Peter Cailler Kohler Swiss Chocolates Co., Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1941

33 N.L.R.B. 1170 (N.L.R.B. 1941)

In the Matter Of PETER CAILLER KOHLER SWISS CHOCOLATES COMPANY,
INC. and PETER CAILLER KOHLER Co ., EMPLOYEES UNION',
INDEPENDENT
Case No. C-1850.-Decided August 7, 1941
Jurisdiction : chocolate products manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: attempts to compel withdrawal from
"outside" union and to stifle independent collective activity on the part of
employees. -
Discrimination: discharging an employee because of his continued unwillingness
to yield to the respondent's censorship and supervision of his union activity;
because of his aggressive participation at a union meeting in sponsoring the
adoption and publication of a resolution expressing solidarity with a union
not connected with respondent
Remedial Orders: reinstatement and back pay awarded.
Mr. Peter J. Crotty, for the Board. -
Fraser Brothers, by Mr. Henry S. Fraser, of Syracuse, N. Y., and
Drinker, Biddle c6 Reath, by Mr. Lewis H. Van Dusen, Jr., and Mr.
Henry S. Drinker, of Philadelphia, Pa., for the respondent. -
Miss Ida Klaus, of counsel to the Board. - -
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Peter-Cailler-Kohler Employee's
Union,l herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Third
Region. (Buffalo, New York), issued its complaint dated January
21, 1941, against Peter Cailler Kohler Swiss Chocolates Company,
Inc., herein called the respondent, alleging that the respondent had
engaged in and was engaging in' unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449,
i The organization is designated in its constitution as "Peter-Cailler-Kohler Employee's
Union," but is named in the charge as Peter Cailler Kohler Co , Employees Union,
Independent-
33 N. L. R. B., No. 199.
1170
PETER CAILLER KOHLER SWISS CHOCOLATES COMPANY, INC. 1171
herein called the Act. Copies of the complaint and the accompanying
notice of hearing were duly served upon the respondent and the
Union. The complaint charged in substance that (1) on or about
October 17, 1940, the respondent discharged Earl H. Whipple, and
thereafter refused to reinstate him, because of his membership in the
Union and because he had engaged in other concerted activities for
the purpose of collective bargaining and mutual aid and protection,
thereby discriminating against him as to hire and tenure of employ-
ment and discouraging membership in the Union, and (2) that the
respondent had, prior to October 17, 1940, for the reasons already
stated threatened Whipple with lay-off and discharge, thereby inter-
fering with the self-organization of its employees.
On February 1, 1941, the respondent filed its answer admitting the
allegations of the complaint as to the nature of its business and as
to the character of the Union but denying all other material aver-
ments. Thereafter, upon motion of the respondent, counsel for the
Board furnished a bill of particulars concerning the alleged threats
of lay-off and discharge.
Pursuant to notice, a hearing was held on February 17, and 18,
1941, at Fulton, New York, before Josef L. Hektoen, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. At the commencement of the hearing, upon
motion of counsel for the Board, the complaint was amended with
respect to the period during which certain of the unfair labor prac-
tices had allegedly been committed. Upon completion of the Board's
case, counsel for the respondent moved to dismiss the complaint for
failure of proof; the motion was denied. Various rulings were made
by the Trial Examiner on other motions and on objections to the
admission of evidence. The Board has reviewed all rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. At the close of the hearing, the
parties were afforded an opportunity to argue orally before the Trial
Examiner and to submit briefs for his consideration; the respondent
thereafter submitted a brief.
