Sanco Piece Dye Works, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1942

38 N.L.R.B. 690 (N.L.R.B. 1942)

In the Matter Of SANCO PIECE DYE WORKS, INC., WILLIAM F. LARKIN
and FEDERATION OF DYERS, FINISHERS, PRIN'T'ERS & BLEACHERS OF
AMERICA
In the Matter of CAPITOL PIECE DYE WORKS, INC., WILLIAM F.
LARKIN and FEDERATION OF DYERS, FINISHERS, PRINTERS & BLEACH-
ERS OF AMERICA
Cases Nos. C-1606 and C-1607, respectively.Decided January
30, 194td
Jurisdiction : rayon piece goods dyeing, finishing, and processing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; promotion of
employee on promise to refrain from union activity ; questioning of employees
concerning union affairs by respondent's counsel ; inducing employees to sign
anti-union document; threats to move plant; threat of discharge for distribut-
ing union cards; permitting employees to solicit signatures for anti-union
statement; attempt by individual respondent to dissuade employee from
testifying at Board hearing.
Company-Dominated Unions: first organization : sponsorship of and participa-
tion in administration of by management representatives ; solicitation of
membership and collection of dues on company time and property; no at-
tempt to institute collective bargaining-second organization : establishment
of upon renewal of union's organizational campaign ; notice of only meeting
posted in plant; expenses of meeting paid by foreman; solicitation of mem-
bership on company time and property.
Discrimznatcon: discharge of four employees for union membership and ac-
tivity; charges of discrimination dismissed as to three cases.
Collective Bag gaining: majorities established by membership cards-refusal to
bargain ; lack of good faith in refusal to grant recognition because of alleged
doubt as to validity of union membership, cards.
Remedial Orders: employer ordered to refuse to recognize second dominated
organization and to cease and desist ; reinstatement and back pay awarded
to persons discriminated against; employers ordered to bargain with union
on request
Definitions : president, general manager, and one of principal stock-holders of
Company leasing space to other respondents and whose unfair labor practices
were in the interest of and cooperated in and condoned by other respondents
held an employer within the meaning the Act.
Mfr. 11'ill Maslow, for the Board.
Mr. A. V. Cherbonnier and Mr. James A. Carney, of New York
City, for Sanco.
Mfr. Samuel Miller, of Haverstraw, N. Y., for Capitol and Larkin.
dS N 1. R. L;., No, Lop.
690
- SANCO 'PIECE DYE WORKS, INC. 691
J& Vito Fritz, of Paterson, N. J., for the Federation.. , ; , '
• Mr. Robert D. Allen and Mr. Daniel, J. Harrington, of counsel to
the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Separate charges and amended charges having been filed by Fed-
eration of Dyers, Finishers,,Printers & Bleachers of America„ herein
called the Federation, against Sanco Piece Dye Works, Inc., herein
called Sanco,l and William F. Larkin,' herein called Larkin, and
against Capitol Piece Dye Works, Inc.,' herein called Capitol, respec-
tively, all of Garnerville, New York, the National Labor Relations
Board', herein called the Board, acting pursuant to Article II, Section
36 (b) of: National Labor Relations Board Rules and Regulations-
Series 2, on November.24, 1939, ordered the two proceedings consoli-
dated. Upon the charges and amended charges thus filed, the Board,
b3='the Regional Director for the Second Region (New York City),
issued separate complaints dated March 7, 1940, against Sanco and
Larkin and against Capitol and Larkin,4 respectively; the complaint
in the Sanco case alleging that Sanco had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and
(7)' of -the National Labor Relations Act, 49 Stat. 449, herein called
the Act, and that Larkin had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8,(1) and (2) and Section-2 (6) and (7) of the Act and the complaint
in the Capitol case alleging that Capitol had engaged in and was
engaging, in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and' (5)5 and Section 2 (6) and (7) of the
Act and that Larkin had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and Section 2 (6) and (7) of the Act. Copies of the complaints to-
gether with notice of hearing were duly served upon the respondents
and the Federation.
' The first two charges against Sanco named it as 3anco Piece Dye works ; the others
named it as Sanco Piece Dye Works, Inc. The distinction between these trig o names is
explained in Section I, infra
' Case Number C-1606, herein called the Sanco case.
$ Case'Number C-1607, herein called the Capitol case. On December 13, 1939, the Feder-
ation ' filed aniended charges in which Larkin was named as a respondent in the Capitol case
' Sanco, Larkin , and Capitol are sometimes herein collectively called the respondents
At the hearing , upon a supplement to the fourth amended charge having been filed by
the, Federation and pursuant to notice to the parties , the complaint was amended to allege
that, Capitol had also engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the unfair labor practices, the complaint in the Sanco
case alleged in substance: (1) that Sanco discriminated in regard to
the hire and tenure of employment of Nicholas Acquaviva, Andrew
Zeller, and Edmund Stander, because they joined and assisted the
Federation and engaged in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, by giving
said employees less work than was given to other employees and by
transferring Acquaviva and Zeller to the night shift, and by discharg-
ing Acquaviva and Zeller on February 25 and July 27, 1939, respec-
tively, and thereafter refusing to reinstate them; (2) that, on or about
November 28, 1938, and thereafter, Sanco refused to bargain collec-
tively with the Federation as the exclusive bargaining representative
of its employees in an appropriate unit consisting of all employees ex-
clusive of office and supervisory employees; (3) that, from about No-
vember 4,1938, to April 28,1939, Sanco and Larkin formed, dominated,
and interfered with the administration of a labor organization known
as the Sanco Benefit and Social Club, herein called the Club, and con-
tributed support thereto, and on or about June 23, 1939, and thereafter,
formed, dominated, and interfered with the administration of a labor
organization known as the Sanco Protective Association, herein called
the Association, and contributed support thereto; and (4) that by the
foregoing and other acts, Sanco and Larkin interfered with, restrained,
and coerced the employees of Sanco in the exercise of the rights guar-
anteed in Section 7 of the Act. Concerning the unfair labor practices,
the complaint in the Capitol case, as amended at the hearing, alleged in
substance: (1) that on or about November 28, 1938, and thereafter,
Capitol refused to bargain collectively with the Federation as the ex=
elusive bargaining representative of-its employees in an appropriate
unit consisting of all Capitol's employees exclusive of office and super-
visory employees; (2) that on or about March 23, 1940, Capitol dis-
charged Robert Danna, Patsy Mazzucco, and Frank Attigliato, and
on or about March 25, 1940, discharged Mario Victor Tambolleo, and
thereafter refused to reinstate them, for the reason that they had joined
and assisted the Federation and engaged in other concerted activities
for purposes of collective bargaining and other mutual aid or protec-
tion, thereby discriminating with respect to their hire and tenure of
employment; and (3) that by the foregoing and other acts, Capitol
and Larkin interfered with, restrained, and coerced Capitol's em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
On March 11, 1940, Sanco filed with the Board motions to sever the
consolidated cases, to postpone the date set for the hearing to April 10,
1940, or thereafter, and to strike the name of Larkin from the complaint
in the Sanco case. On March 13, 1940, the Board denied said motions,
without prejudice to the privilege of renewing the motion for postpone-
ment of the hearing. On March 18,1940, Sanco and Capitol filed their
SANCO PIECE DYE WORKS, INC. 693
respective answers to the complaints denying that they had engaged in
the unfair labor practices alleged.
