certification
by the Board. The respondent thus refused recognition to the Union
asserting in justification therefor the existence of the inside organiza-
tion whose formation it had sponsored and assisted.'
On October 17 a Board investigator informed the respondent, ac-
cording to Ray's testimony, that "We are guilty,of, coercion and .. .
that we should stop it." At that time, and not until that time, the
respondent instructed its super\iisdry employees that they were to main-
tain a neutral attitude with regard to labor organizations. By that
tinge the Association,, with the aid of several supervisory employees,
had become firmly entrenched in the plant. Such instructions were,
therefore, futile, particularly since.-no effort was made to inform the
employees that the respondent disavowed the anti-union Activities of
its supervisory employees. The respondent had effectively intruded to
restrain its employees' choice and we do not believe thattlie respond-
ent's belated instructions of impartiality obliterated the consequences
of its prior interference. Consequently we find that "the failure of the
employer to announce its impartiality" bars the respondent from now
advantaging itself by whatever instructions it may. have given its
supervisors.20 - I .
The respondent sought to show that Huston,.Pickell and Jowett U'
were "working foremen" and not supervisory employees of such status
that the respondent' could be held responsible for their anti-union
activities. A number of employees, however, both members of the
Association' and of the Union, testified that they-considered these three
men to be supervisory employees with authority over them. Consider-
ing their duties as well as the degree of their authority over other em-
ployees, we find that these three men are supervisory employees.
Moreover, it is -clear, and we find that Huston, Pickell, and Jowett,
were acting for and in behalf of the management, and that the respond-
ent's employees had just cause to believe they 'were so acting. Collse-
19 See Section III, C, 3, infra
"ONatxonal Labor Relations Board v Link -Belt Company , 311 U S 584 1ev'g• 110 F
(2d) 506 (C. C A 7) and enf 'g Matter of Link -Belt Company and Lodge 1601, of Amalga-
mated Association of Iron, Steel and Tan Workers of North America, through the Steel
Workers Organizing Committee affiliated with the Coinmsttee for Industrial _ Organtizatign,
12 N. L R. B 854 _
21 For a description of the duties of Huston , see footnote 15 Pickell, footnote 4, Jowett,
footnote 11, supra.
4Z
NORRISTOWN BOX COMPANY 909
'uently we find the respondent responsible for their statements and
conduct violative of the Act.22 It should be noted that. the anti-union
activities discussed above were engaged in also by Lysinger and Ray,
officials of the respondent, and by Lukens, a supervisory employee, as
to whose status no question is raised.
It is clear from all the evidence, and admitted by the respondent's
answer, that the, respondent was opposed to self-organization on the
part'of its employees. It is also clear that when the respondent became
aware that the Union was organizing its employees and that its efforts
to discourage this organizing activity were unsuccessful, it decided that
if it must tolerate any form of labor organization, an inside union was
to be preferred. The fact that the principal organizer of the inside
union became active only after the Union had started its campaign and
after the respondent had issued "Facts About the Wagner Act" inviting
such,activity and giving impetus to formation of the Association; 23
the active role in the formation of the Association played by super-
visory employees; the freedom with which the sponsors of the Associa-
tion carried on their activities in the plant during working hours in
contrast to the restrictions, placed upon members of the Union; the
encouragement given to the organizers of the Association by the hostile
attitude displayed by supervisory employees toward members -of the
Union;, the assistance to the Association flowing from the numerous
statements made, to employees by supervisors expressing antagonism
to any outside labor organization; and the support given the Associa-
tion by the respondent's unlawful refusal to bargain collectively with
the Union, as found below'24 show unmistakably that the respondent
has coerced and interfered with the right of its employees to bargain
collectively through representatives of their own choosing, and has
sought to stifle- the organization of an outside union formed for the
purposes of-collective bargaining by the formation of an inside union
which the respondent could dominate and control.
We find that the respondent has dominated and interfered with the
formation and administration -of the Association, and has contributed
support to it, and that by such acts and the acts and statements of the
respondent's supervisory employees set forth above, the respondent has
'= International Association of Machinists , etc v. N L R B ., 311 U. S 72, 80 , aff'g 110 F.
