Ox- Wall Products Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1962

135 N.L.R.B. 840 (N.L.R.B. 1962)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees with reprisal if they do not withdraw from the Union, by promising and
awarding economic benefits to employees for their withdrawal from or failure to
join the Union, and by withdrawing privileges from employees who remained in
the Union, Respondent has interfered with, restrained , and coerced its employees
in the exercise of their rights guaranteed them by Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (a)( I) of the Act.
8. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Ox-Wall Products Manufacturing Co., Inc., Oxwall Tool Co.,
Ltd., Warren Products, Ltd. and Pioneer Merchandise Corp.
and International Association of Machinists , AFL-CIO. Case
No. 22-CA-891. February 5, 1961
DECISION AND ORDER
On October 25,1961, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) and (3) of the Act, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial, error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
-ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner except as modified herein.
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of Sec-
tion 8 (a) (1) of the Act by engaging in unlawful interrogation and
threats of economic reprisal against its employees if they joined or
assisted the Union.
2. While the matter is not free from doubt in view of the surround-
ing circumstances, we are constrained to agree with the Trial Ex-
aminer that the Respondent would have transferred its shipping, also
referred to as assembling and shipping, operations out of the State of
'The Respondent's request for oral argument is denied , as the record and briefs ade-
quately present the issues and positions of the parties.
135 NLRB No. 87.
OX-WALL PRODUCTS MANUFACTURING CO., INC., ETC. 541
New Jersey by April 30, 1961, at the latest, because of economic con-
siderations, i.e., the need of Ox-Wall Products for the additional space
which would have resulted from such transfer 'and the desire to avoid
a substantially increased tax liability which would have become effec-
tive after that date.2 However, we also find, as did the Trial Ex-
aminer, that the Respondent accelerated the transfer to New York
City to March 31, 1961, thereby departing from its planned date for
the move, because of the union activities of its employees and its mani-
fest union animus.
The Respondent does not deny that it had knowledge of the Union's
organizing drive which commenced in November 1960. Indeed, the
tentative and preliminary steps taken by the Respondent to find an-
other location for its shipping operations coincided with an active
campaign on the part of management and supervisory personnel to
discourage union activities among its employees. As part of that cam-
paign, the record establishes that the Respondent threatened its ship-
ping employees that it would move these operations out of New Jersey
if the employees continued to support the Union.
Thus, as the Trial Examiner found on the basis of credited evidence
that the Respondent's General Manager Joe Blum (1) told shipping
department employee Dickson that if "the nonsense [union activity at
the plant gate] don't stop with the boys outside [I] will pack up and
leave" and, when the move was being made, stated to Dickson, "so you
thought I was kidding about packing up and leaving;" and (2) re-
marked to shipping department employee Patterson that "before the
Union gets in here we'll move."' In addition, Supervisor Scaroli told
shipping department employee Liss that "if the Union got in, Joe
Blum would move his machines and everything, the warehouse, back
to New York," and indicated to employee Gilby that fooling around
with the Union" was causing the Respondent to move; Supervisor
Seihs advised shipping department employee Groff that Blum was
going to move out the shipping operations because of the "fellows out-
side the gate," but that after "everything is settled and cleaned up,"
there is "a possibility that he would move back," and told employee
LeBar that the move was only temporary "until this union matter
blows over and they would probably bring it back"; and, when em-
ployee Patterson indicated to Supervisor Vasco that he was prounion,
Vasco stated that "Joe [Blum] is seriously thinking of moving."
When viewed in the context in which Respondent's actual move to
New York City took place, the conclusion is virtually irresistible that the
2 The Respondent contended that another reason for the move was an alleged 1 cent
per 100 pounds increase in 1961 in shipping costs between New York City and Oxford,
New Jersey. Although not passed upon by the Trial Examiner, we find no merit to this
contention in light of the Respondent 's admission that as of March 1961 it was still
paying the old rate.
