Rathbun Molding Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1948

76 N.L.R.B. 1019 (N.L.R.B. 1948)

In the Matter of RATHBUN MOLDING CORPORATION and AMERICAN
FEDERATION OF LABOR
Case No. 3-C-918.-Decided March 31, 1948
Mr. Philip Licari, for the Board.
McMahon & Crotty, by Mr. Peter J. Crotty, of Buffalo, N. Y., for
the respondent.
Dowd cC Kelly,, by Mr. Thomas L. Kelly, of Salamanca, N. Y., for
the Independent.
DECISION
AND
ORDER
On February 11, 1947, Trial Examiner Frederic B. Parkes, 2nd,
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the respondent had engaged in and was engaging in certain
unfair labor practices 1 and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief filed by the respondent, and
the entire record in the case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations, with the additions noted
below:
1. At the hearing and in its brief the respondent contended that,
under established Board policy, the Board is precluded from predi-
cating a finding that the respondent has engaged in unfair labor prac-
tices in violation of Section 8 (2) of the Act upon events preceding the
Decision and Order of the Board in Case No. 3-C-684 which was
issued March 16, 1944, pursuant to a settlement stipulation theretofore
1 Those provisions of Section 8 (1), (2), and ( 3) of the National Labor Relations Act,
which the Trial Examiner herein found were violated , are continued in Section 8 (a) (1),
8 (a) (2), and 8 ( a) (3) of the Act as amended by the Labor Management Relations
Act, 1947.
76 N. L. B. B., No. 149.
1019
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
executed by the respondent, the Independent, the United Paper
Novelty & Toy Workers International Union, C. I. 0., and the Board's
regional attorney. The Trial Examiner considered this contention
and rejected it as being without merit. We agree.
• The complaint in Case No. 3-C-684, insofar as it alleged violation
of Section 8 (2) of the Act by the respondent, was dismissed before
hearing was reached and without opportunity for adjudication of
the merits. In similar cases the Board has consistently held that
"No contention based upon the doctrine of res adjudicata can prevail,
since the former case was dismissed before hearing was reached and
without opportunity for adjudication of the merits." 2 Moreover, not-
withstanding the fact that in March 1944 the respondent and an agent
of the Board consummated an agreement settling charges of unfair
labor practices previously filed against the respondent, the-
respond-ent, as found by the Trial Examiner and. detailed in the Intermediate
Report, never abated its wrongdoing, but continued to violate Section
8 (2) of the Act. In addition, it also engaged in other conduct con-
stituting illegal interference with the exercise of employee rights and
unlawful discrimination with respect to hire and tenure of employ-
ment, within the meaning of Section 8 (1) and (3) of the Act. In
view of these circumstances, it is entirely in accord with our estab-
lished policy in such cases to consider matters antedating the earlier
settlement.'
2. We agree with the Trial Examiner that the circumstances stir-
rounding the formation of the Independent in 1943 and its regenera-
tion in late 1944, and the continuing support and assistance rendered
to the Independent by the respondent, which are fully revealed in the
Intermediate Report, clearly establish that the respondent has unlaw-
fully dominated and interfered with the formation and administra-
tion of the Independent, and contributed support to it, within the
meaning of Section 8 (2) of the Act. Thus, as found by the Trial
Examiner and detailed in the Intermediate Report, the respondent
2 Matter of Shuron Optical Company, Inc, 11 N. L R B 859 ; Matter of Henry A Half,
doing business as The Half Manufacturing Company, 16 N L R B. 667; Matter of Ingram
Manufacturing Company, 5 N L R B 908, Matter of Standard Oil Company, Standard Oil
Company of New Jersey, 43 N. L. it. B. 12, Matter of Gibbs Corporation, 74 N. L R B.
1182.
2 See Matter of Hawk J Buck, Inc, 25 N. L R. B 837, enf'd 120 F (2d) 903 (C C. A 5) ;
Wallace Corporation v. N. L. R. B, 323 U. S. 248, 254-255; Matter of Gibbs Corporation,
Supra
Chairman Herzog and Mr. Reynolds agree that the earlier settlement agreement does not
militate against the Board's consideration of conduct engaged in by the respondent prior
thereto ; however, they do not rely upon the respondent's conduct in permitting the Inde-
pendent to operate, and retain the profits from, the respondent's refrigerator vending sys-
tem or permitting the Independent to draft notices and type the minutes of its meetings
during working hours on a machine owned by the respondent, as constituting a part of the
subsequent unfair labor practices which render the settlement agreement a nullity.
RATHBUN MOLDING CORPORATION I02I
played a vital role in the formation of the Independent in 1943 by
communicating with the employees' committee upon its arrival in
Buffalo and directing it to an attorney who assisted it to perfect the
formal organization of the Independent; by securing hotel reserva-
tions in Buffalo for members of the committee and reimbursing them
for all expenses incurred during their 2-day stay there; and by im'
mediately, upon request, recognizing the Independent as the exclusive
bargaining representative of its employees without requiring proof
of majority representation.
Thereafter, the respondent actively dominated and interfered with
the administration of the Independent by participating in, and proffer-
ing suggestions at, a meeting of the officers of the Independent in re-'
Bard to the employees whose membership it should solicit; by sug-
gesting to members of the Independent on various occasions in late
1944 and early 1945, at which time the employees were evincing dis-
satisfaction with the Independent, that the employees "should start
all over new again" and that the Independent should "hold an elec-
tion of officers to form a new union"; and by permitting the Inde=
pendent to hold an election of officers in the plant and to count the
ballots during working hours. The respondent rendered further un-
lawful assistance and support to the Independent by paying the ex-
penses incurred by a committee sent to Buffalo by the Independent to
confer with its attorney and participate in conferences at the Board's
Regional Office in connection with the complaint issued against the
respondent in Case No. 3-C-684; by drafting campaign literature
for and in the name of the Independent in connection with the consent
election held pursuant to the settlement stipulation in Case No. 3-C-
684; and by the statements of its president that "He wanted the
check-off cards signed so as to give the Independent Union a real trial
and make it work," that "He wanted no part of the C. I. 0.," and that
if any union "got into the plant other than the Independent that he
would close the plant and move out of Salamanca."