(2d) 29 ( App D. C ), enf'g Matter of The Set rick Corporation and International Union
United Automobile Workers of America, Local No )59, 8 N 'L R B 621 ; National Labor
'Relations Board v Link -Belt Co, footnote 20, .suvra , Cf. Swift and Company v National
Labor Relations Board , 106 F. ( 2d) 87 (C. C A. 10), enf'g as mod. Matter of Swift c6
Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North
Imeiica, Local No. 641 , and United Packing House Workers Local Industrial Union No
300, 7 N L. R B 269; H. J Heinz Company v. N L R B , 311 U. S 514, uff'g 110 F.
(2d) 843 (C C A 6), enf'g Matter of H J Heinz Company and Canning and Pickel
Workers, Local Union No . 325, affiliated with Amalgamated Meat Cutters and Butcher
lVoikmen of North America, American Federation of Labor, 10 N. L. R. B. 963.
2i See Section III A, supra
14 See Section III C 3, infra.
I
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with, restrained and coerced its employees in the exercise
of.the rights guaranteed in Section 7 of the Act.
C. The refusal to bargain
1. The appropriate unit
The complaint alleges that the production and maintenance em-
ployees at the respondent's Norristown plant, excluding supervisory
employees, foremen, working foremen, office employees, management,
sales employees, and truck drivers constitute a unit appropriate for
the purposes of 'collective bargaining. The respondent contends 2•'
that the unit should include all the employees except those whom it
admits to be officers of the company, supervisors, office employees, sales
employees; and truck drivers. The parties thus generally agree as
to the unit but differ as to seven employees whom the Union claims are
excluded from and whom the respondent claims are included in the
unit.22e
Huston, Pickell, and James Jowett, Sr., are employees having super-
vision over other employees in the plant. They are not eligible to
membership in the Union. Wanda Proctor is the stenographer for
J. W_ Lysinger and Ray. H. C. Williams is the shipping clerk. He
occasionally supervises the unloading of materials by other employees.
Ormsby Lysinger is the son of J. W. Lysinger and is employed part of
the time driving a truck, and is also assistant secretary of the respond-
ent. In that capacity he attends the respondent's Board of Directors'
meetings where the respondent's policies are determined. These em-
ployees in dispute are clearly differentiated from production and
maintenance employees. We find that the above six employees are
outside the appropriate bargaining unit. Edwin Smith is a "part-
time glue mixer attendant engaged in production work," the only
employee characterized as a part-time worker. The record is barren
of further description of Smith's functions. Since the sole reason for
excluding Smith appears to be that he is not employed on a full-time
25 The Association's views as to the appropriate unit appear to be identical with, those
of the respondent. Since we have found that the Association is company-dominated and
since we are ordering its disestablishment, we give no weight to its views in making our
decision as to the appropriate unit. Matter of Standard Oil Company (Indiana) and
Oil Workers Intel national Union, et al, 25 N L R. B 1190; Matter of Colorado Fuel
eC I;on Corporation and Steel Workers Orgaivi ing Committee, 29 N L R B 541;
Matter of Bethlehem Shipbuilding Corporation, Limited and Industrial Union of Marine
and Shipbuilding 1Vorkers of America, Local No. 5, et at., 11 N. L. R. B. 105, 137, enf'd
Bethlehem Shipbuilding Corporation v. National Labor Relations Board, 114 F (2d) 930
(C C A. 1) ; cert dismissed on motion of petitioning company, 312 U. S 710
2e Walter Pickell, Lewis Huston, James Jowett, Sr., Wanda Proctor, H. C Williams,
Ormsby Lysinger, and Edwin Smith.
NORRISTOWN BOX COMPANY 911
basis, and since he does work similar to that of other employees within
the unit, we find Edwin Smith to be within the unit.27
We find that the production and maintenance employees of the
respondent, exclusive of management, office and supervisory employees,
sales employees and truck drivers, at all times material herein consti-
tuted and now constitute a unit appropriate for the purposes of collec-
tive bargaining, and that said unit will insure to' employees of the
respondent the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of'the Act.