Pursuant to notice and notice of postponement, a hearing was held
at Haverstraw, New York, from April 11 through May 7, 1940, before
Joseph L. Maguire, the Trial Examiner duly designated by the Board.'
The Board, Sanco, Capitol, and Larkin were represented by counsel;
all participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. During the hearing
Capitol filed its answer to the amendments to the Capitol complaint
made at the hearing, in which it denied that it had engaged in unfair
labor practices alleged in said amendments. During the hearing
Larkin filed answers to the complaints in which he denied that he
had engaged in the unfair labor practices alleged.
At the close of the hearing the Trial Examiner granted motions
of the Board's attorney to conform the pleadings to the proof in both
cases. During the course of the hearing the Trial Examiner made
numerous rulings on other motions and on objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. During the course of the hearing the
Trial Examiner reserved rulings on several motions, made by the
respective respondents, to dismiss the respective complaints and to
dismiss particular allegations thereof. Except as said motions are
consistent ww itli the findings of fact, conclusions of law, and order set
forth below, they are hereby denied.
On June 12, 1940, the Board, acting pursuant to Article II, Sect ion
36, of National Labor Relations Board Rules and Regulations-Series
2, as amended, ordered the proceedings transferred to and continued
before it for action pursuant to Article II, Section 37, of said Rules
and Regulations. The Board further ordered that no Intermediate
Report be issued by the Trial Examiner and, acting pursuant to
Article II, Section 37 (c), of said Rules and Regulations, ordered
that Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order be issued. The Board further ordered, pursuant to
" Prior to the hearing, Sanco filed in the United States District Court for the Southern
District of New York a suit to enjoin the Regional Director from conducting any hearing
against Sanco in conjunction with Capitol and Larkin On March 25 , 1940, the Court
ordered the Regional Director to show cause why such an injunction should not be granted.
On April 5, 1940 , the Regional Director moved the Court to quash the summons , discharge
the rule to show cause, and dismiss the bill of complaint in the injunction suit On April 8,
1940 , the Court dismissed the complaint for lack of jurisdiction . Sanco Piece Dye Works,
Ine, v . Elmore M Hetrick, Regional Director, designated by the National Labor Relations
Board, for the Second Region , 33 F Supp _ 80 (D C S D N Y ) On April 15, 1940,
Sanco appealed from the order of the District Court to the United States Circuit Court of
Appeals for the Second Circuit and sought to stay the Regional Director from pioceeding
with the hearing pending the appeal On April 18, 1940, the Circuit Couit of Appeals
denied the motion for stay.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article II, Section 37, of said Rules and Regulations, that the parties
should have the right within twenty (20) days from the date of said
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order, to file exceptions thereto and to request oral argument
before the Board, and within thirty (30) days from said date, to file
a brief with the Board.
On May 23, 1941, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order. Pursuant to ex-
tensions of time granted by the Board, Capitol and Larkin, on June
30, 1941, and Sanco, on July 3, 1941, filed exceptions to the (Proposed
Findings of Fact, Proposed Conclusions of Law, and Proposed Order.
Pursuant to notice duly served on all parties, a hearing was held
before the Board on December 16, 1941, in Washington, D. C., for the
purpose of oral argument. Sanco, Capitol; and the Federation ap-
peared and presented. oral argument. The Federation submitted a
statement in support of the Proposed Findings of Fact, Proposed
Conclusions of Law, and Proposed Order, which the Board has con-
sidered. The Board has also considered the exceptions filed by Sanco,
Capitol, and Larkin and, save as they are consistent with the findings,
conclusions, and order set forth below, finds no merit in them. , , 'a
. Upon the'entire record in the case the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS Or, THE RESPONDENTS
Larkin. William F. Larkin, of Garnerville, New York, is presi-
dent, general manager, and one of the principal stockholders, of
Garnerville Holding Company, Inc., Garnerville, New York, herein
called the Holding Company. The Holding Company is a corpora-
tion which owns and manages certain industrial property located in
Garnerville, commonly known as the Haverstraw Industrial Terminal
and herein called the Terminal. Space in the Terminal is leased to
some' 20 different concerns including Sanco and Capitol, the business
of which constitutes the principal source'of income of the surrounding
community. The Terminal is entirely enclosed by a fence' and the
office of the Holding Company, occupied by Larkin, is situated at-the
main entrance. Admittance to the Terminal can be gained only by
holders of passes issued by Larkin or by persons known to the guard
stationed at the entrance and having legitimate business within .7 At,
the Terminal office Larkin operates an employment service for the
convenience of concerns in the Terminal. He there receives applica
tions for employment and maintains a list of applicants. When called
°The'rule requnlag entrance passes or that a prospective entrant be known to the guard
has from time to time been relaxed.
SANCO PIECE DYE WORKS, INC. 695
upon by concerns in the Terminal to furnish prospective employees he,
in turn, calls applicants whose names appear. on his list and sends them
to the concern desiring their services. Approximately 25 per cent
of those employed at plants in the Terminal obtain their positions
through Larkin.