842 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was motivated by antiunion considerations in accelerating
.the transfer. Thus, the record shows that it had been seeking at least
25,000 square feet of space to accommodate the removal of its shipping
operations. Nevertheless, as part of a clearly makeshift arrangement,
.the Respondent entered into a lease on March 27, 1961, for considerably
less and admittedly inadequate space. Then, within the short- period
.of 3 days it immediately moved these operations to New York City,
despite the fact that it could have carried on is function in New Jersey
until April 30, 1961, without fear of adding to its tax liability, which
represented the only economic problem requiring resolution by a
'fixed date.
- It is apparent that the impetus for this precipitate move arose not
from any economic need, but from the fact that on March 15, 1961, the
Union advised the Respondent that it represented a majority of its
employees and requested recognition and bargaining; and the further
-fact that shortly thereafter the Board's Regional Office advised the
Respondent that the Union had petitioned for an election.
We are persuaded, in agreement with the Trial Examiner, on the
basis of the foregoing, and on the record as a whole, that by accelerat-
ing to March 31, 1961, the transfer of its shipping operations from
Oxford, New Jersey, to New York City, and by discharging almost all
of its shipping employees,' the Respondent engaged in unlawful dis-
criminatory conduct in violation of Section 8 (a) (3) and (1) of the
Act.4
3 Our dissenting colleague, in refusing to find that the Respondent discriminatorily
accelerated its move, asserts that the Respondent , for a period of 6 months , " had un-
successfully tried" to lease adequate space The record clearly shows , however, that the
Respondent did not make any serious effort to obtain space until late March 1961, immedi-
ately after it was informed of the Union 's demand for recognition and that a petition
had been filed.
' See Brown-Dunkin Company, Inc , 125 NLRB 1379 , 1386 , enfd 287 F 2d 17 (C.A
10). Two circuit court decisions , with which we respectfully disagree , NLRB. v Rapid
Bindery, Inc . & Frontier Bindery Corp , 293 F 2d 170 ( C.A 2), and NLRB v.
J M. Las8ing, et at, d/b/a Consumers Gasoline, 284 F 2d 781 ( C.A 6), cert denied 366
U S. 909, and which are cited by the Respondent , are inapposite and distinguishable.
Both cases hold that Section 8(a) (3) is not violated where the preponderant motive for
the moving or its acceleration is business necessity , f e, such action is based upon con-
sideration of existing economic factors indicating reasonably anticipated increased costs,
,including those costs which may result from imminent unionization of employees. Most
`significantly, in the present case the Respondent's only immediate economic problem
(avoiding a potentially larger tax liability ) was not one which would be worsened or
affected detrimentally by the advent of the Union so as to justify an acceleration of the
move by 1 month. Indeed , the Respondent did not assert that there was any economic
causal relationship between the move 1 month in advance of its planned date of April 30,
1961, and the Union 's appearance on the scene . On the contrary , that Respondent's pre-
ponderant , if not sole , motive for the acceleration was reprisal action against the ship-
ping employees because of their union activities is demonstrated not only by its pre-
-cipitate move, but also by the fact that it thereby created a new , additional operative
and economic problem for itself by leasing extremely inadequate quarters . See Brown-
Dunkin, supra , where the court, in finding that the employer violated the Act, held that
the Board had justifiably concluded that having certain work done through the use of
an independent contractor was more costly to the employer than it would have been if the
-employer had performed it with its own personnel.
OX-WALL PRODUCTS MANUFACTURING CO., INC., ETC. 843
ORDER
The Board hereby adopts the recommended Order of the Trial
Examiner.5
MEMBER LEEDOM, dissenting in part :
Like my colleagues, I agree with the Trial. Examiner that the Re-
spondent violated Section 8(a) (1) of the Act. I also agree that the
Respondent would have transferred its shipping operations out of the
State of New Jersey by April 30, 1961, at the latest, because of valid
economic considerations. I cannot, however, agree on this record that
the Respondent accelerated this transfer to March 31, 1961, for reasons
prohibited by the Act.'
There is no question but that Respondent honestly believed it would
be faced with a substantially increased tax liability if it did not com-
plete the transfer of its shipping operations by April 30, 1961, at the
latest. As found by the Trial Examiner, the Respondent began to
look for space in New York City to which to transfer these operations,
in September 1960, which was before the advent of union activities
at the plant. As appears from the record, the Respondent was unable
to find space adequate for its needs before the April 30 deadline. It
was, however, able to find and on March 27 to lease space which, al-
though inadequate, was capable of serving as a'temporary expedient
,until adequate space could be found; such space was ultimately found
in June.
