Polish National Alliance of the United States of North America

National Labor Relations Board - Board Decisions

Aug 11, 1942

42 N.L.R.B. 1375 (N.L.R.B. 1942)

In-,the Mattel Of POLISH NATIONAL ALLIANCE OF TIIE UNITED STATES
OF NORTH AMERICA and Omcii EMPLOYES' UNION No -20732,
A F OF L
Case No C-2176 -Decided August 11, 1<912
Jurisdiction . fiateinal benefit society engaged in insuiance business
Unfair Labor Practices
Intez fez ence, Resti aznt, anzd Coez czon a ai ning employees against union mem-
bership of activity, inteliogating employees respecting membeiship in union,
disparaging the union, offeiing wage inciease to employee active in union,
on condition he cease union membership and activities, publishing false and
misleading statements concerning strike in official publication
Dtsaiimmation dischaige foi union iembeiship and activity, offering condi-
tional reinstatement to unfair„labor practice striker who abandoned conceited
activity, refusal to reinstate remaining unfair labor practice strikers after} they
unconditionally applied foi reinstatement
('olletive Raigainiiiq iiialoiitj of union established by membership application
cards-refusal to bargain collectively by refusing to recognize the union
Remedial Orders : employer ordered to cease and desist unfair labor practices,
upon request to bargain collectively with the union, reinstate discharged
employee with back pay, unfair labor practice strikers ordered reinstated and
awarcl^ed.backpayfiom date,ofthen applc^ation foi ienistatement, striker who
abandoned conceited activity by attempting to'ieturii to work while strike way
in progress and was discriminatorily offered conditional reinstatement awarded
back pay as of date of application of'remaining strikers and not from date of
his application
Unit Appropriate for Collective Bargaining . office employees, excluding janitors,
attorneys, elected officers, chief clerk of auditing department, manager of real
estate department, inspector of rent collection department, rent collectors,
chief organizer of oiganization department, personal secretary to president,
personal, secretary to general secretary, confidential secretary to Censor (em-
ployed in Milwaukee Wisconsin), aesist,int `,ecietaiy (adinnilstiativ(1) 'to
general secretary, assistant secretary (administrative)- to treasuiet, and
librarians
Mr Lester' Sher and Mr Robert T Drake, for the, Board
Mr Cisiinir E Midowicz and Mr Ewart Harris, of Chicago, Ill ,
foi the respondent. ,
Mr S G. Lippman, of Chicago, Ill, for the Union
Mr Marvin C Wahl, of counsel to the Board
42 N L R B , No 250.
1375
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by the Office Employes' Union
No 20732, A F of L , herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Thirteenth Region (Chicago, Illinois), issued its complaint
dated March 9, 1942, against Polish National Alliance of the United
States of North America, Chicago, Illinois, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging,in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, together with notice of hearing-thereon,
were duly served upon the respondent and the Union. The Union
thereafter filed another amended charge, and on March 12, 1942, the
Regional Director accordingly issued an amendment to the complaint.
Copies of the amendment were duly served upon the respondent and
the Union.
With respect to the unfair labor practices, the complaint, as
amended, alleged in substance, that the respondent. (1) since March
26, 1941 has refused to bargain collectively with the Union for the
employees in an appropriate unit, although the Union has been the
exclusive representative of such employees; (2) on or about April 1,
1941, and thereafter, warned its employees against belonging to the
Union or engaging in union activity, interrogated them respecting
their membership in the Union, disparaged the Union, offered wage
increases to certain employees on condition that they abandon their
union membership and activities; (3) on October 6, 1941, discharged,
and thereafter refused to reinstate, Anna Owsiak because she had
joined the Union and' engaged in concerted activities; (4) by such
rots caused its office employees to go out on strike on October 7, 1941,
and by continuing its unfair labor practices, including warning and
urging its striking employees to abandon their concerted activities
and return to work, prolonged said strike to January 27, 1942; (5)
since October 10, 1941, refused upon request to reinstate Henry
Ziolkowski, a striking employee, because of his union membership
and concerted activity; (6) since January 27, 1942, refused upon re-
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1377
quest to reinstate 26 named striking employees 1 because of their
union membership and conceited activity, and (7) by the foregoing
acts has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act
On March 20, 1942, the respondent filed its answer, denying that
it was engaged in commerce within the meaning of the Act and that
it had committed any unfair labor practices, and setting up certain
affirmative defenses
Pursuant to notice, a hearing was held at Chicago, Illinois, from
March 23 to 27, 1942, inclusive, before Josef L Hektoen, the Trial
Examiner duly designated by the Chief Trial Examiner The Board,
the respondent, and the Union were represented by counsel and par-
ticipated 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 close of the hearing,` counsel
for the Board moved to conform the complaint to the proof in regard
to formal matters, the Trial Examiner granted the motion without
objection During the course of the hearing, the Trial Examiner
ruled on other motions and on objections to the admission of evidence
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed The rulings are hereby
affix med
The Trial Examiner thereafter filed his Intermediate Report,
dated April 28, 1942, copies of which were duly served upon the
parties He found that the respondent had engaged in and was en-
gaging in unfair labor pi actices, within the meaning of Section 8
(1), (3), and (5) and Section 2 (6) and (7) of the Act, and recom-
mended that it cease and desist therefrom and take certain affirma-
tive action, including the reinstatement of Anna Owsiak, Henry
Ziolkowski, and the 26 striking employees with back pay, deemed
necessary to effecuate the policies of the Act On May 29, 1942, the
respondent filed exceptions to the Intermediate Report and a brief
in support of the exceptions
Pursuant to notice, a hearing was lidd before the Board at Wash-
ington, D C, on July 11, 1942, for the purpose of oral argument.
The respondent was represented by counsel and presented argument
to the Board
The Board has considered the exceptions to the Intermediate Re-
port and the brief in support thereof and, insofar as the exceptions
aie inconsistent with the findings, conclusions, and order set forth
below, finds them,to be nithout merit
' They are listed in Appendix A
472S1 4-4 2-vol 42-87
1378, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, Polish National Alliance of the United States of
North America, is a fraternal benefit society incorporated under the
laws of Illinois, and maintaining its principal office in Chicago. It
provides death, disability, and accident benefits to its members and
their beneficiaries. It is "the largest frateinal organization in the
world of Americans of Polish descent " The respondent is organized
into 1817 lodges in 27 States of the United States, the District of
Columbia, and Manitoba, Canada and is licensed to do business in
26 States, the District of Columbia, and Manitoba, Canada 2 Dele-
gates are selected from a group of lodges and together constitute a
council The respondent has approximately 190 councils, 160 of
which are outside the State of Illinois.
On December 31, 1941, the respondent had in force 272,897 insur-
ance benefit certificates with a total face value of $159,683,583 As
of the same date, it owned admitted assets of $30,090,835 Among
such assets were
Cash (in Illinois and Indiana banks)3----------------$1,059,236
- U S Government bonds and obligations-------------- 2,451,056
Bonds of States of U S and political subdivisions
of States------- _______________`_________------ 6,141,863
Bonds of foreign countries (Canada, Poland) ---------- 14, 797
Railroad and equipment bonds------------------------ 1,694,491
Public utility bonds---------------------------------- 1,007,461
Industrial bonds-------------------------------------- 1,749,275
Stocks ---------------------------------------------- 29,750
Mortgage loans on Real estate in-
Illinois ------------------------------------------ 2,420,843
Indiana ----------------------------------------- 321,159
Michigan ------------------ ---------------------- 2,000
Wisconsin --------------------------------------- 2,308
Real estate in-
Illinois'------------------------------------------ 9,223,443
Indiana------------------------------------------ 1,586,557
Michigan ,---------------------------------------- 14,829
New York --------------------------------------- 25,193
Wisconsin --------------------------------------- 7,954
2 These findings aie based upon a stipulation of the parties However, the respondent's
"Annual Statement" indicates that the respondent is authorized to transact business in
each of the 27 States where it maintains lodges '
3 The respondent's "Annual Statement" shows that it also has cash on deposit in
Pennsylvania banks
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1379
During 1941, its total income was $5,717,344, of which $3,723,364
was received from members and $1,690,250 from investments Dur-
ing the same period, benefits paid totaled $1,845,126 ,
The'respondent's business is managed and directed by officers and
directors located at the Chicago office All terms and conditions of
its insurance certificates are determined, investments made, applica-
tions for certificates, claims, and loans acted upon, and all insui ante
certificates and checks executed, at the home office Its securities
are purchased through licensed dealers and, with the exception of
$11,000 thereof on deposit with authorities in Manitoba, Canada, are
kept in Chicago.