In view of our finding that the respondent's conduct has exceeded
the bounds of interference and support and constituted domination
of the Independent, as well, we shall, in accordance with the policy
enunciated in the recent Carpenter Steel case,4 order the respondent
to withdraw all recognition from the Independent as the representa-
tive of any of the respondent's employees for the purpose of dealing
with it concerning grievances, labor disputes, wages, rates of pay',
hours of employment, or other conditions of employment, and com-
pletely to disestablish the Independent as such representative.
' Matter of The Carpenter Steel Company , 76 N. L. R. B. 670
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, Rathbun Molding
Corporation, Salamanca, New York, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or con-
tributing support to, Rathbun Molding Employees' Independent
Union, and dominating or interfering with the formation or adminis-
tration of, or contributing support to, any other labor organization
of its employees;
(b) Recognizing Rathbun Molding Employees' Independent Union
or any successor thereto as the representative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment;
(c) Giving effect to the contract of September 7, 1946, with Rathbun
Molding Employees' Independent Union, or to any modification, ex-
tension, or renewal thereof, or to any other contract with the Inde-
pendent embodying terms or conditions of employment or recognition
of the Independent as a bargaining agent;
(d) Discouraging membership in Congress of Industrial Organiza-
tions, American Federation of Labor, or any other labor organization
of its employees, by discharging or refusing to reinstate any of its
employees or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of their
employment ;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Congress of Industrial Organiza-
tions, American Federation of Labor, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act, as amended :
(a) Withdraw all recognition from Rathbun Molding Employees'
Independent Union and completely disestablish that organization as
the representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, rates of
pay, wages, hours of employment, or other conditions of employment;
RATHBUN MOLDING CORPORATION 1023
(b) Offer to Harry James Cole and Ralph Riddle immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privi-
leges;
(c) Make whole Harry James Cole and Ralph Riddle for any loss
of pay that they may have suffered by reason of the respondent's dis-
crimination against them , by payment to each of them of a sum of
money equal to the amount which he would normally have earned as
wages during the period from the date of the discrimination against
him to the date of the respondent 's offer of reinstatement , less his net
earnings during said period;
(d) Reimburse each of its employees for dues paid by him to Rath-
bun Molding Employees ' Independent Union since June 30, 1944;
(e) Post at its plant in Salamanca , New York, copies of the notice
attached to the Intermediate Report herein marked "Appendix A." 5
Copies of said notice , to be furnished by the Regional Director for the
Third Region , shall, after being duly signed by the respondent's rep-
resentatives , be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty ( 60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered , defaced, or
covered by any other material;
(f) 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.
MEMBER GRAY took no part in the consideration of the above Deci-
sion and Order.
INTERMEDIATE REPORT
Mr. Philip Licari, for the Board.
leAlahon & Crotty, by Mr. Peter J. Crotty, of Buffalo, 1^. Y., for the respondent.
Dowd & Kelly, by Mr. Thomas L. Kelly, of Salamanca, N. Y., for the Independent.
STATEMENT OF THE CASE
Upon an amended charge duly filed by American Federation of Labor, herein
called the AFL, the National Labor Relations Board, herein called. the Board,
by the Regional Director for the Third Region (Buffalo, New York), issued its
complaint dated October 1, 1946, against Rathbun Molding Corporation, Sala-
manca, New York, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting commerce
6 This notice ,,however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words '-Recommendations of a Trial Examiner " and substituting in lieu-
thereof the words "A Decision and Order ." In the event that this Order is enforced by
decree of a Circuit Court of Appeals , there shall be inserted before the words : "A Decision
and Order," the words "A Decree of the United States Circuit Court of Appeals Enforcing."
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies
of the complaint, accompanied by notice of hearing, were duly served upon the
respondent, the AFL, and Rathbun Molding Employees' Independent Union,
herein called the Independent.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent: (1) on or about August 10, 1943, initiated, formed, sponsored.
and promoted the Independent and from August 10, 1943, to the date of the
issuance of the complaint, assisted, dominated, contributed financial support
to, and interfered with the administration of, the Independent; (2) on or about
May 6 and 10, 1946, discharged Harry J. Cole and Ralph M Riddle, respectively,
and has refused and failed to reinstate them because (a) of their membership
and activity on behalf of the Congress of Industrial Organizations, herein called
the CIO, (b) they engaged in concerted activities for the purpose of collective
bargaining and other mutual aid or protection, and (c) they refused to engage
in activities on behalf of the Independent; and (3) by its officers and agents
(a) warned, discouraged, and coerced,its employees to refrain from assisting,
becoming or remaining members of the AFL or the CIO, (b) vilified, disparaged,
and expressed disapproval of the AFL and the CIO, (c) informed and warned
its employees that they would receive no benefits from the AFL or the CIO and
that collective bargaining through a nationally affiliated labor organization was
unnecessary, (d) threatened its employees with loss of employment or other
reprisals if they aided, became, or remained members of a nationally affiliated
labor organization, (e) suggested to employees that they assist and become
members of the Independent, and (f) threatened employees that the plant would
be closed if a nationally affiliated labor organization became the representative
of the employees. The complaint alleged that by the foregoing conduct the
respondent engaged in violations of Section 8 (1), (2), and (3) of the Act.
Thereafter, the respondent filed its answer, admitting the commerce allegations
of the complaint but denying that it had committed any of the unfair labor
practices alleged.