On April 1, 1941, the Trial Examiner filed his Intermediate report,
copies of which were duly served upon the respondent and the Union,
in which he found that the respondent.had engaged in the unfair labor
practices charged in the complaint and recommended that the re-
spondent cease and desist therefrom and take certain specified affirma-
tive action deemed necessary to effectuate the policies of the Act. The
Tespondent filed exceptions to the Intermediate Report, accompanied
450122-42-vol. 33-75
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a supporting brief, and argued orally thereon before the Board on
May 22, 1941. The Board has considered the exceptions to the Inter-
mediate Report and the supporting brief and, in so far as such excep-
tions are inconsistent with the findings, conclusions, and order set
forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Peter Cailler Kohler Swiss Chocolates Company,
Inc., is a New York corporation maintaining a plant at Fulton, New
York, where it is engaged in the production and manufacture of milk
chocolate, cocoa, chocolate bars, and allied products and where the un-
fair labor practices are alleged to have occurred. During the year
1939, the respondent produced at its Fulton, New York, plant in excess
of 50,000,000 pounds of these products, not less than 50 per cent of
which were shipped to points outside the State of New York. During
the same period, raw materials consisting of cocoa' beans, cocoa butter,
sugar, milk, milk powder, nuts, and flavoring preparations weighing
over 60,000,000 pounds were used by the respondent in connection
with the operations at the Fulton, New York, plant, of which total 27
per cent originated outside the State of New York.
The respondent admits that it is engaged in commerce, within the
meaning of the Act.
H. THE INDEPENDENT
Peter-Cailler-Kohler Employees' Union is an unaffiliated labor or-
ganization admitting to membership non-supervisory production em-
ployees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
In 1919 there was introduced at the respondent 's Fulton, New York,
plant , a plan of employee representation known as the P. C. K. Com-
mittee and herein referred to as the Committee . The plan was lim-
ited to machinery for the discussion of employee grievances at regular
meetings of management officials and departmental employee repre-
sentatives elected on company time and property . Disposition of ques-
tions concerning wages, hours , and other conditions of employment
raised by the employee representatives was made by unilateral de-
cision of the management in accordance with its established personnel
policy and not by means of collective bargaining. Minutes of meet-
PETER CAILLER KOHLER SWIS'S CHOCOLATES COMPANY, INC. 1173
ings, prepared by an employee secretary and corrected and approved
by the management, were printed and distributed to the employees
on company time ancJ property. The respondent assumed all expenses
incident to the operation of the Committee. While the respondent is
not charged with having dominated the Committee, we nevertheless
deem it necessary, in connection with the unfair labor practices al-
- leged, to discuss the history of the Committee and the respondent's
attitude toward it.
The employee representation plan thus initiated in 1919 continued
unchanged and unchallenged until the latter part of May or the be-
ginning of June 1937, when the Committee for Industrial Organiza-
tion, as it was then called, herein referred to as the C. I. 0., issued a
charter to a group of the respondent's employees. After a rather un-
successful organizing campaign, the C. I. O. union ceased to function
by the end of the following year. The C. I. O.'s efforts were well
known to the respondent's officials. Most active in the short-lived at-
tempt to supplant the Committee was Earl H. Whipple, employed by
the respondent since 1933 as a machinist. Whipple was elected presi-
dent of the C. I. O. union, an office he held simultaneously with mem-
bership on the Committee. The respondent's officials were admittedly
aware of his' position in the C. I. O. union and of his activities in its
behalf.
Whipple testified as follows concerning an interview to which he.
was subjected during working hours shortly after the emergence of
the C. I. O. union by Harry J. Taylor, assistant treasurer of the re-
spondent and one of its two representatives who met with the Com-
mittee : Taylor opened the conversation with a statement of his under-
standing that Whipple was interested in the C. I. O. Whipple con-
firmed the understanding. Taylor thereupon directed Whipple's at-
tention to nine pictures published in a newspaper and commented that
"just for a matter of education and enlightment" he wanted Whipple
to know the "type of men" in the C. I. 0., adding that most of them
were either actual or alleged Communists and that "I know that you
don't want to be tied up with that type of men." Whipple replied that
he did not consider the nine men representative of the entire organi-
zation and that Taylor's accusation against them constituted insuffi-
cient basis for his withdrawal from the C. I. O. Taylor closed the in-
terview with the statement that he would rather "our employees" did
not belong to "this union." On direct examination, Taylor denied
having talked with Whipple about unions or union activity ; however,
on cross-examination by counsel for the Board, he stated that he "might
have" shown Whipple pictures of Communists in the C. I. O. The
'Trial Examiner accepted Whipple's testimony as true, and we find
that Taylor in fact admitted the truth of Whipple's testimony and- that
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his interview with Whipple was intended to induce the latter's with-
drawal from the C. I. O. and adherence to the Committee.
