Pacific Moulded Products Co.

National Labor Relations Board - Board Decisions

Apr 6, 1948

76 N.L.R.B. 1140 (N.L.R.B. 1948)

In the Matter of VOLNEY S. ANDERSON AND MILDRED C. ANDERSON,
CO-PARTNERS DOING BUSINESS AS PACIFIC MOULDED PRODUCTS COMPANY
and UNITED RUBBER, CORK, LINOLEUM AND PL 1STJC WORKERS OF
AMERICA (CIO )
Case No. 21-C-0466.-Decided April 6,1948
Mr. James A. Cobey, for the Board.
Mr. Thomas J. Kelley, of Los Angeles, Calif., for the respondents.
DECISION
AND
ORDER
On January 29, 1947, Trial Examiner Irving Rogosin issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto.' Thereafter the respond-
ents filed exceptions to the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
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 respondents' exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following additions and modifi-
cations : 2
' Section 8 (1), 8 (2), 8 (3), and 8 (5) of the National Labor Relations Act, which the
Trial Examiner found were violated , are continued in Section 8 (a) (1), 8 (a) (2), 8 (a)
(3), and S (a) (5) of the Act as amended by the Labor Management Relations Act, 1947.
In adopting the Trial Examiner's 8 (1) findings, to which no exception was taken,
we rely only upon conduct, acts, and statements by Anderson, Foreman Frazier, Foreman
Regan, Office Manager Kerver, and Assistant Forelady Akerly, which comprise threats to
close the plant, discharge employees, or deprive employees of benefits if the Union were
organized, and inquiries regarding union membership and activities. In agreeing with the
Trial Examiner 's findings that certain employees were supervisors , we rely upon the defini-
tion of this term in Section 2 (11) of the Act, as amended. Our adoption of the Trial
Examiner's conclusions is in no degree based upon "the background of the respondent's
antipathy toward the unionization of its employees," or "the totality of [the respondent's]
conduct."
76 N. L. R. B., No. 164.
1140
PACIFIC MOULDED PRODUCTS COMPANY 1141
1. In their exceptions, the respondents take issue principally with
the Trial Examiner's findings with regard to the credibility of several
named witnesses. In view of the Trial Examiner's opportunity to
observe the demeanor of the witnesses as they testified, the careful
detail with which he spelled out the bases of his credibility findings,
and the evidence in the record which amply supports them, we hereby
adopt the Trial Examiner's credibility findings.
2. The Trial Examiner found, and we agree, that the respondents
dominated and interfered with the formation of, and contributed
support to, the Benefit Association and the Benevolent Association.3
Both Associations apparently became defunct immediately after they
were organized. Neither of them held any meetings, was granted
recognition by the respondents, or sought such recognition. If these
organizations were still in existence, we would require the respondents,
in view of the finding that they dominated the formation of both or-
galiizations, affirmatively to disestablish them, in accordance with
the rationale set forth in the Carpenter Steel case 4 The fact remains,
that although both Associations have apparently ceased to exist as
labor organizations among the respondents' employees, they have
never been disestablished, and they may therefore be regarded by
the employees as existing labor organizations. Furthermore, they
may at some time in the future be revived, as they were established,
for the purpose of obstructing the employees in the exercise of their
right to self-organization. We shall therefore order the respondents
to cease and desist from dominating and interfering with the forma-
tion of, or contributing support to, the Benefit Association or the
Benevolent Association, or any other labor organization of their em-
ployees, and, in the event that the Benefit Association or the Benevo-
lent Association is revived among the respondents' employees, to
withhold recognition from and disestablish such Associations or their
successors as the representatives of any of the respondents' employees
for the purposes of dealing with the respondents concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment.5
3. The Trial Examiner found, and we agree, that Joan Sontag was
discriminatory discharged on November 21, 1944, together with Myra
Jenkins and Alice Teach. He found further that when Sontag refused
an offer of reinstatement because the respondents would not agree
also to reinstate Jenkins, she assumed the status of a striker. The
8 We do not, however, accept the Trial Examiner's finding that organization of the Benevo-
lent Association began subsequent to the respondents' receipt of a letter from the Regional
Office dated January 31, 1945
* Matter of The Carpenter Steel Company, 766 N. L. R. B. 670.
1 Matter of Reynolds Corporation, 74 N. L. R. B. 1622.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner recommended that the respondents be required to
offer reinstatement to Sontag. Sontag, however, in view of her status
as an unfair labor practice striker, has the duty to request reinstate-
ment. Should Sontag, upon such request, be discriminatorily denied
reinstatement, the respondents would become liable for back pay for
the period from 5 days after the date of her application for rein-
statement to the date of the respondents' offer of reinstatement, less
her net earnings during such period.
4. The Trial Examiner concluded that the respondents had refused
to bargain collectively with the Union from November 3, 1944, to
April 10, 1946, in violation of Section 8 (5) of the Act. The Trial
Examiner did not recommend the issuance of an order based upon
this conclusion, on the ground that the respondents were negotiating
with the Union in apparent good-faith at the time of the hearing.
No exception was taken to his conclusion or recommendation on this
issue. The record does not reveal whether or not the negotiations
culminated in a written contract. In view of the respondents' exten-
sive violations of the Act, "manifesting a determination to defeat and
discourage self-organization by its employees, and indicating an
attitude of opposition to the fundamental purposes of the Act," as
found by the Trial Examiner, we are convinced that it will best effec-
tuate the policies of the Act to require that the respondents cease and
desist from such refusal to bargain.e
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the respondents , Volney S. Ander-
son and Mildred C. Anderson , co-partners doing business as Pacific
Moulded Products Company, Los Angeles , California , and their
agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Dominating and interfering with the formation of, or con-
tributing financial or other support to, Pacific Moulded Products
Benefit Association , or Pacific Moulded Products Benevolent Asso-
ciation, or any other labor organization of their employees;
(b) Discouraging membership in United Rubber, Cork , Linoleum
and Plastic Workers of America ( CIO), or in any other labor organi-
zation of their employees, by discharging or refusing to reinstate
any of their employees , or by discriminating in any other manner in
° The fact that coercive conduct has ceased does not prevent the Board from barring its
resumption . Pueblo Gas & Fuel Co . V. N. L R. B ., 118 F ( 2d) 304 ( C. C A. 10) ; Con-
'olulated Edison Co v. N. L. R B, 305 U. S. 197.
PACIFIC MOULDED PRODUCTS COMPANY 1143
regard to their hire or tenure of employment or any term or condition
of their employment;
(c) Refusing to bargain collectively with United Rubber, Cork,
Linoleum and Plastic Workers of America (CIO), as the exclusive
representative of all their production and maintenance employees,
exclusive of office employees, salesmen, and supervisors, with respect
to labor disputes, grievances, rates of pay, wages, hours of employ-
ment, or other terms or conditions of employment;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights to self-organization, to
form labor organizations, to join or assist United Rubber, Cork, Lino-
leum and Plastic Workers of America (CIO), or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose
of collective bargaining, or other mutual aid or protection, as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) In the event that Pacific Moulded Products Benefit Association
and Pacific Moulded Products Benevolent Association, or either of
them, are revived, withhold all recognition from and completely dis-
establish the afore-named organizations or their successors as the
representatives of any of their employees for the purpose of dealing
with the respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment;
(b) Offer to Helen Luella Howell, Andena Masoner, Myra H.
Jenkins, and Alice B. Teach immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make each of them
whole for any loss of pay that she may have suffered as a result of the
discrimination against her by payment to each of them of a sum of
money equal to that which she normally would have earned as wages
during the period from the date of the respondents' discrimination
against her to the date of the respondents' offer of reinstatement, less
her net earnings during said period;
(c) Make whole Ruth Putman for any loss of pay that she may
have suffered as a result of the discrimination against her by payment
to her of a suns of money equal to that which she normally would have
earned as wages during the period from the date of the respondents'
discrimination against her to July 13, 1946, the date on which she
testified that she did not desire reinstatement;
(d) Upon application, offer to Joan Sontag immediate and full
reinstatement to her former or a substantially equivalent position, with-
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out prejudice to her seniority or other rights and privileges, and make
her whole for any loss of pay she may suffer by reason of the respond-
ents' refusal, if any, to reinstate her, by payment to her of a sum of
money equal to the amount that she normally would have earned
as wages during the period from 5 days after the date of her ap-
plication for reinstatement to the date of the respondents' offer of
reinstatement, less her net earnings during said period;
(e) Post in conspicuous places throughout their plant at Los Ange-
les, California, copies of the notice attached hereto marked "Appendix
A." 7 Copies of said notice, to be furnished by the Regional Director
for the Twenty-first Region, shall, after being duly signed by the
respondents or their representative, be posted by the respondents im-
mediately upon receipt thereof and maintained by them for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the respondents to insure that said notices are not
altered, defaced, or covered by any other material;
(f) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the respondents have taken to comply herewith.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT dominate or interfere with the formation of any
labor organization, or contribute financial or other support to it.
SHOULD PACIFIC MOULDED PRODUCTS BENEFrr ASSOCIATION and
PACIFIC MOULDED PRODUCTS BENEVOLENT ASSOCIATION, or either
of them, be revived, we shall immediately disestablish them or
their successors as the representatives of any of our employees
for the purpose of dealing With us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other corn-
dition of employment, and we will not recognize the said Associa-
tions, or either of them, or any successor to the said Associations,
for any of the above purposes.
WE WILL OFFER TO HELEN LUELLA HOWELL, ANDENA MA-
SONER, MYRA H. JENKINS, and ALICE B. TEACH immediate and
I In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted , before the words "A Decision and Order" the words "Decree of the United
States Circuit Court of Appeals Enforcing."
. PACIFIC MOULDED PRODUCTS COMPANY 1145
fall reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make them and RUTH PUTMAN
whole for any loss of pay suffered as a result of our discrimination.
WE WILL OFFER, upon application, to JOAN SONTAG, immediate
and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights and
privileges previously enjoyed.
WE WILL NOT discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such
labor organization.
WE WILL NOT refuse to bargain collectively with UNITED RUB-
BER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA (CIO),
as the exclusive representative of all our production and mainte-
nance employees, exclusive of office employees, salesmen, and
supervisors with authority to hire, promote, discipline, discharge,
or otherwise effect changes in the status of employees, or effec-
tively recommend such action.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist UNITED RUBBER,
CoRII, LINOLEUM AND PLASTIC WORKERS OF AMERICA (CIO), or
any other organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
ALL OUR EMPLOYEES are free to become or remain members of
this union, or any other labor organization.
VOLNEY S. ANDERSON AND MILDRED C. ANDERSON,
CO-PARTNERS, DOING BUSINESS AS PACIFIC MOULDED
PRODUCTS COMPANY,
Employe?
By ----------------------------------------------------
(Representative ) ( Title)
Dated ------------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
319 James A. Co boy, for the Board
11fr Thomas J Kelley, of Los Angeles, Calif., for the respondents.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a fifth amended charge duly filed on June 13. 19411, by United Rubber,
Cork, Linoleum and Plastic Workers of America,' affiliated with the Congress
of Industrial Organizations, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by its Regional Director for the Twenty-
first Region (Los Angeles, California), issued its complaint on June 25, 1946,
against Volney S Anderson and Mildred C Audeison, co-partners doing business
as Pacific Moulded Products Company, of Los Angeles, California, herein jointly
and severally called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices within the meaning of Section
8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat 449, herein called the Act Copies of the complaint, accom-
panied by a copy of the fifth amended charge, and notice of hearing thereon were
duly served upon the respondent, the Union, Pacific Moulded Products Benefit
Association, and Pacific Moulded Products Benevolent Association, herein some-
times referred to as the Benefit Association and the Benevolent Association,
respectively, and as the Associations, jointly.
With respect to. the unfair labor practices, the complaint alleged. in sub-
stance, that the respondent: (1) since on or about November 1, 1944, by (a) in-
terrogating its employees regarding their union affiliation, (b) threatening to
discontinue its business in preference to dealing with the Union, (c) stating
to its employees that it would "clean house," and discontinue privileges granted
employees, (d) disparaging and discrediting the Union; (2) since November
1944, by encouraging, dominating, and interfering with the formation or ad-
ministration of Pacific Moulded Products Benefit Association, and contributing
support and assistance to said Association; and, since January and February
1945, by encouraging, dominating, and interfering with the formation or ad-
ministration of Pacific Moulded Products Benevolent Association, and con-
tributing support and assistance thereto; (3) since on or about November 15,
1944, by discharging certain named employees on divers dates,' and there-
after failing and refusing to reinstate them because of their affiliation with,
and activity in behalf of, the Union, thereby discriminating in regard to their
hire and tenure of employment, and discouraging membership in the Union,
(4) since on or about November 3, 1944, by failing and refusing to bargain
collectively with the Union, which had been duly designated, prior to Novem-
The original charge, filed on November 9, 1944, by United Rubber Weikers of Ameiii,a,
CIO, the predecessor of the Union herein, alleged merely violation of Section 8 (1) of the
Act Successive charges, filed on December 27, 1944, January 31, 1945, September 26, 1943
May 31, 1946, and June 13, 1946, upon which latter charge the complaint is based, alleged
violations of Section 8 (1), (2), (3), and (5).
Except as otherwise stated, or where the context otherwise requires, all ieferences to
the respondent hereinafter are intended to relate to the respondent Volney S Anderson.
Although, accoiding to Anderson, he conferred with 'Mildred C Anderson regaiding m.inage-
inent policies, and although she assisted with the bookkeeping and other office details,
Anderson exercised exclusive control of personnel problems and labor relations policies.
For convenience, the respondent company will generally be referred by the neuter pronoun.
The employees involved and the dates of their respective discharges are
November 15, 1944--------------------------- Helen Luella Howell
November 15, 1944--------------------------- Andena Masoner
November 21, 1914--------------------------- M}ra H Jenkins
November 21, 1944--------------------------- Alice B Teach
November 21, 1944__ ----------------- Joan Mae Sontag
March 24, 1945------------------------------ Ruth Putnian
PACIFIC MOULDED PRODUCTS COMPANY 1147
her 2, 1944, and again on April 12, 1946, by a majority of the respondent's
employees within an appropriate unit, comprising all production and mainte-
nance employees, exclusive of office employees, salesmen, and supervisory em-
ployees within the Board's customary definition, as the exclusive representative
of the employees in the said unit; and (5) by all the foregoing conduct, has
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, in violation of Section 8 (1), (2), (3),
and (5).