Sanco. Sanco Piece Dye Works was, until it was dissolved on Janu-
ary 17, 1939, a New Jersey corporation with its principal place of
business in the Terminal at Garnerville, New York. On January*12,
1939, Sanco Piece Dye Works, Inc., was incorporated under the laws
of the State of New York. It then took over the property and con-
tinued the business of Sanco Piece Dye Works. At least two of the
officers of the dissolved corporation became officers of Sanco Piece Dye
Works, Inc. There is no showing that the change in corporate organ-
ization effected any actual change in the operation of the business.
Moreover, as hereinafter found, Sanco Piece Dye Works, Inc., con-
tinued to engage in the unfair labor practices previously engaged in
by Sanco Piece Dye Works, and also engaged in other unfair labor
practices .8 For the purpose of this proceeding, therefore, we shall
consider the two corporations as one, and the term "Santo" as used
herein will refer to both without distinction. Sanco is engaged, at
its plant in the Terminal, in dyeing, finishing, and processing rayon
piece goods and related products. Goods are delivered to Sanco by
its customers for dyeing, finishing, or processing and are returned to
them when the work is completed. More than 50 per cent of the
goods dyed, finished, or processed by Sanco are manufactured in
States other than New York. During 1939 Sanco dyed or processed
more than 10,000,000 yards of cloth, at least 90 per cent of which were
the property of customers located in New York City and the remainder
the property of customers located outside the State of New York.
Goods belonging to customers in New York City are delivered to Sanco
and returned to the customers by common carrier; the route custom-
arily used for such purpose passes through the State of New Jersey.
In the latter half of 1939, Sanco purchased raw materials, such as
chemicals,'dye stuff, paper, finishing oils, and twine, having a value
of $2,400. Approximately 3 per cent of such raw materials were
obtained by it outside the State of New York.
Capitol. Capitol Piece Dye Works Inc., is a New York corpora-
tion with its principal place of business in the Terminal at Garner=
vil'le; New York, where it is engaged in dyeing, finishing, and
processing rayon piece goods and related products. The goods dyed,
finished, or processed are the property of customers, all of whom are
located in New York City. The goods are delivered to Capitol
and after completion of the work ordered are returned to the cus-
9 See Section III, infra.
696 DECISIONS OF NATIONAL LABOIt RELATIONS BOARD
tomers by a common carrier whose route passes through the State of
New Jersey. During 1939 Capitol dyed, finished, or processed ap-
proximately 12,000,000 yards of cloth, all of which was manufactured
in States other than New York. During the same year Capitol
purchased raw materials having a value of $85,000. More than 17
per cent in value of such raw materials were obtained by it outside
the State of New York.
II. THE O11GANIZATIONS INVOLVED
Federation of Dyers, Finishers, Printers & Bleachers of America
is a labor organization affiliated with the Congress of Industrial
Organizations. It admits to membership employees of Sanco and
Capitol.
Sanco Benefit and Social Club was, until about May 1939, an
unaffiliated labor organization, admitting to membership employees
of Sanco.
Sanco Protective Association is an unaffiliated labor organization
admitting to membership employees of Sanco.
III. SANCO'S UNFAIR LABOR PRACTICES
A. Doimination and interference with, the formation and administra-
tion of the Club and the Association and contribution of support
thereto
The Club. The Federation commenced its efforts to organize the
employees of concerns in the Terminal in July 1938, at which time
several employees of Sanco signed cards accepting membership in
the Federation and authorizing it to act as their representative for
the purposes of collective bargaining. Sanco quickly became aware
of this campaign and initiated a course of action designed to impede
it. In August 1938, while enroute to a clambake given annually by
Sanco and attended by its employees, Albert Sands, treasurer and
plant manager of Sanco, told Andrew Zeller, an employee, that "the
union is really no good. . . . What we should start here is a club,
the same as I done in Paterson. You stick with me and Ave will go
places." At the clambake, Sands stated to several employees, includ-
ing Joseph Burke, who later took the lead in the formation of the
Club, that "it would be a good idea if we started a social club in, the
plant." Sometime during the following month, in another conversa-
tion with Zeller, Sands said, "We are going to start a social and
benefit club, and we will have insurance, in case anybody gets
sick . . . they will be paid. We will have it for a quarter a month."'
°Although present during at least pint of the heating, Sands did not testify; hence
all statement attributed to him herein were uncontradicted
SA1VCO PIECE DYE WORKS, INC. 697
By the latter part of October a substantial number of employees
had designated the Federation as their representative. On October
31 the Federation wrote to Sanco stating that 'it had been designated
as collective bargaining representative by a majority of Sanco's em-
ployees and suggesting a conference for the purpose of initiating
collective bargaining negotiations."' On November 3 Sanco's attorney
replied to the Federation's request, stating, inter alia, that Sanco
could not recognize the Federation without "adequate proof" that it
represented a majority of the employees. On the same day a notice
of a meeting, to be conducted by Larkin on the following evening
at Forrester's Hall in Garnerville, appeared on the time clock in the
Sanco plant. On November 4, Sanco foremen notified several em-
ployees of the meeting and in some cases told them to attend or that
Sands wanted them to do so. Eugene Pellegrini, a foreman, sent his
automobile, in charge of an employee, to Paterson, New Jersey, with
instructions to the employee to pick up other employees there and
bring them to the meeting. Four employees were thus transported
to Garnerville that evening. John Palso, night shift foreman, per-
mitted employees on his shift to leave their work in order to attend
and they were paid by Sanco for their time spent at the meeting.
Shortly before November 4 Larkin had conceived the idea of
organizing an association composed of residents of the community
adjacent to the Terminal. To that end he held several conferences
with residents of the community at which a plan of organization
was formulated and the Garnerville Community Club was estab-
lished. It was Larkin's purpose in holding the November 4 meeting
to enlist support for that association.h1 Larkin addressed the gather-
ing on behalf of the Garnerville Community Club.12 At the con-
clusion of his talk and while those present were discussing his sug-
gestions among themselves, Burke proposed to other Sanco employees
that rather than join the Garnerville Community Club it would be
more advantageous for them to form a separate organization, mem-
bership in which would be limited to Sanco's employees. His sug-
gestion met with the approval of the group, which included Fore-
man Pellegrini. Burke thereupon took the floor and submitted his
proposal to all the Sanco employees present. Pellegrini next ad-
dressed the meeting and, in the words of one employee present, "ex-
plained the situation more clearly." Pellegrini also stated that "it
would be- nice to have a club, and we could take up our grievances
with the foremen" and that another meeting would be held 2 weeks
10A similar letter of the same date addressed to Capitol is discussed in Section IV, C,
infra.