Pursuant to notice, a hearing was held at Salamanca, New York, on November
25 and 26, 1946, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner. At the outset of the hearing, the
Independent filed a motion to intervene, which was granted At the same time
the Independent filed an answer, denying that the respondent had violated Section
8 (2) of the Act in respect to the formation of the Independent, and a request for
a bill of particulars, which was granted in part and denied in part. At the
beginning of the hearing the respondent moved that the allegations of the com-
plaint in respect to the violations of Section 8 (2), and the relating violation of
Section 8 (1), be dismissed for the following reasons: (1) The Board is estopped
from proceeding against the respondent on the complaint's allegations of violation
of Section 8 (2) of the Act since in April 1944 the Board was a party to a settle-
ment agreement whereby earlier charges of violation of Section 8 (2) were dis-
missed; (2) the proceeding in respect to the 8 (2) violations of the complaint is
barred by the amendment to the Board's current Appropriations Act 1 The Jude-
1 This amendment provided that "No part of the funds appropriated in this title shall be
used in any way in connection with a complaint case arising over an agreement , or a re-
newal thereof , between management and labor which has been in existence for three months
or longer without complaint being filed by an employee or,employees^of such plant: Pro-
vided, That , hereafter notice of such agreement or a renewal thereof shall have been
posted in the plant affected for said period of three months , said notice containing informa-
RATHBUN MOLDING CORPORATION 1025
pendent joined in the respondent's motion to dismiss The undersigned denied
both motions. The Board, the respondent, and the Independent were repre-
sented by counsel. 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 Board's case, the respondent and the Independent each moved
that the complaint be dismissed on the ground that the evidence adduced by the
Board failed to sustain the allegations of the complaint. The undersigned denied
the motions. Upon the conclusion of the hearing, the respondent and the Inde-
pendent renewed their motions to dismiss. The undersigned reserved ruling on
both motions. They are hereby denied At the close of the hearing, the under-
signed advised the parties that they might argue orally before, and file briefs or
proposed findings and conclusions, or both, with the Trial Examiner. All parties
waived oral argument. Later, the respondent filed a brief.
Upon the entire record in the case, and from his observation of'the witnesses.
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Rathbun Molding Corporation, a New York corporation with its principal
office and place of business in Salamanca, New York, is engaged in the design,
manufacture, sale, and distribution of plastic products. In the conduct of its
business, the respondent has continuously caused large quantities of raw ma-
terials and supplies to be purchased and transported in interstate commerce
from, into, and through States of the United States other than the State of New
York The respondent has also continuously caused large quantities of its
finished products to be sold and transported in interstate commerce from its
plant into and through States of the United States other than the State of
New York.'
II. THE ORGANIZATIONS INVOLVED
American Federation of Labor, Congress of Industrial Organizations, and
Rathbun Molding Employees' Independent Union are labor organizations, admit-
ting to membership employees of the respondent.
. III. THE UNFAIR LABOR PRACTICES'
A. Domination and interference with the formation and administration of the
Independent; interference, restraint, and coercion
1. Sequence of events
About August 1943, an affiliate of the CIO began organizational activity among
employees of various companies in Salamanca, including the respondent. Also
during the same month, the respondent's plant was shut down for a period of
Lion as to the location at an accessible place of such agreement where said agreement shall
be open for inspection by any interested person . Provided further, That these limitations
shall not apply to agreements with labor organizations formed in violation of section 158,
paragraph 2, title 29, United States Code . . .11 Public Law 549, 79th Congress,
Chapter 672, 2nd Session . Since the complaint alleged, and it is hereinafter found, that
the Independent was an organization formed in violation of Section 8 (2) of the Act, the
amendment to the Board 's current appropriation act, clearly does not apply . See Wilson
i( Co v. N L R. B ., 156 F. ( 2d) 577 (C. C. A 10).
s These findings are based upon the pleadings of the parties
Unless otherwise indicated , the findings in this section are based upon undisputed
evidence.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about a week. Upon the resumption of the respondent's operations, employee
Hudson, who until a few weeks previously had been a foreman, began the move-
ment which culminated in the formation of the Independent. According to em-
ployee Cole, he was approached by Hudson during working hours on company
property and asked if Cole "would be willing to go in with an independent union"
and upon Cole's indicating that "it would be a good thing," Cole's signature was
added to a list of employees' "names that had signed to organize with the In-
dependent Union." Hudson also inquired if Cole would be willing to become
an officer.
The following day, at Hudson's suggestion, Cole, Hudson, and employee Swartz
went to Buffalo, New York, to "start procedures in organizing the" Independent.
Upon arriving in Buffalo, they parked their car and Merle Rathbun, president
of the respondent, approached and told them to "go down the street and there
would be a two-tone Buick," identifiable "by an American Legion emblem on the
back," and that the driver of the car "would take care of" them. The employees
followed his instructions and at the car in question met William Duerr, whose
precise connection with the respondent is not revealed by the record. Duerr
took the three employees to an attorney, John Ryan, who agreed to act as counsel
for the Independent in perfecting its foi mal organization. In response to Hud-
son's inquiry, Ryan stated that his fees would total $150. Thereupon, Hudson
telephoned someone, whose identity the record does not disclose, and asked if
the fee was excessive. Immediately thereafter, the employees and Ryan went
to the Board's regional office in Buffalo and filed it petition for investigation and
certification of representatives.
Later in the day the employees went to a garage in Buffalo where they met
President Rathbun and the following colloquy occurred, according to the undis-
puted and credible testimony of Cole :
[Rathbun] told us that we may have to stay until the next day to have
everything taken care of. . . . He told us he made reservations for a
room in the Hotel Statler . . and that there would be several utensils
and anything we needed and he asked Air Hudson how his money was holding
out. . . . And Mr. Hudson says, `Fairly good . . I got some money
left' and Mr. Rathbun says, "Well, you might just as well have a little
more and go out and have a good time as long as you fellows are going to
stay', and he gave Mr Hudson some money. . . . I don't know whether
it was twenty or forty dollars.
The next day the three employees met Duerr, who obtained for them a copy of
the by-laws and constitution of another independent organization to use as a model
in drafting such documents for the Independent They also conferred with Ryan
and in the evening returned to Salamanca. They went at once to the respondent's
plant to see President Rathbun and Superintendent Lindberg and requested that
Rathbun recognize the Independent as the collective bargaining' representative of
the employees and presented him a copy of the petition for investigation and
certification of representatives. The request was apparently granted without any
inquiry on the part of the respondent as to the Independent's majority status as
such bargaining representative.
Two or three weeks later, the Independent elected officers, Hudson becoming
president, Cole vice president, and employee Virginia Monroe secretary." About
+ Not long thereatter Hudson left the respondent 's employ and Cole became president
of the Independent.,
RATHBUN MOLDING CORPORATION 1027
the same time, a group of seven members of the Independent met at Hudson's home
and "were told to put in $25 apiece to cover the expense of the attorney" and other
miscellaneous expenses such as for printing cards . Cole and two other employees
were unable to make the contribution. Their share was given by Hudson
Late in 1943 or early in 1944, at a meeting of officers of the Independent held at
the home of emplo}ee Arthur Monroe and attended by President Rathbun, the
latter entered into a discussion with the officers concerning employees they "had to
work on to get to join the Independent" and suggested various employees whose
membership the Independent should solicit. In the introductory period of the
Independent's formation three or four meetings of officers of the Independent and
the respondent were held in the plant during working hours Although the subject
matter of these meetings, in part, concerned collective bargaining matters, Presi-
dent Rathbun in the presence of employee representatives took occasion to remark
that if any union "got into the plant other than the Independent that he would
close the plant and move out of Salamanca."