Whipple was again confronted with antagonism toward his' C. I. O.
activities on July 1, 1937, by one Paugh, the respondent's consulting
engineer then in charge of the engineering department in which
Whipple worked. Without contradiction, Whipple attributed to his
departmental superior the following statements made by the latter
to the witness : that "we don't like this idea of these outside activities
and unions. We are not in favor of our employees having anything
to do with these outside unions"; that the C. I. O. was composed of
a "lot of hoodlums and Communists" ; and that "we don't approve of
our -employees, and we will not tolerate it, belonging or affiliating
with this union." The respondent did not call Paugh as a witness,
but Taylor testified that, upon being apprised by Whipple of this
conversation, Taylor questioned Paugh, who in turn denied having
made the statements ascribed to him by Whipple, and that "that-was
the end of the incident." We find Whipple's testimony concerning
the statements made to him by Whipple to be credible and we find,
further, that those statements were designed to coerce Whipple into
relinquishing his membership in the C. I. O. and accepting the Com-
mittee as the sole collective bargaining agency. Taylor's questioning
of Paugh, presumably in order to reprimand him, does not relieve
the respondent of responsibility for his remarks, as Paugh acted in
a supervisory capacity.2 We are, moreover, impressed by the simi-
larity between 'the anti-union remarks made to Whipple by Taylor, a
high-ranking official, and by Paugh, a departmental supervisor, and
we can only conclude that Paugh was in fact iterating company pol-
icy, although perhaps, without specific authority.
A further challenge to the C. I. O. organizational drive and par-
ticularly to Whipple's outstanding efforts was made, according to
Whipple's testimony, by Charles W. Hill, vice president of the re-
spondent and one of the two management representatives who dealt
with the Committee, at the July 1937 meeting of the Committee in
Hill's office. Present at the meeting, in addition to Hill, were Taylor,
the other management representative, and the employee members of
the Committee, some of whom, like Whipple, maintained simulta-
neous membership on the Committee and in the C. I. O. union.
Whipple testified that, when the discussion adverted to the C. I. O.
union, Hill stated that no union "was ever going to run or have any-
thing to do with the running of the business" and that, therefore,
he "was not recognizing unions having anything to do, to interfere
with the company's business." On direct examination, Hill denied
2 International Association of Machinists v. National Labor Relations Board, 311 U. S. 72;
H. J. Heinz Co v. National Labor Relations Board, 311 U S. 514; Consumers Power Co.
v. National Labor Relations Board, 113 F. (2d) 38 (C. C. A. 6).
PETER CAILLER KOHLER SWISS CHOCOLATE'S COMPANY, INC. 1175
Whipple's testimony; on cross-examination by counsel for the Board,
Hill explained that his denial of any statements attributed to him
by other witnesses "usually" was addressed to the "exact terminology"
used by counsel for the respondent in framing his questions. Taylor
testified that, while he had never heard Hill make the statements
in question, he did recall "something relating to it" and quoted Hill
as saying that matters pertaining to "running the plant" were ex-
clusively within Hill's jurisdiction. Although Taylor could recall
no immediate reason for Hill's remarks, he claimed that Whipple,
as a Committee member, "a good many times has gotten into. sub-
jects pertaining to the management of. the plant." He could, how-
ever, point to no specific occasion on which Hill had so digressed.