2. Representation by the Union of a majority in the-appropriate
unit
The Board introduced in evidence a complete list of the respond-
ent's employees, containing a description of their classifications,
which the respondent agreed was a correct list of its employees as of
October 22, 1940, the date on which the respondent, as found below,
refused to bargain collectively with the Union. The list contains
84 names. The attorneys for the Board and the respondent agreed
that nine of those named on the list are supervisory or clerical em-
ployees who should be excluded from the appropriate unit. They
were in disagreement as to the eligibility of the seven others named
above, six of whom we have found not to be within the appropriate
unit. We therefore find that there were 69 employees in the appro-
priate unit on October 22, 1940.
The Union introduced in evidence 39 membership cards. The
respondent concedes that the Union had 31 membership cards signed
by employees of the respondent as of October 22, and objects to some
of the remaining cards on the ground that the signatures were
printed thereon. However, witnesses testified that they had seen the
printed cards in question executed by those whose names appeared
thereon, and in the absence of any evidence to the contrary, we
assume that the designations were all genuine.28 It appears from
:ln examination of the cards, nevertheless, that one member, Mildred
Bossard, did not sign a card until after October 22; one member,
Paul Crockett, left the respondent's employ before October 22; and,
one member, William Conaway, was laid off sometime in the latter
part of October and his name does not appear on the list described
above. Consequently, we find that the Union on October 22 repre-
sented 36 of the 69 employees in the appropriate unit.
27 Matter of Weekly Publications , Inc. and Nowspaper Guild of New York, 8 N L. R B.
76, 82.
^ See Matter of American Radiator Compani', a corporation and Local Lodge No 1770,
Amalgamated Association of Iron, Steel and Tin Workers of North America, affiliated
with the Committee for Industrial Organization , 7 N L R. B. 1127
912 DECISIONS OF NATIONAL LA BOR RELATIONS BOARD
The respondent introduced in evidence the Articles of Association,
and Bylaws of the Association. It appears frofn a"comparison- of the
names signed to this document with the i Union's cards that three
members of the Union joined the Association after they had joined
the Union but before October 22.. Since *e have found that the
respondent dominated and interfered with the formation and ad-
ministration of the Association, we consider irrelevant any such
defections in 'the ranks of the' Union for we find them to, be the
result of the respondent's unfair labor practices.29
We find that on October 22, 1940, and at all times thereafter, the
Union was the duly designated representative of the majority of the
employees in the appropriate unit and, pursuant to Section 9 (a)
of the Act, was the exclusive representative of all the 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
By letter dated October 17, 1940; the Association requested the
respondent to recognize it as the exclusive bargaining agent of -the
employees. On or about October 17'Morris Wray, international rep-
resentative of the Union, telephoned the respondent to request a con-
ference, but was referred to J. B. Hillegass, counsel for the respondent.
Wray then arranged with Hillegass for a conference which was held
on October 21 between representatives of the Union and of the
respondent. At this conference, the respondent, asked the Union ;to
2' National Labor Relations Board v. Bradford Dyeing Ass 'n, 310 U S 318, rev'g and
remanding 1(`6 F (2d) 119 (C., C. A. 1)'which vacated in part, Matter, of Bradford Dyeing
-+asociation ( U S 'I ) (a corporation ) and Textile Workers' Organizing Committee of the
V I. 0 , 4 N. L. R B 604: International Association of Machinists v National Labor
Relations Board, see footnote 22. supra ; Bussmann Mfg Co v National Labor Relations
Board, 111 F. (2d) 783, 788 (C C A. 8), enf'g as mod Matter of Bussman Manufacturing
Company and McGraw Electric Company and International Association of Machinists,
District No. 9, affiliated iotth American Federation of Labor, 14 N L. R B. 322; Conti-
nental Oil Co v. National Labor Relations Board, 113 F (2d) 473, 481 (C. C A. 10),
remanded on another isvue, 313 U S 212, enf'g as mod Matter of Continental Oil Com-
pany and Oil Workers Inter national . Union, 12 N L R B. 789 ; National Labor Relations
Board v lliyhland, Park Mfq. Co., 110 F. (2d) 632, 640 , enf'g Matter of Highland Park
Manufacturing Co and Textile Workers Organizing Committee , 12 N. L. R. B . 1238; Valley