Substandard risks of the respondent are reinsured through Lincoln
National Life Insurance Company, and all reinsurance documents
are sent to the company's home office at Foit Wayne, Indiana. At
the time of the hearing from $250,000 to $300,000 of such insurance
was in force The respondent employs Retail Credit Company,
Atlanta, Georgia, to render inspection reports concerning the finan-
cial standing and character of applicants for insurance certificates
'During 1941, the respondent paid that company $4,384 for such
services.
The respondent pays commissions to "organizers" 4 in 26 States
and, in 1941, it spent $2,708 for their traveling expenses outside of
Illinois During the same period it spent $10,661 for advertising'
in newspapers, magazines, radio, and other media, as well as $1,340
for printing, outside Illinois It publishes and sells an official
almanac at 50 cents per copy, throughout the United States. The
semi-monthly meetings of its board of directors are reported in
printed pamphlets of about 64 pages which are sent to the respon-
dent's councils.
Alliance Printers and Publishers, Inc, herein called the Alliance,
is an Illinois corporation having its place of business in Chicago. All
its capital stock is held by the officers and directors of the respondent
by virtue of their offices The officers and directors of the Alliance
are chosen from among those of the respondent The board of
directors of the respondent, appoints the business manager. The
Censor of the respondent, its ranking officer and representative, ap-
points the editorial staff of the Alliance. The latter publishes the
weekly Zgoda, official publication of the respondent, which is mailed
to each member, 6,857,556 copies were published in 1941, about 80,
percent of which were mailed to persons residing outside Illinois. It
also publishes the daily Zgoda which appears for sale on news-
stands in Illinois, Indiana, and Michigan. In 1941, 7,785,524 copies
4 Their duties are to a large extent similar to those of insurance agents
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the daily Zgoda were published, about 15 percent of which were
mailed to persons residing outside Illinois Both the weekly and
daily Zgoda are members of the Audit Bureau of Circulations, and
the latter is, also a member of the United Press During 1941, the
Alliance bought paper for printing these publications in the amount
of $59,474, all of which originally came from points outside Illinois.
The Alliance also does all the respondent's job printing.
The respondent contends that it is not engaged in commerce
within the meaning of the Act because it is a "fraternal benefit as-
sociation having the lodge system and ritual, binding its members by
fraternal ties, and animating them with the spirit of devotion to a
free Poland," and because it is not inspired by "the piofit motive "
The respondent also points to the fact that, since its organization in
1880, it has expended large sums for "educational purposes," in-
cluding the maintenance of Alliance College, Cambridge Springs,
Pennsylvania, for "national purposes," for relief, and for other pur-
poses, including the erection of monuments and help to Polish
immigrants .
Although the respondent has been organized as a non-piofit cor-
poration and its charter emphasizes the cultural and social purposes
of its incorporation, these factors are not conclusive of the question
of our jurisdiction; the determining point is what the corporation
does.5 The activities of the respondent in issuing insurance benefit
certificates and its attendant investments mark it as an insurance
company.' We have previously held that a company engaged in the
insui ance business, through similar extensive activities, is engaged
in commerce within the meaning of the Act 7 Moreovei, the fact
that the respondent may not be organized for "profit" does not place
it beyond our jurisdiction." We find that the respondent is engaged
in commerce within the meaning,of the Act
II THE ORGANIZATION INVOLVED
Office employes' Union No 20732 is a labor organization affiliated
with the American Federation of Labor. It admits to membership
office employees of the respondent's Chicago, Illinois, office.
6 White v Central Dispensary and Emergency Hospital , 99 F (2d ) 355 (App D C )
0 This is recognized by the respondent in its "Manual " wherein it states the Polish
National Alliance in recent times has greatly expanded and developed into a large fraternal
insurance organization through its expansion it has entered the field of sharp compe-
tition of business institutions '
7 Matter of John Hancock Mutual Life Insurance Company and American Federation of
Industrial and Ordinary Insurance Agents Union No 21571, 26 N L R B 1024
8 N L It B v Christian Board of Publications , 113 F ( 2d) 678 (C C A 8) , Matter
of American Medical Association and Chicago Mailers Union No 2, International Typo-
graphical Union, etc, 39 N L It B 385
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1381
III THE UNFAIR LABOR PRACTICES
A The refusal to bargain
1 The appropriate unit
The complaint, as amended, alleges that all office employees of
the respondent's Chicago, Illinois, office, excluding janitors, attor-
neys, elected officers, the manager of the real estate department, the
inspector of the rent collection department, rent collectors, the chief
organizer of the organization department, the personal secretary to
the president, the personal secretary to the general secretary, the
confidential secretary to the Censor (employed in Milwaukee, Wis-
'consin), the assistant secretary (administrative) to the general sec-
retary, the assistant secretary (administrative) to the treasurer, and
librarians, constitute a unit appropriate for the purposes of collec-
tive bargaining.
The respondent desires to exclude the following employees from
the appropriate unit :
Henry Zzolkowski, I Pawlowski, Walter Andrezejewski, W Neu-
man, J Hawrylewicz. These employees are designated as "chief
clerks" by the respondent and are in charge of separate departments.
They allocate work to the other employees in their respective depart-
ments and perform clerical duties themselves None of them has
power to hire or discharge or to recommend such action We are of
the opinion that the nature of the duties peiformed by these em-
ployees does not require their exclusion from the unit, and we find
them to be within the unit.
E. Wnorowska. She is secretary to the respondent's medical ex-
aminer and her duties require her to check applications, directing her
superior's attention to those of a questionable character It appears
that her position does not give her access to confidential information
pertaining to labor relations We shall therefore include her n-,ithin
the unit
J Kowal and A 1111 Skibinslca These employees work under the
direction of J Hawrylewicz, the "chief clerk" in charge of the
"Youth department " Their duties are essentially clerical, and neither
directs the work of any other employees. We find them to be properly
included within the appropriate unit.
S Kilar The duties of this employee are mainly clerical, requir-
ing him to photostat and file applications and claims We shall in-
clude him, within the unit
The respondent further urges that the following employees should
be included within the unit
Office employees of the Alliance There are 16 such employees
whose duties, although clerical, are not connected in any manner
1382 DECISIONS OFD NATIONAL LABOR RELATIONS BOARD
with the duties of the respondent's employees who constitute the
alleged appropriate unit There is no showing of an interchange of
employees between the respondent and the Alliance. The Alliance
occupies a building approximately 11/2 blocks distant from the re-
spondent. Moreover, it is not shown that the Union has attempted
to organize these employees Under the circumstances, we find that
the office employees of the Alliance are not a part of the appropriate
unit.
M Janicki and M. Sakowska These employees are librarians who
work in the basement of the respondent's building They perform
the usual functions of their calling and have no routine contact with
the employees in the unit alleged to be appropriate. We are of the
opinion that the librarians should be excluded.
F Dziob As the personal secretary to the president of the re-
spondent, Dziob receives calls, makes appointments, handles cor-
respondence, and generally acts for the president in his absence He
has access to confidential information pertaining to labor relations,
and we shall consequently exclude him from the unit
J. Fafara. He is the chief "organizer" for the organization de-
partment and as such is in charge of the other "organizers" in the
field, whose duties are similar to those of an insurance agent He
spends a large portion of his time in traveling and giving lectures
to the men in the field He also supervises the payment of commis-
sions to the employees of the organization department His woik is
not that of an office employee and is sufficiently supervisory in na-
ture to iequire his exclusion from the appropriate unit.
P Grzesiak As manager of the real estate department, he is in
charge of all the real estate sales for the respondent and supervises
the work of the office employees in his department He reports pe-
riodically to the respondent's board of directors on the status of his
work Like Fafara, his duties are essentially different from those of
the ordinary office employee and his work is primarily supervisory;
we shall exclude him from the unit.