The Trial Examiner, who saw the witnesses and observed their de-
meanor, rejected the testimony of Hill and Taylor in this respect and
accepted Whipple's version. In reliance on the Trial Examiner's
judgment, and because of the inconclusive and unconvincing denials
of Hill and Taylor, we find that Hill uttered the statements to which
Whipple testified and that the purpose of those statements was to
make clear to the employees that the respondent would not tolerate
any rival to the Committee.
The respondent's continued hostility to Whipple's leadership in the
C. I. 0. and to any independent collective action of its employees once
more became apparent after a meeting of the C. I. 0. union called by
Whipple during the lunch hour on August 11, 1938, and attended by
some 60 to 75 employees. The meeting was occasioned by the request of
some employees that Whipple talk to them concerning possible protec-
tive action they might take with respect to one Sawyer, about to be
hired by the respondent as a departmental chief and reputed to be
"hard with the labor" at his last place of employment. Whipple ad-
dressed the meeting and told the men that, although Sawyer might
"have the name of being tough," they would not rely on hearsay and
would accord him full cooperation but that, if his reputation were
proved to be justified, "we will be organized here solid in this union, so
that we can counteract any tough moves he might make." That after-
noon, Taylor summoned Whipple and accompanied him to Hill's office.
Whipple's account of the colloquy between him and Hill is as follows :
Hill stated that he understood Whipple had held a meeting in the park-
ing field. Whipple's verifying reply evoked inquiries from Hill as to
the purpose and achievements of the meeting. When Whipple an-
swered the inquiries, Hill accused him of being a "trouble-maker" and
of having sought to "trump up" charges against Sawyer with a view to
"stir up trouble." Whipple denied the accusations but Hill, neverthe-
less, stated that the question of who was employed at the plant was
strictly within the discretion of the respondent and that he "would not
tolerate" any criticism of the management. Although Whipple coun-
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tered that his sole purpose in calling the meeting was "for organization,
for protective measures," Hill threatened Whipple as follows.: "Whip-
ple, I am giving you fair warning, ... if I hear of any more of these
wild statements ... and ... of any more ,of this calling meetings ...
I will have to discharge you."
Hill denied having banned criticism of the management and having
threatened Whipple with discharge. His version of the conversation is
that, after having been informed of Whipple's derogatory remarks con-
cerning Sawyer, he said, "Don't do a thing like that. Here the man
isn't even here, and you are telling what a tough man he is." Taylor's
testimony accords substantially with that of Hill. However, in a letter
written by Hill to Whipple on February 7,1939, Whipple was reminded
that at the conference in question "you were warned against making in-
correct statements or creating false impressions among other employees
regarding the policies of the Company or its Management." In the last
paragraph of this communication, referring to a later incident herein-
after considered, Hill stated that "this constitutes another warning
that ... further examples of this nature will ultimately force the man-
agement to dismiss you from employment. . . ." The Trial Examiner,
finding that the Hill letter corroborated Whipple's testimony, accepted
as correct Whipple's version of the conference of August 11, 1938. We
find accordingly. It is clear that Hill, a highly-placed official, at-
tempted to ascertain what had occurred at a union meeting of the re=
spondent's employees, threatened the presiding officer of that meeting
with discharge for the protective collective action taken, and warned
against the holding of separate employee meetings. It is self-evident
that each of these acts constitutes unequivocal interference with the
respondent's employees in the exercise of their right of self-organiza-
tion, and we so find. The respondent cannot, of course, escape liability
under the Act by claiming that business transacted at union meetings
for the interest and welfare of its employees constitutes criticism of the
management and is, therefore, without the shelter of the Act.