During the Independent's organizational campaign, both the Independent
and the CIO solicited membeiships throughout the plant On August 14, 1943,
the respondent posted the following notice:
Any activity by employees, either for or against any union organization
within the company's plant or on plant property shall be considered a
violation of company rules
However, the solicitations in the plant continued The record does not re-
veal whether the no-solicitation rule was enforced by the respondent
Upon charges and amended charges duly filed by United Paper Novelty and
Toy Workers International Union, C I. 0 , the Board, on Febrnai y 7, 1944, issued
a conpl:unt in Case No 3-C-684, alleging that the respondent had engaged in
and was engaging in unfair labor practices within the meaning of Section 8 (1),
(2), (3), and (5). Shortly thereafter, employees Cole, Walter Bloom, and
James McLendon, representing the Independent, were driven to Buffalo by
President Rathbun in the latter's automobile There, the employee committee
conferred with the Independent's attorney and participated in conferences at the
Board's regional office President Rathbun gave $25 to Carlson, secretary- treas-
urer of the respondent, who in turn transmitted the money to Cole to cover the
expenses of the Independent's committee for their trip to Buffalo. Cole testified
that he suffered no deduction in pay for the time consumed by the trip to
Buffalo
On Jlaich 3. 1944, the parties in Case No 3-C-684 entered into a stipulation in
settlement of the case, subject to approval of the Board, and agreed that a consent
election should be conducted by the Board among the respondent' s production
and maintenance employees, excluding executives, office and clerical employees,
and supervisory employees.
On March 16. 1944, the Board issued a Decision and Order in Case No. 3-C-
684, approving the stipulation of the parties and ordering, in brief pursuant to
the stipulation, that the respondent cease and desist from discouraging member-
ship in the charging union or any other labor organization by temporarily sever-
ing employees from employment and from in any other manner nntertermng with,
restraining , or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act. The Board further ordered, following the terms of the
stipulation , that the respondent make whole 53 employees for the loss of pay
5 The findings in this and preceding paragraphs are based foi the most part upon the
uncontroverted and credible testimony of Cole
- 781902-48-vol. 76-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each suffered by reason of a temporary severance from employment for a cer-
tain period between August 6 and 15, 1943, that the respondent post appropriate
notices to the effect that it would comply with the Board's order, and that the
complaint, insofar as it alleged that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (2) and (5) of the Act, be dismissed.
Prior to the conduct of the consent election, Secretary-Treasurer Carlson of the
respondent and George Brown, employed in the engineering depaitment, came to
Cole's home and asked him to approve some campaign literature, drafted in the
name of the Independent. Cole told them, "As far as it goes, it is all right with
me." The literature was printed in pamphlet form and distributed. The un-
dersigned infers and finds that the respondent drafted the campaign literature
for the Independent but makes no finding as to whether the respondent or the
Independent bore the publication expense.
On April 6, 1944, the consent election was conducted by the Board and was
won by the Independent. On April 11, 1944, the Regional Director issued his
"Consent Determination of Representatives," finding and determining that the
Independent was the exclusive representative of the employees within the unit
defined above.
On June 30, 1944, the respondent and the Independent entered into their first
contract, providing, inter alia, for a closed shop and for a dues check-off b for the
benefit of the Independent.
During a meeting between representatives of the respondent and the Inde-
pendent in 1944, employee Ralph Riddle remarked that they were "getting
nowhere." Thereupon Superintendent Olander stated that the employees
"should start all over new again and reorganize and try it over again."
Early in 1945, Cole was summoned to Rathbun's office. Rathbun asked Cole,
according to the latter's undenied and credible testimony, "why we didn't come
in and discuss different things." Cole replied that in his opinion such meetings
were useless because nothing was ever accomplished and that he was planning to
resign the presidency of the Independent. Thereupon Rathbun requested Cole to
"hold an election of officers to form a new union."
About March 1945, Cole resigned the presidency of the Independent and was
succeeded by employee Malcolm Metzler, who in turn was followed by employee
Walter Malanowski. The election of Malanowski was held' in the plant. As
employees came to work they placed their ballots in a box in the office of the
foreman of the molding room. The ballots were counted during working hours in
the plant.
On July 30, 1945, the respondent and the Independent executed a second col-
lective bargaining contract which like the first provided for a closed shop and
monthly check-off of dues for the benefit of the Independent.
On January 28, 1946, the Regional Director for the Third Region by letter
declined to issue a notice of hearing upon a petition for investigation and certi-
The check-off provisions of the contract read as follows :
e The first pay day of each month the Company shall deduct from each employee's
pay the sum of Fifty (50¢) cents for Union Dues and forward such total dues deduc-
tion to the proper Union Official.
f. Each employee shall sign a dues deduction authorization card the, form of which
shall be substantially as follows :
n a r • t
It is understood that this check off of dues does not include fines and assessments,
and the Company shall not be liable for unpaid dues of employees who cease employ-
ment without notice prior to the regular dues deduction pay roll week.
7 This finding rests upon the undenied and credible testimony of Riddle.
RATHBUN MOLDING CORPORATION 1029
fication of representatives of the respondent's employees, theretofore filed by
Plaything, Jewelry and Novelty `Yorkers International Union, C. I. 0
About April 16, 1946, Malanowski asked Superintendent Olander if he might
hold a meeting of employees in the locker room during the interval between the
end of the second shift and the beginning of the third shift. Olander granted
him permission to do so and Malanowski asked Cole and between 13 and 17
other employees to attend the meeting which lasted for some 15 minutes, extend-
ing into the beginning of the third shift According to the credible testimony
of Cole, Malanowski stated that the employees of the other two shifts were going
to strike for a 15-cent an hour wage increase rather than accept a 10-percent
wage increase offered by the respondent. The matter was discussed and Cole
suggested that the employees accept the respondent's offer and upon the termi-
nation of the contract within 2 or 3 months "we could get any other union we
wanted to represent us and go for the 15 cents an hour." Riddle indicated that
he agreed with Cole's suggestion e
About April 1946, the Independent complained to the respondent that new em-
ployees were not affiliating with the Independent at the end of their 60-day pro-
bationary period and that the Independent desired their dues. Superintendent
Olander suggested that the Independent obtain dues deduction cards for the em-
ployees in question. About that time or a little later, the Independent adopted
new membership cards. Shortly after receiving them from the printer, Mala-
nowski, president of the Independent, according to his testimony, asked Olander
if the latter "thought it was all right to put them through" and Olander replied
that "he couldn't see any objection in here to having them filled out."