C. Kowalski He is the inspector of rent collections and works
with Grzesiak in the real estate department. He directs the raising
and lowering of rents, spending the greater portion of his time out-
side the office inspecting real estate and investigating complaints
Kowalski also is properly excluded from the appropriate unit
Rent collectors. There are 11 rent collectors employed by Lhe re-
spondent They spend almost their entire time outside the office col-
lecting rents and they report to the office only for the purpose of hav-
ing their collections checked by Kowalski They are paid on a com-
mission basis. We find that their work is unlike that of the other
employees and requires their exclusion from the unit
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1383
J Foszcz. None of the parties objected to the inclusion of Foszcz
within the unit He is in charge of the auditing department and dis-
tributes the monthly reports'received from the respondent's lodges to
his subordinates for auditing , He also determines which of the 14
employees in his department shall receive time off and which are re-
quired to work overtime He has been employed by the respondent
for 15 years, and one of the respondent's counsel stated at the hearing
that Foszcz occupied a supervisory status In view of the natuie of
his duties, we are of the opinion that Foszcz is more closely allied
with management than with the employees within the unit and we
shall, therefoie, exclude him from the appropriate unit
We find that all office employees of the respondent's Chicago, Illi-'
nois, office, excluding janitors, attorneys, elected officers, the chief
clerk of the auditing department, the manager of the ieal estate de-
partment, the inspector of the rent collection department, rent col-
lectors, the chief organizer of the organization department, the per-
sonal secretary to the president, the personal secietary to the general
secretary, the confidential secretary to the Censor (employed in Mil-
waukee, Wisconsin), the assistant secretary (administrative) to the
general, secretary, the assistant secretary (administrative) to the
treasurer, and librarians, at all times material herein constituted and
now constitute a unit appropriate for the purposes of collective bar-
gaining, and that such unit insures to employees of the respondent
the full benefit of their right to self-organization and to collective
bargaining, and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The respondent's March 26, 1941, pay roll contains the names of 1fl
employees in the unit found above to be appropriate Application
cards introduced in evidence and testimony which we believe, as did
the Trial Examiner, show that between March 20 and 26, 1941, 60
employees within such unit signed applications for membership in
the Union or expressly authorized the Union to represent them 9 -
6 The respondent sought to show that Emile Panek , who designated the Union as her
bargaining agent, subsequently revoked such designation She signed a card on the
afternoon of March 24 and gave it to employee Louis Ro7en at that time On the morning
of Maich 25, she asked him to destroy it, and he informed her that he could not do so
since he no longer had the card Panek testified that on the same day she , rote a note
to Andrzejewski, the leading union organizer in the respondent's office , asking that her
card be destroyed IIow es er, on March 29, 1941, she signed a protest , hereinafter dis-
cussed , from the Union to the Censor of the respondent, and, if her testimony be accepted,
such action negatives her earlier e\piession of desire to withdraw from the Union An-
drze3ewski testified that 2 months after the Union was organized, Panek wrote him
stating that she wished to withdraw , that he thereupon explained to her that she had
"the right to belong," and that thereafter Panek attended a union meeting At best,
Panel 's actions were equivocal , and in the absence of a clear manifestation of a contrary
intention , we find that she remarried a member of the Union See Matter of Crown Can
Company and Arneiioan Federation of Labor, 42 N L R B 1160 In any event, even
if the withdrawal of Panek were considered effective, the Union would nevertheless still
have had a ma, ont3 at all times herein material
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, as did the Tiial Examiner, that on March 26 , 1941, and at
all times thereafter , the Union was, the duly designated representative
of a majority of the employees in the appropriate unit, and that, by
virtue of-Section 9 (a) of the Act, the Union was, and has been, the,
exclusive repiesentative of all the employees in such unit for the pur-
poses of collective bargaining with respect to rates of pay, wages,
hours of employment , and other conditions of employment
3 The refusal to bargain prior to the strike
On March 19 , 1941, a number of the respondent 's office employees
visited the headquarters of the Union, where they learned that they
were eligible for membership; on March 22 , they began an intensive
membership drive On March 23, they held a meeting, elected officers,
and authorized representatives of the Union to get in touch with the
respondent 's management in order to "consummate some kind of an
agreement " As found above , by March 26 , 60 employees of the
respondent had designated the Union as their collective bargaining
representative
Pursuant to authoi ization, James Algozino and Ackerman, union
representatives , on March 26, 1942, called on Charles Rozmarek,
president of the respondent , and Casimir Midowicz , its counsel, at the
respondent's office Ackerman advised the respondent's representa-
tives that the Union represented a majority of the office employees of
the respondent and requested recognition According to Algozino's
uncontiadicted testimony, Rozmarek replied that, if the Union repre-
sented any employees , " it was a small group of dissatisfied , disgruntled
drones " He refused to agree to a consent election to determine the
question , and stated that the respondent was not subject to the
jurisdiction of the Board
Early in April 1941, the Union submitted a proposed contract to the
respondent , in August it submitted ` a second proposed contract
Charles Noble, a union representative , testified without contradiction
that "Nothing was ever done At one time in our negotiations, we
agreed to tear up any contract we had submitted and sit down` across
the table and work out something that would be mutually agreeable
to the employer and the Union, but that was refused "
On August 30, 1941, the Union wrote F X Swiethk, of Milwaukee,
Wisconsin, the Censor of the respondent and its ranking officer and
representative , whose position carries with it the power to veto actions
of the board of directors The letter stated that, because of the failure
of the respondent to bargain collectively with the Union, the latter's
only alternative was a resort to its economic strength It suggested
that the Censor meet with a union committee in an endeavor to avoid
a strike. On September 4, the Censor replied that the respondent
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1385
"must be differentiated from a corporation conducted for profit," and
stated that he was "unable to perceive, any benefit to be gained from
a conference "
Noble fuither testified, without contiadiction, as follows On Sep-
tember 26, 1941, Noble and the grievance committee of the Chicago
Federation of Labor called on Rozmai ek They asked that the Union
be recognized and that the respondent baigain collectively with it
Rozmaiek refused the iequest but asked that a strike be averted until
after the December 10 meeting of the supervisory council of the
respondent He assured them that "everything would remain [u1]
status quo in the office" until such time.
The respondent admits in its answer,'0 and we find, as did the Trial
Examiner, that on March 26, 1941, and at all times thereafter, the
respondent refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit, and
has thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act
B Interference, restraint, and coercion
After the Union made its existence known to the respondent on
March 26, 1941, the latter not only i efused to bargain collectively
but set out on an intensive cawpaign to undermine the Union.
Employee Stanley Spila testified without contradiction,- and we
find, as did the Trial Examiner, that on March 26, 1941, I Zwai ycz,
a director of the respondent, asked Spila whether he was a union
member and what he thought about the Union, adding that he did so
at the request of Rozmarek, president of the respondent Spila told
Zwarycz that he had joined the Union so as to "piotect myself against
some of the people collecting graft in the office "
Employee Audi zej ewski testified without contiadiction that during
the last week ' of Mai. ch 1941, M L Czyz, a vice president of the
respondent, told him that she could never "consider" a union of em-
ployees of the respondent and that he was foolish to have become
involved "in this kind of trouble" She thereafter frequently re-
peated substantially the same statements to Anclrzelewski Czyz was
not, called as a witness. We find, as did the Trial Examiner, that
Czyz made the statements which Audizelewski attributdd to her.
Andizejewski also testified that, on March 29, John Ulatowski,
president of the council of the respondent of which Andrzejewski
was a member, told him that President Rozmarek had authorized him
to advise Andizejewski that if the latter gave up his union activ-
10 The complaint alleges and the respondent's answer admits that on March 26, 1941,
and at all times thereafter, the respondent refused , upon request , to bargain collectively
with the Union The respondent aNerred that it is "not engaged in interstate commerce
and therefore not subject to the jurisdiction" of the Board "or the provisions " of the Act
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ities he would receive $15 more per month, of which $10 would
be paid to Kostecki, assistant to the general secretary, for the cam-
paign fund being iaised for the reelection of the respondent's officers,
leaving him $5 "ahead" Andrzejewski testified'that he rejected the
proposal. Ulatowski, while admitting that he often talked with
Andrzej ewski, denied this particular conveisation, stating that he had
never talked about the Union with Andrzejewski or Rozmarek.