dtovld & Iron Corp, v Aational Labor Relations Board, 116 F. (2d) 760 (C C. A 7), enf'g
Hatter of Valley Mould and Iron Corporation and Steel Workers Organizing Committee
for Amalgamated A.ssoi,tation of Iron , Steel and Tin Workers of North America, Lodge
No 1029, affiliated with the Congress 'of industrial Organizations, 20 N , L . R. B 211 ;
.hatter of John J Oaghton , Charles - Oughton , Bertram E Oughton , and Robert B Oughton,
individuals " and co-partners trading as The Windsor Manufacturing Company and Textile
'Workers Organizing Committee (C. 1 0 ), 20 N. *L R B 301, enf'd John J. Oughton,
Charles T. Oughton , Bertram E . Oughton and Robert B Oughton, co-partners trading as
'Windsor '-Manufacturing Company, 118 F. (2d) 494 (C. C A. 3) ; Matter of New Era Die
Company and International Association of Machinists , Lodge 248 (A. F. of L ), 19 N. L-
It B 227 , ent'd -National Labor Relations Board v New Era Die Co , Inc, 118 F. (2d)
500 (C C A 3 ) , Matter of The Solvay Process Company , Baton Rouge , Louisiana and
Oil Workers' International Union, Local-No. 424, affiliated with the Committee for Indies-
trial Organization, 21 N L R B 882, enf'd Solvay Process Co v. National Labor Rela-
tions Board, 117 F. ( 2d) 83 (C. C. A. 5), March 8, 1941 , rehearing denied.
,- ; ^„ • ANORRISTOSVN BOK" ,COMPANY . _ - - 913
put, its, request: for recognition in writing. Wray thereupon wrote
to the respondent under date of October 21, stating that the Union
represented a majority of the respondent's employees and claiming
the right, to act as "the sole bargaining agent of such, employees. The
respondent;.on October 22 sent identical letters to the, Union and
the Association signed by Lysinger and Ray to the effect.that,since
two organizations had claimed to represent a majority 'of the em-
ployees and `the. right to act as their exclusive representative,, the
resporident'would "be glad to recognize any group who brings us a
proper certificate from the National Labor Relations Board to that
effect." It was stipulated at the hearing that the respondent's first
refusal to bargain with the Union occurred on October 22, 1940.
On October 25 the employees voted to go on strike, as is discussed
more fully below. 'The union representatives met with the respondent-
on October 27; discussed the reasons for the strike,'. and stated that
the Union represented a majority and desired recognition as the col-
lective bargaining agent but was not willing to participate in an
election with the Association. The`respbndent- again asserted that
the Association's claim prevented it fom recognizing the Union.
Another conference was held ' tl e' following day, October 28, at
which the Union suggested.the- negotiation, of an agreement covering
its,members only, but again the respondent thwarted the Union by
maintaining that it could not grant even this limited recognition-
to,the, Union without doing likewise for the Association.', The union
representatives left a proposed agreement with the respondent for
its consideration with the understanding that they 'would be called
back for another conference after the respondent had; studied'it, but.
they. never were.called back for this purpose. ' -,
The above-described conduct of the respondent constituted a direct
refusal to bargain collectively with the Union. As has been found
above,30 the Union on October 22 represented'a majority of the 're-
spondent's employees in the ; appropriate unit. We, have found that
the Union's majority persisted at all times material thereafter,31 and
it is apparent as found above that if, subsequent Association member-
ships be deemed defections from the Union, the respondent could
not rely on such defections in• refusing to bargain with the Union.
We have. repeatedly held that the unfair labor practices of an em-
ployer cannot operate to change the bargaining representative pre-
viously selected by the untrammeled will of the majority,12 The
respondent`, by pitting the company-dominated Association against
the Union has sought to avoid its statutory duty ' to bargain , collec-
31 Section III C 2, supra
Section ' III C 2; supra ' '
sx See-cases cited footnote 29. supra t''
914• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively with the Union. In a recent case 33 we had occasion to state,
on analogous facts :
Following the formation of the Association, the respondent pur-
-ported to rely on its conflicting membership claims for doubting
the 'Union's majority but, as we find below, the Association is
company sponsored.... Clearly, an employer cannot be heard
to say that he-entertains an honest doubt of a Union's majority
where he conducts a drive to destroy that majority, where he
relies on the rival claim of an organization sponsored by such
drive .