In June an affiliate of the CIO filed a petition for investigation and certifi-
cation of representatives of the respondent's employees.
On June 7, 1946, a meeting of approximately 15 members of the Independent
was held with 4 of the respondent's officers and supervisors to discuss the en-
forcement of the check-off provision of the contract, the new cards of the Inde-
pendent, and "how to make the Independent Union work a lot better than it
did."9 Rathbun stated that "he wanted the cards signed so as to give the In-
dependent Union a real trial and make it work . . . He wanted no part of the
C. I. O. If the C. I. O. ever got in, he would shut the doors" and further stated
that "he was wrong by calling the meeting, but he was fed up with the whole
thing."
A third closed-shop contract with dues check-off provisions was executed
between the.respondent and the independent on September 7, 1946.
During the last war, the respondent turned over to the Independent the opera-
tion of a refrigerator vending system whereby cold drinks were sold employees.
The respondent owned the refrigerator and the Independent was permitted to
retain all profits made from the venture.
The record reveals that throughout the history of the Independent, the secre-
tary of the Independent during working hours drafted notices and typed min-
utes of Independent meetings on a machine owned by the respondent.
8 The findings in this paragraph rest upon the credible testimony of Cole, who was
corroborated in most respects by Malanowski . However, the latter denied that he stated
at this meeting that the employees of the other two shifts were in favor of striking rather
than accept the respondent ' s offer. Malanowski testified that the reason for calling the
meeting was that one employee on the first shift was in favor of striking. From his obser-
vation of the witnesses , as well as the general implausibility of this testimony , the under-
signed does not credit Malanowski in this regard.
U The findings in this paragraph are based upon the credible and undenied testimony of
Dolecki who testified that his foreman summoned him to the meeting.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOAuI)
2 Conclusions
a. As to the effect of the settlement otpeementt
The respondent contends that the settlement agreement in Case No. 3-C-684-
precludes a finding that the respondent engaged in any unfair labor practices in
violation of Section 8 (2) prior thereto The Board has held that where art
agreement in settlement of unfair labor practice charges has been reached with
the participation of Board agents, the Board, for reasons of policy and in the
exercise of its discretion, will refrain from considering alleged unfair labor
practices settled by the agreement unless there has been it continuation of unfair
labor practices or a breach of the agreement, or for other reasons the policies
of the Act would not be effectuated by giving effect to the agreement10 On the
other hand, the Board has many times refused to give effect to such agreements
where the unfair labor practices have continued or been resumed or where the
agreement has been breached or where to do so would prevent effectuation of
the policies of the Act." As stated by the Board in The 07tio Calcium case,'
"Whether or not we should give effect to a settlement cannot be determined by
a mechanical application or rigid a prior i rules but must be determined by the
exercise of a sound judgment based upon all the circumstances of each case."
It is hereafter found that the respondent. subsequent to the settlement and the
Board's Decision and Order in Case No 3-C-684, violated the agreement by inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed by the Act, by continuing to dominate the Independent, by lending
further support and assistance to the Independent, and by discriminatorily dis-
charging Cole and Riddle because of their membership and activities in behalf
of a labor organization. The undersigned therefore finds that the resumption
or continuation by the respondent of unfair labor practices amply justifies con-
sideration of the unfair labor practices engaged in prior, as well as subsequent,
to the settlement agreement.
b. As to the Independent
in view of the foregoing and upon the entire record, the undersigned is con-
vinced that the respondent interfered with the formation and administration
of the Independent and contributed support thereto. Immediately upon the
commencement of C. I. 0 organizational activities in Salamanca, the respondent
took steps to assure the formation of the Independent with utmost dispatch 1i
10 Wallace Corporation v N. L R B, 323 U S 248 : Matter of The Ohio Calcium Com-
pany , 34 N L R B 917 ,-Matter of Tulsa Boiler and Machinery Company , 23 N L R B.
846, Matter of Shenandoah -Dives Mining Company, 11 N. L R. B 885 ; Matter of God-
chaux Sugars, Inc, 12 N L R B 568
11 Matter of F M Stampei Company , 54 N L R B 297 . Matter of Gilfillan Bros. Inc,
53 N L R B 574, Matter of Central Steel Tube Company , 48 N. L R B 604 ; Matter of
Taylor- Colguitt Company, 47 N L It B . 225, Matter of American Rolling Mill Company,
43NLRB 1020
12 Matter of The Ohio Calcium Company, 34 N L. R B 917
12 Although the matter is not flee from doubt , the undersigned is of the opinion that
the record sloes not establish that the respondent was responsible for the activities of
Hudson in forming the Independent A few weeks prior to the organization of the Inde-
pendent , Hudson was a supervisory employee but at the time he engaged in Independent
activities he was a rank and file employee . Not long after the organization of the Inde-
pendent was perfected , Hudson left the respondent 's employ to become manager of an air-
port near Salamanca . At the time of the hearing he was employed as superintendent of
another plant owned by the respondent.
RATHBUN MOLDING CORPORATION 1031
]'resident Rathbun met the employee committee in Buffalo where they went in
order to perfect the formal organization of the Independent and made certain
that they sought legal advice from the counsel of his choice. Moreover, hotel
reservations for the committee were made by the respondent and all expenses
incurred by the committee on their 2-day visit to Buffalo in behalf of the
Independent was borne by the respondent The evening the committee returned
from Buffalo, the respondent grantee? the Independent's request for exclusive
recognition as the bargaining representative of the employees. Such recognition
was promptly extended by the respondent without any inquiry into, or receipt
of, proof that the Independent represented a majority of the employees." Not
long thereafter, President Rathbun further interfered with the Independent's
organizational efforts by participating, and proffering suggestions, in a discus-
sion with officers of the Independent concerning employees whose membership
the Independent should enlist. Furthermore, in collective bargaining conferences
Rathbun on several occasions stated that if any union "got into the plant
other than the Independent that lie would close the plant and move out of
Salamanca.