Ulalowski admitted that he supported Rozmaiek at the 1939 con-
vention, at which the latter was elected pi esldent of the respondent,
and that his daughter, who became an employee of the respondent
shortly theieafter and was working at the Chicago office at the time
of the hearing, told U]atowski of the' formation of the Union. Roz-
marek denied asking Ulato%i ski to make the proposal to Andrzejewski.
In view of the fact that Rozmarek asked Zwarycz to inquire of Spila
respecting his union membership, and in view of Ulatowski's uncon-
vincing protestation that he never talked about the Union to either
Andrzejewski or Rozmaiek, we find, as did the Trial Examiner, that
Ulatowski made the proposal to Andrzejewski, at the instance of
Rozmarek
On March 29, 1941, 45 union adherents addressed a letter to the
Censor explaining that they had joined the Union in protest against
"orders to return regularly 5% of - our modest earnings" towaid
a campaign fund for the ieelection of the iespondent's officers On
May 14, 1941, the Censor replied, stating, among other things, that
he considered their action improper, "inasmuch as your grievaneesi
should have been presented to the administrative authorities of our
organization "
Andrzejewski testified, without contradiction, and we find, as did
the Trial Examiner, that early in April 1941 G Piwowarczyk, a di-
rector of the respondent, told him that he was foolish to have become
involved with the Union, that the respondent's board of directors
would never recognize it, and that there was no place for a union in an
organization such as the respondent 11 Andrzejewski testified that
Piwowarczyk repeated these remarks to hint many times thereafter,
adding on one occasion that Rozmarek was prepared to "fight the
case through all of the courts," that the Union was a "dead issue," and
that Andrzejewski would be wise if he stopped his union activities
Andrzejewski further testified that on April 18, 1941, M W Mai-'
chrowicz, J. Wattras, and J Rekucki, directors of the respondent,
told employee Rozen and himself that the Union "is out of the
question" and that the respondent would never recognize a union
because, while a union might be appropriate in a factoiy, it had
"The same contention was made by counsel for the respondent dmmg the course of
oral argument before the Board and in its biief
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1387
no place in an office None of these directors testified, and we credit
the testimony of Andrzejewski, as did the Trial Examiner
Employee- Rozen testified, without contradiction, and we find, as
did the Trial Examiner, that in the respondent's office in April 1941
he heard Piwowarczyk warn employees S Gadecki and I Cieslak,
"Do not join the union "
It is undenied, and we find, that during April, May, and June, 1941,
Killoren, supervisor of the female office employees and confidential
secretary to the general secretary, asked employee Anna Owsiak,
whose discharge is discussed below, whether she was a member of
the Union, told a number of women employees, including Owsiak,
that they were foolish for joining the Union and that the respondent
would never allow a union in its office;' told Owsiak and other em-
ployees that, if the Union ever established itself, the respondent would
hire an efficiency expert and have most of the employees discharged;
told employee Spila that he had been foolish to loin the Union and
bring outsiders "to our organization to tell us what to do"; inquired
of employee F Ziemski if he was a union member, told employee
Elizabeth Kloss that she held Kloss "above those who joined the
Union," and, upon learning from Kloss that the latter was a member
of the Union, told her that she was unfair to those who were paying
her; told employee Victoria Zajaczkowska that the Union would do
her no good, that Killoien's sister had joined a union and achieved
no salary increase as a consequence, that once a union came in, the
employees would receive no vacations but would be penalized for
lateness and would receive no pay when ill, and at another time, after
first inquiring as to Zajaczkowska's union status, told her that she
knew Zajaczkowska was a member of the Union We also find that
because of Killoren's supervisory status, as well as her confidential
position, the employees had just cause to believe that she represented
the respondent, and the respondent is accordingly responsible for her
statements set forth above 12
The following incidents related by witnesses for the Board are also
undemed and are found to have occurred as testified to by such wit-
nesses Between April 15 and 20, 1941, Kostecki, assistant to the
general secretary, inquired of employee Kilar whether he had signed
a union application and, upon receiving an affirmative reply, shook
his finger at Kilar and said, "You will be sorry- for that " About
April 16, 1941, Buczak, president of employee Joseph Gaj da's council,
called Garda to his home, told Garda that lie had been informed in
the office of the respondent's secretary that Garda was "on the blacklist
12 See Matter of Germain Seed and Plant Company and International Brothel hood of
Teamsters , etc, 37 N L R B 1090, Matter of Central Greyhound Lines, Inc, of New
York and Brotherhood of Railroad Trainmen , 27 N L R B 976 , International Association
of Machinists v N L R B, 311 U S 72
1388 DIJCISIONS OF NATIONAL LABOR RELATIONS BOARD
for union activities and being secretary of the union " Gal d a adnmtted
that he was an officer of the Union, and Buczak thereupon told him,
"Go to the secretary's office and talk to them, tell them you are,
off all union business - be better for you and your job will be
safe," adding, "Don't forget theie never will be a union' at the Polish
National Alliance, that the board of directors and the board will
never agree to a union in the home office" Early in June 1941,
Buczak, after again calling at the office of the respondent, told Gajda
at his home the same evening that the treasurer of the respondent
desired that Gajda "Talk to the other boys about settling this case
with the officials of the Polish National Alliance outside the union,
without organizers or anybody, just pick out your own committee
," adding that Tomaskiewicz, the treasurei, would aibitiate the
matter between the employees and the boaid of directors During
May 1941 A Wojcik, a director, told employee Joseph Lopatowski
that she heard that the employees weie organizing a union, that they
were doing a foolish thing, that the respondent would never recognize
the Union, and that "we have enough trouble as it is" on account of
a union at the daily Zgoda, adding that the respondent "wanted no-
body to come here and tell us what to do of whom to hire " Wojcik
also told Lopatowski that he should go to Szczeibowski, the general
secretary, and tell the latter that we was "his man" and would "stick
with him " During May or June 1941 Szczerbowski told employee
Henry Ziolkowski that, though the employees of the iespondent might
try to organize a union, they would "never go through with it "
Foszcz, the chief cleik of the auditing depaitment, according to
numerous witnesses who credibly testified without contradiction, also
played an impoitant role in the respondent's campaign against the
Union In May 1941 he told employee Kilar that he should not have
joined the Union and that it could do nothing for him About the
same time he told employee John Wojcik that he thought Wojcik was
foolish for joining the Union, that Wojcik was old enough to know
bettei, that the union members did not know what they were doing,
and that theie would be no Union. On June 7 he told employee
Lawrence Kargol that the Union would never "be accepted" and that
Rozmarek would never sign a union contract He also asked em-
ployee Anna Owsiak on numerous occasions whether she belonged
,to the Union, asked her to tell him ofany employees in her depart-
ment who were members, and, on August 25, 1941, in response to his
questioning respecting a union meeting held on August 22, she in-
formed him that she was a member Foszcz was not called as a wit-
ness, and we find, as did the Trial Examiner, that he made the state-
ments attributed to him
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1389
According to Andrzejewski, Dr A Z Sampolmski, medical director
of the iespondent, early in June 1941 told him that Rozmaiek had
authorized a $65 monthly increase for Andrzejewski and the assur-
ance 'of his job until the September 1943 convention, provided that
he "diopped all union activities and induced-the other employees to
do likewise" Sampolmski fuithei told Andrzejewski that Tomas-
kiewicz, treasuier, Szczeibowski, general secretary, and S E Basinsl,
a clii ector of the respondent, wei e pi esent in the president's office
when Rozmarek outlined the proposal Andrzejewski testified that
he iefused the offer Rozmarek denied making "any such proposi-
tion " Sampolmski, Tomaskiewcz, and Basinski did not testify.