The respondent, in its verified answer dated July 1, 1946, generally denied
the allegations of the complaint, including those relating to the jurisdiction
of the Board, although admitting that it had caused products manufactured by
it to be transported in interstate commerce "in irregular and sporadic ship-
ments as distinguished from continuous shipments."
Pursuant to notice, a hearing was held at Los Angeles, California, on July 11,
12, 13, 15 and August 12, 13, and 14, 1946, before Irving Rogosin, the under-
signed Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel, and participated in
the hearing.' Full opportunity was afforded to all parties to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues. Motion of counsel for the Board made before the close of the
hearing to conform the complaint to the proof as to formal matters not
affecting the substantive issues, was granted, without objection, with respect
to all pleadings. Counsel for the Board and for the respondent, availed them-
selves of the opportunity afforded all parties to argue orally upon the record
Although all parties were also granted an opportunity to file briefs, only the
respondent has filed a brief, limited to the issue of jurisdiction.
Upon the entire, record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Volnev S Andeieon and Mildred C. Anderson, husband and wife, co-partners,
doing business under the firm name of Pacific Moulded Products Company, with
its principal place of business and office in Los Angeles, California,' have been
engaged, since 1x41, in processing moulded rubber products. During the calendar
year 1944, the respondent, as it sub-subcontractor, processed gaskets, diaphragms,
grominets, and miscellaneous rubber parts for a concern known as Kirkhill Rub-
ber Company, located within the State of California, under an arrangement
whereby the said Kiikhill Rubber Company furnished the respondent with molds
and raw materials owned by the United States Government, allocated by the
4 Although served with notice of hearing, complaint, and charges, by post-paid registered
mail, according to an affidavit of service received in evidence as part of the Board's formal
papers, no appearance was entered at the hearing in behalf of the Union, the Benefit Asso-
ciation, or the Benevolent Association. Counsel for the Board stated, however, at the coni-
niencement of the hearing, that the notices of the proceedings, addressed to both associa-
tions at the respondent's plant at 905 E. 59th Street, Los Angeles, California , had been
returned by the post office to. the sender with the notation, "Moved, no address " The
notices so returned were tendered for inspection by counsel for the Board, but were not
ofeled in evidence
r. Pi for to October 1944, the respondent's plant was located at 6620 McKinley Avenue
During a 6-weeks' period between October 1944 and sonietmie in December 1944, the
respondent removed its plant to 905 East 59th Street, where it has operated since.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Government to various aircraft manufacturing companies, as prime contractors,"
which, in turn, turnished them to the said Kirkhill Rnhbel Company. The re-
spondent, utilizing these molds and raw materials, molded the rubber parts in
accordance with directions of the said Kirkhill Rubber Company, delivering the
processed parts to the said Company Atter further inspection by the said Coln-
pany, which performed, whenever necessary, additional operations. such as fur-
ther fabrication, trunnling, remolding, and resplicing to conform to specifications
of the prime contractors, the parts were sold and delivered by Kirkhill Rubber
Company to the various aircraft manufacturers within the State of California, for
installation in military aircraft, manufactured under contract with the appro-
priate procurement agencies of the Government'
In addition to the foregoing, the respondent, during the periods involved,
manufactured, sold, and delivered to another concel a known as Kirkhill, inc 8
also located within the State of California, finished products, consisting of rubber
basin stoppers, round recessed bumpers, and bar bumpers, fabricated irour rayon
scrap cord supplied by Kirkhill Rubber Company, and rubber bath tub mats, door
stops, caster cups, suction sink stoppers, and similar products, manufactured
from black reclaim sludge, supplied by Xylos Rubber Company, located within
the State of California Tlre'products fabricated from rayon scrap cord were
subsequently inspected, assembled, packed, and shipped b.) Kirkhill, Inc, to its
customers.
During the calendar year 1944, the respondent used, in the operation of it s
business, raw materials and supplies valued at approximately $29,597, of which
not in excess of 5 percent was shipped to its plant from points outside the State
of California During the same period, the respondent sold and processed prod-
ucts valued at approximately $205,5ff6, of which appro.amately $141,731 repre-
sented charges for processing products for Kirkhill Rubber Company, and ap-
proximately $53,774 constituted products sold and delivered to Kirkhill, Inc
all within the State of California
6 The aircraft manufacturers , or prince contractors , refeued to are
Consolidated Vultee Aircraft Corporation Nortlnop Aurralt, Inc
Douglas Ancraft Company , Inc Rohr Aircraft Corporation
Lockheed Aircraft Corporation Timm An ca aft Corporation
North American Aviation, Inc,
7 Commencing January 1 , 1945, the arrangement between the respondent and Ku khiil
Rubber Company was altered so that the said Company thereafter sold the raw materials
to the respondent , which then molded them into rubber products , and sold them to Kukhilt
Rubber Company at a price including the cost of the taw materials , labor, and profit At
the same time, the respondent increased its trimming operations for the said Company until,
at the cut] of 6 weeks , the respondent was performing approximately 70 percent of the
trimming required upon products furnished the said Company . The respondent ' s operations
in behalf of the said Company during the first 6 months of 1946 were identical tcrth those
performed during 1945 , except that there was a substantial reduction in volume, and the
Company ceased to furnish products to Timnr Aircraft Corporation
8 Not to be confused with Kirkhill Rubber Company , a separate enterprise
9 The corresponding data for the year 1945 , and the first 8 months of 1946 , follow :
Value of raw
Percentage of
raw materials Total value Value of prod- Value of
materrsls.
,
etc , shipped of products processeductsfor Krrkhdl
products
sold toetc, used by to respondent sold and Rubber Com- Kirkhillrespondent from outside processed piny
,
Incthe State
1945_ __________________ $69,507 Not over 5%___ $242,014 $150, 391 $60,559
1946 (to 8/13) ----------- 48, 345 Not over 5%a___ 134, 976 10, 983 19,855
PACIFIC MOULDED PRODUCTS COMPANY 1149
The respondent, in denying jurisdiction, cofitends in its brief, as it did, in
effect, at the hearing, that its operations during 1944 and 1945, at least, were
essentially local in character, inasmuch as not in excess of 5 percent of its pur-
chases was shipped to its plant from points outside the State; in excess of 90
percent of its business comprised the treating, processing, manufacturing and
selling of products to two companies, situated within the State of California, one
of which was exclusively engaged in the production of goods for military use;
and all deliveries of goods processed or sold by the respondent were made to those
t ompanies within the State It urges, therefore, that, under these circumstances,
it was not, during the periods in question, engaged in commerce within the mean-
ing of the Act, and that it will not effectuate the purposes of the Act for the Board
to assume jurisdiction. The undersigned does not agree.
The respondent's contention, apparently based upon the "inflow" and "out-
flow" test as the determinant, ignores the principle that the Act "extends to the
protection of interstate commerce from interference or injury due to activities
that are wholly intrastate, and [that] an employer who is not engaged in inter-
state commerce, or who is not engaged in commerce at all, may be subject to the
jurisdiction of the Board," " if the activities exert "a substantial economic effect
on interstate commerce." "
The record here discloses that during 1944, 1945, and the first S months of 1916,
the respondent processed and fabricated substantial quantities of products for
Kirkhill Rubber Company for incorporation into units ultimately installed in
military aircraft destined. it may be assumed, for States other than the State
of California, if not for all parts of the world In addition, the respondent sold
and delivered, daring the sanie periods, substantial quantities of consumer prod-
ucts to Kirkhill, Inc, of which in excess of 50, 00, and 70 percent, respectively,
was sold and shipped by said Kirkhill, Inc., during these periods, to points
outside the State, and some 25 percent of which was sold and shipped by the
latter to customers supplying those products to `'war agencies." Moreover,
during the period from January 1, 1946, to August 13, 1946, approximately 30
percent of the respondent's finished products was shipped by it to points outside
the State of California.
It rs apparent, therefore, that interruption in the operations of the respondent
resulting from industrial strife during any of the periods involved herein would
burden or obstruct the free flow of commerce, and hence allect commerce. The
Footnote 9-Continued
Percentage of
products
shipped out-
side State by
respondent
1944-----------------------------------------------------
1945 -----------------------------------------------------
1946 (to 8/13) -----------------------------------------------
None
None
30%
Percentage of products
shipped by Kirkhill,
Inc , to customers
outside the State*
Approximately 50%
Approximately 60%
Approximately 70%
An amount estimated at in excess of 25 percent in value was sold by Kirkhill, Inc, , to customers
uipplynig those products to "war agencies
Tie findings in this section ate based upon the testimony of Anderson, vaiious exhibits, and stipulations
entered into by the parties at the heat wg
'ON. L R. B v The Niles Fire Brick Company, 124 F (2d) 366, 369 (C. C A. 6), cert.
den 316 U S 664 See also, N. L. R B. v Jones & Laughlin Steel Corp., 301 U S. 1, 38;
Santa Cruz Fruit Packing Co v. N. L R B., 303 U S 453; N L R B. v. Fasnblatt, 306
U. S 601 ; N. L. R B v. Bradford Dyeing Association, 310 U. S. 318.
it Polish, National Alliance v N. L R B , 136 F (2d) 175, 180 (C. C. A. 7) (quoting
lVicka) rl v. Fillburn, 317 U. S. 111), affirmed, 322 U. S. 643.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned therefore finds that, contrary to its contention, the respondent
was, at all times material herein, engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATIONS INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, affiliated' with
the Congress of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent.
Pacific Moulded Products Benefit Association, and Pacific Moulded Products
Benevolent Association, unaffiliated, were labor organizations admitting to mem-
bership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES 12
A. Interference, i esti aint , and coercion
1 Sequence of events
The organizational activities at the respondent's plant commenced on October
27, 1944, when a group of employees comprising Joan Sontag, Myra Jenkins,
Alice Teach, Ruth Putman, and Helen Luella Howell, among those alleged herein
to have been discriminatorily discharged, decided to organize. That evening,
Howell and Ella Burke went to union headquarters where they met Union Repre-
sentative Albert T. Lunceford and informed him of their intention. Lunceford
provided Howell with membership applications, and arrangements were made
for him to meet her near the respondent's new plant the following Monday,
October 30 Saturday morning, October 28, Howell distributed membership
applications among the female employees, during the rest period, and furnished
applications to employees Robert C. Sneddon and William C. Nichols for distribu-
tion among other employees. A total of 16 signed applications, including her
own, were obtained by Howell between October 2S and November 9, 1944, 8 of
them, including those of Sontag, Jenkins, Teach, Putman, Howell, and Andena
Masoner, on October 28.
The following Monday morning, Howell, accompanied by Burke, met Lunceford
and turned over to him signed membership applications, including some she had
received from Sneddon that day. On November 1, during the lunch period.
Howell, with Sontag, Jenkins, Burke, and llasoner, met Lunceford at a hatn-
burger stand across from the old plant. Soon afterward, they wet e joined by
Nichols and Sneddon Nichols informed Howell that Anderson had learned of the
Union, and had threatened to eliminate his overtime. Howell, Jenkins, Sontag,
and Masouer entered the hamburger stand where they had their lunch. Wesley
Korver, the respondent's office manager and assistant, came in shortly afterward.
As the women were about to leave, Burke remarked to Sontag, in Korver's
presence, that they would drive back to the plant with "Luella's [Howell's]
uncle," indicating Luncefoid's car, which was paiked outside. Korver there-
upon left for the plant.10
12 For the convenience of the reader, a chronological synopsis of the significant events
which tianspired is annexed hereto as "Appendix A"
13 According to Jenkins' undisputed testimony, while they were having lunch, Assistant
lorelady Akerley, who had first stopped at the office, rejoined them, and cautioned them
to be careful because "they" (obviously referring to the respondent and Korver) were
"watching [them] from the windows " Soon afterward, Korver airived at the hamburger
stand , and remained standing behind the women , who were seated on stools , ostensibly
waiting to be served He left, however, before the girls , without being served Neither
PACIFIC MOULDED PRODUCTS COMPANY 1151
Earlier, shortly before lie had left for lunch and met the group at the ham-
burger stand, William C. Nichols, leadman on-the small press line, remarked to
Foreman Owen A. Regan, in charge of hydraulic presses," that he, Nichols, was
going to meet the union organizer during the lunch period. Later, according
to Regan's uncontradieted and credited testimony, while Regan had occasion to
be in Anderson's office, lie observed Union Representative Lunceford across from
the plant talking to Nichols, Sneddon, and the female employees involved herein,
particularly Howell, who was seated in Lunceford's car. Regan directed Ander-
son's attention to them, identifying Lunceford as the union organizer. According
to Regan, Korver, who was also present in the office, mentioned that Lunceford
was Howell's uncle. Anderson commented that these employees could not accom-
plish very much, referring obviously to their union organizational activities.
Shortly afterward, as Nichols and Sneddon returned from lunch, Regan,
according to his own testimony, asked Nichols "if they had the union organized."
When Nichols tried to evade the question, Sneddon interjected, according to the
latter's testimony, "Hell, yes, you might as well tell the truth. There is no use
beating around the bush about it. We got the majority of them." Regan
remarked, according to Sneddon, "I'd join it myself if I could." 15
On November 2, the Union wrote the respondent, asserting its claim of nia-
jority, and demanded recognition. The respondent made no reply.
One evening at about this time, while the plant was still located at McKinley
Avenue, Anderson remarked to Nichols, according to the latter, that the em-
ployees would not "get very far; that the Union would not be able to obtain
any more money for the employees ; and that Anderson would close the plant
rather than deal with the Union." 16
During this same period, in a discussion with Sneddon, Anderson remarked,
"You fellows will all be satisfied in here pretty soon when you get a union in
here." Anderson observed, "they won't get in if I can help it." When Sneddon
Korver nor Akerley testified, nor was there any showing that they were unavailable at the
time of the hearing. Anderson conceded that Korver was a supervisory employee, testify-
ing that he was the only "real foreman" in the plant.