"Although this organization was actually established, it is not alleged in the complaint
nor does the record show that it is a labor organization within the meaning of the Act
12 Aia remarks at this meeting are dlacnssed in Section V, A, infra
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter at which the organization would be perfected and officers
elected.
Notices of that meeting, for the formation of the proposed organi-
zation also appeared on the time clock in the Sanco plant. The
meeting, held in the evening, was attended by approximately 40 em-
ployees, including Foremen Pellegrini, Palso, and Michael Vigorito
and a number of night-shift employees who were excused from
work to attend. At the meeting, in the proceedings of which Sanco
foremen actively participated, the name, constitution, and bylaws
of the Club were adopted and officers, including Pellegrini as treas-
urer, were elected. Dues were fixed at 25 cents per month.
Shortly thereafter the officers of the Club purchased printed dues
cards and instituted a membership campaign. Membership was so-
licited, dues cards distributed, and dues collected in the Sanco plant
during working hours and in the presence of supervisory officials.
Sanco did not, however, limit its encouragement of membership in
the Club merely to permitting solicitation of membership and col-
lection of dues on its property during working hours. During the
membership drive, Sands gave Zeller a piece of paper headed. "Santo
Benefit & Social Club" and told him to "see how many men you
can sign up for this," but admonished him to "wait till I go in the
office." Zeller then went- through the plant for about 45 minutes
telling employees about the Club and attempting to induce them
to sign the paper. Thereafter Zeller told Sands of two employees who
had refused to sign and Sands said that he would "speak to them."
In December in an effort to stimulate interest in the Club, its leaders
arranged a beer and sandwich party which was held in a tavern, the
owner of which, a Sanco employee, permitted its free use at the request
of Pellegrini. Part of the expense of the party was defrayed by one
Siegal, who at the time was doing trucking work for Sanco and who
had won first prize in a lottery conducted by the Club, but Pellegrini,
who at the time was no longer treasurer of the Club, paid the owner
of the tavern $18.00 toward the cost of the refreshments served at the
party.
Late in 1938 or early in January 1939 Andrew Acquaviva, an em-
ployee, learned that Sanco proposed to transfer his son, Nicholas
Acquaviva, to the night shift. He thereupon went to Sands and
offered to join the Club if by so doing he could assure his son's con-
tinued employment on the day shift. In reply Sands said "All right.
Don't worry about that. I will fix it up." A day or two thereafter
Sands asked Nicholas Acquaviva, "What does the union want,
anyway?" Acquaviva briefly explained the Federation's aims.
Sands then asked him whether he wanted to join the Club. When
Acquaviva agreed to do so, Sands said`, "In order to join you see Joe
SANCO PIECE DYE WORKS, INC. 699
Burke. - If you sign you stay on days. After you sign you tell Joe
Burke to come to see me."
After January 1939 activity` in the Sanco plant on behalf of the
Federation virtually ceased. Coincident therewith interest in the
Club, began to wane. By April 1939 the conviction had developed
among its members that the Club should be disbanded. At a mem-
bership meeting held on April 29, 1939, a motion was passed to dis-
tribute • all money in the Club treasury to the members. Shortly
thereafter there appeared on the time clock in the. Sanco plant a
notice of the final meeting of the Club, at which, it was stated, dues
would be refunded. The dissolution meeting was held on or about
May 8 and all funds in the treasury were there distributed to the
members and the Club ceased to exist. ,
At no time during its brief existence did the Club request recogni-
tion from Sanco as the representative, of its employees, nor did it
make any effort to bargain with Sanco on their behalf. -
The Association. Early in -June 1939 the Federation resumed its
membership drive in the Sanco plant. On June 21 it again advised
Sanco that it was the collective bargaining representative of,a major-
ity of its employees and requested recognition as such. Shortly before
June 23 there appeared on the time clock in the Sanco plant a notice
of a meeting of the "Santo Protective Association" at the same tavern
in Garnerville at which previous meetings of the Club had been held.
That meeting, which was attended by approximately 50 Sanco
employees, had as its principal purpose the formation of "an entirely
new organization, and not the same one as previously had." Pelle-
grini defrayed the cost of beer and sandwiches which were served to
those in attendance at this meeting. The minutes of the meeting
which were taken by Fannie Tavarone, at that time a clerk in the
Sanco office and at the date of the hearing secretary to Sands, were
introduced into evidence at the hearing. In addition to the recitation
to the effect that the meeting was for the purpose of forming an
entirely new organization, the minutes disclosed that one of the
further purposes "was to appoint a committee to draw, up a contract
to present to the Sanco Piece Dye Works, Inc. and Mr. A. Sands.
The contract is to control the working hours and wages." Officers of
the new organization were nominated and elected. The bylaws of the
Club were adopted as bylaws of the new organization and a committee
was appointed to draft the contract above mentioned.
The testimony at the hearing with respect to the adoption of the
name "Santo Protective Association" was conflicting. One employee
testified categorically that the notice of the meeting stated that it was
to be a meeting of -the Association. Others testified that at about
the time of the formation of the new organiziation they were asked
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to sign a paper which bore the heading "Santo Benefit and Social
Club" underneath which appeared "Santo Protective Ass (sic)."
That paper, bearing the signatures of several employees, was intro-
duced into evidence at the hearing. On the other hand, several wit-
nesses testified that they had never heard of the Association or that
the Association had never existed. The minutes of the June 23 meet-
ing are of no assistance in resolving the conflict. In this state of the
record we are unable to determine the exact name of the organization
which was formed at the meeting of June 23. It is clear from the
record, however, that a new organization was formed. For the pur-
pose of convenience we call it the Sanco Protective Association and
refer to it herein as the Association.