We find that on October 22, 27, and 28, 1940, and at all 'times
thereafter, the respondent refused to bargain collectively with the
Union as the exclusive representative of its employees in the appro-
priate unit with respect to, rates of pay, wages, hours of employment
and other conditions of employment,-and has thereby interfered with
restrained and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
D. The strike
On -October 25, 1940, the Union' held a meeting at which 33 mem-
bers 'were present. They discussed the "conditions in the plant,"
"intimidation, coercion' and company union." Edward Mangan, a
general representative of the Union, read aloud at this meeting the
respondent's letter of October 22 in which it refused to grant recog-
nition to the-Union because of the conflicting claims of the Associa-
tion'. The` employees refused to participate in an election with the
Association on the ballot and voted unanimously to call 'a strike.'
Mangan telephoned Ray and informed him of the strike vote, to
which Ray replied; "Well, let them strike." Mangan told Ray the
strike could' be avoided and asked if they might have a conference,
but Ray replied, "We don't need no conference. Let them strike, if
they want to strike."
The, strike began the following day, October 26. On Novem-
ber 8 the respondent posted the following notice, signed by Lysinger
and Ray, and sent copies of it to the Union and to the Board :
Due to necessity of increasing our production to meet the needs
of our customers, it will be necessary for us to hire temporary
employees to maintain and increase our present production pend-
ing the final 'settlement' of a labor dispute, if any exists, between
this management and some of our employees.
33 Matter of Lennon; Furnace Co , Inc., and Syracuse Federation of Labor, 28 N L R B.
208 at p. 20 . See Matter of Standard Oil Company (Indiana ) and Oil Workei ,4 Interna-
tional Union, et al., 25 N L R B. 1190
NORRISTOWN^ BOX COMPANY 915
Any employee is welcome to return at anytime and assist in
the necessary production to meet the needs of our customers.
By the second week in December some of the striking employees
had returned to work, others had secured jobs elsewhere, and the
remaining strikers decided to return to work. A conference was
held in Hillegass' office on December-9 at which representatives of
the respondent, the Union, the United States Conciliation Service,
and the State Conciliation Service were present, to discuss the return
to work of the striking employees. Thereafter the Union sent the
respondent a letter dated December 12 requesting the reinstatement
of the striking employees, and the respondent in a letter dated Decem-
ber 13 agreed to reinstate them. It was arranged that the employees
should apply for their jobs on Monday, December 23. The strike was
thus terminated.
We find that the strike above described was caused by the respond-
ent's unfair labor practices, i. e., its policy of open hostility to the
Union, its efforts to repress union activity, its formation and domi-
nation of the Association, and its refusal to bargain with the Union
on the pretext that it was under an obligation to give consideration
to the demands of the Association, the product of its own illegal
conduct.
E. The discriminatory discharge
Charles E. Morris first went to work for the respondent in 1938.
After working a short time, he left the respondent's employ, but re-
turned to work there in October 1939. He worked until December
of that year, and then was out because of illness from December 1939
until June 1940, when he again resumed his position with the re-
spondent. He worked steadily from that time until October 250940,
the date of the strike.
As hereinabove set forth'34 Morris initiated the organization of
the, Union, was the most active union man in the plant, and at the
time' of the strike was still president of the Union. He was promoted
in September 1940 from a job on the corner cutting machine to a
job on a. scoring machine. As appears above, a, week later he was
given an'increase of 10 cents an hour in an attempt to persuade him
to abandon his union activities.
On the afternoon of December 17, the day on which the last of the
strikers made arrangements to return to work, Wray and Morris
interviewed Ray regarding Mor'ris' reinstatement. After Ray as-
serted he would live up to his agreement to put all the strikers back to
work on December 23, Morris stated he was not sure he would be
able to work that day because he had an injured back. He had told
as See Section III A, supra
448692-42-vol. 32--59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ray several days before about his back trouble. According to Mor-
ris, Ray then said, "That is no fault of his . . . We want men that
are willing and able to work," and that ended the interview. Accord-
ing to Wray, Ray then said Morris should report to work as soon
as he was able and should give him a day's not ice before reporting.