As posed by the Trial Examiner, the question is "Why . . . did
Respondent accept less space than required and move before April 30,
1961 ?" The Trial Examiner and my colleagues answer "union ac-
tivity," relying on Respondent's contemporaneous interference, re-
-straint, and coercion, the timing of the move shortly after the Union's
demand for recognition and the speed with which it was consummated,
-and the inadequacy of the space obtained. Absent other factors, I
would agree with my colleagues' answer to the Trial Examiner's
question. There are, however, other factors in the case which in my
opinion preclude their answer.
Thus, contrary to what the Trial Examiner' s and my colleagues'
-reasoning seems to imply, the Respondent could not be expected to
wait until April 30 to lease space in New York City; for no prudent
businessman could be expected to wait until the very last minute to
make arrangements for action which had to be. taken by a certain
,date. In addition, for 6 months the Respondent had unsuccessfully
-tried to lease space adequate for its needs, and when it leased the in-
5 The notice attached to the Intermediate Report marked "Appendix A" Is hereby
amended by adding the following paragraph to the bottom of the notice • Employees may
-communicate directly with the Board's Regional Office, 614 National Newark Building,
"744 Broad Street, Newark 2, New Jersey, Telephone Number Market 4-6151, if they have
any question concerning this notice or compliance with its provisions.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adequate space on March 27, little more than a month remained before
the move had to be completed. Whether or not the efforts to lease
space before this time may properly be characterized as "serious,"
the fact remains that by then, time was running short. In these cir-
cumstances, I think it is more reasonable to infer that Respondent
took what it could get on March 27, to have assurance that it could
transfer the shipping operations out of New Jersey on or before
April 30, than to infer that it would not have signed the March 27
lease if it had not been for the advent of the Union. Once having
signed the lease, it was logical and reasonable for Respondent to com-
plete the move as rapidly as possible, so as to make the additional
space available for the expansion of its production operations, as it
had all along intended.
When all of these relevant factors are considered, I do not think
there is a preponderance of evidence to support the conclusion that
Respondent moved its shipping operations before April 30 for un-
lawful reasons. Respondent clearly took advantage of the move to
create the impression that it was caused by union activities, thereby
violating Section 8 (a) (1). But in the circumstances here Respond-
ent's 8 (a) (1) conduct, in my opinion, no more establishes that the
timing of the move was motivated by union activities than it estab-
lishes that the move itself was so motivated-which my colleagues
agree was not the case. I would, accordingly, dismiss the 8(a) (3)
allegations of the complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by International Association of Machinists , AFL-CIO, against
Ox-Wall Products Manufacturing Co., Inc., Oxwall Tool Co., Ltd., Warren Products,
Ltd., and Pioneer Merchandise Corp., collectively called herein Respondent, a
complaint was issued on May 26, 1961, alleging violations of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, herein called the Act. This
proceeding with all parties represented was heard before me, Albert P. Wheatley,
the duly designated Trial Examiner, in Easton , Pennsylvania , on August 15 and 16,
1961, and in Newark, New Jersey, on August 23, 24, and 25, 1961. After the close
of the hearing the General Counsel and Respondent filed briefs,' which I have
considered in the preparation of this report.
Upon the entire record and observations of witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESSES INVOLVED
Ox-Wall Products Manufacturing Co., Inc ., herein called Ox-Wall Products, a
New Jersey corporation having its principal place of business in Oxford, New
Jersey, engages in the manufacture and sale of handtools and related products and,
occasionally, packages such tools with foreign tools. In the course and conduct of
its business Ox-Wall Products annually causes to be manufactured , sold, and dis-
tributed products valued in excess of $50 ,000 of which, products valued in excess
of $50 ,000 are shipped from Oxford , New Jersey , in interstate commerce to points
and places in States of the United States other than New Jersey . Its principal
customers are the corporations named below.
'The briefs were received in due course on October 9, 1961.