Although, as stated above, a committee was appointed at the June 23
meeting to draft a proposed form of contract for submission to Sanco,
it does not appear that any action was taken by that committee there-
after. With the exception, mentioned above, of the circulation in the
plant of the paper bearing the name of the Association and requests
that employees sign it, there is no evidence that any concerted mem-
bership drive was conducted. No meetings were held subsequent to
June 23 and no dues were collected. However, no action has been
taken to disband the Association and, as indicated by the testimony of
its secretary, further meetings may at any time be called by the of-
ficers authorized to do so.
Conclusions with respect to the Club and the Association. From the
foregoing it is clear that Sanco fostered and encouraged the formation
and dominated the administration of the Club. In conversations with
employees very shortly after the start of the Federation's membership
drive, Sands made known his antipathy to that organization and force-
fully suggested the formation of a "benefit and social club." Organiza-
tion of the Club, even had there been no participation therein by super-
visory employees, could readily be expected to follow such suggestion.
But Sanco did not depend entirely upon the initiative of its non-super-
visory employees to carry out its desires in this connection. It first
took steps to have its employees present at the meeting conducted by
Larkin. Then, after Burke, to whom Sands had suggested its desira-
bility, proposed the formation of the Club, Foreman Pellegrini took
the floor and "explained the situation more clearly." Having success-
fully instituted the Club by thus indicating to its employees its desire
that such an organization be formed and by the active participation of
a foreman in its actual formation, Sanco then took steps to encourage
membership therein and to assure itself that the Club's activities should
conform to its ideas of the proper function of such an organization.
It permitted the posting of club-meeting notices in the plant and em-
ployees were urged to attend, night-shift employees being excused from
work for such purpose. Supervisory as well as non-supervisory em-
SANCO PIECE DYE WORKS, INC. 701
ployees conducted a membership drive in the plant during working
hours. Sands, himself, persuaded employees to join. One foreman
became treasurer of the Club, thereby assuring Sanco of at least some
control over the use of the Club's funds. Several foremen participated
as members in the deliberations at club meetings. Pellegrini con-
tributed part of the necessary cash to defray the,expense of refresh-
ments served at one of the meetings. That the Club was subject to the
domination of Sanco is, we think, further established by the fact that
it never took steps looking to the institution of collective bargaining
on behalf of Sanco's employees, a function which is ordinarily one of
the principal purposes of a bona fide labor organization.
Likewise, the Association was clearly the creature of Sanco. The
Club having been disbanded after the cessation of the Federation's
first membership drive, the Association was established almost imme-
diately upon the renewal of the Federation's efforts to obtain recog-
nition from Sanco. Notice of its one and only meeting was posted
on the time clock in the plant, without objection by Sanco, and the
expenses of that meeting were paid by a foreman. While the Associa-
tion purported to be an entirely new organization, it adopted the by-
laws of the Club, thus establishing its connection with that body. Such
efforts as were made to obtain members were by way of solicitation of
signatures of employees in the Sanco plant during working hours.
We find that Sanco dominated and interfered with the formation
and administration of the Club and the Association and contributed
financial and other support thereto, thereby interfering with, re-
straining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
As stated above, the complaint in the Sanco case alleges that
Larkin, as well as Sanco, formed and dominated and interfered with
the administration of the Club and the Association. Aside, how-
ever, from the coincidence of the formation of the Club at a meeting
conducted by Larkin in the interest of the Garnerville Community
Club, the record does not support these allegations of the complaint
as to Larkin. We shall accordingly dismiss these allegations of the
complaint in the Sanco case.
B., Discrimination with respect to hire and tenure of employment
Nicholas Acquaviva. The complaint in the Sanco case alleges that
Sanco discriminated against Acquaviva by giving him less employ-
ment than was given to other employees and by transferring him to
the night shift during the period from October 20, 1938, to February
25, 1939, and by discharging him on the latter date and thereafter
refusing to reinstate him.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No proof was offered at the hearing in support of the allegations
of the complaint that Sanco discriminated against him by giving
him less employment than was given to others or by transferring him
to the night shift. We shall, accordingly, dismiss those allegations
of the complaint..
Acquaviva was employed by Sanco in 1937. He joined the Federa-
tion on July 24, 1938, at the start of the campaign to organize Sanco's
employees, was thereupon appointed by the Federation to its organ-
izing committee, and immediately became active in inducing other
employees to become members. Approximately a week after Acqua-
viva joined the Federation Sands called him to the plant office and
accused him of participating in organizational activities. When
Acquaviva admitted the charge, Sands said, "Why do that . . . if
you don't bother with the union, later on, not now, not right now,
I might offer to give you a raise." On a Monday morning, early in
October 1938, when Acquaviva arrived at the plant, Vigorito told
him that he was discharged for failure to report for work on the
previous Saturday. Upon Acquaviva's protesting-that he had been
ill that day, Vigorito stated that Sands had ordered him discharged.
Vigorito went into the office to obtain Acquaviva's check and, upon
"his, return, stated that Sands had decided not to discharge him
because "the labor people are going to hear you. You will bring
your proceeding here at the Labor Board." Later in October on a
day 'following a Federation meeting which Acquaviva had attended,
Sands said to him, "I hear you had a good time last night . . . I
hear you went down and seen Johnny Bello, the organizer at Haver-
straw . . . Why don't you stick to me? We don't need a union."
Acquaviva was discharged by Sands on February 25, 1939. The
reason assigned by Sanco for the discharge is that on the previous
day he had damaged a large quantity of cloth. Prior to his dis-
charge, Acquaviva regularly worked from 3 p. m. to 11 p. m. operat-
ing a machine, the function of which is to stretch and dry cloth.
As cloth is fed into the machine by the operator, it is gripped at
the selvage by "clips" which stretch it as it passes over the machine.
To each roll of cloth is attached a ticket stating the width to which
it is to be stretched; the machine being adjustable so that the clips
may be set at any width required. Shortly before 7 o'clock in the
evening of February 24, Acquaviva commenced to run the first of
several, rolls of rayon taffeta through the machine. The ticket re-
quired, that the cloth be 39 inches wide when finished, which necessi-
tated stretching 41/2 inches. Acquaviva immediately discovered that
one of the clips 1yas causing a'rip in the selvage of the cloth and
advised Vigorito of that fact. Vigorito suggested that Acquaviva
"tie back" the clip that was causing the trouble, thus taking it out
of operation. That did not remedy the situation, however, and
SANCO PIECE DYE WORKS, INC. 703
Acquaviva again complained to Vigorito who told him that he was
leaving and that the matter should be taken up with Palso, the
night foreman, who was about to come on duty. Vigorito himself
made no inspection of the situation despite Acquaviva's complaints.