14 Anderson contended that Regan was a lead man, who worked with the hydraulic press
operators, and whose duties included developing methods for operating molds, performing
more difficult operations, loading and unloading presses, instructing employees in new
methods of operation, reporting results to Anderson, and checking on employees' inspec-
tion reports. Although Anderson denied that Regan had any supervisory authority,
(within the Board's usual definition), Regan, who voluntarily left the respondent's employ
on December 26, 1945, testified that, during the period in question, he was either a woik-
ing foreman or foreman, occupying the latter position for about a year, presumably the
last year of his employment, but was not certain when he was eventually appointed to
the position of foreman. Contrary to Anderson's testimony that Regan's rate of pay
was $1.10 per hour as compared with the basic hourly rate of $1 for ordinary pressmen,
Regan testified that he received $1.20 per hour between October 1944 and the spring of
1945. He further testified that he had been informed, in effect, by Anderson, in the
summer or late in 1944, that he-had authority to hire, discharge, and effect changes in
the status of employees under his supervision, Anderson remarking that he was giving
Regan "complete charge of the plant . . . even . . . more authority . . . than . . . [An-
derson's] own father," who was employed at the plant as a bookkeeper ; and that, although,
as Regan testified, he had had authority to make effective recommendations, he had had
no occasion to exercise such authority. Upon the basis of Regan's testimony, winch
the undersigned found altogether credible, and upon the entire record, the undersigned
concludes and finds that Regan was held out by the respondent, at all times material
herein, and reasonably regarded by the employees, as representing management.
13 These findings are based upon the combined, mutually corroborative testimony of
Nichols, Sneddon, and Regan himself, which the undeisigned credits. Regan was not
asked about, nor did he deny making, the statement last attributed to him above.
16 Although Anderson denied these statements, his denials are not credited.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquired why Anderson had not arrested the union activity before it had
progressed so far, Anderson replied that he had been unaware of it until he
received the union letter, obviously referring to the Union's letter asserting its
claim of majority and demanding recognition Anderson further remarked,
"You are screwing yourself and me too by getting the union in here.s17 According
to Sneddon, Anderson had also stated to him, during their discussions, that he
would eliminate overtime, and that in the event of any breakdown of machines
or similar occurrences, he would close the plant and send the employees home,
instead of attempting to provide work for them." Sneddon testified that, during
this period, Anderson's attitude changed toward him ; that until the Union began
to organize at the plant, Anderson had always been friendly and jovial. Conse-
gliently, on November 8, Sneddon asked for his certificate of availability, and
despite Anderson's request that he reconsider, left the respondent's employ.
According to Sneddon, Anderson had remarked to him that lie had belonged to
-a union at the Firestone plant, and that it had never done "anybody any good.'
Anderson advised Sneddon to think twice before joining any union ; that they
"take your money and don't help you any."
On or about November 4, 1944, according to the undisputed testimony of Myra
Jenkins, Assistant Forelady Akerley engaged her in conversation, and remarked,
"So you girls have joined the C I. O , have you?" Jenkins admitted that they
had, and asked how Akerley had discovered it. The latter replied, "A little bird
told nie." She then stated that Anderson had sent for Foreman Ira Frazier and
her the previous evening and had asked them whether they knew anything about
the union activity. Akerley told Jenkins that she had replied that she did not.
Jenkins then assured Akerley that she did not want her to think the employees
had been "talking behind [her] back," but that they had refrained from taking
17 These findings are based upon Sneddon 's credited testimony . Although Anderson gen-
erally denied the remarks attributed to him by Sneddon, he admitted that he had used a
remark similar to the one last quoted , but testified that he had used it in connection with
the deterioration in the quantity and quality of the work , rather than the Union , and that
he stated that if it persisted "it would be necessary to revamp the entire plant " In view
of Regan 's credible and uncontradicted testimony that , during the peimd in question , Ander-
son had asked him whether lie "knew who the ringleaders" of the Union were ; that Regan
told him that lie thought they were Sneddon and Nichols among the male employees, but
that he did not know who they were , among the women ; and that Andeison remarked to
hum that they were "all screwing themselves up," the undersigned credits the Sneddon ver-
sion of this episode . According to Nichols ' credited testimony , Sneddon related to him,
shortly after it occurred , the substance of his conversation with Anderson , quoting the
remark ascribed to Anderson.
iH Regan, who testified credibly and without contradiction that he overheard the "argu-
ment" between Anderson and Sneddon , substantially corroborated the latter ' s testimony
iegarding this incident. According to Regan, "Andy [Anderson] was pretty well fed up
[with Sneddon 's union activities ] [ and] was giving [ Sneddon] the low-down " Regan
testified that Anderson told Sneddon that he would not afford the employees any overtime ;
that whenever "anything was broken down, they would be laid of, [and] wouldn't be get-
ting any more favors " It will be recalled that, according to the undisputed testimony of
Helen Luella Howell, Nichols reported to her and Myra Jenkins, when they met at the
hamburger stand on November 1, that Anderson had learned about the Union, and had
threatened to eliminate his overtime
r" Although Anderson denied that he had ever been a member of a labor organization,
lie admitted that lie had formerly been employed by the Firestone company, where the
A F of L, C. I 0., and an independent union represented the employees Anderson testi-
fied, however , that, inasmuch as he had been employed in the engineering department which
was not organized, he was not required to, and did not, belong to any union. The under-
- r;ned has considered this testimony in arriving at the findings in the text above , but has
concluded that this testimony is insufficient to overcome the more positive testimony upon
which the finding is based. -
PACIFIC MOULDED PRODUCTS COMPANY 1153
her into their confidence because they had not wanted to "get [her] in Dutch."
Akerley expressed her appreciation, remarking that she could truthfully tell
Anderson that she had known nothing about the union activities in the plant
Akerley then inquired whether Jenkins thought the employees would matte
any progress with the Union, in view of an earlier unsuccessful attempt to
oiga size a union at the plant which Anderson had "squelched." Stating that
Anderson was "burned up," Akerley added that he had said he would "close his
damn doors before he would let the union come in there, and . . . do the work
himself " 20
Sometime before November 15, at the new plant, according to the undenied
testimony of Foreman Regan, Anderson told him that he believed that employee
Walter C. Humphreys might have been "a plant put in there by the union,
to get [it into I the plant, because Humphreys walked around all the time with a
[Union] button in his cap""
Regan lui•ther testified that, during the period the Union was attempting to
organize, `2 Anderson remarked to him that "he was going to clean house, if he
had to get down to employing just three or four men," mentioning Regan, Marion
Hart. I-Ligh Phillips, and possibly Fred Henning.'
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that, by the inquiries of, and statements to the various
employees, by Anderson, Foreman Regan, Assistant Forelady A1:erley, and Fore-
niai. Frazier, more fully set forth above, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
B Domination and ottetfetence witA foilnation of a labor oir/aiiization.
I Pacific A[oulded Products Benefit Association
Eatly in 'November 1914, following the Union's demand for recognition, Ander-
son invited Ala rion Hart, maintenance man at the respondent's plant, for a dr.ve
shortly before the close of work, during which Anderson brought up the subject of
unions; stated that the Union was attempting to organize the plant; and an-
nounced that lie disapproved of having a union come into the plant and "tell[ing]
him how to run the business." Anderson asked Hart his opinion, inquiring
whether he did not think "it would be better to get a union of [their] own." When
Hart agreed, Anderson requested him "to get a paper up." Hart told Anderson
that he did not know whom to approach to draft such a document. Anderson
stated that he would "look after it himself " In reply to an inquiry as to whether
Hart knew what the employees wanted, the latter mentioned vacations with pay
and seniority rights. Anderson remarked that he did not know whether the
"Labor Board" would approve these demands.
20 On or about the same day, Foreman Frazier stated to Ella Burke that Anderson had
said that he would not tolerate the Union or anyone else telling him how to run his
business.
2i Humphreys and his wife, a union member , were laid off on November 15, 1944, with
other union members , including Nichols and Howell and Masoner, the latter two allegedly
discriminatorily . There is no allegation that the others were laid off discrimmmatorily.
The record indicates that they quit on that date in preference to being laid off
22 It is not clear from Regan's testimony whether this remark occurred during the dis-
cussion about Humphreys , although the record suggests that it did . Regan testified that it
"could [have been] anywhere between November [ 19441 and March [ 19451 "
"As will hereinafter appear , each of the employees named was subsequently nominated
temporary officer or committee member in the Pacific Moulded Products Benevolent
Association.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Several days later, at the new plant, according to Harts testimony, after learn-
ing that the "new union papers" were lying on the desk in Anderson's outer office,
Hart obtained them, and had several copies prepared by his daughter. The papers
consisted of two typewritten documents, both undated. The first read :
PACIFIC MOULDED PRODUCTS COMPANY,
Los Angeles, Calif
National Labor Relations Board:
The undersigned desires by this statement, to request that any statement
previously made by the undersigned or any signature of the undersigned
indicating the consent of the undersigned to become a member of any union
organization as to working for Pacific Moulded Products Company is dis-
affirmed, rescinded and set aside on several grounds including what is believed
to have been incomplete or inaccurate representations made to the under-
signed. The undersigned believes at this time that his or her best interest
will be furthered as an employee of Pacific Moulded Products Company by
perfecting an arrangement to deal with matters of wages, hours and working
conditions through an independent organization made up exclusively of the
employees of that company.
The second document read :
The undersigned, as an employee of Pacific Moulded Products Company of
Los Angeles, California, wishes, in the best interest of the undersigned to form
an independent organization for the purposes or collective bargaining with
our employer as to matters of wages, hours and working conditions and any
other matters of interest and concern to the employees.
The signature of the undersigned to this statement is in testimony of the
fact that the undersigned desires to join in and become a member of the
organization under the name of Pacific Moulded Products Benefit Association
which organization is desired by the undersigned to be the exclusive agency
for the mentioned purposes.
On November 16 and 17,24 Hart circulated these documents aniong th<: eni-
lloyees during the lunch period on the day shift, and, accompanied by Louise
Rix, forelady of the night shift, among the employees as they nrined fox work
on that shift. According to Hart, Anderson had told rum that it would be best
if the employees were not aware that he had had anything to do with it in
presenting the documents to the employees for signature, Hart stated, however,
that the purpose was to keep the Union out of the plant, and initiate a union
of their own. Some 26 employees, including Putman, Teach, Jenkins and Sontag,
among those alleged herein to have been discriminatorily discharged, as well
as Forelady Rix and Hart, signed the withdrawal statement. Among some 31
employees who signed the document designating the Benefit Association, were
Putman, Sontag, Teach, and Jenkins, in addition to Hart, Forelady Rix, Foreman
Regan, and Assistant Forelady Akerley. Several days later, Hart delivered
the documents containing the signatures he had obtained up to that time to
Anderson in his office. Later, Hart returned, removed the papers from Ander-
son's desk, and, after procuring additional signatures, returned them. No fur-
ther action was taken regarding the organization of the Benefit Association ;
14 Hart was unable to fix the dates on which these papers were circulated beyond testi-
fying that it was during November . The finding as to the dates is based upon the testimony
of Putman, Teach, Jenkins, and Sontag.
PACIFIC MOULDED PRODUCTS COMPANY 1155
no meetings were held, officers elected, nor was any demand for bargaining
made.`
2 The redesignation of the Union
On November 21, 1944, following the discharge on November 15, of Howell,
Masoner, and others not herein involved, Howell called on Union Representative
Lunceford, and received a document which he had prepared, reaffirming the
Union's designation as collective bargaining representative.28 Lunceford drove
her to the respondent's new plant during the noon hour, where she obtained
Alice Teach's signature while the latter was having lunch at her work bench.
Teach in turn procured the signature of Putman, who was working alongside.
While Howell was standing behind these employees, Office Manager Korver ap-
proached them The document was lying on the work bench face up, in plain
sight As Korver walked around the bench behind Howell, Putman removed
the document and placed it in her lap. Korver then went to Ruth Akerley's
desk, some distance away, and made a telephone call. Howell left the docu-
ment with Putman and departed. As she left in Lunceford's car, Howell ob-
served Anderson drive up to the plant"
Soon afterward, Howell encountered Jenkins and told her about the "petition,"
and the incident at the plant involving Korver. Later that night, at about 11: 00
p in. Jenkins and Howell went to the new plant, where Howell obtained further
signatures to the petition of employees as they were leaving the swing shift
at 11:30. A total of 13 employees, including Teach, Putman, Jenkins, Howell,
Sontag, and Masoner signed this document. The majority of the signatures were
obtained by Teach ; the remainder by Howell and Jenkins. The following day,
Howell delivered the petition to Lunceford.
3 Pacific Moulded Products Benevolent Association
On January 31, 1945, the Regional Office notified the respondent of the filing
by the Unioh of an amended charge, alleging the formation by the respondent
The findings in the foregoing section are based upon Hart's undisputed and credited
testimony. Anderson was not interrogated about, nor did lie testify regarding the forma-
tion of this organization nor deny the statements and conduct ascribed to him by Hart
It gill be noted that the original unfair labor practice charge, and the petition for inves-
tigation and certification, Mere filed by the Union on November 9, 1944, a letter from the
Regional Director, dated November 11, 1944, mailed to the respondent, notifying it of the
filing of the charge and petition, and inviting the respondent and the Union to attend an
infoi mal joint conference at the Regional Office on November 17 ; and that the respondent,
on November 10, requested a postponement, in compliance with which the conference was
held on Noi ember 22
-6 The document read .
NovErirniia 21, 1944
AUTHORIZATION FOR REPRESENTATION UNDER THE
NATIONAL LABOR RELATIONS ACT
We, the undersigned employees of the Pacific Molded (sic) Products Company,
hereby authorize the United Rubber Workers of America, CIO, to represent us, and
in our behalf to negotiate and conclude all agreements as to hours of labor, wages,
and all other conditions of employment, revoking any prior designation.
Signed .
21 According to Howell and the other employees present, Korver passed close enough to
see the document. Although it is doubtful that he could have read it in the brief interval
between the time he first observed it and Putman's obvious attempt to conceal it, it is not
unlikely that, as suggested by the testimony of the witnesses involved, lie probably noticed
the caption, and observed Teach's signature, the first on the petition It is unnecessamy to
decide whether , as suggested , Anderson's arrival at the plant was in response to Korver's
call. It can scarcely be doubted that Korver reported to Anderson, when he arrived, what
had transpired.