OX-WALL PRODUCTS MANUFACTURING CO., INC., ETC. 845
The officers and directors of Ox-Wall Products are: Max Blum, president, direc-
tor; Sidney Blum, secretary and treasurer, director; Joseph Blum, acting treasurer;
Ida Blum, assistant secretary; Helene Blum,2 director.
Pioneer Merchandise Corp. controls 64.625 percent of the stock of Ox-Wall
Products, and the remaining stock is controlled by Helene and Ida Blum.
Pioneer Merchandise Corp., herein called Pioneer, a New York corporation hav-
ing its principal place of business in New York City, engages in the import business
and the wholesale distribution of mechanic's handtools, of either import origin,
domestic origin, or a combination of both. In the course and conduct of its business
Pioneer sells and distributes annually in interstate commerce products valued in
excess of $50,000.
The officers and directors of Pioneer are: Max Blum, president, director; Sidney
Blum, vice president, director; Helene Blum , treasurer, director; Ida Blum, secre-
tary, director; Samuel Slaff, assistant secretary and assistant treasurer, director.
The stockholders of Pioneer are: Max Blum, 50 percent; Sidney Blum, 45 per-
cent; Elaine and Melvin Merian,3 5 percent.
Oxwall Tool Co., Ltd., herein called Oxwall Tool, a New York corporation
having its principal place of business in New York City, imports and distributes both
foreign and domestic handtools. In the course and conduct of its business Oxwall
Tool sells and distributes annually in interstate commerce products valued in excess
of $50,000.
The officers and directors of Oxwall Tool are: Sidney Blum, president, secretary,
treasurer, director; Max Blum, vice president, director; Ida Blum, director.
Pioneer controls all of the stock of Oxwall Tool.
Warren Products, Ltd., herein called Warren, a New Jersey corporation having
its principal place of business in New York City, imports and distributes dogwear-
collars, harnesses, chains etc.-and in the course and conduct of its business ships,
annually, in interstate commerce products valued in excess of $50,000.
The officers and directors of Warren are: Max Blum, president, director; Sidney
Blum, treasurer, assistant secretary, director; Joseph Blum, secretary.
Pioneer controls all of the stock of Warren.
As noted above, these separate corporate entities constitute a family enterprise
in which for the most part Ox-Wall Products performs the needed manufacturing
and assembling functions and the other corporations handle the selling operations.
For some purposes, for example, payroll and record purposes, a centralized office is
maintained. Also the business affairs of these corporations are, at times, handled
very informally at family gatherings.
As indicated above and throughout the record, the business and intercorporate
relationships of the corporations are closely integrated and the corporations are
under common control. In this situation the corporations may be, as contended by
counsel for the General Counsel, considered as a single employer. See N.L.R.B. v.
National Shoes, Inc., 208 F. 2d 688, 691, and cases there cited.
On the basis of the foregoing findings of fact, I find and conclude that the afore-
mentioned corporations individually and collectively engage in commerce or a busi-
ness affecting commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES,
In 1958 assembly and shipping operations formerly performed in New York City
by Pioneer and Oxwall Tool were transferred to Ox-Wall Products, and there-
after, until March 31, 1961, performed by Ox-Wall Products in Oxford, New Jersey.
On or about March 31, 1961, Pioneer and Oxwall Tool again undertook to assemble
and ship their products from New York. When this occurred Ox-Wall Products laid
off the employees it had employed to handle these products, and the unfair labor
practices in this case center around this transfer of activity from one locality to
another and the discharges involved.
Beginning in September 1960 and continuing thereafter Respondent was on the
lookout for space in the New York City area where assembly and shipping func-
a Max, Sidney, and Joseph Blum are brothers and Ida ' is 'the wife of Max Blum and
Helene Is the wife of Sidney Blum.
3 Melvin Merian is Max Blum's son-in -law. ' '
846 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of Pioneer and Oxwall Tool could be adequately -performed thereby re-
linquishing to Ox-Wall Products the area then in use for these functions but sorely
needed by Ox-Wall Products for its own purposes (manufacturing). Before finding
the space sought the events involved in this case occurred.