Szczeibowski appeaied-as a witness for the respondent but did not
testify respecting the incident We, like the Tiial Examiner, find
that Rozmarek made the proposal and authorized Sampolmski to
transmit it to Andrzelewski
On June 26, 1941, Rozmarek according to Rozen, told Rozen that
he was "a nice, fellow . I want you to be one of the boys," adding
that he should forget about "that union tiouble in the office" and that
Andizejewski, "the one that oiganized the union," would be the only
employee to be discharged Rosmaiek denied the conversation but
stated that he told Rozen that Andrzejewski "ought to watch his
work,because-right now he only pei foi ms fifteen percents of the woi k,
whei eas the assistant does 85 pei cent " In view of Rozmarek's wholly
unconvincing testimony respecting his giatuitous and irielevant ref-
erence to Andizejewski's work, we find that Rozen's version of the
convei sation is in accord with the facts and that Rosmarek made the
remarks attributed'to him by Rozen
Employee Garda testified without contradiction, and we find, that
during the lattei pait of September 1941 Killoien asked him how
the Union was "getting along " Garda replied, "The boys come in
very often to see 1\fr Rosmaiek ti yang to settle peacefully . , but
so far nothing doing. " Killoren then said, "Joe, I don't think
anything will come out of it and besides don't you think that the
union officials could be bought off and work hand in hand .. with
the P N A officials and still it won't do you any good to belong to
the union?" Galda' answered, "Not in this case"
We find, as did the, Trial Examiner, that by its course of conduct
in waiving its employees against union membership and activity, in
interrogating them respecting their membership in the Union, in dis-
paiaging the Union, and in offering wage increases to employee
Andrzejewski on condition that he cease his union membership and
activities, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C The discriman atory discharge of Anna Owsiak
Anna Owsiak began work for the respondent in November 1940 and
joined the Union on June 20, 1941 Owsiak testified, without contra-
diction, and we find, that Szczerbowski, the genei al secretary, and
Foszcz, the supervisor of the auditing department, fiequently com-
plimented her upon the quality and speed of her work and upon her
ability to get along with the other employees In June, prior to her
membership in the Union, she received an increase in salary
As hereinabove found, Killoren and Foszcz frequently asked Owsiak
whether she belonged to the Union In addition, she testified that on
August 25, 1941, the following incident occuried• Foszcz inquired of
her whether she had attended a union meeting on August 22 She
told him that she had, adding, "You should have been theie You
might have learned something " Foszcz replied, "I don't think so
Do you think it is fair to your, employers to join a union?" Owsiak
thereupon said, "Mr Foszcz, if the circumstances and if the situation
here in the office would be satisfactoi y none of the workei s would
even dream of having a union " Foszcz did not testify, and we credit
Owsiak's testimony, as did the Trial Examiner.
On September 9, 1941, Owsiak suffered an appendicitis attack and
received permission fi om Kostecki to go home After first telephoning
Killoren, she went to a hospital and on September 11 underwent an
appendectomy She left the hospital 10 days later and, on October 4,
with the permission of her doctor to ietuin to woik, informed Kostecki
that she would be back on October 6 Owsiak testified, without contra-
diction, and we find, that Kostecki told her to wait in the general sec-
retary's office "before going to any kind of work " When she arrived
at the respondent's office on the moaning of October 6, Szczeibowski
told her, according to her testimony, that the respondent had deter-
mined to "let her go" because of lack of work, that she might be called
back in a month or two, but that she should look for a job and if she
found one to take it Szczerbowski stated on direct examination that
he told her "to wait a few days, maybe a few weeks, she was sick after
operation," but that her position would be kept open for her On
cross-examination, however, he stated that he told her that there was no
work for her. The record shows that at least one employee, hired after
Owsiak, was doing the same or similar work at this time We credit
Owsiak's testimony, as did the Trial Examiner
The respondent, in its answer, denies that Owsiak was discharged
because of her union membership or activity, and states that she "was
offered re-employment upon the understanding that she would not
absent herself as frequently as she had done from her duties " but
that Owsiak refused the offer The evidence reveals no such offer or
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1391
refusal Szczerbowski admitted that he did not mention her alleged
absence when he talked to her on October 6 How ever, later that day,
when Noble and Algozino, union representatives, requested Rozmarek,
Szczerbowski, Tomaskienicz, and Midowicz to reinstate Owsiak,
Szczerbow ski gave them a hstl of her "absences," including alleged ab-
sences dining August 1941 Owsiak testified that she had never been
criticized for her absences At the hearing the respondent admitted
that she had not been absent during August Her other absences were
almost entnely on account of illness on with the respondent's per-
mission, all were admittedly "excused" by the respondent
In the course, of the discussion between the union representatives
and the respondent, further considered below, Noble indicated that a
stn ike imght result if the respondent did not reinstate Owsiak , Noble
testified that Rozmarek-told Szczerbowski to rehne her and to inform
her that she was to report for work, and that Rozmarek promised
Noble that she would be notified to that effect prior to a union meeting
scheduled to be held that evening Rozmarek testified that he told
Noble, "have her report to work" We credit, as did the Trial Ex-
aminer, Noble's version of the conversation Owsiak was not called
by Rozmarek or anyone else on behalf of the respondent on October 6,
as promised ; nor was she thereafter reinstated
We find that the respondent did not discharge Owsiak because of
lien "absences", on for any reason other than her membership in and
outspoken support of the Union , as demonstrated by her remarks to
Foszcz, and that hen dischai ge was another phase of the respondent's
intensive campaign of disi option of the Union We find that, by dis-
charging Owsiak, the respondent has discriminated in regard to her
hue and tenure of employment, thereby chscouiaging membership in
the Union and interfering with, restraining, and coercing its employees
in the exercise of the nights guaranteed in Section 7 of the Act
D The strike; continutnq znterference, restraint, and coercion;
fuitherrefusals to ba?gain
During the October 6, 1941, meeting between the union representa-
'.tives,and the officers of the respondent, at which the Union demanded
reinstatement of Owsiak, Noble reminded Rozmarek- of his promise,
given 10 days earlier, that matters would remain in "status quo in the
office "'3 Not only did Noble protest Owsiak's discharge, but he also
protested what he assented to be a demotion of employee Helen
Lachajczyk a few days earlier and concerning which the Union had
called a meeting for the same evening He asked that both employees
be reinstated to their former positions so a's to preveirt a strike Roz-
"See Section 3 (b), supra
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maiek refused Lachajczyk's reinstatement on the advice of Midowicz,
who stated that the respondent "would lose face" if she weie reinstated.
As related above, the iespondent also failed to keep its promise to
notify Owsiak that she was reinstated
On the evening of October 6, the Union held its scheduled meeting
Noble reported the details of his confeience with the respondent.
After a general discussion respecting the iespondent's continued re-
fusal to bargain, its continuing campaign against the Union, including
the discrimination against. its members, the employees voted to strike.
On the morning of October 7, 1941, the members of the Union went on
strike- The respondent's office and the plant of the Alliance were
picketed As a result thereof, the daily Zgoda ceased publication for 5
days The strike continued until January 27, 1942
Employee Rozen testified, without denial, and we find, that on
October 10, 1941, Piwowarczyk, a director of the respondent, told
Rozen that those who had joined the Union were wrong in doing so and
that it would never be recognized by the respondent He asked Rozen
to get in touch/with four other specified striking employees, and urged
that all five return to work, pursuant to arrangements made by
Piwowarczyk Rozen did not act on the proposal'
On October 11, according to the undenied testimony of employee
Zajaczkowska, Killoren told her as she stood on picket line, "You
shouldn't be out her e, you should be inside " '
On October 24, the respondent wrote to its lodges and councils an
"explanation" of the strike All employees of the respondent were
members of a lodge, some were also members of a council The letter
read in part as follows : ' '
We affirm once more, that no strike was had or exists in the P N
A offices and that our offices are functioning properly
* * *
The Board of Directors does not prohibit any of its employees
to belong to a union, however, it cannot permit that an insignifi-
cant minority of employees shall dictate to a pieponderrng ma-
jority of P N. A employees, to belong contrary to their will, to a
union and to such a one as they shall order them to The Board
of Directors likewise cannot allow persons who have nothing in
common with P. N. A or Polish traditions to decide who and for
what work a person shall qualify for in the offices of P N A.