781902-48-vol. 70-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on or about November 14, 1944, and subsequent domination of and interference
with the Benefit Association; and the discriminatory discharges of Howell,
Masoner, Jenkins, Sontag, and Teach on the d,ites already indicated
According to Foreman Regan's undisputed testimony, he observed this letter
on Anderson's desk at the new plant while he was in the latter's office Later,
Anderson showed Regan the letter, and the latter questioned him about the
discharges. Anderson denied to Regan that he had discharged the employees
mentioned. Asked by Regan whether he could "prove" that he had not dis-
charged them , Anderson remarked, "I think I can "
On this occasion, according to Regan, Anderson requested him to form a
"company union" in order to "keep the union in the plant and have one of
our oin," rather than an "outside" union Anderson suggested that Regan
prepare an agreement , circulate it for signature among the employees, and
then deliver it to him for approval by the Board. Regan did not act on this
suggestion immediately, but, upon further urging by Anderson, finally prepared
a rough draft. This lie had typed by in emplo}ee of another concern located
in the same building as the respondent, furnishing a copy to Anderson" Sev-
eral weeks later, Anderson provided Regan with six or eight blueprint copies,
including the original20 Regan circulated the original among both the female
and male employees, and obtained their signatures, during wo•kirg hours. After-
ward, he left it on the desk for employees on other shifts, and had one of the
blueprint copies posted on a wall at the tear of the plant. According to Regan,
when lie handed the statement to Forelady Rix, she took it into Anderson's
office, and returned, remarking that "it was 0. K."
The document, more elaborate than the one creating the Banetit Association,
provided that tine subscribing employees thereb} organized a union to be
known as Pacific Moulded Products Benevolent Association which "shall be
recorded as coming into existence on Tuesday January second nineteen hun-
dred forty five"; 30 that the charter ofiiceib and committee members, to remain
in office for a period of 30 days, until the election by the accredited members
of the union, of permanent officers for a teem of 1 year, were to consist of:
President, Hugh Phillips, Vice President, Marion Hart; Secretary, Owen A.
Regan, Treasurer, Alex Jackson; Chairman, Fred Henning: and Committee
Members: Ruth Akerley, Hugh Phillips, Owen A. Megan, Marion Hart, Fred
Henning.3° Other provisions included qualifications for eligibility for mem-
bership and office, monthly meetings at the plant, monthly dues of 25 cents,
and penalties for failure to attend meetings. The agreement also provided
means for handling grievances, and announced "articles" to be voted on at the
first meeting to be held on February 4. 194:5, dealing with paid vacations,
seniority, and compensation for reporting for work when not permitted to work.
"Although Regan testified that Anderson had stated to him, on the occasion when he
first suggested the formation of the company union, that he "would have nothing to do with
it," it is apparent from what has been related that Anderson did not carry out this intention.
=° _ ]though, according to Anderson, Regan was to have paid for the blueprinting, Ander-
son admitted that the bill was actually charged to, and later paid for by, the respondent.
$0 According to Regan ' s testimony , he "back -dated these papers [on his own initiative]
in older to have the union, or the company union started the first of the year, to fill out a
full year " It is clear , however, that this organization was formed some time after
January 31
31 According to Regan, Hart was the only person suggested by Anderson for any office,
Regan himself having made the selection of the remaining officers
PACIFIC MOULDED PRODUCTS COMPANY 1157
Approximately 18 to 24 employees , according to Regan's testimony , signed
the document ." Regan testified that the original , signed, typewritten copy
which he retained in his desk at the plant until lie left the respondent ' s employ,
was destroyed by him after he left.
During this period , according to Regan 's testimony , Anderson conferred with
him from time to time, "checked up and kept after [him], and asked [him]
how it was getting along."
No meetings of the Benevolent Association, however, were held, no dues
collected , and no further action taken thereafter. 'o
In September 1945, Marion Hart informed Regan that lie had been interviewed
by an agent of the Board, who wished to see Regan as well Anderson, present
at the time, remarked to Regale, "When the Labor Board come up to you say
whatever you want to them, because they can 't do anything." 3'
The undersigned therefore finds, upon tl e basis of the foregoing, and the en-
tire record , that the respondent. by instigating the formation of Pacific llonhled
Products Benefit Association, through eniplo>ee Marion Hart, by the par-
ticipation of supervisors in the formation of that organization in signing the
instrument creating it, and by subsequently instigating the formation of the Pa-
cific Moulded Products Benevolent Association through Foreman Owen Regan,
by permitting the document forming that organization to be circulated among
the employees during working hours: and by the participation therein by super-
visors, who signed the said document, by paying for blueprints of the document.
all as more fully related above, the respondent has dominated and interfered with
11 Regan testified that he handed the document to Ruth Akerley , with the remaik that
it had been approved by Anderson , and requested her to circulate it among the female
employees for signatuie , after which Regan would procure it
"Regan testified that the organization "just dropped dead " for lack of interest
31 The findings in this section are based upon Regan ' s credible testimony . The finding.
respecting Anderson ' s comment , in connection with the report by Hart that he had been
intern iewed by a Board agent , receives support in Hart ' s testimony, although the latter
testified that he had mentioned the incident to Anderson's father Anderson denied that
he had iequested Regan to oiganize a company union , and intimated that Regan 's testi-
mony in general was influenced by his chagrin at being denied a position of gi eater authority
in the plant which Regan had sought beginning in August 1944 According to Anderson,
despite the tact that Regan alas admittedly the best pressman at the plant, because of his
inability to "get along" with the men, Anderson permitted Regan to resign after more than
3 years of exemplary seivice Anderson admitted , however. that Regan had piesented him
ii nth a typewutten copy of the document Anderson testified that lie had communicated
ilith his attorney , who advised him to have copies made, and to furnish him with several,
to be presented at the conference scheduled to be held at the Regional Office several days
liter , that Andei son thereupon had blueprints made of the document, retained it copy for
his file , and turned several over to his attm ney, returning the original and a copy to
Regan Although the blueprint copy , offered in evidence , produced fioni the file of the
respondent 's attorney , bore the date , on the reverse side , January 29 , 1945 , stamped by
an ordinary rubber date stamp, establishing , according to the respondent , that the organ-
ization of this union occurred prior to the receipt by the respondent from the Regional Office
on January 31, 1945, of the notice of the filing of the amended charge, the undersigned
considers this evidence insufficient to overcome the more positive and convincing evidence
of the formation of the latter organization subsequent to January 31, as found above.
Anderson further testified that lie observed the copy of the document posted at the plant,
which lie subsequently removed upon the advice of his counsel , and that he refused Regan's
request for permission to use the rest room for. meetings of the Benevolent Association,
"unless it was authoiized by the NLRB" The undersigned has weighed and considered
Anderson ' s testimonv , including the contention that Regan ' s testimony was biased and
prejudiced , for the ieasons advanced by Anderson , and, upon the basis of the foregoing,
and on the appraisal of the credibility of the witnesses involved , as well as the sequence of
events which transpired , finds that the incidents transpired substantially as testified
by Regan.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the formation of labor organizations and contributed financial or other support
to them, in violation of Section 8 (2) of the Act, thereby interfeiing with, restrain-
ing, and coercing its employees tit the exercise of the rights guaranteed in
Section 7 thereof.
C. Disciintination in regard to hire of ten toe of employment
1. Howell and Masoner
Helen Luella Howell was employed by the respondent on October 22, 1944,
as a punch press operator, at an hourly rate of 60 cents the first week, and 80
cents thereafter. She worked for approximately 3 weeks, when she was dis-
charged on November 15, 1944. During her employment, she was under the
supervision of Foreman Ira Frazier, in charge of the punch press department, who,
in addition to his duties, which included setting up and repairing the punch
presses, assigned work to the female employees in the trimming department. On
occasions when her press broke down, or when she was not engaged in punch press
operations, she also performed inspection. Her work performance was satis-
factory, and she received no complaints regarding her work during her
employment.
Howell's activity in behalf of the Union, including her initiation of the or-
ganization at the plant, enrollment of members, meetings with Union Represent-
ative Lunceford, and other concerted activities with her fellow-employees, have
already been related. It is apparent, from Anderson's testimony, that he had
concluded, albeit erroneously, from information reaching him, that Howell was
Union Oiganizer Lunceford's niece.36
On about November 10, 1944, while Frazier was repairing it punch press near
Burke and Howell, he remarked, looking at Howell, that lie "wondered who
[had] started the union." Howell commented, "Yes, I wonder too."
Andena Masoner, also known as Alice Masoner, was employed by the respondent
on October 5, 1944, as a trimmer, at an hourly rate of 60 cents. Her rate was
increased to 65 cents the following week, and to 70 cents thereafter, which she
received until her employment was terminated, with Howell and others, on
November 15 Although Masoner had had no previous experience, after perform-
ing buffing operations the first day, she engaged in trimming, inspecting, build-
ing collars foi airplanes, and most of the other operations performed by the
female employees On the morning of her termination, she had been trans-
ferred from building collars to inspection, and Myra Jenkins was assigned to
building collars. According to Masoner, no complaints were made regarding
her work during her employment. While she was engaged in building collars,
35 According to an uncontroverted affidavit by Ella Burke, received in evidence by stipu-
lation of the parties in lieu of oral testimony, on November 6, Howell's day off, Foreman
Frazier questioned Burke about the Union, and asked Burke whether Lunceford was
Howell's uncle When Burke ridiculed the idea, and told him that "that was a blind,"
that they "wanted to get a union in . . and had to cover up," he agreed that he did not
think Lunceford was Howell's uncle, but added that Anderson had stated that he would
not have anyone working at his plant who was in any way related to a union representative,
and that Anderson had almost discharged her the preceding Saturday, until Frazier assured
him that he was certain that Lunceford was not Howell' s uncle. Although Frazier asked
Burke not to mention the subject to anyone, and she agreed, Burke telephoned Howell at
midnight that day, and related the entire conversation to Howell Howell corroborated
Burke regarding this telephone conversation. Frazier, who was no longer in the respondent's
employ at the time of the hearing, was not called to testify, nor was there any showing
that he was unavailable. This testimony, therefore , as well as that relating to other state-
ments and conduct attributed to Frazier, stands uncontradicted. Buike voluntarily left
the respondent's employ on or about November 11, 1944.
PACIFIC MOULDED PRODUCTS COMPANY 1159
she was under the supervision of, and received her assignments from, Foreman
Frazier ; otherwise, she was under the supervision of Assistant Forelady Akerley.
The extent of Masoner's participation in the union organizational activities,
including the signing of a membership application on October 28, has been de-
tailed elsewhere.
On Monday morning, November 0, according to the undisputed testimony of
Myra Jenkins, Foreman Frazier told her that Anderson was "burnt up" and that
he "had some surprises for us girls." Jenkins reported this to Howell and the
others involved. On Wednesday, November 15, prior to the termination of Howell,
Masoner, and others, Frazier notified Jenkins, who was building collars at the
time, that orders for collars had been canceled, and instructed her to discontinue
making them. He then informed her that there was to be a lay-off, and, al-
though he assured her that she would not be affected, named Howell, Masoner,
Ruby Williams, and Nellie A Humphreys, as among those who were to be laid off
the following Saturday. Interrupted by a telephone call, Frazier left, and, when
he returned, announced that the lay-off would occur that day instead. Frazier
expressed displeasure at the prospect of the lay-off, and asked Jenkins not to tell
the girls about it, assuring her that he had had nothing to do with it. Jenkins,
however, informed Howell and the others of the impending lay-offs.
According to Masoner's testimony, she heard rumors of the impending lay-off at
about 2:30 p. in. the salve day. Shortly afterward, she observed Frazier at the
time clock After he left, she went there to look for her time card, and, discover-
ing that it was missing, concluded that she was among those to be laid off.
Shortly before the end of the day shift at 3: 30, Foreman Frazier notified Howell
and Masoner, among other employees, that Anderson wanted to see them at his
office in the old print, and asked them if they had any means of getting there.
Howell asked Frazier "what it was all about," and he replied that "lie would rather
not say."' When she told him that she could not leave then because she would
miss her ride home with Joan Sontag, Frazier told her to wait. Soon Anderson
arrived and met with the group of employees, including Howell and Masoner,
Williams, Humphreys, her husband, Walter C. Humphreys, and William Nichols,
informed them that he had received a cancelation of orders, which he hoped he
would be able to straighten out in about 5 days, and told them that there would be
a lay-off of that duration.87 According to Masoner, Anderson stated that con-
tracts for building collars, upon which she had been working, had been can-
celed and that he could not do anything until those contracts were renewed.
Masoner thereupon asked Anderson if he was effecting these lay-offs in accord-
ance with seniority. When he replied that he was doing so to the best of his
knowledge, Masoner pointed out that she had greater seniority than another em-
plo^ ee named Martha Jackson, and protested against being laid off while the
other girl was retained. Anderson replied that he did not have time to consult
his records."
16 Later, following the lay-offs, according to Howell, Frazier i cturned and told her that
he did not want her to think that he had "had anything to do with it "
"Nellie A. Humphreys and Nichols who had also signed union membership applications,
and Walter C. Humphreys and Williams quit their employment in preference to accepting
the lay -off There was no allegation , nor was it contended at the hearing, that Nellie
Humphreys or Nichols had been discriminatorily discharged.
38 Anderson, in his testimony, admitted that Masoner had protested being laid off, while
Jackson, a hand trimmer, was being retained According to him, however, he told Masoner
that he was laying off the girls whose jobs were affected, and that he had no more need for
collar builders. That this was not true is evident from the fact that Jenkins, who had
only that morning replaced Masoner as a collar builder, was not laid off on that day.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Masoner asked Anderson how lie intended to notify them to retui n to work,
and he said he would telephone them When she told him that she had no
telephone , he said he would send her a post card Howell suggested that Ander-
son could call her , but he replied that he would just as soon send the card.
Howell returned to the plant several times aster her lay -< ff, but was unable
to i each Anderson When she later telephoned, she was told that Anderson was
not at the plant , and talked to his father , who informed her that she would
have to talk to Anderson . On November 25, she telephoned the plant from her
home, in the presence of Joan Sontag , in an effort to return to work She
reached Office Manager Korver , who intormed her there was no work available.