During the latter part of September 1960 Respondent was advised by its tax con-
sultant that under the then recently enacted, or about to be enacted, statute, Re-
spondent's tax burden at Oxford,- New Jersey, would be substantially increased
unless some of the materials at this location could be moved out of State and
Respondent was advised to move the assembly and shipping functions of Pioneer and,
Oxwall Tool out of State before April 30, 1961 (the end of the fiscal year).
Respondent indicated an intention to comply with this recommendation and con-
tinued the search for adequate facilities in the New York City area.
During the last week in November 1960 the Union started an organizing campaign
among the production and maintenance workers of Ox-Wall Products which was
still in progress at the time of the hearing herein. During this campaign the Union,
inter alia, distributed leaflets at the plant gate of Ox-Wall Products. Between No-'
vember 1960 and July 1961 these leaflets were distributed on an average of one
a week. In July distribution was increased to two a week.
In anticipation of the transfer of assembling and shipping functions of Pioneer
and Oxwall Tool and the consequent release of space at Ox-Wall Products, Re-
spondent, in December 1960, placed an advertisement in the New York Times
newspaper seeking an industrial engineer. Approximately 16 replies to this adver-
tisement were received. One of the applicants, Sidney Foreman, was employed
and started working for Respondent on March 20, 1961.
During December 1960 Shipping Department Supervisor Vito Scaroli took ship-
ping department employee LeBar off to one side and cautioned him that unless he
stopped "pushing the Union" he was "going to be out."
In January 1961 Edward Hiduzka was told by Joseph Blum, general manager of
Ox-Wall Products, that he (Blum) was "shocked" to see that Hiduzka "was looking
for outside help" and that if he (Hiduzka) was "dissatisfied" he should "come and
see him [Blum]" that he (Hiduzka) "was part of the family and we tried to all
get along together." 4
On or about February 24, 1961, Joseph Blum, general manager of Ox-Wall Prod-
ucts, was requested to attend a meeting with the employees of the shipping depart-
ment at Oxford, New Jersey, which he did attend. At this meeting the employees
assembled sought pay increases and Blum told them that increases could not be
afforded at that time. When asked how long they would,have to wait before they
could get more, money Joe Blum answered "as long as these boys are outside the
gate (while the-Union was trying to organize the plant), Respondent was not in a
position to discuss pay increases.
Marvin Lance testified that in February 1961 Supervisor Vito Scaroli said to him
"if you boys don't stop fooling around, why, Mr. Blum will move the [shipping
room] operations back to the city." The record does not reveal the context in which
this statement was made and, consequently, the significance of the terms "fooling
around" are not apparent. This testimony by Lance is too fragmentary to warrant
a finding that thereby Respondent violated the Act or to shed light on Respondent's
motive in transferring the shipping department from one locality to another at
the time of the transfer and I am not giving any weight to it.
In February or March 1961 Mickey Vasco, a supervisor in the shipping depart-
ment,5 accused Lester Liss of being an "instigator" for the Union. When Liss replied
that all he had done was sign a union card and talk about the Union, Vasco said,
"Well, if you don't watch out, the same thing is going to happen to you here as
happened to you at the last place you worked." 6 At the last place he worked Liss was
laid off and told he was being laid off because of "lack of work."
About 1 or 11 months before March 31, 1961, Supervisor Vito Scaroli and Lester
Liss, a shipping department employee, discussed the advantages and disadvantages of
4 The above findings of fact are based upon the testimony of Hiduzka which is not
disputed
5 There is a dispute herein as to whether Vasco was a supervisory employee. As noted
above, I believe and find that he was a supervisor within the meaning of the Act. The
record reveals, inter aiua, that new employees were brought to Vasco and told that be
(Vasco)_ would tell them "what to do and how to do it," that he responsibly directed
other employees in the performance of, their duties, and that he directed the time em-
ployees "should come in" and when they should work overtime.
6 The findings of fact made above were based upon the testimony of Liss. Vasco did not
testify in this proceeding.