According to notes made by Ray's stenographer, the following is a
resume of the conversation :
RAY. Are you going to be ready, Monday?
WRAY. Put his name down. By Monday you might feel better.
RAY.... Listen, Mr. Wray, you tell Charlie to let me know
if he can come in Monday.
RAY. I'd like to know a day ahead of time if Charlie is sick.
I'm marking that down. It that all right?
WRAY. O. K.
Subsequently, Lishman, Hendricks, and Symons, accompanied by
Wray, interviewed Ray relative to their reinstatement. These girls
testified in substance that at the close of the interview, Ray asked them
to tell Morris to give him, Ray, a day's notice before reporting for
work, without any mention of a specified date, and that they so
reported to Morris. This testimony was corroborated by Morris. As
did the Trail Examiner, we credit the testimony of Morris, Lishman,
Hendricks, and Symons with respect to the above conversation and
find that the final arrangement made by Ray was for Morris to give
him a day's notice whenever he was able to return to work.
On January 9, 1941, Morris informed Ray that he was ready to
return to work. Ray then told him he had no work for him and
furthermore Morris had not lived up to his agreement to report for
work on December '23. According to Morris, whom we credit, Ray
nevertheless said he would send for him on January 13 or 14. On
January 10, however, Morris received a notice that he was discharged.
There is no evidence that anyone was hired to take Morris' place
during the strike or that his previous position had been filled on
January 9. In view of all the evidence, including the acknowledged
anti-union bias of the respondent, and the outstanding Union activity
of Morris, we find that the explanation of the respondent that Morris
was discharged because he had failed to report for work as promised,
is mere pretext. We find that Morris was discharged by Ray on
January 10, 1941, because of his membership and activity in the
Union.
We find that the respondent by discharging Charles E. Morris on
January 10, 1941, and by thereafter failing to reinstate him, discrim-
inated against him in pespect to his hire and tenure of employment,
thereby discouraging membership iii the Union. By such discharge
NORRISTOWN BOX COMPANY 917
and failure to reinstate Charles E. Morris the respondent interfered
with, restrained, and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
F. -The alleged discrimi'iatory reinstatement
Ida M. Lishman worked for the respondent from 1926 to 1930 and
then returned to its employ in 1937. She worked continuously from
1937 until the date of the strike. During the last part of her earlier
employment and her entire second period of employment except for
2 weeks immediately after her reemployment in 1937, she was a Stokes
and Smith wrapping-machine operator.35 Between operations of the
machine, she was employed at an hourly rate on other jobs; 36 she was
paid at the rate of 34 cents an hour and 41/2 cents a hundred on piece
work. At the time of the strike, her average weekly earnings were
approximately $18 to $20.
Lishman joined the Union on September 24 and became its recording
secretary. She was instrumental in obtaining' the signatures of five
employees on application cards of the Union. Lishman was on the
picket line during the strike. Shortly thereafter she was a member
of the negotiating committee at conferences on October 27 and 28 .at
the Essex. Hotel between representatives of the Union and the
respondent.
Lishman reported for work with the other employees at 8 a. in. on
December 23. She was assigned to time work. One Gladys Jowett
was at work on, Lishman's S & S machine. Pickell, in response to
inquiry, told Lishman that he did not know when she would be put
back on her machine. Time work paid less than operating the S & S
machine. After 15 minutes Lishman quit work and told Ray that
Gladys [Jowett] was running her wrapper and that she understood
she was to be restored to her previous employment.37 Ray then said,
sa The S & S machine puts fancy covers on cardboard boxes.