Shortly before Christmas . Howell and Dlasoner returned to the plant and
asked Anderson if he had any idea when they would he recalled to work. Ander-
son ignored Howell, but told Masoner that , although he had work available,
he did not have the pressmen he required due to the high priority upon such
personnel held by local aviation companies . and that lie therefore had no idea
when he would recall the employees laid off In the course of this interview,
Howell told Anderson that she required ivmlk in order to support her child who
was being boarded away from home Anderson, still ignoring Howell, told
Masoner that under the circumstances they had better look for another lob
According to Masoner , she of Howell inquired whether Anderson hail not
hired two girls in the interim Ile denied this, but informed them that he had
rehired two former employees who had been on leave of absence.
Dlasoner telephoned Anderson concerning her prospects for reemployment
numerous times thereafter , beginning about the fli st of January ; for a while,
as often its two or three times a week She received no satisfaction, being
shunted from Anderson to Office Manager Korver . 1'tnally . toward the end
of March , she abandoned expectation of being recalled to work.
Howell and 5!asoner received checks in final payment of their earnings on
November 15, in which was endorsed , ..Temporary layofl " They have not
since been reinstated."
--Respondents contentions, onclusions regarding the discharges of Howell and
Masoner
The respondent denies that any of the discharges involved hete.n were moti-
vated in whole or in part by union considerations With respect to Howell
and Masoner, the respondent contends that their discharges were necessitated
by curtailment of production, arising from unconfirmed runioi s, beginning about
October 15, 1944, of an armistice with Germany This resulted, according to
the respondent, in "stop" or "hold orders" from the Air Corps to various con-
tractors, ultimately reaching the respondent."
39 Unless otherwise indicated. the findings nn this section are geneially based upon the
combined, credible, and mutually corroborative testimony of Howell and Dlasoner
0 Although Andeison testified originally that this resulted in large scale cancelations,
his testimony elsewhere indicates that it actualiv iesuited only in temporary, unofficial
"hold orders," which merely necessitated a re-scheduling of pioduction In Decemhei 1044,
uioieover, according to Anderson ` Instead of lie wai being over it was blazing more furi-
ously than ever" Anderson contended however, that the upsiiige was not immediately
reflected in production because the respondent was usually "00 (lays ahead or 00 days
behind' in aircraft production, and "neyei did get back to what [the iespondentl termed
as noimel operations "
PACIFIC MOULDED PRODUCTS COMPANY 1161
That the respondent's production schedule was doubtless affected by the
vicissitudes of war may be taken as datum. It should be noted, however, that
the respondent's maximum pay roll of production employees, including leadmen
and supervisors, on all three shifts during the peak months between September
and December 1944, at no time exceeded 55. There was, moreover, at this time a
critical shortage of manpower, the disposition of which was subject to stringent
regulation by the War Manpower Commission. Furthermore, it is apparent from
Anderson's testimony that, if he did not actually state to Howell and Masoner
that their lay-off would be for about a 5-day period, he at least indicated that lie
expected to straighten matters out within 5 or 10 days In any event, it is clear
from the endorsement on their final pay checks that their lay-off was temporary.
Howell had had about 9 years' previous experience in the rubber industry,
including 2 years as a punch press operator, and the remainder, trimming,
inspecting, and packing. It seems unreasonable to believe that the respondent
would not have exerted every effort to retain her in its employ, despite its
contention that the regulations of the War Manpower Commission discouraged
hoarding manpower. The respondent admittedly held a high manpower priority
due to the critical nature of its production. In view of its comparatively small
complement of employees at the time, it is unlikely that it could not have retained
these employees had it so been disposed.
It was not disputed that Masoner had protested, at the time of her lay-off,
the retention of another employee with less seniority No satisfactory explana-
tion was offered for this action, nor for retaining two female employees who had
been hired within the preceding 2 weeks, one, only 2 days before these lay-offs,
although Anderson testified that they may have been former employees. The
respondent, however, made no effort to establish this at the hearing.
With respect to Masoner, it will be recalled she testified that Anderson had
stated she was being laid off because the contract for collars, upon which she
had been working, had been canceled According to her undisputed testimony,
however, Masoner had been transferred, the very morning of her lay-off, from
building collars to inspection Moreover, inasmuch as the collar-building opera-
tion was admittedly more difficult than others performed by female employees,
requiring less experience, it is singular that Anderson did not offer Masoner other
work, particularly in view of her experience and seniority. Furthermore, on
December 9, the respondent hired two additional female employees, one of whom
it contended was a former employee, and, in January 1945, at least seven or
eight more, in all job classifications, during a period when both Howell and
Masoner were repeatedly attempting to obtain reinstatement
It is significant that in December 1944, according to the undisputed testimony
of Ruth Putman, Assistant Forelady Akerley had told her that Anderson was
worried about "the work not getting out." Akerley remarked that she could not
see how Anderson expected to get the work out in view of the shortage of help.
When Putman agreed, Akerley volunteered, "The union is riding him very badly,
and he wants to have that out before he get,, more help."" Of further significance
is the fact that between January 4 and February 4, 1945, the respondent adver-
11 According to Putman 's undisputed testimony , in a conversation at about this time
with Helen Nave, the employee who later succeeded Sontag on the punch press, in the
presence of another female emplo3 ee, Tommie Deaton , Putman invited Nave to join the
Union . She declined , stating that she would not have any pant of it because when .11r.
Anderson hued her lie wouldn 't line anybody that had anything to do with the union."
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tised for female help," without making any effort to communicate with Howell
or Masoner , despite his assurance that he would do so when work became
available, and despite that they had themselves returned on a number of occasions
to apply for reinstatement 93 The explanation offered by Anderson that.he,failed
to communicate with these laid-off employees because jobs were so plentiful, and
manpower so scarce, that it was futile to attempt to recall employees who hall
been laid off, as he had discovered from casual attempts to do so, seems uniii-
pressive. At a time when employers were resorting to a wide variety of methods
for securing manpower , including , as (lid the respondent , advertising , even for
trainees , it seems logical to assume that the respondent would not only have
rehired experienced help, but would indeed have sought them out, quite apart
from any previous promise to do so. That, in all these circumstances, the
respondent failed to do so, must be accounted for on some extraneous ,round
The respondent's true motive must be determined in the light of the back-
ground of the respondent's antipathy toward the unionization of its employees ;
the conspicuous activity of Howell, and to a somewhat lesser degree, Masoner, in
the organizational activities; the identification by the respondent of Howell
with the Union organizer; Anderson's threat made to Foreman Regan to "clean
house, if he had to get down to employing just three or four men" ; his instigation
of the formation of two successive company unions; the disregard of the prin-
ciple of seniority, which the respondent conceded lie had considered a factor,
in laying off at least one of these employees ; the failure to i einstate them,
notwithstanding his assurance that he would do so when work became available,
and particularly at a time when the respondent was advertising jobs for which
these employees were suited, or could readily have been adapted 44 The under-
signed is unable to conclude, in view of the foregoing, that Howell and Masoner
were laid off, and subsequently refused reinstatement, despite their several
applications, for the reasons assigned by the respondent, but finds and concludes,
on the contrary, that the respondent utilized the reasons advanced as a pretext,
and laid off and afterwards refused to reinstate them altogether or in substantial
jart, because of their union membership and activity, thereby discriminating in
regard to their hire and tenure of employment, discouraging membership in a
labor organization, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed under Section 7 of the Act.
"- The respondent published in a periodical known as the Southwest Wave during this
period for some 10 insertions the following advertisement.
RUBBER WORKERS
Experienced & Trainees
WOMEN TRIMMERS
WOMEN BUFFERS
First & Second Shifts
Post-War Future
PACIFIC MOULDED PRODUCTS
905 E 59 St.
S car
4s Anderson testified that most of these employees were hired on the second shift, on
which, according to him , Howell had stated at the time she was hired, she was unwilling
to work Apart from her denial that she had so stated at the time , which the under-
signed credits , and the fact that Anderson did not offer her work on the second shift
at the time she was laid off, Anderson admitted that at least one employee was subsequently
hired on the first shift . Moreover , according to Anderson , he was expanding the second
shift at the time to relieve the congestion on the first shift
44 According to Anderson , the false rumors of an armistice between October and Decem-
ber 1944, occasioned a realignment of production schedules , necessitating the training of
personnel in the fabrication of new parts.
PACIFIC MOULDED PRODUCTS COMPANY 1163
2. Jenkins , Teach , and Sontag 45
Myra H. Jenkins was first employed by the respondent early in June 1944, as
an inspector on the day shift at a starting rate of 60 cents an hour the first week,
65 the second , and 70 cents the third . She had no previous experience. In
addition to her principal duties as inspector , she performed weighing , trimming,
and counting operations under the general supervision of Assistant Forelady
Akerley. She left voluntarily on September 9, 1944, because of a change in the
hours of work . On October 5, 1944, she returned to work at Anderson 's request,
and was permitted to report to work at 7 :30 a. m., although the regular starting
time was then 7 :00 a in, Anderson remarking that she probably would not
wish to work under Forelady Louise Rix.AO
Jenkins was rehired , at 60 cents per hour, primarily as an inspector , although
her duties also included weighing , trimming , building collars , and buffing. Dur-
ing the entire period of her employment , she received no complaints regarding
her work btft , on the contrary , was complimented by both Frazier and Akerley, and
in connection with building collars, by Anderson himself
It will be recalled that on the morning of November 15, prior to the lay-offs,
Masoner, who had been building collars , was assigned to inspection , and Jenkins,
to building collars. Later , Jenkins was informed by Foreman Frazier of the
impending lay-offs , and of the "cancellation" of orders for collars . Despite the
fact that she had only that morning been transferred to that operation , she was
informed in reply to her inquiry , that she would not be affected by the lay-offs,
as she was "too good a worker." 'T
Jenkins further testified that later that day she remarked to Assistant Fore-
lady Akerley, "I thought sure I would get it." Akerley replied that she would
not hear of her leaving because she could be used on any job, and never "griped."
Jenkins attributed to Akerley a similar remaik concerning Teach.
On Saturday , November 18, while Anderson was distributing the pay checks,
he notified Jenkins that Louise Rix was to assume the position of forelady on
the day shift, begin n ing the following Monday. Jenkins asked if that meant
that he wanted her to quit . Anderson replied , according to her, "Na, but you do
as you please ," although he remarked that she and Rix would "have to get
along" Jenkins assured him that she would cooperate , but insisted that she
would not be "rode ." Anderson stated that he did not think Rix would try to
do so Monday , Rix assumed her duties as forelady on the day shift as planned
Jenk us ' encounter with Howell and Lnncefoid the next day, November 21,
liming which Howell told her of the dociunent redesignating the Union , which
she had left with Teach for her to sign, and Howell 's report of the incident at
the plant when Korver observed the paper , have aheady been related. That
afternoon , during the rest period, Akerlev told Jenkeis that, when Anderson had
returned to the plant following the incident iii olving Korver , lie had asked
Akerley whether she had seen any papers circulated at the plant . Later that
day, Jenkins signed the petition redesnguating the Union
95 All three had signed union membership applications on October 28, 1944, dining non-
working time, at the instance of Helen Howell ,
46 The hours of work on the day shaft had been changed from 8 00 a in to 4 30 p in
to 7: 00 a in. to 3 : 30 V. in. At this time, Rix « as foi elady on the second shift which ran
from 3 • 30 p. in. to about midnight . It is apparent that Anderson was aware that some
incompatibility existed between Rix and Jenkins
47 According to Jenkins' credible and undisputed testimony, Fi azier had made a similar
remark regarding Teach.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alice Bertha Teach was employed by the respondent on about October 1, 1944,
as a buffer and trimmer , at an hourly rate of 60 cents, and, at the time of her
termination on November 21. 1944, was receiving 70 cents. She had had no
experience prior to her employment with the respondent. She received no com-
plaints regarding her work, and was complimented by both Frazier and Akerley.
Her activity with the other employees in organizing the Union has already been
related. It was she. in fact, who had suggested the organization of a union at
the plant. It will be recalled that she was the first to sign the document
redesignating the Union, on the day she was later discharged and, as has already
been stated, was involved in the incident in which Putman attempted to con-
ceal the document from Office Manager Korver
Joann Sontag was employed as a punch press operator on March 2, 1944, at an
hourly rate of 80 cents. Her duties, in addition, included inspecting, hand
buffing, trimming, weighing, and stock cutting, in all of which she had had pre-
vious experience Like Jenkins and Teach, her employment was terminated
on November 21, 1944. Her work performance was satisfactory, and she had
been commended by Foreman Frazier, as well as Anderson himself upon her
production."
The participation by these employees in the union organizational activities, in
concert with Howell and others, has already been discussed.
Early in November, Sontag asked Foreman Frazier whether Anderson had
mentioned anything about a letter 4' He replied in the negative, and then re-
marked, "You joined the C I. 0, didn't you " When Sontag admitted that she had.
Frazier observed, "When I don't like a job I quit " She retorted, "I like my job "
About a week later, Mary Regan, a punch press operator, and wife of Foreman
Owen Regan, asked Sontag, in the presence of Alice Teach, why she, Regan, hill
not been invited to join the Union. Sontag informed her that it was because
she was the wife of a foreman, and the employees did not trust her
On the morning of November 20, Sontag's punch pz ess broke down Mary
Regan was operating the punch press adjacent to Sontag Forelady Rix, whn
had succeeded Frazier, requested Sontag to perform some bufhng Sontag refused
Shortly afterward, Sontag asked Assistant Forelady Akerley whether she might
do some inspecting Akerley agreed, and Sontag continued inspecting until her
machine was repaired At about 1: 00 p in., Anderson approached Sontag at
her work, while Regan was still operating the other of the two punch presses,
and told her that when her press broke down, she was to perform such work
as Rix required of her. Sontag replied that she had been employed as a punch
press operator, and that, since she had the greatest seniority among the em-
ployees, she thought she was entitled to do the "punching." Anderson said that
he did not view it that way.
Shortly before 3: 00 o'clock, on the afternoon of November 21, Teach, who had
run out of work, was assigned by Forelady Rix to assist Ruth Putman in inspect-
ing. Soon Anderson sent for Teach, and told her that, inasmuch as it was
apparent that she was dissatisfied with her job, and was continually complain-
ing and "griping," she ought to resign Teach denied that she had been dissat-
isfied or that she had complained about her job, but admitted that she had com-
48 Anderson admitted that, although she did "a lot of fooling around," a fact which
Sontag acknowledged, her production was higher than that of any of the other employees.