OX-WALL PRODUCTS MANUFACTURING CO., INC., ETC. 847
employees joining a union. After agreeing. that there were certain advantages
Scaroh remarked "but if the Union got in, Joe Blum would move his machines and
everything; the warehouse, back to New York He could get cheaper help down
there. He wouldn't have to cart the stuff up in the trucks." 7
About 2 weeks before March 31, 1961, Joe Blum approached shipping department
employee James Dickson and asked him how he felt about the Union. When Dick-
son indicated he "was for it" Joe Blum asked how the "boys felt about it." Dickson
replied he did not know and Joe Blum then told Dickson Respondent had gotten
"along without the Union for 20 years and they won't get in now. If the nonsense 8
don't stop with the boys outside [I] will pack up and leave." On another occasion'
Joe Blum referred to the aforementioned conversation by remarking to Dickson
as the shipping department employees were cleaning out the warehouse and loading
cases on the truck for shipment to New York, "so you thought I was kidding about
packing up and leaving." 9
At the time of the transfer of assembling and shipping operations from Oxford,
New Jersey, to the vicinity of New York City, Dickson, a longtime employee, was
given a choice (by Joe Blum) of taking another job at 31 cents per hour less than
he was then earning or "going down the river with the rest of the boys."
During February 1961 and before the meeting on February 24 where the employees
requested pay increases, Joe Blum interrogated Robert L. Groff as to how he "felt
about the Union" and whether he had signed a union card. A similar interrogation
was made by Blum of employee Arthur Gilby, Jr., in February or March 1961.10
During the early part of March 1961 George Seihs, a supervisor, was asked by
shipping department employee Robert Groff "what Mr. Blum was going to do about
moving the shipping department" and Seihs answered that Mr. Blum is going to move
it out because of the "fellows outside the gate" but that after "everything is settled
and cleared up" there is "a possibility that he would move back." 11
Sometime in late February or early March 1961 Joe Blum remarked to shipping
department employee Edward Patterson "before the Union gets in here well move." iz
Around the middle of March 1961 Supervisor Vasco took Patterson away from
his assigned work and interrogated him about his (Patterson's) "viewpoint on the
Union." When Patterson indicated he was prounion Vasco stated that "Joe [Blum]
is seriously thinking about moving." i3
During the latter part of February or early part of March 1961 Supervisor Vasco
engaged employee Bosco in a conversation about the Union and cautioned him to
keep his "nose clean," that he was going to go to school and would only "be working
here for a short while," and that he should keep his "nose clean and stay out of
the union business altogether if I [Bosco] wanted to stay here any longer." 14
In March 1961 Supervisor Scaroli indicated to employee Gilby that "fooling
around with the Union" was causing Respondent to move.15
On the day that Respondent transferred its assembling and shipping facilities
employee Leroy LeBar asked Supervisor George Seihs what was going to happen
to the shipping department, remarking that he heard it was moving out, and was told
JThe findings of fact made above are based upon the testimony of Liss Scaroli did
not testify in this proceeding.
8 At the meeting where the employees requested pay raises, Joe Blum referred to the
activity at the plant gate as nonsense.
9 Joe Bluin denied "he ever asked any employee in the plant whether he or she signed a
union card," denied be ever had a conversation with Dickson concerning the Union, denied
telling Dickson "we got along without the Union for 20 years and they won't get in now,"
denied telling Dickson "that if the nonsense don't stop with the boys outside" he would
"pack up and leave," and denied saying to Dickson "so you thought I was kidding about
packing up and leaving " In the light of the entire record and probabilities in the light
thereof and on the basis of observations of witnesses, I accept the testimony of Dickson
and find the facts to be as noted above.
10 Based upon the testimony of Groff and Gilby. Blum denied asking any employee
whether he or she signed a union card and denied he ever asked Groff if lie had signed
a card
"The findings of fact made above are based upon the testimony of Groff. Seihs did not
testify in this proceeding.
12 Based upon the testimony of Patterson . Blum denied that he ever had a conversation
with Patterson concerning the Union and denied that he ever told Patterson that before
the Union gets in "we will move."