Vigorito left the plant shortly before 7 o'clock; Palso arrived ap-
proximately 15 minutes later. In the interim, Acquaviva continued
his efforts to stretch the material as required, with consequent dam-
age. Acquaviva explained the situation to Palso immediately upon
the latter's arrival, stating that it was resulting in "a lot of damage."
At that time Palso neither inspected the cloth nor authorized Acqua-
viva to take steps to put a stop to the damage. Acquaviva continued
to run the machine as it was then set for about 20 minutes and then
sent his helper to complain to Palso. Palso then ordered Acquaviva
to adjust the machine so that it stretched the cloth to only 381/2
inches. The damage continued to occur and Acquaviva again sent
for Palso, who finally looked into the matter and ordered the ma-
chine adjusted so that it stretched only to 373/4 inches. That put a
stop to further damage.
Palso's version of the incident differs from the facts found above
in some respects. He testified that Acquaviva first reported the dam-
age about 30 minutes after he came on duty and at that time de-
scribed it as "a few rips," that he then ordered Acquaviva to stretch
the cloth to 381/2 inches, that approximately a half hour thereafter
Acquaviva again complained of damage to the cloth and he ordered
Acquaviva to adjust the machine so as to stop the damage, without
regard to obtaining the width called for by the ticket. Palso's
testimony thus indicates that Acquaviva did not take prompt action
to remedy the situation and did not fully advise Palso of its serious-
ness. However, we do not credit Palso's testimony in this respect.
Admittedly, Acquaviva complained of the difficulty to Vigorito,
who made no inspection of what was happening. According to Palso's
version, the situation was brought to his attention at least twice
and not until the last time did he inspect the cloth to determine
what steps to take to put a stop to the damage. Vincenzo Pascale,
an employee, testified that he saw Palso at Acquaviva's machine
three or four times during the evening. Vigorito testified that he
considered Acquaviva an experienced and careful workman and had
never had occasion to criticize his work. We are of the opinion and
find that Acquaviva made reasonable efforts to remedy the condition
that was giving rise to the damage but was unable for a considerable
period of time to obtain authority from the supervisory staff to take
steps to that end.
When Acquaviva arrived at work on February 25 Vigorito advised
him that Sands wanted to see him in the office. Acquaviva went into
the office where Sands asked him whether he knew anything about the
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
damage that had 'occurred the previous night. Acquaviva said that
he did, whereupon Sands said, "That is all I want to know. You are
through." Acquaviva attempted to explain the matter to Sands but
was not permitted to do so. He was discharged before Sands had
questioned Palso concerning the damaged cloth; the evidence upon
which Sands relied to fix the blame on Acquaviva being a statement by
Vigorito that Acquaviva had run the machine which caused the
damage.
We do not believe that the cloth damage was the motivating cause
of Acquaviva's discharge. It seems to us unlikely that Sands would
have discharged an employee who had been employed for more than
a year, and who was considered an efficient and competent workman,
under these circumstances. Rather, we think that the facts show that
Sands had previously determined to be rid of Acquaviva, who was
known to be one of the most active of Sanco's employees on behalf of
the Federation, in an effort to discourage membership in that organi-
sation and that Sands seized upon this occasion to effect the discharge
in the hope that the damage to the cloth would appear a plausible
reason therefor.
We find that in discharging and thereafter refusing to reinstate
Acquaviva, Sanco discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Federation and
interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Andrew Zeller. Zeller was hired by Sanco in March 1936. He
joined the Federation on October 20, 1938. On the following day he
advised Sands of the fact. Zeller was a member of the Club and
actively participated in its affairs. Until the dissolution of the Club,
Zeller testified, he worked from 60 to 70 hours per week. Shortly
thereafter, Sands told him to take off Monday of each week. Upon
Zeller's objecting to such a reduction in his working time, Sands stated
that Louis, F. Hall, the president of Sanco, had ordered a general
reduction of working time for all employees in the plant. This appears
to have been true, for a general reduction was effected. Thereafter,
Zeller testified, he became active in the Federation. However, his claim
is not supported by the evidence.
Zeller claimed at the hearing that from the beginning of his claimed
organizational activity until the latter part of July 1939 he was given
less work than were others similarly employed. Two such employees
testified at the hearing but did not corroborate Zeller on this point.
Also, Zeller was unable to specify, with any degree of particularity,
the amount of working time of which he was allegedly deprived or the
dates upon which such deprivation occurred. Zeller testified that for
a period of about a month he was transferred to the night shift. The
SANCO PIECE DYE WORKS, INC. 705
record does not establish when that occurred or that it was in any
sense discriminatory.
Zeller was discharged on July 27, 1939. Prior thereto he had been
c tubing-machine operator. When he arrived for work that day,
Sands told him not to go to his usual job but to see Vigorito. Ac-
cording to Zeller, Vigorito then said to him, "I have a new job for
you . . . I am going to put you on the cans." It appears that steam
is used in the "cans," that they are hot and uncomfortable to operate,
and consequently that assignment to them is undesirable. Zeller re-
fused to work on the cans, whereupon Vigorito said that he would
have to discharge him. Zeller protested that he was senior in length
of service to the other tubing-machine operators, that he should there-
fore not be the one chosen for the new job, and that he was willing to
work at his regular position. Vigorito then discharged him. Con-
trary to Zeller's version, Vigorito testified that the assignment to the
cans was a temporary one, to last only 3 or 4 hours, that some special
work was being done in them where an experienced man was needed,
that Zeller was the only one available, and that there was no other
work to be done. He further claimed to have advised Zeller of these
facts.
Sanco introduced evidence tending to establish that for a long time
Zeller had been in the habit of failing to report for work on 2 or 3
days per month and that he was occasionally under the influence of
liquor while on duty. Zeller denied the latter charge but admitted
that he had been absent from work "quite a few" times on account of
sickness and that in some cases his sickness had been caused by drink-
ing. While Sanco did not attribute his discharge directly to such
causes, it was convinced that they existed and they may to some extent
explain the abrupt action taken when Zeller refused to perform the
assignment given to him on July 27.