We wish to emphasize, that the employees presently complain-
ing in the councils and lodges never turned to the individual
officers or to the Board of Directors with their grievances or de-
mands as they should have done in the first instance before they
11
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1393
sought the.protection of strangers, and whom later they sent in
their name to the Board of Directors with unfounded demands
Farness impels us to state, that among those who are not re-
turning to work, at least half are good workers, however mis-
guided `or terrorised by ambitious individuals, who in this way
seek to exert revenge on the present officeis, because they were
defeated at the last Convention It is propei to mention that the
leader of dissatisfied employees was one of the candidates at the
last convention for the office of Secretary General of the P. N A.
Employee John Wojcik testified, without contradiction, that near
the end of October, A Wojcik, one of the respondent's directors, told
him and another striking employee that they were losing both their
time and their jobs, that there would be no union in the respondent's
office, and that if they wished he would arrange with Rozmarek to have
them restored to their former status, but that if they refused they
would go back as new employees, if at all
Rozen testified that on November 9, Kostecki told him and several
other striking employees that 'they were foolish for joining the
Union, that the respondent would never recognize it, and that the
strike was lost, and asked them to go back to work, stating that
all the strikers would not be taken back by the respondent Kostecki
did not testify, and we find the testimony of Rozen to he true
Stanley Spila, one of the striking employees, testified that in
November and December, 1941, Director Zwarycz told him that the
respondent would not recognize the' Union, that Spila ought to
return to work, and that, if he desired, Zwarycz would take him to
Rozmarek for reinstatement Zwarycz did not testify, and we credit
Spila's testimony
On December 14, the weekly Zgoda, copies of which were mailed
to every member of the respondent, carried an article concerning the
strike over the signatures of the president, general secretary, and
treasurer of the respondent The article contained the following
statements
The Board of Directors does not prohibit any of its employees
to belong to a union, but it cannot permit a small minority of
employees to dictate, to a predominant majority of such em-
ployees, against their own will to join the union to which they
are ordered The Board of Directors likewise cannot' permit
that persons who had nothing in common with the P N A and
the Polish traditions to decide who is qualified for work in the
offices of the P N A
472814-42-%-il 42--88
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the employees who quit their work, were neither con-'
cerned with improvement of working conditions , nor compensa-
tion, is evidenced by the fact, that they themselves in the hand-
bills distributed by them set ' forth that they have no other
claims against the P N. A, excepting only the establishment of
a "closed shop" in the offices of the P N A We know and un-
derstand that unions are necessary and beneficial in factories,
mines and other -pi ivate enterprises organized for profit , but we
do not see the necessity of establishing a union in the offices of
a fraternal benefit society , which is organized foi the mutual
benefit of all, and in which all members , men aid women, as
well as the employees of the offices of the P N A, are co -owners
of the assets of which we possess Furthermore , the Board of
Directors is of the opinion that the question of an eventual
organization of the offices of the P N A is a matter for the con-
vention to pass upon as the Supreme Governing body of our
Society
Finally we desire to state that up to now no fraternal benefit
society, whether American or Polish, has established a "closed
shop" in their offices , and that on the average the employees in
the offices of the P N A ieceived better 'rages than is the case
with other like societies , which fact can be readily verified` In
our opinion our society is not subject to the Wagner Act and
the consideration of this matter by the National Labor Rela-
tions Board
We, therefore , cannot permit unions , to force upon us office
help as was demanded of us under the contract submitted for
our signatures , because the Board of Directors could not assume
responsibility before the Convention and the whole membership
of the Alliance of the proper conduct of the office and business
of the Polish National Alliance .
During the fiist week of the strike the Union made several futile
attempts to arrange , thiough Milowicz, a meeting with representa-
tives of the - respondent On November 18, seven offi' ials of the
printing tiades unions, an organizer for the American Federation of
Labor, and three officials of the Union called on Roz,.iarek at his
office The three representatives were informed by Rozmarek that
he had nothing to discuss with them and that they were not per-
mitted to enter his office
In the article published in the weekly Zgoda on December 14,
referred to above, there appeaied the statement that the respondent's
board of directors had adopted a resolution "that the groundless
,demands of some mislead [sic] employees for establishment of a
POLISH NATIONAL ALLIANCE OF THE UNITED STATES , 1395
`closed shop' in the offices of the P. N A, be not considered, especially
in view of the fact that the great majority of the office employees
are not in agreement with those who quit their work '
E Conclusions with respect to the refusals to bargain and the strike
We have found, upon facts which the respondent does not dispute,
that at all times §ince March 26, 1941, the respondent has consistently
refused to bargain with the Union, despite the latter's numerous and
peisistent efforts to obtain recognition Nor was the respondent
satisfield merely to ignore the Union's request to bar gain; it set out
on a course of conduct, with the aid of its officers, directors, and
supervisory employees, which had a single goal-the undermining
of the Union's strength In striving to accomplish its purpose, the
respondent, after denying the Union recognition, warned, urged, and
discouraged its employees against union membership and activity;
interrogated them respecting their membership in the Union; dis-
paraged the Union; offered wage increases to Andrzelewski, one of
the union leaders, provided that he would "drop" his union activity
and "induce" the other employees to do likewise; and, finally, re-
sorted to discharge Owsiak because of her membership in and sup-
port of the Union As a result of these unlawful acts and the
respondent's unwayernig course of anti union conduct, the members
of the Union voted to strike and commenced picketing the respond-
ent's offices But the respondent's efforts to destroy the Union did
not cease It persisted in its- refusal to bargain with the Union,
continued to make disparaging comments about the Union, and, by
various devices, including the publication in its official organ of
false and misleading statements concerning the causes and status
of the strike, urged the strikers to return to their jobs By such acts
the respondent sought at once to impress upon the striking employees
the futility, of remaining members of the Union and to evade its
duty to bargain collectively.
We find that, as a result of the respondent's refusal to bargain,
its disciiinmatoiy discharge of Anna Owsrak, and its other and
numerous acts of interference, restraint, and 'coercion, the employees
of the respondent went on strike, and that the respondent's per-
sistence in such unlawful activities resulted in a prolongation of
the strike.
F The refusals to reinstate
1 Henry Ziolkowskr
Ziolkowski was chief clerk of the respondent's mortuary depart-
ment in Chicago and began work for the respondent in 1919 He
a
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joined the Union in March 1941 and went on strike with the other
union members on October 7, 1941 The uncontraverted testimony
shows that on October 8 he told another stiiker, "I have big obliga-
tions, I believe we better go back to work," and that on the evening
of that day he conferred with General Secretary Szczeibowski at
the latter's home Szczeibowski gave Ziolkowski permission to re-
turn to work On October 10 Ziolkowski reported for work and was
informed by PI esident Rozmarek that the matter of his i eturn would
have to be discussed by the board of directors Szczerbowski then
told Ziolkowski that before he could return he would have to fill out
an application "as a new applicant for the work " - Ziolkowski re-
fused, telling Szczerbo"=ski, "Mi General Secretary, I am sorry-but
I believe I belong to this office and I work long enough and you
have my reputation of record If you cannot take me back again
to work I won't sign any application " He was permitted to take
his personal effects from his desk and thereupon left the office. Had
Ziolkowski accepted the condition attached to the offer of reinstate-
ment, he would have lost certain vacation privileges which he enjoyed
by virtue of his length of service The respondent offeied no expla-
nation as to why it imposed the condition iequiiing Ziolkowski to
apply "as a new applicant "
We find, as did the Trial Examiner, that Ziolkowski ietained his
status as an employee while on strike, that, since the strike was caused
by the respondent's unfair labor practices, he was entitled, upon
request, to unconditional reinstatement to his former position 14 It
is apparent, and we find, that the respondent attached the unfavorable
condition to its offer of reinstatement in order to punish Ziolkowski
for having Joined the Union and the strike We find further that'the
respondent thus discriminated against Ziolkowski in regard to the
hire and tenure of his employment, thereby interfering with, restrain-
ing, and coercing its employees in-the exercise of the rights guaranteed
by Section 7 of the Act
2. The remaining strikers
On January 27, 1942, S. G Lippman, counsel for the Union, wrote
Midowicz, counsel for the respondent, Iequesting that the respondent
reinstate the strikers. On February 9 and 11, Noble made the same
request, listing the 26 employees who sought reinstatement" The
respondent made no reply to these communications.