31 Periodically these machines are torn down for several days at a time for repair and
resetting as "runs" are completed
3i Nellie Friend , a time worker, was running an S & S machine on the morning of Decem-
ber 23, 1940 , when Lishman reported for work On January 13, 1941 , Marjorie Ziegler,
a learner , was running one of these machines when Lishman reported for work on that
date According to Lishman, it was the respondent's practice to lay machine operators
off according to senwuty during the slack season between Christmas and September
Lishnwn al.o I o tified that in the sunmiei of 1940 she had continued to operate her machine
while Jowott, who had opei ited an S & S machine longer than herself , was doing time
wort: for hei Consequeully it More was any senior itv practice it was not al aaye followed
Jon cit was apparentll engaged on a "inn" the morning of December 23. The evidence
shoes it AN as, custom.u 3 to al lo%% in employee who had a "i un" on a particular machine t o
finish her work before tking her off the machine, although this practice was not always
followed either Finally, these is evidence that an employee was shifted from her machine
to another if anothem machine was idle. but there is no evidence that girls having less
seniouty were displaced bN guls with longer experience iNhile the machine of a girl
with more seniority was torn down and the machine of a gut aaith less seniority was
operating a particular run.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"This is our mill; we are going to run it; you are going to work where
we put you." Lishman thereupon left the building, telling Ray that
she was not quitting. About 2 weeks later, after a conference between
Hillegass and Field Examiner House, Ray agreed to reinstate Lish-
man. She reported once more for work on January 13. At this time
Ray informed her that he was unable to put her back on her machine
immediately because work was slack.38 At that time the machine upon
which she had worked before the strike was torn down, but she was
told that she would be put back on her machine as soon as it was set up.
She did time work from January 13 to February 10. On January 13
and for a few days thereafter Jowett was also on time work. On the
afternoon of February 10, Lishman resumed the operation of her
machine.
At the time of the hearing, Lishman had been reinstated to her
former position by the respondent. On the morning of December 23,
Lishman walked out of the plant after working only 15 minutes. The
respondent contends that had she remained at work that day, she
would have been reinstated to her former position as an operator on
the S &S wrapping machine. There is no evidence that this is not so.3D
We find that Lishman by taking precipitate action and leaving the
plant failed to give the respondent a reasonable time to adjust its
production to the change necessitated by the reinstatement of the
strikers.
When Lishman was reinstated on January 13, Ray informed her
that he would not be able to put her back on her machine immediately,
stating that there was not enough work. In addition, at that. time
her machine was torn down. Lishman made no protest against this
arrangement. So far as the evidence shows Lishman was put back
to work on her machine as soon as such work became available. No
other employee operated her machine between January 13 and
February 10, 1941. At various times during the slack season other
machine operators, at least one with more seniority than Lishman,
were given time work while their machines were torn down or work
was not available.
In view of the foregoing, we find that the respondent has not
violated Section 8 (3) of the Act with respect to Ida M. Lishman.
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 respond-
18 Ray testified pith respect to Lishman ' s reinstatement on January 13 that the arrange-
ment between Hillegass and House was that Lishman should be restored to the operation
of her own machine.
19 See footnote 37, supra.
NORRISTOWN BOX COMPANY 919
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, trafTic' ,and commerce among the several States
and tend to lead and have led to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. .THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order the respondent to cease and desist
therefrom. Moreover, we shall order the respondent to take certain
affirmative action which we deem necessary to effectuate the policies
of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of, and contributed support to,
Norristown Box Company Employees Association. The effects and
consequences of the respondent's domination and interference con-
stitute obstacles to the free exercise by its_ employees of the rights
guaranteed in Section 7 of the Act. Accordingly, we shall order the
respondent to refuse to recognize the Association as the'representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, and other conditions of employment, and completely
disestablish the Association as such representative.
Since we have found that the respondent has discriminated in
regard to the hire and tenure of employment of Charles E. Morris,
we shall order that he be reinstated to his former or substantially
equivalent position without prejudice to his seniority and other rights
and privileges. We shall also order that the respondent make Morris
whole for any loss of pay he may have suffered by reason of the dis-
crimination against him by payment to him of a sum of money equal
to the amount he would normally have earned as wages from the
date of the discrimination to the date of the offer of reinstatement,"
less his net earnings 41 during said period. Since we have found that
the respondent has not discriminated against Ida M. Lishman in
regard to her hire and tenure of employment, we shall dismiss the
4° Counsel for the respondent stated at argument before the Board that Charles E. Morris
had been reinstated subsequent to the hearing in these proceedings
41 By "net earnings" is meant earning less expenses, such as for transportation, room,
and boas d, 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 unlawful
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 Sawmill 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 shall be considered as earnings . See Republic Steel Corporation v. National Labor
Relations Board, 311 U. S. 7.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint in so far as it alleges that the respondent has violated
Section 8 (3) of the Act with respect to Lishman.