According to Sontag ' s undisputed ' testimony , Frazier had remarked to her at one time
that Anderson had suggested that she pretend to be occupied, inasmuch as she completed
her work sooner than other employees despite her "fooling around."
4P Sontag was obviously referring to the letter from the Union demanding recognition,
and it is apparent from the conversation which followed that Frazier so understood it.
PACIFIC MOULDED PRODUCTS COMPANY 1165
hlained about the cold, and the condition of the women's rest room at the plant.
Anderson insisted that lie had heard from various sources that she was con-
stantly complaining. Teach retorted that it "was a damn lie," and complained
to Putman that Anderson wanted her to quit. Teach also called upon Jenkins,
who confirmed that all the female employees had been complaining about the
cold and the condition of the rest room
During the discussion, Anderson took Jenkins and Sontag to task for their
inability to "get along with" Forelady Rix, and remarked that they had better
look for another job. Jenkins reminded him of their conversation regarding Rix
the preceding Saturday, and remarked that she could not understand Anderson's
attitude, inasmuch as there had been no conflict between Rix and her during the
past 2 days, since Rix's assignment to the first shift. Sontag, hearing her name
mentioned, joined the group as Jenkins, according to her own admission, remarked,
"Well, Jesus Christ couldn't get along with her,"" adding that Rix had made
no effort to get along with the employees. Anderson replied that Rix was not
"supposed to [try to get along with the employees]"; that it was their duty to
get along with her. Sontag challenged Anderson to cite an instance of their
failure to get along with Rix He ignored this, and complained instead of the
employees' lack of cooperation while the plant was being moved They denied
that they had failed to cooperate.
Anderson had announced, during the discussion, that certain orders had been
canceled, and, at first, stated that there would be a 5-day lay-off According to
Sontag, Anderson had stated that there would be a "100 percent reduction" in
business, and that he would be obliged to release the three employees. Later
in the discussion, lie informed her that she and Jenkins could return "in a couple
of weeks."
Finally, however, after instructing Korver to procure their time cards, and
to prepare their checks and certificates of availability, Anderson directed the
women to go to the old plant to obtain their checks and availability slips The
three women left, but when they reached the old plant; they were informed by
Anderson's father that if they wanted their checks and availability certificates
the} would have to sign a prepared statement of resignation, which he submitted
They emphatically refused, insisting that they had not resigned, but had been
discharged. When handed her certificate of availability with the blank resigna-
tion, Teach discarded the resignation, but took her availability slip, left momen-
tarily, and delivered it to Ruth Putman, who had accompanied them to the plant
and had remained outside in the car. When Teach returned to the office, Ander-
son's father telephoned him that the girls had refused to sign the resignations
While talking to Anderson, his father wrote down the names of Jenkins and
Teach, and then handed the phone to Sontag In the telephone conversation,
Anderson told her that he would not give her a certificate of availability, because
lie had changed his mind, and was going to give her a 5-clay lay-off instead
Sontag stated that she would apply to the USES for her availability certificate,
and asked him whether lie would inform that agency that she might have it. He
refused, but offered her a job. When Sontag asked whether he would reinstate
Jenkins as well, he emphatically refused
All three women thereupon received their checks, but only Jenkins and Teach
were given their availability slips
50 According to Anderson , Jenkins punctuated this remark with a disparaging epithet
about Rix.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following Saturday, November 25, Sontag telephoned the plant and asked
Office Manager Korver for her certificate of availability.' She did not succeed
in obtaining it on this or subsequent attempts. On November 27, when she
appealed to Anderson, he refused to discuss it, dismissing it as a trifling matter
as far as lie was concerned. Sontag told him that it was impoi taut to her because
she needed a job. Anderson was adamant. In reply to her inquiry as to the rea-
son the three women had been discharged, Anderson told her that he had dis-
charged Teach and Jenkins because they "bad gotten snotty wt ith him and used
profane language."
None of the three women made any effort to return to work, nor have they
been offered reinstatement.
Respondent's contentions; conclusions regarding the discharges of Jenkins, Teach,
and Sontag
With respect to these employees, the respondent makes no contention that
their discharges were in any way related to curtailment or change in production,
despite the fact that the situation remained unchanged since the "lay-off" of
Howell and Masoner 6 days earlier, allegedly for reasons of curtailment in
production The sole ground for their discharges, except as to Sontag, whom
the respondent denied he discharged, is that it was a matter of discipline
Anderson also testified that Teach had been absent from time to time without
excuse, and that when it was reported to him by both Foreman Frazier and
Assistant Forelady Akerley that Teach was not "working out" on various jobs
to which she had been assigned, he checked her record, and found that she had
been excessively absent It was, according to him, this which had prompted
him "to find out why [she] couldn't do the work right." Teach, Anderson testi-
fied, thereupon "began griping about the work we gave her " When Anderson
informed her that if she could not improve her work and attendance, he would
be obliged to replace her, Teach "became infuriated," called Putman and Jenkins,
and protested that Anderson intended to discharge her According to Ander-
son, he remarked, "I didn't say I was going to fire you, but if you keep it up
I will."
Anderson's version of the events which followed, including the discussion
regarding Rix, did not differ materially from that of the employees involved,
as ielated above According to Anderson, when Rix's name was mentioned
by Teach, Jenkins, who with Sontag had joined the group. made the remark
about Rix already related, and proceeded to berate her. Anderson told her
to desist and return to her work. Sontag joined in the argument, seconding
Jenkins. Thereupon Anderson reinaiked, "Well, if you feel that way about the
torelady, why don't you get out of here and leave her alone . . .?" Then, to
Sontag and Jenkins, "You are not helping out, either. In the first place, neither
one of you were called into this discussion. I came over here to talk to Alice
Teach and not the rest of you " Teach, according to Anderson, stated that she
could not work under those conditions, and threatened to quit. When Jenkins
and Sontag made the same threat, Anderson announced, "None of you have to
quit, you are fired and fired right now," and told them to go to the other office to
obtain their pay. Although Anderson testified at one point that lie had discharged
bi On this occasion, Sontag also inquired whether Howell , who had been laid off on
November 15 , had been recalled to work. She was told that she had not.
PACIFIC MOULDED PRODUCTS COMPANY 1167
all three, he later denied that Sontag had been discharged but maintained that she
had quit.`
It is apparent from the foregoing, and the undersigned finds, that, although
Anderson originally included Sontag with the others in the discharges, lie recon-
sidered and offered her reinstatement soon afterward. Sontag, however, de-
clined unless Anderson would reinstate Jenkins as well. Under these circum-
stances, the undersigned finds that although Sontag was discharged, she was
immediately offered reinstatement, and by refusing to accept it unless Jenkins
were also reinstated, Sontag became, in effect, a striker, and hence, not en-
titled to back pay unless and until she unconditionally offered to return to work.
With regard to Teach, the undersigned finds, contrary to Anderson's testimony,
that the discussion with her. which precipitated the episode culminating in the
discharges, occurred substantially as testified by her, and corroborated by Jenkins
and Sontag. Although Anderson claimed to have been dissatisfied with her work
and attendance, there is no convincing evidence that any complaints had previ-
eusly been made to her. Neither Frazier nor Akerley, who, according by Ander-
son, had reported to him that her work had been unsatisfactory, was called
to testify. Teach's testimony that not only had there been no complaints about
her work, but that, on the contrary, both Frazier and Akerley had complimented
her upon her work, is therefore credited. It was conceded elsewhere by the re-
spondent that the termination of Teach and Jenkins "was by reason of disci-
plinary action." Moreover, Anderson himself testified that he had not originally
intended to discharge Teach, as stated to her in the presence of the others, and
that he discharged her, in effect, because of the circumstances which followed
While it is apparent, with respect to Jenkins, that her outburst regarding Fore-
lady Rix would have justified disciplinary action, since it is recognized that an
employer may discipline or discharge an employee for any reason, or, indeed,
for none at all, provided lie is not motivated by anti-union considerations, the
issue is whether that was in fact the real reason she, and incidentally Teach
and Sontag, were discharged. Regard must be had for all the circumstances pre-
ceding and surrounding the discharges. The record amply demonstrates that
Teach, Jenkins, and Sontag, with Howell and Masoner, who were closely asso-
ciated, personally, and as fellow-employees, constituted a nucleus of the union
organizational activity. Howell, the prime mover in the attempted organiza-
tion, and Masoner, who was only less so, had already been eliminated earlier in
the attempt to combat the Union. The company union, sponsored by the re-
spondent, had been indifferently received. The respondent's chagrin when, on
November 21, the clay on which Teach, Jenkins, and Sontag were later discharged,
Howell brought to the plant a petition reaffirming the designation of the Union,
and solicited the signatures of her former fellow-employees, may be taken for
granted.
In this posture, the discharge of the three employees later the same clay assumes
added significance. It is apparent that Anderson had concluded that his attempts
to defeat the Union's organizational campaign had foundered. The discharge of
Howell and Masoner had not had the desired effect. On the contrary, Howell
persevered in her activity after her dismissal. The attempt to form the company
5 According to Anderson, when Sontag said she was quitting, he remarked, "I don't think
you are. You haven't got yourself mixed up in this." He contended that, although Sontag
had agreed that she could not get along with Rix, she had not indulged in any abusive
language toward her
a^ Anderson testified, with respect to Teach and Jenkins, "we would not have hired [them]
back under any conditions, after the ruckus they caused."
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union had proven futile. The respondent thereupon resorted to the expedient of
further "cleaning house," as he had threatened to do in an earlier discussion with
Foreman Regan . Viewed in this light, the circumstances under which Anderson
approached Teach, as related by her, and complained of her dissatisfaction and
"griping," suggesting that she quit, lead to the inference that he resorted to this
ruse to induce her to resign, and so relieve him of the necessity for discharging her.
In any event, it is apparent from what subsequently transpired, especially the
complete absence of any incompatibility between Forelady Rix and Jenkins, at
least, between the time of Rix's transfer to the first shift and the time of the
discharges, that the ensuing argument regarding Rix was not the motivating cause
for their discharges, but was utilized by the respondent as a pretext for eliminating
the remaining active adherents of the Union That the respondent later recon-
sidered and offered to reinstate Sontag does not, affect this conclusion, since it is
apparent from the record that Anderson was sufficiently impressed with her pro-
duction to overlook her propensity for "fooling" during the period of her employ-
imnent. Moreover, it was not entirely essential or feasible in order to achieve his
purpose in eliminating the Union. to rid himself of all union adherents, and the
record indicates that there were more persuasive reasons impelling him to retain
Sontag than to discharge her.
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that the respondent discharged Teach, Jenkins, and Sontag
because of their union nfhliation and activity, thereby di.-criminating in rega"•d to
their hire and tenure of employment, discouraging membership in a labor organi-
zation, and interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act
3 Ruth Putman
Ruth Putman was employed by the respondent early in September 1944 as a hand
trimmer, at an hourly rate of 60 cents. After several weeks, she was assigned to
operating a Black rock machine, receiving an increase to 65, and later to 70 cents.
On March 24, 1945, she was discharged. During the course of her employment, no
complaints were made regarding her work, and both Frazier and-Akerley informed
her that she had produced more work on the Black rock machine than any former
operator While she was employed at the old plant, she had suffered a slight
injury to one of her fingers. On October 30, 1944, the first day she was employed
at the new plant, she again injured Let finger at her machine, this time seriously.
Thereafter, she was assigned to inspection, and remained on that assignment
until February 1945, when she was assigned to machine and hand buffing At the
time of her termination she was operating a buffing machine.
On October 28, 1944, she had signed a membership application in the Union, and
participated in its organizational activities to the extent previously indicated.
Her part in the incident involving Korver has already been mentioned.
Shortly after the discharge of Jenkins, Teach, and Sontag, in a conversation
with Akerley at the new plant, Putman remarked that she thought she too would
have been discharged had it not been for her injury. Akerley agreed.
Following Putman's injury on October 30, 1P44, she received treatment by
a physician of the insurance company covering the respondent, and remained
under his care until about a week before her termination." On March 24,
1945, shortly before the close of her shift, Office Manager Korver handed Putman
"' According to Putman 's uncontroverted testimony , she was still receiving treatment at
the time of the hearing.
PACIFIC MOULDED PRODUCTS COMPANY 1169
her check and availability slip. When she asked the reason for this, he told
her, "You just don't turn out enough work any more." She protested that
this resulted from the injury she had sustained at the plant. Korver told
her that he would see what he could do, and remarked, "That is what we pay
insurance for. If you think you can get it, you go right ahead, but I doubt it."
Shortly before her termination, according to Putman's undisputed testi-
mony, Rix had been attempting to assign her to work which she could perform
without discomfort to her injured finger. Later, when she went to Rix for
more work, Rix told her, "I am sorry, Ruth, Mr. Anderson told me to give
you [work on the buffing machine] and not give you anything else, even though
it hurts your finger."'
Putman's employment was terminated on March 24, 1945, and she has not
since been offered reinstatement. She testified, however, that she does not
desire reinstatement.
Respondent's contentions , conclusions regarding Ruth Putman
Although the respondent denies that it had discharged Putman, contending
that she left voluntarily for personal reasons, testimony on this point was vague
and indefinite . Anderson testified : "It seems to me she was leaving, had an
operation on her finger , or some such thing." Regarding the failure to rein-
state her, the respondent contends that she had refused to do buffing, hand
trimming , or any type of work other than Black rock trimming, and that there
was insufficient work of that type available to occupy an employee on an S-hour
shift.
It will be recalled that Putman testified, however, that she was discharged
by Office Manager Korver because her production was low, it fact which she
attributed to the injury she had sustained at the plant. Since Korver did not
testify, her testimony in this respect is uncontradicted. According to her, she
had learned through Forelady Rix that Anderson had instructed Rix to assign
her to work on the buffing machine, despite the fact that this resulted in in-
creased pain to her injured hand Moreover, according to Putman's undisputed
testimony, she was in fact operating a buffing machine at the time of her
discharge , contrary to Anderson's testimony that she had "constantly" refused
such won k. In view of these circumstances, her known activity in behalf of
the Union, the respondent's unflagging opposition to the Union, the events
which transpired on November 21, when she attempted to conceal from Korver
the petition redesignating the Union, and the other facts hereinabove related,
the undersigned inters and concludes that the respondent would have discharged
Putman on November 21, with the other employees who were terminated on
that date, but for the injury she had sustained at the plant, and for which she
was receiving treatment. Because of this, however, the respondent postponed
her termination until about a week after she had been discharged from treat-
ment by the insurance company physician. Finally, on that date, the respondent,
considering himself relieved of any further possible obligation to retain Putman,
realized his determination to be rid of the last staunch union adherent.