13 Based upon the testimony of Patterson . Vasco did not testify. in this proceeding.
1* Based upon the testimony of Bosco . Vasco did not testify herein
25 Based on the testimony of Gilby . Vasco did not testify herein.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Seihs the move was only temporary "until this union matter blows over and they
would probably bring it back." 16
By letter dated March 15, 1961, the Union advised Respondent that a majority
of the production and maintenance employees employed at Oxford, New Jersey,
had authorized the Union to represent them for collective-bargaining purposes and
requested that Respondent recognize the Union as the bargaining agent and set a date
for negotiations.
On March 27, 1961, Respondent leased a loft in New York City which did not
even approach the square footage of floor space Respondent had been searching for,
or needed, to handle the assembling and shipping of merchandise of Pioneer and
Oxwall Tool and on March 31, 1961, Respondent transferred these functions from
Oxford, New Jersey, to New York City and discharged the employees who had been
performing this work at Oxford, New Jersey (the employees involved herein) 17
Conclusions
As noted above, the primary issue in this case concerns the transfer of activity
from one locality to another and the discharges resulting therefrom. Respondent
asserts the discharges were motivated by legitimate economic considerations, that it
planned to move by April 30, 1961, at the latest, and earlier if space became avail-
able; that space did become available earlier. However, the space which became
available was considerably less than Respondent required and had been seeking and
a makeshift arrangement was used between March 31 and June 1961, when adequate
space became available. Why then did Respondent accept less space than required
and move before April 30, 1961? The record reflects that it was because of the
union activity of its employees. This explanation is supported by the evidence of
antiunion attitude (the interrogations and threats previously mentioned) and by the
sequence of events-especially the timing of the transfer in relation to the Union's
demand for bargaining.
In the light of the foregoing I find and conclude that Respondent accelerated the
transfer because of the union activities of its employees, that the employees lost their
jobs on March 31, 1961, because they joined the Union, and that they would not
have lost their jobs on that date but for this fact.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor practices in violation of,
the Act, I recommend that Respondent, to effectuate the policies of the Act, cease
and desist therefrom and take the affirmative action hereinafter specified.
As the record demonstrates that Respondent would have transferred its shipping
operations by April 30, 1961, at the latest, for economic reasons and there is no
evidence that the employees involved herein would have been reassigned rather
than terminated I am not recommending that Respondent be required to reinstate
the employees discharged. However, to remedy the discrimination against the dis-
chargees and to dissipate the coercive effects of the discharges upon Respondent's
other employees it is recommended that Respondent make whole the dischargees for
any loss of wages they may have suffered as a result of the discriminations against
them. The backpay due shall run for the period from March 31 to April 30, 1961.
Since Respondent planned to transfer its assembling and shipping operations for
economic reasons by April 30 at the latest depending upon whether it found adequate
space prior to that date and since the record reveals that Respondent did not find the
required or needed space until after April 30 I have selected this date as the cutoff
date insofar as backpay is concerned.
ULTIMATE FINDINGS AND CONCLUSIONS
In summary, I find and conclude:
1. The evidence adduced in this proceeding satisfies the Board's requirements for
the assertion of jurisdiction herein.
16 Based upon the testimony of LeBar. Seibs did not testify herein.
17 The layoffs were on the basis of seniority. As noted above one longtime employee
(Dickson) was offered a job at a substantially lower rate of pay. He accepted the job.
There is no evidence that there were other job openings at that time. However, sub-
sequent to March 31 , 1961 , Respondent hired 22 female and 5 male workers. All but
one, a skilled machinist, were hired at rates substantially lower than the rates of, the
shipping clerks discharged . The discharged employees were not offered these jobs. In the
light of the request for higher pay than they were getting (made on February 24, 1961),
Respondent believed it a useless act to offer these new jobs to the discharged employees.
OX-WALL PRODUCTS MANUFACTURING CO., INC., ETC. 849
2. Ox-Wall Products Manufacturing Co., Inc., Oxwall Tool Co., Ltd., Warren
Products, Ltd., and Pioneer Merchandise Corp., constitute a single employer under
the Act.
3. International Association of Machinists, AFL-CIO, is a labor organization
within the meaning of the Act.
4. The evidence adduced establishes that Respondent interfered with, restrained,
or coerced employees in the exercise of the rights guaranteed in Section 7 of the Act
and thereby violated Section 8(a)(1) of the Act by interrogating employees con-
cerning their union activities and by threatening employees with reprisals because of
union activities.