When the status of the Independent as a labor organization was put in issue
by the filing of charges of unfair labor practice against the respondent in 1944,
President Rathbun transported an employee committee representing the Inde-
pendent to Buffalo to confer with the Independent's attorney, who as mentioned
earlier had previously been selected by the respondent. Again, all expenses of
the employee committee were paid by the respondent and it is significant that,
according to employee Cole, no deduction in pay was made for the time con-
sumed by the trip to Buffalo.
The respondent's interference with and the support of, the Association con-
tinued in the campaign occasioned by the consent election conducted under the
auspices of the Board as a part of the agreement in settlement of the charges
in Case No. 3-C-684. Prior to the election, the respondent drafted campaign
literature in the name of the Independent which approved the drafts and later
distributed it in pamphlet form.
Following the settlement agreement and the consent election, the respondent's
domination of the Independent continued unabated In 1944, when employee
Riddle expressed dissatisfaction with the bargaining efforts of the Independent,
Superintendent Olander suggested that the employees "should start all over
new again and reorganise and try it over again." Similarly in 1945, President
Rathbun inquired of employee Cole, who was then president of the Independent,
as to the reason the Association did not more frequently "come in and discuss
different things," and when Cole indicated that in his opinion such meetings
were futile, Rathbun urged him to "hold an election of officers to form a new
union " In 1945, upon request, the respondent permitted the Independent to
hold a meeting of second and third shift employees in the plant; a portion of
the meeting continued during working hours The Independent's subservient
attitude is revealed by the submission to the respondent for its approval of the
new membership cards of the Independent in 1945. Upon the filing of a petition
for investigation and certification of representatives by a C. I. O. affiliate, a
meeting of 15 members of the Independent and the respondent was held to discuss
the enforcement of the check-off provision of the Independent's closed-shop
"The committee presented to Rathbun a copy of the petition for investigation and cer-
tification of representatives filed with the Board that day. Such a petition would have no
probative value in establishing the majority status of the Independent.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARI`
contract and also the campaign to get employees to sign the new membership
cards of the Independent.' During the course of the meeting. Rathbun expressly
voiced his support of the Independent and his abhorrence of the C. I. O. by
stating that "he wanted the cards signed so as to give the Independent Union
a real trial and make it work . . . He wanted no part of the C I. 0 If the
C. I. O. ever got in, he would shut the doors. . . . He was wrong by calling
the meeting, but he was fed up with the whole thing."
The record reveals that the Independent has received additional assistance
from the respondent by being permitted to bold at least one election of officers
in the plant during working hours and to use machines of the respondent to
prepare notices and minutes of meetings during working hours. More concrete
assistance and support was afforded the Independent by its operations of, and
retention of profits from, the respondent's refrigerator vending system whereby
cold drinks were sold employees.
Upon the entire record, it is concluded that the Independent is the creature of
the respondent, that the respondent has dominated and interfered with the
formation and administration of the Independent and has contributed support
to it, and that the respondent thereby, and by the statements of Orlander and
Rathbun, theretofore set forth, has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act 15
B. The dascrinvinatory discharges of Hairy James Cole and Ralph Riddle
Cole and Riddle were employed by the respondent on Februaiy 13 and August
16, 1937, respectively. As previously indicated, Cole took a leading part in the
formation of the Independent and became its second president in 1943. when
employee Hudson left the respondent's employ. However. in 1945 Cole became
dissatisfied with the Independent and resigned the presidency having previously
indicated his attitude and intentions to President Rathbun Riddle, too, joined
the Independent upon its organization and served as its vice president in 1944.
About March or April 1946, Cole and Riddle joined the C. I 0 and were active
in its behalf.
In the latter part of April 1946, a meeting of approximately nine employees,
three from each shift, was held in President Rathbun's office Cole and Riddle
were among those present Methods of increasing production and collective bar-
gaining matters were discussed. Although Rathbun indicated that he was dis-
satisfied with the production output of the plant, he did not ciiticize the work of
any specific employees. Those employees who were taken from their work to at-
tend the meeting were paid for the time consumed by the meeting. Cole, who was
off duty at the time of the meeing, insisted on being paid also for the period spent
in the meeting and after some negotiation received such payment
At the close of the work day on May 1, 1946, Cole was summoned to Rathbun's
office and was told by Rathbun, according to Cole's credible and undenied testi-
mony, that Rathbun "thought that [Cole] was dissatisfied with working con-
ditions and everything there, that it would be a very good idea if [Cole] would
15 In reaching these conclusions , the undersigned does not rely upon the fact that the
Independent enlisted memberships on company property duiing woiking hours, for the CIO
also engaged in such activities with no remonstrance from the respondent Although the
no-solicitation rule issued in August 1943 was violative of the Act ina,niuch as it forbade
legitimate union activities of employees during their free time in the plant, the under-
signed does not make such a finding herein since this issue was not raised by either the
pleadings or the proof . However, the undersigned does not mean to indicate that future
continuance of such rule would not be violative of the Act.
RATHBUN MOLDING CORPORATION 1033
take and consider a change . . . some place else." When Cole insisted that he
was satisfied with conditions at the respondent's plant, Rathbun compromised
and instructed him to take the rest of the week off and on the following Monday
to report to Rathbun's office
On the succeeding Monday, Cole reported to Rathbun's office and found Super-
intendent Olander awaiting him with the explanation that Rathbun did not
desire to talk to Cole Olander informed Cole that he was discharged. Cole
remonstrated and asked, "Is my work satisfactory; what have I done?"
Olander replied, according to the credible and undisputed testimony of Cole,
as follows :
It is just something that you have said . . . and you know yourself . . .
no matter what goes on in the building, I know about it five or ten minutes
after it happens If I don't know it, Mr Rathbun knows it and brings it
back in to me, and you know yourself if any other Union gets into this plant
that Mr. Rathbun would close it down and move out of town.