As already stated, the C. I. 0. union became moribund by the end of
1938; the Committee successfully survived the campaign. The re-
spondent, nevertheless, did not relax its opposition to Whipple, who
had been elected chairman of the Committee. At the January 1939
meeting of the Committee, Hill took Whipple to task for a statement
the latter had previously made to a watchman in the factory about the
respondent's treatment of superannuated employees, particularly one-
time foremen. According to Whipple's testimony, Hill charged that
"this Whipple here ... he only comes to these meetings ... to stir up
trouble and make trouble, and he makes incorrect statements" and de-
clared that if Whipple continued to make "these wild statements"
against the respondent and to interfere with its policies, "we will have
PETER CAILLER KOHLER SWISS CHOCOLATES) COMPANY , IN-c. 1177
to discharge Mr. Whipple ." According to Whipple's uncontradicted
testimony , several watchmen and janitors , grown old in the service, had
'complained to him about their work assignments and Whipple believed
that they were in fact being mistreated , that belief being the basis of
his criticism of the respondent 's policy to the watchman in question. On
February 7, 1939, about a month after the Committee meeting about
which Whipple testified , Hill transmitted to Whipple a summary of
the discussion between them, in which Hill was reported as stating that
the criticism was without foundation , that the respondent was emi-
nently fair to its old employees , and that he , therefore , viewed Whip-
ple's unsolicited statement to the watchman "as pure trouble -making."
Attached to the summary was a letter from Hill, identified by him at
the hearing as correct , in which Whipple was accused of having en-
gaged in "voluntary criticism " of the respondent and was informed
that this incident constituted "another warning" that recurrences in
the future "will ultimately force the management to dismiss you . . ."
Although Hill and Taylor denied having accused Whipple of foment-
ing trouble or having threatened him with discharge at the January
1939 meeting of the Committee , we reject their testimony as incredible
under the circumstances and, in agreement with the Trial Examiner,
accept Whipple 's version of Hill's remarks , as corroborated by Hill's
letter and report. We find this incident to be a further example of the .
respondent 's policy of stifling as unauthorized any activity by its
employees for the improvement of working conditions.
In June 1940, the respondent 's employees, under the leadership of
Whipple, sought to excise from the employee representation plan and
the Committee some elements which they deemed illegal under the Act
by setting up the Peter-Cailler-Kohler Employee 's Union, herein called
the Union . The result of their efforts was merely an expansion of the
existing employee representation plan to provide for general employee
meetings apart from management outside the plant, thereby supple-
menting sessions of the Committee ,'for separate officers of the general
employee meetings , and for the nomination and election of Committee
.representatives and employee officers on premises not owned by the re-
spondent . Hill testified that the Union had left the employee represen-
tation plan substantially unaltered and that "I don't know of any
change, and everything is the same as it has always been, except they
hold meetings outside."
While Hill and Taylor did not object to the introduction of these
changes, they insisted upon supervising the drafting of notices
thereon to the employees . After the first nominating meeting of
the Union , Whipple prepared for printing and distribution by the
respondent 's clerical staff an announcement to all employees of the
names of the nominees and the date of the election meeting. There
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is agreement between Whipple and Taylor that the latter had com-
pelled Whipple to consent to the deletion of a statement from the
original draft of the announcement to the effect that it was unlawful
to vote on company time and property. It is also noteworthy that
the announcement as distributed contained a paragraph explaining
as follows the effect of the innovations :
To clear up some confusion in the Moulding and Unmoulding
Departments, we wish to state this is the same P. C. K.
Employees Union as we have had the past 21 years.
Whipple testified that he had inserted this sentence because of a
misunderstanding among the employees in the two-named depart-
ments as to the relation between the Committee and the Union and
because Taylor had insisted that he dispel a misapprehension on
the part of some of these employees that the Union was a C. I. 0.
affiliate. Although Taylor denied having had any conversation of
this nature with Whipple, we do not give credence to his denials, as
we, like the Trial Examiner, are impressed with Whipple's credibility
and with the plausibility; under the circumstances of Whipple's testi-
mony on this point. We find that, by continuing thus to control
the collective activity of its employees, who aspired to some extent
to free themselves from the respondent's rule, the respondent further
interfered with their right of self-organization.