Inasmuch as Zeller had been an active supporter of the Club and
his activity on behalf of the Federation prior to July 27 was of a minor
nature, it is unreasonable to conclude that Sanco singled him out for
discharge in furtherance of its efforts to discourage membership in
the Federation. Under all the circumstances, we are satisfied that
Vigorito's version of what occurred on July 27 is the correct one and
that, as urged by Sanco, the motivating cause of Zeller's discharge was
his refusal to do work assigned to him.
We find that Sanco did not discriminate against Zeller with regard
to his hire or tenure of employment or any terms or conditions of his
employment to discourage membership in a labor organization.
Edmund Stander. The complaint in the Sanco case alleges that
Sanco discriminated against Stander during the period from about
June 3 to about September 1, 1939, because he joined and assisted the
438861-42-vol. 38-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federation and engaged in other concerted activities for the purposes
of collective bargaining or other mutual aid, or protection, by giving
him less work than was given to others during such period. In the
early months of 1939 Stander was employed as a tubing-machine oper-
ator. He was then working 60 to 70 hours per week, which was con-
siderably more than the number of hours of work enjoyed by most of
the other employees in the plant. In April or May he was transferred
to the callendar machine, a change which he accepted willingly be-
cause he considered* it a promotion. The callendar machine was at
that time operated continuously, there being three operators, each
working an 8-hour shift. Stander worked on the shift from 7 a. in. to
3 p. in. Immediately upon his transfer to the callendar machine his
working time was reduced, according to his testimony, so that he
worked from 35 to 50 hours per week. He joined the Federation on
June 3, 1939, and, he claims, immediately became active in organiza-
tional activity on its behalf. Less than 2 weeks thereafter, in a con-
versation with Sands, he was charged with such activities. Stander
testified that following that conversation his working time was again
reduced by from 8 to 10 hours per week and that thereafter his maxi-
mum hours of work was 52 and his minimum, 24 per week. He
further claimed that on several occasions when he reported for work
in the morning his foreman sent him- away with the statement that
there was no work to be done. Upon Stander's complaining to Sands
late in August 1939 that he was not getting enough working time,
Stander was permitted to work 3 hours per day on another assign-
ment after he had completed his regular shift on the calendar. That
adjusted the situation to his satisfaction.
Under all the circumstances we do not think the reduction in
Stander's hours of work constituted discrimination against him be-
cause of his membership in or activity on behalf of the Federation
or other concerted activities: It does not appear that he was given
less work than others similarly employed during the period in ques-
tion. On the contrary, he admitted that prior to the reduction, the
work was unfairly divided and that he had received much more work
than the amount- to which he was entitled. The first and most drastic
reduction was put into effect more than a month before he joined the
Federation. We think that the reduction may well have been attribut-
able to an effort more equally to divide the working time among all
the employees. We find that Sanco did not discriminate against
Stander with regard to his hire or tenure of employment or any terms
or conditions of his employment to discourage membership in a labor
organization.
SANCO PIECE DYE, WORKS, INC'
C. Tice refusal to bargain collectively
1. The appropriate unit
707,
The complaint in the Sanco'case alleges and in its answer Sanco
admits that all employees of Sanco employed at its Garnerville, plant,
excluding office and supervisory. employees, constitute a unit appro-
priate :for, the purposes of collective bargaining. We find that all
employees of Sanco at its Garnerville plant, excluding office and super-
visory, employees, at' all times material herein constituted, and that
they now constitute a unit appropriate for the purposes of collective
bargaining and that said unit insures to the employees of Sanco the
full benefit of their right to self-organization and to collective bargain-
ing and otherwise effectuates the policies of the Act.
2., Representation by the Federation of the majority in the appropriate
unit
At the hearing, 88 signed cards accepting membership in and de'sig=
eating the Federation as a. collective bargaining representative were
introduced into evidence. Sanco objected to the admission of some of
them'on the ground, inter alia, that no proof had been made as to
the genuineness of' the signatures thereon. Some of'the cards to
ng ywhich this objection was directed were identified at the heari 'b
the signers themselves. Still others were authenticated by those 'in
whose presence they were signed or who were familiar with the signa-
tures of the signers. Without designating the' particular cards to
which he referred, John Bello, the organizer in charge of the' Federa,
Lion's membership campaign at Sanco, testified that approximately
45 were signed in his presence. Except as indicated below, prior to
the hearing no question had been raised as to the authenticity of the
signatures on the cards, although the cards had been discussed at
several meetings between officials of Sanco and of the Federation.
After the cards had been introduced into evidence, A. V. Cherbonnier,
counsel for Sanco, availed himself of an opportunity granted by the
Trial Examiner to withdraw them for the purpose of private examina-
tion. In view of the fact that Sanco's employees are paid by check,
Sanco was thus afforded an opportunity, of which it availed itself
to compare the signatures on 'the cards with its employees' endorse-
ments on cancelled pay checks.. Under, all the circumstances, we find
than the authenticity of the cards, in the absence of a showing of
invalidity, was established, and that the objection to the admission
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of some of them in evidence was properly overruled 13 It is Sanco's
contention that a number of the cards did not bear the signatures of
the purported signers and that a number of the signatures were
obtained by intimidatory or coercive methods which destroyed the
validity of such cards as proof of designation of the Federation as a
collective bargaining representative. After the cards had been with-
drawn from evidence, as above stated, and Cherbonnier had examined
them, he called several employees into the plant office, asked them
whether they had signed cards and, if so, under what circumstances
they had done so. Thereafter Sanco called as witnesses 11 employees
whose purported membership cards were in evidence. Seven of them
testified that they had not signed the cards bearing their names, had
authorized no one to sign for them, and had not otherwise designated
the Federation as their representative. Two testified to the effect that
they were induced to sign by the promises of the Federation's organizer
that by so doing they would be relieved of liability for the payment of
back dues to a Local of the Federation in Paterson, New Jersey, of
which they had been members. One testified that, although he had
the card in his possession for several days and saw that it bore the
words "Federation of Dyers" he thought he was joining another labor
organization . And one testified that he was induced to sign by the
representation that the Federation would procure a certain type of
contract with Sanco, that the Federation had failed to do so, and that,
therefore, "the signing wasn't any good." While we view with sus-
picion testimony such as the foregoing, resulting as it did from con-
ferences in the plant office at which employees were interrogated by
Sanco's counsel regarding their affiliation with the Federation, and
there is evidence in the record tending' to rebut it, at least in part,
we accept it as true for the purposes of this proceeding. We are not
persuaded, however, by the suggestion that the testimony of the seven
witnesses, to the effect that they did not sign the cards purporting to
bear their signatures, casts doubt upon the validity of the other cards
in evidence.' In computing the number of employees who, at the time
of the alleged refusal to bargain, had designated the Federation as
their representative, we shall disregard the cards bearing the names
of the seven witnesses who denied having signed. The testimony of
11 Cf National Labor Relations Board v. National Motor Bearing Company ; International
Association of Machinists , et at. v. National Labor Relations Board, 105 F. (2d) 652 (C. C.