At the end of his shift on May 10, 1946, Riddle was summoned to Superintendent
Olander's office and discharged. When Riddle remonstrated, "What is the mat-
ter . . . isn't my work satisfactory?" Olander replied, according to the uncon-
troverted and credible testimony of Riddle, "Yes, it is, but you have been doing
too much talking about the company and union activities."
At the hearing, the respondent took the position that both Cole and Riddle
were discharged because they were leaders in a production slow-down. However,
the respondent introduced no records or other credible and probative evidence in
support of this position. Cole and Riddle testified credibly that they had been
complimented in their work by various supervisors and had never been criticized
for defective work performance. Indeed, the record establishes that the moti-
vating factor behind the discharges of Cole and Riddle was their CIO activity
and dissatisfaction with the Independent. Thus, employee Malanowski testified,
and the undersigned credits him in this regard, that after the Regional Director
refused to issue a notice of hearing on the CIO petition in January 1946, "why
right then and there that is when the talk started. Cole and Riddle ; they were
really behind it and they were agitating on the other fellows " Similarly,
employee Dolecki testified credibly and without contradiction that at the meeting
of representatives of the Independent and the respondent on June 7, 1946, herein-
above discussed, someone asked why Cole had been dismissed and President
Rathbun replied that Cole was discharged because he "was a constant trouble
maker" and "was dissatisfied with the way things were running around the plant."
On the basis of the foregoing, and the entire record, the undersigned con-
cludes and finds that Cole and Riddle were discriminatorily discharged on
May 1 and 10, 1946, respectively, in violation of Section 8 (3) of the Act, because
of their membership and activity in the CIO and opposition to the Independent,
and that by thus discriminating against Cole and Riddle and by the statements
of President Rathbun and Superintendent Olander, the respondent has discour-
aged membership in the CIO, and interfered with, restrained, and coerced 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
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
Having found that the respondent has independently violated Sectiop 8 (1),
(2), and (3) of the Act, the undersigned will recommend that the respondent,
pursuant to the mandate of Section 10 (c), cease and desist therefrom. The
respondent's whole course of conduct discloses a purpose to frustrate self-
organization among its employees. For example, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed under the Act by expressing disapproval of the CIO but indicating that the
Independent enjoyed its favor, by threatening economic reprisals which would be
inflicted upon employees should any union other than the Independent enlist
their membership, by playing a vital role in the formation of the Independent,
and by dominating, supporting, and assisting the Independent Moreover, the
respondent actually penalized employees Cole and Riddle for their membership
and activities in behalf of the CIO and for their opposition to the Independent
by discriminatorily discharging them. Such discrimination goes to the very
heart of the Act." n Because of the respondent's unlawful conduct and its
underlying purposes , the undersigned is convinced that the unfair labor practices
found are persuasively related to the other unfair labor practices proscribed and
that danger of their commission in the future is to be anticipated from the
respondent's conduct in the past." The preventive purpose of the Act will be
thwarted unless the recommendations are coextensive with the threat in order,
therefore, to make effective the interdependent guarantee of Section 7, to pre-
vent a recurrence of unfair labor practices, and thereby minimize industrial
strife which burdens and obstructs commerce, and thus effectuate the policies
of the Act, the undersigned will recommend that the respondent cease and desist
from in any manner infringing upon the rights guaranteed in Section 7 of the Act.
It has been found that the respondent has dominated and interfered with
the formation and administration of, and contributed support to, the Independent.
Because of the respondent's domination, interference, and support, the Independ-
ent is incapable of serving the respondent's employees as a genuine and in-
dependent collective bargaining agency, and constitutes a continuing obstacle to
the free exercise by the employees of the rights guaranteed them in the Act.
Accordingly, the undersigned will recommend that the respondent disestablish
and withdraw all recognition from the Independent and disestablish it as a
representative of any of the respondent's employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment
The agreements entered into between the respondent and the Independent have
been a means whereby the respondent has utilized the employer-dominated labor
rganization to frustrate self-organization and defeat genuine collective bargain-
ing by their employees. Under these circumstances any continuation, renewal,
or modification of the current agreement would perpetuate the conditions which
have deprived employees of the rights guaranteed to them by the Act and would
14 N. L. R. B. v Entwistle Mfg. Co , 120 F ( 2d) 532 (C C A 4). See also , N. L R. B. v.
Automotive Maintenance Machinery Co., 116 F ( 2d) 350, 353 (C C. A. 7), where the
Court observed : "No more effective form of intimidation nor one mole violative of the
N. L. R. Act can be conceived than discharge of an employee because he joined a
union . . .
17 See N L. R B v Express Publishing Company, 312 U. S 426.
RATHBI N MOLDING CORPORATION 1035
render ineffectual other portions of these recommendations , The undersigned
will therefore further recommend that the respondent cease and desist from
giving effect to or performing any agreement between it and the Independent
relating to rates of pay, wages , hours of employment , and other conditions of
employment , now existing , and to refrain from entering into, renewing, or ex-
tending any agreement with the Independent relating to such matters. Nothing
herein shall be taken, however , to require the respondent to vary those wages,
hours, and other substantive features of its relationship with the employees, if
any, which it has established in performance of any agreement as extended,
renewed, modified , supplemented , or superseded.
The undersigned will also recommend that the respondent be ordered to re-
imburse each of its employees for dues paid by him to the Independent since
June 30, 1944. On that date , the respondent executed a closed-shop contract
with provision for an automatic dues check -off for the benefit of the Association,
an organization dominated , assisted , and supported by the respondent , thus re-
quiring its employees as a condition of employment to become and remain mem-
bers of the illegal organization . The 1945 and 1946 contracts contained the
same provisions . These agreements by which the respondent assured financial
stability to the dominated organization and established it securely in the plant
gave the employees no choice , other than payment of dues to the Independent,
if they desired to continue in the employ of the respondent . The money, which
the respondent thus caused the employees to pay the Independent to fulfill the
respondent 's illegal condition of employment , was a definite financial loss to them.