We find that, by the aforementioned attempts to compel with-
drawal from the C. I. 0. and to stifle independent collective activity
on the part of employees, the respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
B. The discharge o l Whipple
In August 1939, the Dairy Farmers' Union, an organization com-
posed of milk producers, declared what has become known as a "milk
holiday". The respondent, a large consumer of milk, had for many
years been purchasing from the Dairymen's League, a producers'
cooperative marketing association operating in competition with the
Dairy Farmers' Union. During the "milk holiday," pursuant to its
purchase contract with the Dairymen's League, the respondent used
milk substitutes and permitted the Dairymen's League to process on
the respondent's premises milk destined for delivery by the Dairy-
men's League to shortage areas. The respondent's employees were
aware of the fact that trucks, of the Dairymen's League were.leaving
the respondent's plant with milk for distribution to other consumers.
In September 1940, the Dairy Farmers' Union threatened to call
another "milk holiday". At a widely announced meeting of the
PETER CAILLER KOHLER SWISS CHOCOLATES COMPANY, INC. 1179
Union held outside the plant on September 28, there was introduced
and unanimously adopted after extended discussion a resolution con-
demning the so-called milk monopolies, stating that the respondent in
1939, "whether intentionally or unintentionally," had aided and
abetted the forces opposed to the Dairy Farmers' Union, protesting
the respondent's action during the "milk holiday", and declaring that
the Union went on record "for complete and unqualified solidarity
with the Dairy Farmers' Union." The. last paragraph of the reso-
lution provided for the transmission of copies to Hill, vice president
and manager of the respondent, and to the local press. The
resolution was published in a newspaper circulated in a nearby
county.
Upon receipt of his copy, Hill set about to ascertain the identity
of those members of the Union who had sponsored the resolution
and its publication. He questioned the secretary of the Union and
was also informed by the respondent's personnel manager that
Whipple had urged attendance at the meeting. On two occasions he
summoned Whipple and asked him to explain the reason for the
resolution and its publication, the failure of the Union to notify him
in advance of their intention to adopt and publish the resolution,
and the choice of a general employee meeting instead of the Com-
mittee as a forum for consideration of the question. Hill also at-
tempted to learn from Whipple the extent of attendance at the
meeting and the names of the persons who had introduced the reso-
lution. Whipple refused to divulge the information, contending that
those matters were "union business" and that he was unwilling to
"put any union men on the spot." I
On October 17, 1940, Hill again sent for Whipple and told him
that, as a result of the respondent's investigation, Whipple was being
held "fully and duly responsible" for the passage and publication of
the resolution. Whipple agreed to assume responsibility as president
of the Union but again asserted that what had occurred at the meet-
ing was "strictly union business." Hill thereupon discharged
Whipple for his "connection in this milk resolution" and explained
that the respondent "could not have that sort of thing going on here,
and with the union" and that "you are out of your jurisdiction to
have anything to do with the passage of the resolution." The same
day, Hill posted a notice to all employees stating that the respondent
viewed "the passage and publicity of this resolution as a very serious
matter," harmful to the respondent in that it falsely implied that
the respondent had engaged in strikebreaking activities during the
'milk holiday."
It was admitted by counsel for the Board that Whipple had in
fact sponsored the adoption and publication of the resolution, and
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is no conflict on this point. The respondent contended at the
hearing and argues in its brief that it was privileged to discharge
Whipple because the action of the Union, for which he was re-
sponsible, did not constitute concerted activity within the meaning
of the Act, as it was not related to working conditions, and that, even
if concern with such matters were considered legitimate trade-union
activity, publication of the resolution was libelous and therefore
outside the protection of the Act. There is no showing that pub-
lication of the resolution was in fact libelous or otherwise unlawful.
The action taken at the meeting of the Union consequently must be
regarded as privileged union business transacted by the respondent's
employees under the aegis of an organization of their choice. By
going behind the united character of this action, by attempting to
ascertain the identity of its most prominent protagonists, and by
punishing with discharge the person most influential in its adoption,
the respondent engaged in conduct clearly tending to discourage union
activity.