65 Putman testified , without contradiction , that Rix had informed her that Anderson had
remarked, "My goodness , has that girl got her finger tied up yet"" Rix told Putman that
she had told Anderson that Putman's finger eras "in a very bad way", that she had seen
it herself . Anderson observed that he could not "imagine anybody being so dumb as to
deliberately stick their finger into a machine "
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anderson's testimony that Putman left voluntarily to undergo an operation
was tentative and uncertain He did not even contend that he had been so in-
lormed by Putman. Although Putman was not called to rebut this testimony,
it is apparent from her uncontroverted testimony that she did not leave volun-
tarily, but on the contrary was discharged, and the undersigned so finds.
Upon the basis of the foregoing and the entire record, the undersigned finds
that Putman, like the others found herein to have been discriminated against.
was discharged because of her adherence to, and activity on behalf of the Union,
that the respondent thereby discriminated with regard to the hire and tenure of
her employment, thereby discouraging membership in a labor organization, and
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
D. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges, and the respondent does not deny, that the unit here-
inafter described is appropriate for the purposes of collective bargaining 68 No
evidence was offered by the respondent, nor was any contention made that the
said unit was inappropriate
It is, therefore, found that a unit consisting of
All production and. maintenance employees, exclusive of office employees,
salesmen , and supervisory employees with authority to hire, promote, dis-
cipline, discharge or otherwise effect changes in the status of employees or
effectively recommend such action,
is appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act, and that such unit will insure to the employees the full
benefit of their right to self-organization and to collective bargaining , and other-
wise effectuate the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
Between October 28, 1944, and November 2, 1944, inclusive, 25 employees within
the aforesaid unit designated the Union as their exclusive bargaining representa-
tive 5' According to the respondent's production pay roll for the period October
29 to November 4, 1944, received in evidence, there was a total of 44 employees on
the pay roll, including supervisor y employees, and 1 employee listed as a part-
time employee, all of whom were hired before November 2, 1944. Including this
latter employee in the computation, since no reason was advanced for not doing
so, but excluding Foreman Ira D Frazier, Foreman Owen A. Regan, Forelady
Louise W. Rix, Assistant Forelady Ruth Akerley, and Office Manager Wesley L.
56 As will hereinafter appear, the parties subsequently entered into a consent election
agreement , dated and approved on April 10 , 1946, stipulating that the unit described above
was appropriate . Case No. 21-R-2530.
67 Of a total of 28 membership applications designating United Rubber Workers, the
predecessor of the Union, 8 were dated October 28 , 1944 ; 1, dated October 27 , was, accord-
ing to the credible and undisputed testimony of Howell , who procured it, actually signed
on October 28 ; 1, dated October 29 ; 1, erroneously dated 1 /31/44 on the compilation of
applications received in evidence in lieu of the originals , procured by Nichols , was actually
signed prior to November 2, probably on October 31 ; 5 were dated November 1 , 3 were
dated November 2 ; of 6 undated , 2 were procured on or before October 30, and delivered
by Sneddon to Howell , 1 was signed on October 28, the remaining 3, between October 28
and November 2 , 2 were dated November 3, and 1, on November 9
PACIFIC MOULDED PRODUCTS COMPANY 1171
Korner, r: the Union had a membership on November 2, 1914, of 25 among 39
employees within the appropriate 'unit, and, therefore, a clear majority.
The undersigned therefore finds, upon the basis of the foregoing, and upon the
entire record, that the Union was, on November 2, 1944, the duly designated repre-
sentative of a majority of the employees in the unit heretofore found to be ap-
propriate, and, by virtue of Section 9 (a) of the Act, was, on November 2, 1944,
the exclusive representative of all the respondet's employees in the aforesaid
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours, and other conditions of employment.
'3. The refusal to bargain
On November 2, 1944, the Union notified the respondent of its claim to represent
a majority of the employees within the appropriate unit, demanded recognition,
and cautioned it against dealing with any other labor organization. The letter
was received, and a registered mail receipt signed by Anderson's father at the
old plant the following day. The respondent made no reply. Anderson contends,
however, that due to the fact that he was in the process of moving the plant at
the time, the letter did not actually come to his notice until November 6, and,
before lie had an opportunity to acknowledge it, the Union had filed charges with
the Regional Office. While it is entirely likely that the respondent was preoccu-
pied with moving his plant at the time, lie admittedly was at both plants daily
during this period, and undoubtedly a registered letter would have been brought
to his attention. Moreover, the subsequent events, including Anderson's dis-
cussion with Mat ion Hai t, during which he instigated tile formation of the Benefit
Association, and Sontag's remark to Foreman Frazier, in which she inquired
whether Anderson had mentioned anything about "the letter," and particularly
the course of conduct upon which the respondent embarked to defeat the Union,
do not lend credence to Anderson's assertion that he was unaware of the Union's
de_iiand until November 6 It will also be recalled that, following receipt of the
notice from the Regional Office of the filing of the charge (which the respondent,
incidentally, does not deny it received in due course of mails, despite the fact
that the plait was ,till in the process of being moved), the respondent requested
a delay of the ,nfoi nail joint conference, and then 'utilized the postponement to
further undermine the Union by initiating the company union.
s' Although Ande'son testified that lie reserved to himself exclusively the authoiity to
hire, discharge, discipline or otherwise affect the status of employees, and that the only
foienien in the plant weie working toreinen or leadmen, lie referred to some of these em-
ployees indiscriminately as foremen, toreladies, or assistants Thus, he referred to Frazier
at one point as a lead maul, and at another as forenian , to Regan as a lead man ; to Rix,
as forelady and lead lady (she succeeded to Fiazier's position about the first of November
1944) , to Akeriey, as foielady, assistant forelady, and assistant lead lady Anderson
identified Korver on the pay loll as foreman and assistant to him , and in his testimony, as
office manager and assistant He was also referred to by various employees as personnel
manager. It is clear, and the respondent does not dispute, that Korver, who ultimately,
in March 1946, was placed in charge of trnnunuig, with complete authority to lure, dis-
charge, and discipline, was, during the period under consideration, closely identified with
management Anderson himslf referred to him as the only "real foreman" in the plant
during the period in question With respect to the other employees who have been excluded
from the unit, the undersigned finds, on the basis of their respective duties as disclosed by
the reerd, and the fact that they were held out by the respondent and reasonably regarded
by the employees as being identified with management, that they do not appropriately belong
within the unit while other employees classified by the respondent as lead men have been
included within the unit , the undersigned is satisfied that they did not possess sufficient
tndicia of supervisory authority to warrant then exclusion
781902-48-vol. 76-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 22, 1944 , the respondent and its attorney conferred at the Regional
Office with a Field Examiner , and requested that an election be held. According
to the respondent , they were advised that the Field Examiner would communicate
with the Union representative . Several similar requests were made thereafter
from time to time, but without avail until April 10, 1940 . In view of the uu-
remedied unfair labor practices , the Regional office was clearly justified in not
acceding to the respondent 's requests . Moreover, the respondent 's insistence
upon an election was not based upon any expressed doubt as to the Union's ida-
jority or the appropriate unit 69 It had at no time, prior to April 10, 1946, de-
manded that the Union demonstrate its majority , or afforded the Union all
opportunity to do so. On the contrary , from the very threshold of the organiza-
tional activities it embarked upon a course designed to undermine the organiza-
tion of its employees.
It has been well established that election and certification proceedings are not
the exclusive method of determining a Union's majority status, and that an
employer may not insist upon certification as a condition precedent to bargain-
ing with the Union , where the employer entertains no genuine doubt as to the
Union 's majority , or where reasonable proof is available and the employer makes
no effort to ascertain whether the Union has a majority .' Moreover , "Am em-
ployer cannot be heard to say that he entertains an honest doubt as to the
union 's majority status w,% here he conducts a campaign to destroy that majority.-
Hence , the respondent may not rely, as it apparently attempted at the hearing,
upon an inference of loss of majority , based upon the fact that oily 13 employees
signed the petition redesignating the Union on November 21, 1944, following the
respondent 's attempt to induce its employees to revoke the original union desig-
nation.n Nor is this conclusion affected by the fact that the respondent had only
18 production employees , including supervisors, on the pay roll at the time of
the hearing as
On April 10 , 1946 , a consent election agreement was finally executed , pursuant
to which the election was held on April 12 The election resulted in the selection
of the Union, by a vote of 26 for the Union , 2 against , and 5 challenged ballots
The Regional Director thereupon found , and notified the parties, that the Union
was the exclusive representative of the employees within the appropriate unit
The respondent , on April 16, filed objections to the conduct of the election.
The objections were overruled by the Regional Director on April 19, as without
5" The respondent s contention that the "determination of the designation of an appi,,pri-
ate bargaining unit," (by which it obviously intended to asseit it doubt of the Union s
majority, rather than of the appropriate unit) was regarded as unsettled as late as Noveni-
her 16 1945, as manifested by the fact that the Regional Office, following a conference,
submitted a draft of a proposed settlement, in which the respondent was required to recog-
nize the Union, is untenable This was obviously merely an administrative iegmrement,
not reflecting any doubt of the Union's status The settlement, however, never materialized.
66 See , e g, N. L R B v Remington Rand, Inc , 94 F. (2d ) 862, 868 , 869 (C . C. A. 2) ;
N L R B v Federbush Co, 121 F. (2d) 954 (C C A 2) ; N. L R B. v Dahlstrom
Metallic Door Co., 112 F. (2d) 756 (C C. A 2) ; Matter of L. B. Hartz et at , 71 N. L It. B.
848
61 See Matter of Consolidated Machine Tool Corporation , 67 N. L R B . 737. where it
was held that an employer's refusal to recognize or otherwise bargain with the Union until
its majority status had been established in an election , after having engaged in unfair
labor practices directed toward the dissipation of the Union's majority status, constituted
a refusal to bargain in violation of Section 8 (5) of the Act
62 See Matter of Consolidated Machine Tool Corporation, supra; see also N. L. R. B. v.
Appalachian Electric Power Co , 140 F. (2d) 217 (C C. A. 4) ; N. L. R B v. Century
Oxford Mfg Corp, 140 F . ( 2d) 541 (C. C. A. 2 ), cert. denied , 323 U. S. 714.
61 Franks Bros . Co. v. N. L. R. B., 321 U. S. 702.
PACIFIC MOULDED PRODUCTS COMPANY 1173
merit. Exceptions to the Regional Director 's Report on Objections , filed on April
23, were similarly overruled the following day, since they raised no new issues.
On April 27 , an informal conference was held between the Union and the
respondent.
On May 6, 1946, the Union formally wrote the respondent , requesting a bargain-
ing conference . The letter was acknowledged on May 9. Between May 13 and
July 3, 1946, some 9 conferences were held, out of 11 scheduled , and, as of the
time of the hearing, the parties were negotiating a collective bargaining agree-
ment. -
Upon the basis of the foregoing , and upon the entire record , it is apparent, and
the undersigned concludes and finds that the Union was, on November 2, 1944,
and at all times material thereafter , the duly designated representative of a
majority of the employees within the aforesaid appropriate unit, and that, by
virtue of Section 9 (a) of the Act , was, on November 2, 1944, and has since been
at all times material herein, the exclusive representative of all the employees
in the said unit for the purposes of collective bargaining with respect to rates of
pay, wages , hours , and other conditions of employment.
The undersigned further finds that, by the respondent 's entire course of conduct,
as hereinbefore more fully related, from November 3, 1944 , to April 10 , 1946, the
respondent failed and refused to bargain with the Union as the exclusive repre-
sentative of the employees with the appropriate unit with respect to rates of pay,
wages. hours, and other conditions of employment , in violation of Section 8 (5) of
the Act, th,areby interfering with , restraining , and coercing its employees in the
exert ise of the i fights guaranteed in Section 7 of the Act . Inasmuch as the
record discloses , however, that the respondent has, since the disposition of the
objections to the conduct of the election , been bargaining with the Union in
apparent good faith , and since there is no allegation or evidence that the
respondent has engaged in any further unfair labor practices since entering
the consent election agreement, no affirmative order requiring it to do so will
be recommended.
Concluding Findings
Upon the basis of the foregoing, and upon the entire record, the undersigned
finds that, by the statements, inquiries, and conduct of Anderson, Foreman
Frazier, Foreman Regan, Office Manager Korver, Assistant Forelady Akerley, to
the various employees, as hereinabove more fully related ; by instigating the
formation of the Benefit Association, and thereafter, of the Benevolent Associa-
tion, and by sponsoring the said labor organizations, permitting supervisory em-
ployees to participate in the circulation of petitions in connection with the latter
organization, and by the other acts and conduct already related, thereby donunat-
ing and interfering with the formation and administration of, and contributing
financial or other support to the said organizations, in violation of Section 8 (2)
of the Act ; by laying off, and thereafter refusing to reinstate, Helen Luella Howell
and Andena Masoner, and by discharging Myra H. Jenkins, Alice B. Teach, Joan
Sontag and Ruth Putman, because of their affiliation with, and concerted activities
in behalf of the Union, thereby discriminating in regard to their hire or tenure of
employment, and discouraging membership in a labor organization, in violation
of Section 8 (3) ; by failing and refusing to bargain with the Union from Novem-
her 3, 1944, to April 10, 1946, as the exclusive representative of the employees
within the appropriate unit with respect to rates of pay, wages, hours, and other
conditions of employment, in violation of Section 8 (5), and by the totality of such
conduct, the respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LA13OR PRACTICES UPON COMMERCE
The activities of the respondent set forth In Section 111, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned wilt recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent has dominated and interfered with
the formation of the Benefit Association and the Benevolent Association, and
has contributed support thereto Although the record fails to disclose that these
Associations, or either of them, have ever requested recognition of the respondent,
or that they have functioned since their attempted organization, they have never
been dissolved, and may still be regarded by some employees as existing labor
organizations professing to act as bargaining representatives of some employees.