The undersigned will accordingly recommend that the employees be made
whole for reimbursement of the amounts thus extracted from them for illegal pur-
poses 18
The undersigned has found that the respondent has discriminated in regard to
the hire and tenure of employment of Harry James Cole and Ralph Riddle. The
undersigned will therefore recommend that the respondent offer to each of these
employees immediate and full reinstatement to his former or substantially
equivalent position,10 without prejudice to his seniority and other rights and
privileges. The undersigned will further recommend that the respondent make
whole these employees for any loss of pay they may have suffered by reason of
the respondent 's discrimination against them , by the payment to each of them of
a sum of money equal to the amount which he would normally have earned as
wages from the date of the discrimination against him to the (late of the offer of
reinstatement , less his net earnings 20 during such period 21
13 See N L R. B. v Baltimore Transit Company, 140 F (2d) 51 (C. C A 4) ; Matter or
Virginia Electric d Power Company, 44 N L. R. B. 404, enf'd 132 F. (2d) 390 (C C A.
4), 319 U S 533
19 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L R. B 827.
20 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 unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter of
Crossett Lumber Company, 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 N L R. B, 311 U S 7
21 Riddle testified that following his discharge , he did not register with the United States
Employment Service because his farm required his full time services Since Riddle had
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS or LAW
1 American Federation of Labor, Congress of Industrial Organizations, and
Rathbun Molding Employees' Independent Union are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
Rathbun Molding Employees' Independent Union and contributing support
thereto, the respondent has engaged in and is engaging in untair labor practices,
within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Harry
James Cole and Ralph Riddle, thereby discouraging membership in a labor organ-
ization, the respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
4. 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.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Rathbun Molding Corporation, Salamanca,
New York, its officers, agents, successors, and assigns, shall.
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or contributing
support to, Rathbun Molding Employees' Independent Union, and dominating or
interfering with the formation or administration of, or contributing support to,
any other labor organization of their employees ;
(b) Recognizing Rathbun Molding Employees' Independent Union or any suc-
cessor thereto as the representative of any of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment;
(c) Giving effect to the contract of September 7, 1946, with Rathbun Molding
Employees' Independent Union or to any modification, extension, or renewal
thereof, or to any other contract with the independent embodying terms or condi-
tions of employment or recognition of the Independent as a bargaining agent;
(d) Discouraging membership in Congress of Industrial Organizations, Ameri-
can Federation of Labor, or any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees or in any other manner
discriminating in regard to their hire or tenure of employment, or any term or
condition of employment ;
(e) In any other manner interfering with , restraining , or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist Congress of Industrial Organizations, American Federation of Labor, or
employment upon his farm after his discharge , the undersigned finds that Riddle has com-
plied with the policy enunciated by the Board in Matter of Ohio Public Service Company,
52 N. L. R. B. 725.
RATHBUN MOLDING CORPORATION 1037
any other labor organization , to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the undersigned finds will effectu-
ate the policies of the Act :
(a) Withdraw all recognition from Rathbun Molding Employees' Independent
Union and completely disestablish that organization as the representative of any
of its employees for the purpose of dealing with the respondent concerning
grievances , labor disputes , rates of pay, wages, hours of employment, or other
conditions of employment ;
(b) Offer to Harry James Cole and Ralph Riddle immediate and full reinstate-
anent to their former or substantially equivalent positions , without prejudice to
their seniority and other rights and privileges ;
(c) Make whole Harry James Cole and Ralph Riddle for any loss of pay that
they may have suffered by reason of the respondent's discrimination against them,
by payment to each of them of a sum of money equal to the amount which he
would normally have earned as wages from the date of the discrimination against
him to the date of the respondent's offer of reinstatement, less his net earnings
during said period ;
(d) Reimburse each of its employees for dues paid by him to Rathbun Molding
Employees' Independent Union since June 30, 1944;
(e) Post at its plant at Salamanca, New York, copies of the notice attached
1lereto and marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Third Region, after being signed by the respondent's
representative, shall be posted immediately by the respondent upon the receipt
thereof and maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(f) Notify the Regional Director for the Third Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
As provided in Section 203 39 of the Rules and Regulations of the National Labor
Relations Board, Series 4, effective September 11, 1946, any party or counsel for
the Board may, within fifteen (15) days from the date of service of the order trans-
ferring the case to the Board, pursuant to Section 203 38 of said Rules and Regula-
tions, file with the Board, Rochambeau Building, Washington 25, D C., an original
and four copies of a statement in writing setting forth such exceptions to the
Intermediate Report or to any other part of the record or proceeding (including
rulings upon all motions or objections) as he relies upon, together with the original
and four copies of a, brief in support thereof ; and any party or counsel for the
Board may, within the same period, file an original and four copies of a brief in
support of the Intermediate Report. Immediately upon the filing of such state-
ment of exceptions and/or briefs, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a copy
with the Regional Director. Proof of service on the other parties of all papers
filed with the Board shall be promptly made as required by Section 203.65. As
further provided in said Section 203 39, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
FREDERIC B PARKES, 2ND,
Trial Ewamtner.
Dated February 11, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE HEREBY DISESTABLISH RATHBUN MOLDING EiIPi.OYEEs' INDEPENDENT
UNION as the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes. wages, rates of pay,
hours of employment, or other conditions of eniplo^ ment. and we will not
recognize it or any successor thereto for any of the above purposes
WE WILL NOT give effect to the contract of September 7. 15)46, with RATH13UN
MOLDING EMPLOYEES' INDEPENDENT UNION.
Wi. WILL NOT dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights or privileges previously enjoyed. and make
them whole for any loss of pay suffered as a iesult of the discrimination.
Harry James Cole Ralph Riddle
WE WILL REIMBURSE all employees for the full ainount of dues checked off
from their wages for the benefit of RATIIBUN M0LDILo EMPLOYEES' INDEPEND-
ENT UNION since June 30, 1944.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist CONGRESS OF INDUST iL11. ORG \NI/.ATIONS, AMIEBI-
CAN FEDERATION OF LABOR, or any other labor organization, to bargain collec-
tively through representatives of their own choosing. and to engage in con-
certed activities for the purpose of collectii e bargaining oI other mutual
aid or protection. All our employees are free to become of remain members
of this union, or any other labor organization
WE WILL NOT discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because of
membership in or activity on behalf of any such labor organization
RATHBUN MOLDING CORPORATION,
Employer.
Dated------------------------ By------------------------------------
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in the Armed Forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the (late hereof, and must
not be altered, defaced, or covered by any other material.