But the evidence shows that the discharge of Whipple was not
alone occasioned by the isolated instance of his aggressive participa-
tion in the meeting of September 28. As we have already pointed
out in detail, Whipple assumed leadership for a period of three
years in an attempt by varying methods to rid himself and his fel-
low employees of the respondent's persistent direction of their col-
lective activity. At each step he was seriously impeded by the re-
spondent's unrelenting opposition to outside organizations and its
correlative determination to preserve the Committee as their bargain-
ing agency, by its repeated pronouncements that it was the final
judge of the propriety of its employees' united efforts, and by its
continued threats of discharge for_ any conduct derogative of its
established policy. Although the respondent did not oppose the
Union as an outgrowth of the existing employee representation plan,
there is very substantial basis in the evidence heretofore considered
for assuming that it was bent upon extending the control which it
already exerted over the Committee to the separate meetings of its
employees.
It is consequently apparent that the respondent's decision to dis-
charge Whipple was due to his continued unwillingness to yield to the
respondent's censorship and supervision of his union activity. The
discharge was thus intended to bring about a final solution to a
three-year conflict between Whipple and the respondent and to serve
unequivocal notice upon the employees that the respondent would
not abdicate its position as sole judge of the propriety of their
collective action.
For the foregoing reasons, we find that, by discharging Earl H.
Whipple, the respondent has discriminated against him in regard to
PETER CAILLEfR KOHLER SWISS CHOCOLATES) COMPANY, INC. 1181
hire and tenure of employment, thereby discouraging membership
in the Union, encouraging adherence to the Committee, and inter-
fering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section T of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent 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 obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of their right to self-organi-
zation and to bargain collectively, we shall order it to cease and
desist from such conduct. Having found also that the discharge
of Earl H. Whipple was discriminatory under the Act, we shall
order the respondent to reinstate him to his former position, or to
a substantially equivalent position, without prejudice to his seniority
and other rights and privileges and to make him whole for any loss
of pay he has suffered by reason of the discrimination against him
from the date of the discrimination to the date of the offer of re-
instatement, less his net earnings during said period."
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Peter-Cailler-Kohler Employees' Union, an unaffiliated organ-
ization, is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. By interfering with, restraining, and coercing' its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,'
within the meaning of Section 8 (1) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Earl H. Whipple, the respondent has engaged in and is
8 By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his seeking
employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood
of Carpenters and Joiners of America, Lumber and Samomill Workers Union, Local 2590,
8 N. L R. B 440 . Monies received for work performed upon Federal , State, county,
municipal , or other work-relief projects shall be considered as earnings See Republic
Steel Corporation v. National Labor Relations Board, 311 U. S. 7.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Peter Cailler Kohler Swiss Chocolates Company, Inc.,
Fulton, ' New York, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in Peter-Cailler-Kohler Employee's
Union, an unaffiliated labor organization, or in any other labor
organization of its employees, by discriminating against its em-
ployees in regard to their hire or tenure of employment or any term
or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
• 2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Earl H. Whipple immediate and full reinstatement
to his former position, or to a substantially equivalent position, with-
out prejudice to his seniority or other rights or privileges;
(b) Make whole Earl H. Whipple for any loss of pay he has
suffered, by reason of the respondent's discrimination against him,
by payment to him of a sum of money equal to that which he normally
would have earned as wages during the period from the date of such
discrimination to the date of the offer of reinstatement, less his
net earnings during such period;
(c) Post immediately in conspicuous places in its Fulton, New
York, premises, and maintain fora period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees
.stating:' (1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a)
and (b) of this Order; (2) that the respondent will take the affirma-
tive action set forth in paragraphs 2 J a) and (b) of this Order;
and (3) that the respondent's employees are free to become or remain
PETER CAILLER KOHLER SWISS CHOCOLATES' COMPANY, INC. 1183
members of Peter-Cailler-Kohler Employees Union and that the re-
spondent will not discriminate against any employee because of his
membership in or activity in behalf of said organization ;
(d) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
i