In its answer, the respondent contends that it refused to reinstate'
the striking employees because there had been a "reorganization" of
'IN L R B v American Mfg C0 , 106 F ( 2d) 61 (C C A 2) , N L R B V Hopwood
Retvnninq Co, 98 F (2d) 97 (C C A 2)
1 See Appendix A
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1397
its office, whereby the strikers' positions had been eliminated or con-
solidated, and that consequently there "did not . . exist suffi-
cient vacancies to accommodate all of the stokers " This contention
i, not supported by credible evidence. The record abundantly estab-
lishes the fact that the woik of the striking employees was being
performed by employees transferred temporarily from other depart-
ments and by employees hired since the strike, both of which groups
performed an unusual amount of overtime woik
That the "reoiganization" did not occur in the normal course of the
iespondent's operations but was biought about by the exigencies of
the strike is shown by Rozmarek's undisputed testimony that he and
his fellow officers had-given the matter of ieorganization considerable
attention for 3 or 4 months befoie the strike "in order to be prepared
for any emergency" and that on October 7, 1941, "we made transfers
from one department to another in order to fill up the gaps While
the respondent introduced into evidence a document, prepaied under
the supeivision of General Secretary Szczerbowski, puipoiting to show
that all or,most of the strikeis' duties had been assumed by employees
who did not strike' on October 7, Szczerbowski admitted at the hear-
ing that the pei sons at work during the strike performed a large and
unusual amount of oveitime work Thus, the respondent's iecords
show that from October 1, 1940, to Decembei 31, 1940, its overtime
payments amounted to $124 42, while during the same period in 1941
the overtime payments amounted to $10,222 58 We find that the
extraordinary increase in overtime woik resulted fiom the strike.
Moreover, it is proved that after the commencement of the strike on
October 7, 1941, and even after the applications for reinstatement on
January 27, 1942, the i espondent hii ed pei sons not employed before
the strike to occupy positions which the striking employees had held
or for which they were qualified When questioned at the hearing
concerning his willingness to dischaige the persons hired during the
strike in order to permit the reinstatement of the sti ikers, Szczerbowski
stated, "They perform their duties and I don't see any reason for
dischaging them" No other explanation was offered by the respond-
ent as to why it did not dismiss such peisons and ieinstate the striking
employees '
Since the strike was caused and piolonged by the respondent's un-
fair labor practices, the striking employees were, in the absence of
a valid reason, entitled, upon request, to immediate reinstatement to
their former positions, even though the respondent` had hired new
employees dui ing the strike 16 No valid reason for the failure to
reinstate them has been established by the record, and we find that
'6 Rapid Roller Co v 1' L R B , 126 F (2d) 452 (C C A. 7) , N L R B v Acme A%r
Appliance Co , 117 F (2d) 417 (C C A 2)
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent has failed to satisfy us that it could not reinstate all
or any of the striking employees When the employees went on strike,
they remained employees of the respondent , within the meaning of
Section 2 ( 3) of the Act , for their work had ceased as a consequence
of a current labor dispute and because of unfair labor practices.
After they had applied for reinstatement, thereby indicating their
willingness to return , the respondent was under a duty to restore
them to the jobs which they had vacated, or to similar jobs, and it
,could not with impunity give preference to outsiders The respondent
deliberately sought to terminate the employee status of the strikers
by favoring the non-strikers with employment in the jobs foimerly
occupied by the strikers, thereby displacing the latter who had engaged
in concerted activity as a piotest against the respondent 's unfair
labor practices But for such unfair labor practices , they would not
have been deprived of their employment , The object lesson to them
and to the other employees was clear Moreover , we find that by the
respondent 's unremitting campaign to destroy the Union both before
and during the stiike , by its conduct in requiring Ziolkowski to
return to work as a new employee, by its refusal to ieply to the Union's
request to reinstate the striking employees, and by the admissions of
Szczeibowski and Rozmarek, the "reoiganization " of its office and the
attendant refusal to reinstate the striking employees were motivated
by its desire to punish them for their concerted activity in striking
as a protest against the respondent 's unfair labor practices
We find that, by refusing reinstatement to the striking employees
at the time the Union unconditionally applied for their return to
work on January 27 , 1942, and thereafter , the respondent discrim-
inated in regard to the hire and tenure of employment of said
employees, thereby discouraging membership in the Union, and inter-
fering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE'
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the open ations of the re-
spondent set forth m 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 engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom and
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1399,
to take certain' affirmative action designed to effectuate the policies
of the Act
We have found that the respondent has refused to bargain col-
lectively with, the Union We shall therefore order it, upon request,
to bargain collectively with the Union with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment
We have found that the respondent has discriminated against the
employees named in Appendix A The respondent contends that the
strikers are not entitled to reinstatement because of alleged acts of
violence committed by them during the strike. The acts complained
of are shown to have been minor derelictions which the local author-
ities did not view seriously, for no arrests were made .17 Since appli-
cation for reinstatement was made on their behalf on January 27,
1942, it is not necessary for them to apply again We shall, there-
fore, oider the respondent to offer to all such employees immediate
reinstatement to their foimer or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges
All the employees piesently working for the respondent who have
been hired since October, 7, 1941, the date of the commencement of the
stiike, shall, if necessary, be dismissed by the respondent to piovide
employment for those employees to be offered, and who shall accept,
reinstatement If, thereupon, there is not sufficient employment im-
mediately available for the employees who did not go on strike and
for those to be offered, and who shall accept, reinstatement, then
all positions shall be distributed by the respondent among employees
presently working, excluding those dismissed, and the employees
to be offered, and who,,shall accept reinstatement, in accordance
with the respondent's usual method, of reducing its force, without
discrimination against any employee because of his union affiliation
and activities, following such a system of seniority or other non-
disciiminatory procedure as has been heretofore applied by the re-
spondent in the conduct of its business Those employees remaining
after such distribution, for whom no employment is immediately
available, shall be placed on a preferential list, with priority deter-
mined among them in accordance with such system of senority or
other non-discriminatory procedure as has been heretofore applied
by the respondent in the conduct of its business, and, thereafter, in
accordance with such list, employees shall be offered i ennstatement
by the respondent to their former or substantially equivalent posi-
tions as such employment becomes available and before other persons
are hired for such work
11 Repubho ' Steet,Corp v N L R B, 107 F (2d) 472 (C C A 3)
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall further of der the respondent to make whole the employees
listed in Appendix A for any loss of pay they may have suffered
by reason of the respondent's refusal on January 27, 1942, to reinstate
them, by paying to each of them a sum of money equal to the amount
each would noimally have earned as wages from the date of the ap-
plication for.reinstatement to the date of the respondent' s offer of
reinstatement or placement upon the preferential list herennabove
described, less his net earnings 18 during said .peiiod,l°
We have found that the respondent has discriminated against
Henry Ziolkowski because he had joined the strike Since he applied
for i einstatement on October 10, 1941, when the respondent refused
to restoie him to his former status, it is not necessary for him to
repeat his application We shall therefore order the respondent to
offer him immediate reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other
rights and privileges, in the same manner as we have ordered- the re-
instatement of the 26 employees named in Appendix A We do not
believe, however, that the policies of the Act will be effectuated by
ordering the respondent to make Ziolkowski whole as of the date of
his application for ieinstatement, as he attempted to return to work
while the strike was still in progress, thereby abandoning the con-
certed activity to which his fellow, employees resorted in consequence
of the respondent's unfair labor practices To treat him in any dif-
ferent manner from the stiikers who remained away from work
in protest against the unfair labor pl actices would be plainly in-
equitable We shall, therefore, regard the iespondent' s discrimina-
tory refusal to reinstate Ziolkowski on October 10, 1941, as having
the effect of returning him to the status of a striker, and we shall
order the respondent to make him whole as of January 27, 1942, in
the same manner as we have directed the respondent to make ,whole
the employees listed in Appendix A.