Having found that the respondent has refused to bargain. col-
lectively with the Union as the representative of its employees with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment, we shall order that the respondent, upon request,
bargain with the Union as the exclusive representative of its employ-
ees within the appropriate unit.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Pulp, Sulphite and Paper Mill
Workers, Local 422, and Norristown Box Company Employees
Association are labor organizations, within the meaning of Section 2
(5) of the Act.
2. 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.
3. By dominating and interfering with the formation and admin-
istration of Norristown Box Company Employees Association and
contributing support to it, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (2)
of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Charles E. Morris, thereby discouraging membership in a
labor organization, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the
Act.
5. The production and maintenance employees of the respondent,
exclusive of management, office and supervisory employees, sales em-
ployees, and truck drivers, at all times material therein constituted
and now constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
6. International Brotherhood of Pulp, Sulphite and Paper Mill
Workers, Local 422, was on October 22, 1940, and at all times there-
after has been the exclusive representative of all the employees in
such unit for the purposes of collective bargaining, within the mean-
ing of Section 9 (a) of the Act.
7. By refusing to bargain collectively with International Brother-
hood of Pulp, Sulphite and Paper Mill Workers, Local 422, as the
exclusive representative of the employees in such unit, the respond-
NORRISTOWN BON COMPANY 921
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (5) 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.
9. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act, with respect to Ida M.
Lishman.
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 respond-
ent, Norristown Box Company , Norristown , Pennsylvania , its officers,
agents, successors and assigns , shall :
1; Cease and desist from :
(a) Dominating or interfering with the administration of Norris-
town Box Company Employees Association , or with the formation and
administration of any other labor organization of its employees, or
from contributing financial or other support to said Association or
to any other labor organization of its employees;
(b) Refusing to bargain collectively with , International Brother-
hood of Pulp , Sulphite and Paper Mill Workers, Local 422, as the
exclusive representative of its production and maintenance employ-
ees, exclusive of management, office and supervisory employees, sales
employees , and truck drivers;
(c) Discouraging membership in International Brotherhood of
Pulp, Sulphite and Paper Mill Workers, -- Local 422, or any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees, or by discriminating in any other
manner in regard to their hire and tenure of employment or any term
or condition of their employment;
(d) In any other manner interfering with, restraining , or coerc-
ing 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 and protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Refuse to recognize Norristown Box Company Employees As-
sociation as the representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disputes, wages, rates of pay, hours of employment or other condi-
tions of employment, and completely disestablished Norristown Box
Company Employees Association as such representative;
(b) Upon request, bargain collectively with International Brother-
hood of Pulp, Sulphite and Paper Mill Workers, Local 422, as the
exclusive representative of its production and maintenance employ-
ees, exclusive of management, office and supervisory employees, sales
employees, and truck drivers, in respect to rates of pay, wages, hours
of employment, and other conditions of employment;
(c) Offer to Charles E. Morris immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges;
(d) Make whole Charles E. Morris for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which he
normally would have earned as wages during the period from the
date of such discrimination to the date of the offer of reinstatement,
less his net earnings 42 during such period;
(e) Post immediately in conspicuous places in its plant at Norris-
town, Pennsylvania, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the'conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b),
(c), and (d) of this Order; (2) that the respondent will take the
affirmative action,set forth in paragraphs 2 (a), (b), (c), and (d)
of this Order; and (3) that the respondent's-employees are free to
become or remain members of International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, Local 422, and that the respond-
ent will not discriminate against any employee because of his mem-
bership or activity in that organization ;
(f) Notify the Regional Director for the Fourth Region in writ-
ing 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 be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act with respect to Ida M. Lishman.
42 See footnote 41, supra.