It is clear, in view of the respondent's illegal conduct regarding these Associa-
tions, that they are incapable of serving the respondent's employees as legitimate
collective bargaining representatives The existence of these Associations, even
though inactive, constitutes a continuing obstacle to the free exercise of the re-
spondent's employees of their right to self-organization and to bargain collectively
through representatives of their own choosing While the undersigned is cog-
nizant of the fact that the 'respondent has been meeting with the Union in an
attempt to bargain collectively, the existence of these Associations, although de-
funct, is not conducive to the free and unfettered exercise by the employees of the
rights guaranteed them by the Act. The undersigned will therefore recommend
that the respondent withhold all recognition from the Benefit Association, and
the Benevolent Association, as the reps esentative of any of its employees for the
purpose of dealing with the respondent concerning giiev.uices, labor disputes,
wages, iates of pay, hours of employment, or other conditions of employment, and
completely disestablish the said Benefit Association, and Benevolent Association
as such representatives.
It has been further found that the respondent has disciiminnied in regard
to the hire and tenure of employment of Helen Luella Howell, Andena Masoneri
Myra If. Jenkins, Alice B. Teach, Joan Sontag, and Ruth Putman Since Put-
man has stated that she does not desire reinstatement, no reinstatement will
be recommended with respect to her. It will, however, be recommended that
the respondent offer the remaining employees immediate and full reinstate-
ment to their former or substantially equivalent positions ' without prejudice
to their seniority or other rights and privileges, and make all said employees,
including Putman," but excluding Joan Sontag, who, as already stated else-
"! In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially equiva-
lent position." See Matter of The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 N. L U. B 837.
" With respect to Putman , since the record does not disclose whether she obtained em-
plovment following the discrimination against her, it will be recommended that she shall
be made whole for the period from the date of the discrimination to the date she testified
slue did not desire reinstatement.
PACIFIC MOULDED PRODUCTS COMPANY 1175
where , by reason of her status as a striker , is not entitled to be made whole,
unless and until she unconditionally offer to return to work, for any loss of pay
they may have suffered by reason of the respondent's discrimination against
theta by payment to each of them of a suin of money equal to the amount she
normally would have earned as wages during the period from the date of the
discrimination to the date of the otter of reinstatement , less her net earnings"
during said period.
It has also been found that the respondent has, between November 3, 1944,
and April 10 , 1946, refused to bargain collectively with the Union as the ex-
clusive representative of its employees in an appropriate unit. Inasmuch as
the respondent has, however , been bargaining with the Union in apparent
good faith since the disposition of the objections to the conduct of the election,
and since there is no allegation , nor, so far as the record discloses , any evidence
that the respondent has engaged in any further unfair labor practices since
execution of the consent election agreement , no affirmative order will be recom-
mended requiring it to do so. Nothing herein, however , shall be construed
as relieving the respondent of the obligation to continue to bargain in good
faith and, if agreement is reached , to embody such agreement in a written col-
lective bargaining agreement.
The record establishes that the respondent has engaged in all but one of the
unfair labor practices proscribed by the Act Thus , in addition to interfering
with, restraining , and coercing its employees by interrogation concerning their
union adherence and activity, by statements and inquiries calculated to frustrate
the employees lit their organizational activity , the respondent has dominated
and interfered with the formation of two separate labor organizations; dis-
criitnnatorily laid off or discharged employees; failed and refused to bargain with
the Union as the duly designated representative of its employees . In view of
the extensive and pervasive nature of these unfair labor practices , manifesting a
deteimination to defeat and discourage self-organization by its employees, and
indicating an attitude of opposition to the fundamental purposes of the Act,
the undersigned is convinced that there is real danger of the commission of
similar unfair labor practices in the future, in the light of the respondent's
conduct in the past Unless the recommended order is, therefore , as broad as
the threat , it is obvious that the preventive purposes of the Act will be de-
feated In order to effectuate the guarantees of Section 7 of the Act , to prevent
any recurrence of unfair labor practices , and thus mitigate industrial strife
which burdens and obstructs commerce , and effectuate the policies of the Act,
it will be recommended that the respondent be ordered to cease and desist from
in any manner interfering with, restraining , and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.`
Upon the basis of the foregoing findings of fact, and upon the entire record
in the ease , the undersigned makes the following:
By "net earnings " is meant earnings less expenses such as for transportation, loom,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the iespondent, which would not have been incurred but for his unlawful
discharge or lay-off nd the consequent neees^ity of his seeking emplovmeut elsewhere
See .Mattel of Crossett Lumber Company, 8 N L R. B 440 Moines recened for work
performed upon Federal. State, county, uiunicipal, or other work-relief protects shall be
considered as earnings See Republic Steel Corporation v. N. L. R. B., 311 U S. 7.
17 See N L R B v Ilxpres 1'ablislung Company 312 U S 420 May Department Storeg
v N L R B, 326 U S 376
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS oF' LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, affiliated
with the Congress of Industrial Organizations; Pacific Moulded Products Benefit
Association, and Pacific Moulded Products Benevolent Association, are each
labor organizations within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation of and contributing
support, to, Pacific Moulded Products Benefit Association, and Pacific Moulded
Products Benevolent Association, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of the Act
3. By discriminating in regard to the hire and tenure of employment of Helen
Luella Howell, Andena Masoner, Myra H. Jenkins, Alice B Teach, Joan Sontag,
and Ruth Putman, thereby discouraging membership in United Rubber, Cork,
Linoleum and Plastic Workers of America, affiliated with the Congress of
Industrial Organizations, the respondent has engaged in and is engaging iii
unfair labor practices, within the meaning of Section 8 (3) of the Act.
4. All the respondent's production and maintenance employees, exclusive of
office employees, salesmen, and supervisory employees with authority to hire,
promote, discipline, discharge or otherwise effect changes in the status of em-
ployees or effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
5. United Rubber, Cork, Linoleum and Plastic Workers of America, affiliated
with the Congress of Industrial Organizations, was, on November 2, 1944, and
has been, at all times thereafter, the exclusive representative of all the employees
in the aforesaid unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act
6 By failing and refusing, from or about November 3, 1944, to April 10. 1946,
to bargain collectively with United Rubber, Cork, Linoleum and Plastic Workers
of America, affiliated with the Congiess of Industrial Organizations, as the
exclusive representative of the employees in the aforesaid unit, the respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section S (5) of the Act.
7. By interfering with, restraining. and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondents, Volney S. Anderson and
Mildred C. Anderson, co-partners doing business as Pacific Moulded Products
Company, Los Angeles, California, their agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating and interfering with the formation or administration of, or
contributing financial or other support to, Pacific Moulded Products Benefit
Association, and Pacific Moulded Products Benevolent Association, or any other
labor organization of their employees ;
PACIFIC MOULDED PRODUCTS COMPANY 1177
(b) Recognizing Pacific Moulded Products Benefit Association, and Pacific
Moulded Products Benevolent Association, as the representative of any of their
employees for the purpose of dealing with the respondents concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other conditions of
employment;
(c) Discouraging membership in United Rubber, Cork, Linoleum and Plastic
Workers of America, affiliated with the Congress of Industrial Organizations, by
discharging or refusing to iemstate any of their employees, or in any other
manner discriminating in regard to their hire or tenure of employment or any
ten ui or condition of employment ;
(d) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist United Rubber, Cork, Linoleum and Plastic
Workers of America, affiliated with the Congress of Industrial Organizations,
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the follo« ing affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withhold all recognition from and completely disestablish Pacific Moulded
Products Benefit Association, and Pacific Moulded Products Benevolent Associa-
tion, as the representative of any of their employees for the purpose of dealing
with the respondents concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment ;
(b) Offer Helen Luella Howell, Andena :llasoner, Myra H Jenkins, Alice B
Teach, and Joan Sontag, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority or other
rights and privileges :
(c) Make whole Helen Luella Howell, Andena Masoner, Myra H. Jenkins,
Alice B Teach, and Ruth Putman for any loss of pay they may have suffered by
reason of the discrimination against them by payment to each of them of a sum
of money equal to an amount determined in the manner set forth in the section
entitled "The remedy" above;
(d) Post at their plant at Los Angeles, California, copies of the notice attached
hereto marked "Appendix B." Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after being duly signed by
the respondents' representative, be posted by the respondents immediately upon
receipt thereof and maintained by them for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondents to insure
that said notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Twenty-first Region in writing within
ten (10) days from the date of the receipt of the Intermediate Report what steps
the respondents have taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional Director
in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
As provided in Section 203 39 of the Rples and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Board may, within fifteen (15) days from the date of service of the older
transferring the case to the Board, pursuant to Section 203 38 of said Rules and
Regulations, tile with the Board, llochambean Building, Washington 2.3, D C.,
an original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as lie relies upon, together
with the original and four copies of a brief in support thereof ; and any party or
counsel for the Board may, within the same period, file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203 65. As further provided in said Section 203 39, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) clays from the (late of service of
the order transferring the case to the Board.
IRVING RGGOSIa.
Trial Examiiner.
Dated January 29, 1947.
APPENDIX A
0(tober 27. 1911 • Organization of Union at respondent's plant undertaken by
Helen Luella Howell and Ella Burke.
October 28: Membership applications distributed at plant by Howell during non-
working time ; 9 employees sign applications.
October 28 to November 9: Total of 28 applications signed designating Union.
November 2: Union notifies respondent of claim of majority, and demands
recognition.
November 3: Union demand for recognition received at respondent's plant.
November 9: Union files unfair labor practice charge, alleging interference;
Petition for investigation and certification.
November 11: Regional Office notifies respondent of filing of petition for investi-
gation and certification, and unfair labor practice charge, and scheduling
informal joint conference with Union on November 17
November (exact date not established) • Initiation of Pacific Moulded Products
Benefit Association as labor organization by Marion Hart at instigation of
respondent.
November 15: Respondent discharges Helen L. Howell and Andena ;MIasoner.
November 16: Respondent requests Regional Office for postponement of
conference.
November 16-17: Petition withdrawing membership in the Union, and desig-
nating Pacific Moulded Products Benefit Association, circulated at plant by
Marion Hart.
November 21: Petition re-designating Union presented by Howell to employees
at plant during lunch period; several sign ; additional signatures obtained by
Alice Teach, Myra.Jenkins, and, later that evening, by Howell.
November 21: Respondent discharges Teach, Jenkins, and Sontag.
November 22: Conference held at Regional Office pursuant to respondent's
request for postponement.
December 27: Union files First Amended Charge, alleging interference ; domina-
tion and interference with formation-of Pacific Moulded Products Benefit Asso-
eiation ; and discriminatory discharge of Howell, Teach, Jenkins, and Sontag
PACIFIC MOULDED PRODUCTS COMPANY 1179
Janiiat y 31, 1945: Second Amended Charge filed, alleging, in addition to the
allegations in the preceding charges, the discriminatory discharge of Andena
Masoner
January 41: Regional Otlice notifies resl> nxlent of filing of amended charge.
Jaiuiat y 31 to Febt oar i/ (exact dates not established) . Formation of Pacific
Moulded Pioducts Benevolent Association as labor organization by Owen A.
Regan at instigation of respondent.
March 21i: Respondent discharges Ruth Putman.
September 26' Third Amended Charge filed, alleging, in addition, domination
and interference with formation of Pacific Moulded Products Benevolent Asso-
elation, and refusal to bargain since on or abort November 3, 1944.
Notieinbee 16: Regional Office transmits to respondent proposed stipulation
contemplating settlement of unfair labor practice charges.
April 10. 19¢6: Agreement for Consent Election (Case No. 21-R-2530).
Apt tl 12: Election held i esulttng in selection of Union by vote of 26 for, 2
against, 5 challenged ballots.
April 16: Respondent files Objections to Conduct of Election.
April 19: Regional Director's Report on Objections, overruling objections as
without merit, raising no substantial aril material issues; and finding and
determining (the predecessor of) the Union as exclusive representative, pursuant
to consent election agreement.
April 23: Respondent's Exceptions to regional Director's report on Objections.
April 24• Regional Director's Rulings on Exceptions, overruling, as raising no
new issues.
April 27: Informal conference between Union and respondent.
May 6: Union notifies respondent of results of election, and requests a
conference.
31a,y 9: Respondent acknowledges Union communication, and agrees to meet at
mutually agreeable date.
May 13-July 3: 11 bargaining conferences scheduled ; 9 held.
May 51: Fourth Amended Charge filed, alleging additional discriminatory
discharge of Ruth Putman.
June 13: Fifth Amended Charge filed.
June 25: Complaint issued.
APPENDIX B
No'IicE TO ALL E:.frLoVEEs
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act , we hereby notify our employees that.
WE HEREBY DISESTADLISII PACIFIC MOULDED PRODUCTS BENEFIT ASSOCIATION,
AND PACIFIC MOULDED PRODUCTS BENEVOLENT ASSOCIATION , as the representa-
tive of any of our employees for the purpose of dealing with us concerning
grievances , labor disputes , wages, rates of pay, hours of employment , or other
conditions of employment , and we will not recognize the said Associations,
or either of them, or any successor to the said Associations for any of the
above purposes.
WE WILL NOT dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL OFFER TO
Helen Luella Howell Alice B Teach
Andena Masoner Joan Sontag
Myra H. Jenkins
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and privileges
previously enjoyed, and make whole
Helen Luella Howell Alice B Teach
Andena Masoner Ruth Putman
Myra R Jenkins
for any loss of pay suffered as a result of the discrimination
WE WILL NOT in any Inannel interfere with, restrain, or coerce our eni-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist UNITED RUBBER, CORK. LINOLEUM AND PLASTIC
WORKERS of AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZA-
TIONS„ or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
ALL OUR EMPLOYEES are free to become or remain memlieis of this union, or
any other labor organization.
WE WILL NOT discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
4OLNEY S. ANDERSON and
MILDRED C. ANDERSON, co-partners,
doing business as
PACIFIC MOULDED PRODUCTS COMPANY,
Einplo per.
Dated ---------------------- By -----------------------------------------
(Representative) (Title)
NOTE: Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.