5. The evidence adduced establishes that Respondent discriminatorily discharged
the following:
Charles Archoff Robert Groff Kenneth Miller
David Armbrecht Carl Hess Edward Patterson
Gerald Bertholf Allen Hiner Paul Rebner
Alfred Bosco Frank Hiner George Reeder
John Clawson Fred Kane Lawrence Richards
Andre DeMund Michael Kupchack John Romanowitch
Paul Farence Marvin Lance Stephen Romanowitch
Wayne Gero Leroy LeBar George Vasco
Arthur Gilby Lester Liss ,Anton Wachelka
and thereby engaged in unfair labor practices within the meaning of Section 8,(a) (1)
and (3) of the Act.
6. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record herein, it is recommended that Respondent Ox-Wall Products Manu-
facturing Co , Inc., Oxwall Tool Co., Ltd., Warren Products, Ltd., and Pioneer Mer-
chandise Corp., their officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act by interrogating employees concerning their
union or concerted activities or by threatening employees with reprisals because of
union or concerted activities.
(b) Discouraging membership in International Association of Machinists, AFL-
CIO, or in any other labor organization, by discriminatorily discharging employees
or by discriminating in any other manner with respect to their hire or tenure of
employment or any term or condition of employment.
(c) In any manner interfering with, restraining , or coercing employees in the
exercise of their right to self-organization , to form labor organizations, to join the
above-named labor organization, or any other labor organization , to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid and protection,
or to refrain from engaging in any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized by Section 8 (a) (3) of the Act,
as modified by the Labor -Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Make whole Charles Archoff, David Armbrecht, Michael Kupchack, Marvin
Lance, Gerald Bertholf, Alfred Bosco, John Clawson, Andre DeMund, Paul Farence,
Wayne Gero, Arthur Gilby, Robert Groff, Carl Hess, Allen Hiner, Frank Hiner,
Fred Kane, Leroy LeBar, Lester Liss, Kenneth Miller, Edward Patterson, Paul
Rebner, George Reeder, Lawrence Richards, John Romanowitch, Stephen Romano-
witch, George Vasco, and Antoni Wachelka for any losses they may have suffered
by reason of Respondent's discrimination against them, in the manner set forth above
in the section entitled "The Remedy." The loss of pay shall be computed in accord-
ance with the customary formula of the National Labor Relations Board.
(b) Preserve and, upon request, make available to the National Labor Relations
Board or its agents , for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due in accordance with the terms of this
Recommended Order.
634449-62-vol 135-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its place of business in Oxford, New Jersey, copies of the notice attached
hereto marked "Appendix A." 18 Copies of said notice, to be furnished by the Re-
gional Director for the Twenty-second Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-second Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps have
been taken to comply with the recommendations herein made.19
18 In the event that these Recommendations be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
19 In the event that these Recommendations be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith.".
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or corece employees in the exercise of
the rights guaranteed in Section 7 of the Act by interrogating employees con-
cerning their union or concerted activities or by threatening employees with
reprisals because of union or concerted activities.
WE WILL NOT discourage membership in International Association of Machin-
ists, AFL-CIO, or in any other labor organization of our employees, by dis-
charging, or in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in any
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such acitvities, except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL make whole the employees named below for any loss suffered as a
result of the terminations of their employment.
Charles Archoff Robert Groff Kenneth Miller
David Armbrecht Carl Hess Edward Patterson
Gerald Bertholf Allen Hiner Paul Rebner
Alfred Bosco Frank Hiner George Reeder
John Clawson Fred Kane Lawrence Richards
Andre DeMund Michael Kupchack John Romanowitch
Paul Farence Marvin Lance Stephen Romanowitch
Wayne Gero Leroy LeBar George Vasco
Arthur Gilby Lester Liss Antoni Wachelka
OX-WALL PRODUCTS MANUFACTURING CO., INC.,
OXWALL TOOL Co., LTD., WARREN PRODUCTS
LTD., AND PIONEER MERCHANDISE CORP.,
Employer.
Dated------------------- By---------------- --------------- (Ti---tl--e) ------(Representative )
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.