We have found that the i espondent discriminatorily discharged
Anna Owsiak on October 6, 1941, and thereafter refused to reinstate
her, because of her membership in and activities on behalf of the
"By "net earnings" is meant earnings less expenses , such as foi transpoitation, room,
and board , incurred by an employee in connection with obtaining Rork and working else-
where than for the respondent ,'which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment else-
where See Matter of Crossett Lumber Company and United Brotheihood of Carpenters
and Joiners of Amei tea, Lumber and Sawmill Tort ei s Union, Local 2590, 8 N L R B 440
Monies received from woik performed upon Federal, State , county, municipal , or other
work-relief piojects shall be considered as earnings See Republic Steel Corporation v
N L R B, 311 4 U S 7
Our order directing the respondent thus to make the employees whole derives from
our finding that the refusal to reinstate them on application constituted a N iolation of
Section 8 (3) of the Act as well as from our finding that the employees went out on strike
because of the respondent's unfair labor practices See Matter of Western Felt Works and
Textile Workers Organizing Committee , 10 N L R B 407
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1401
Union We shall therefore order the respondent to offer her im-
mediate and full reinstatement to her former or substantially equiv-
alent position , without prejudice to her seniority and other rights
and privileges ' Wd'shall also ord'er` the respondent to make -her whole
for any loss of pay she may have suffered as a consequence of the
discrimination , by paying to her a sum of money equal to the amount
which she normally would have earned as wages from the date of
her discharge to the date of the offer of reinstatement , less her net
earnings during said period
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case , the Board makes the following.
CONCLUSIONS OF LAw
1 Office Employes' Union No 20732, A F of L, is a labor organ-
ization within the meaning of Section 2 (5) of the Act
2 The office employees of the respondent's Chicago, Illinois, office,
excluding J anitoi s, attorneys, elected officers, the chief clerk of the
auditing department, the managei of the real estate department, the
inspector of the'rent collection department, rent collectors, the chief
organizer of the organization department, the personal secretary to
the president, the personal secretary to the general secretary, the con-
fidential secretary to'the Censor (employed in Milwaukee, Wisconsin),
the assistant secretaiy (administrative) to the general secretary, the
assistant secretary (administrative) to the treasurer, and librarians,
constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act
3 Since March 26, 1941, Office Employes' Union No 20732, A F.
of L, has been the exclusive representative of all such employees for
the purposes of collective bargaining, within the meaning of Section 9
(a) of the Act
4 By refusing to bargain collectively with Office Employes' Union
No 20732, A F of L, as the exclusive representative of its employees
in the appropriate unit, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (5) of
the Act
5 By discriminating against the employees named in Appendix A
and Anna Owsiak and Henry Ziolkowski in respect to their hire and
tenure of employment, thereby discouraging membership in Office
Employes' Union No 20732, A F of L, the respondent has engaged in
and is 'engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act
6 By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act
7 The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaiiing 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,
Polish National Alliance of the United States of Noith America,
Chicago, Illinois, its officers, agents, successors, and assigns, shall:
1 Cease and desist from
(a) Refusing to bargain collectively with Office Employes' Union
No 20732, A F of L , as the exclusive representative of the office
employees of the respondent's Chicago, Illinois, office, excluding
janitors, attorneys, elected officers, the chief clerk of the auditing
department, the manager of the real estate department, the inspector
of the rent collection depaitment, rent collectors, the chief organizer
of the organization depaitment, the personal secretary'to the president,
the personal secretary to the general secretary, the confidential secre-
tary to the Censor (employed in Milwaukee, Wisconsin), the assistant
secretary (administrative) to the general secretary, the assistant
secietaiy (administrative) to the treasurer, and the librarians;
(b) Discouraging membership in Office Employes' Union No. 20732,
A F. of L., or any'other labor organization of its employees, by dis-
charging, refusing to reinstate, of in any othei manner disci iminatmg
in regard to the hue and tenui e of employment or any term or condi-
tion of employment of its employees,
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes 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) Upon request, bargain collectively with Office Employes' Union
No 20732, A F of L , as the exclusive representative of its employees
at the Chicago office, excluding janitors, attorneys, elected officers, the
chief clerk of the auditing department, the manager of the real estate
department, the inspector of the rent collection department, rent col-
lectors, the chief organizer of the organization department, the'per-
sonal secretary to the president, the personal secretary to the general
POLISH NATIONAL ALLIANCE OF THE UNITED STATES 1403
secretary, the confidential secretary to the Censor (employed in Mil-
waukee, Wisconsin), the assistant secretary (administrative) to the
general secretary, the assistant secretary (administrative) to the treas-
urer, and librarians, in respect to rates of pay, wages, hours of employ-
ment and other terms and conditions of employment;
(b) Offer to the employees listed in Appendix A, and to Anne
Owsiak and Henry Ziolkowski, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to
their seniority and other rights and piivileges, dismissing if necessary
all employees hired since October 7, 1941, in the manner set forth in
Section V above, and place those for whom employment is not immedi-
ately available upon a preferential list and offer them employment as
it becomes available in the manner set forth in said section;
(c) Make whole, in the maimer set forth in Section V above, the em-
ployees listed in Appendix A, and Anna Owsiak and Henry Ziolkowski
for any loss of pay they may have suffeied as a result of the respond-
ent's discrimination against them;
(d) Post immediately in conspicuous places throughout its Chicago,
Illinois, office, and maintain for a period of at least sixty (60) consecu-
tive 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 and paragraphs 1 (a), (b), and (c) hereof;
(2) that the respondent will take the affirmative action set forth in
paragiaphs 2 (a), (b), and (c) hereof, and (3) that the respondent's
employees are free to become or remain members of Office Employes'
Union No 20732, A F of L, and that the respondent will not discrim-
inate against any of its employees because of their membership in or
activities on behalf of that organization,
(e) Notify the Regional Director for the Thirteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith
MR GERARD D REILLY, dissenting in part
I dissent from that portion of the majority's decision denying back
pay to Henry Ziolkowski from the date of his application for re-
instatement, when the respondent discriminated against him because
he had participated in the strike Ziolkowski, like the other em-
ployees, had resorted to the strike weapon to combat the respondent's
unf air labor practices When he offered to return to work, the re-
spondent was under a duty to restore him unconditionally to his for-
mer employment This the respondent failed to do, and Ziolkowski
was privileged to reject the offer of reinstatement as discriminatory
The offer and its refusal were, therefore, tantamount to a discharge
for union activity and participation in the strike, which clearly had
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the effect of discouraging such activity The policies of the Act can,
therefore, best be effectuated by making Ziolkowski whole for the loss
of pay he has suffered by reason of the discrimination against him
and not by resort to'the fiction, in which the majority has indulged,
that he reverted to the status of a striker. I see no distinction be-
tween this situation and those cases in which we have consistently
held that unfair labor practice, strikers are entitled to back pay from
the date on which unconditional reinstatement i denied them
I do not believe that the fact that Ziolkowski chose to return to
work before the strikers as a group had so decided is an operative
factor in a formulation of the affirmative relief to be ordered The
policy of the Act would, in my opinion, be best served by encourag-
ing those who have gone out on strike because of their employer's
unfair labor practices to return to work and to avail themselves of
the administrative remedy which the Act affords them and we should
do nothing to deter any individual striker from such action The
effect of the majority's decision would, it seems to me, be to prolong
unfair labor practice strikes and to discourage employees fi om re-
course to the adequate relief available to them under the Act
APPENDIX A
Walter J Andrzejewski
Waclaw Cichowicz
Eleanore Dzija
Emilie Florkiewicz
Joseph Garda
Al. S. Gajkowski
Lawrence Kargol
Stanley Kilar
Elizabeth Kloss
Eleanor Krzysztofiak
Helen Lachajczyk
Joseph Lopatowski
John Mazur
Ignacy Niemiec
Ed, Oleszek
Louis Rozen
Kasper Sechman
A M Skibinska
Stanley Spila
Sophie Szaflarska
Olga Szymanska
John Wojcik
John Zajac
Victoria Zajaczkowsk.
Felice a Ziemski
Joe Zurek