A. 9), mod'f'g and enf 'g Matter of National Motor Bearing Company and International
Union, United Automobile Workers of America, Local No. 76, 5 N L. R. B. 409; National
Labor Relations Board v. Sunshine Mining Company, a corporation, 110 F. (2d) 780 (C. C.
A. 9), cert. denied, 61 S. Ct. 447, mod' f'g and enf 'g Matter of Sunslnne Mining Company
and International Union of Mine, Mill and Smelter Workers, 7 N L. R. B. 1252; Matter of
Dahlstrom Metallic Door Company and United Electrical, Radio & Machine Workers of
America, Local No. 307, 11 N. L. It. B. 408 , enf'd National Labor Relations Board v. Dahl-
strom Metallic Door Company, 112 F. (2d) 756 (C. C. A. 2)
u Cf. Matter of The Stolle Corporation and Metal Polishers, Buffers, Platers and Helpers
International Union, 13 N. L. It. B. 370
SANCO PIECE DYE WORKS, INC. 709
the four other witnesses does not disclose facts which in any way
affect the validity of their designation of the Federation as a col-
lective bargaining representative 15 We shall include them in our
computdtion.
At the hearing there was introduced into evidence a list, prepared
by Sanco, setting forth the names of those in its employ for the weeks
ending November 1 and 8, 1938, with the purported exclusion of super-
visory and office employees. It appears, however, that Leo DeCunto,
whose name appears on the list, is, if not a foreman , a strawboss who
exercises supervisory authority over those in his department. With
his exclusion, there were 86 in the unit which we have found to be
appropriate. Of the 88 cards in evidence, 63 appear on their faces to
have been signed by employees in the appropriate unit. Of those, 54
are dated prior to November 3 and 58 prior to November 19, 193811
Those figures include the seven cards which we have found should be
disregarded in our determination of the issue of majority representa-
tion. Thus, by November 3 the Federation had been designated by 47
of the 86 employees in the appropriate unit and by November 19 such
designations totalled 51.
We find that on November 3, 1938, and at all times thereafter, the
Federation was and that it-is the duly designated representative of a
majority of the employees of Sanco in the unit found to be appropriate.
Pursuant to Section 9 (a) of the Act, the Federation was and is, there-
fore, the exclusive representative of all the employees in such unit for
the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain collectively
As heretofore stated , by letter dated October 31,,1938, the Federation
informed Sanco that it represented a majority of Sanco's employees
and requested a conference for the purpose of initiating collective bar-
gaining negotiations . , And by letter dated November 3, Samuel Miller,
who was then attorney for Sanco, replied that recognition could not
be granted the Federation without "adequate proof" that it represented
a majority of the employees . The letter further mentioned that Sanco
had information leading it to believe that the manner of procurement
of some of the Federation's application cards had been improper and
suggested that the question of majority representation be decided by
a consent election under the supervision of the Board. On or about
November 6 officials of the Federation met with Miller in the latter's
11 See Dahlstrom Metallic Door Company and United Electrical , Radio ct Machine Workers
of America, Local No. 507, 11 N. L. R. B. 408, enf ' d National Labor Relations Board Y.
Dahlstrom Metallic Door Company , 112 F. (2d) 756 (C C. A 2)
11 The significance of the dates appears in Section III C 3, infra
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and again asked that Sanco recognize the Federation as the
representative of its employees. Miller agreed to confer with officers
of Sanco concerning the request. On the following day he advised the
Federation that Sanco refused so to recognize it. On November 9 the
Federation filed charges with the Board, alleging, inter alia, a refusal
to bargain. On November 16 a conference was held at the Regional
Office of the Board between officials of Santo and the Federation and
one of the Board's.,field examiners,,: in which the Federation again
claimed that it represented a majority of Sanco's employees and
requested recognition which was refused. As ground for such refusal,
counsel for Sanco,asserted that the Federation did not-represent a
majority because many of the cards upon which the Federation based
its claim to majority representation had been obtained through intimi-
datory or coercive methods. Sanco again suggested that the question
of majority representation be decided by a consent election. The Fed-
eration refused to agree to such a proposal, taking the position that
Sanco and Larkin had theretofore engaged in unfair labor practices
which rendered impossible an election in which the employees would
be free to express their untrammeled choice of a collective bargaining
representative. We are of the opinion that the Federation's position
in this regard was entirely reasonable. Miller finally suggested and
the Federation agreed that the Board's field examiner should make a
check of the Federation's cards against a list of employees to be
furnished by Sanco.
Miller thereafter furnished a list of Sanco's employees as of No-
vember 1 and 8 and on November 18, the date fixed therefor, the check
was made by the Board's field examiner. By letter dated November
19 he reported to Miller that his check had disclosed that there were
cards for 61 of the 87 employees appearing on the list. The check
thus showed that approximately 70 per cent of the employees had
designated the Federation. On November 21 Miller acknowledged
receipt of the report and stated that he would confer with 'Santo
concerning it. In the following week or 10 days other conferences
between Sanco and the Federation were held, at all of which Sanco
refused to accept the results of the card-check as determinative of
the issue of majority representation and continued in its refusal to
giant recognition,,urging on each occasion that the methods used by
the Federation to obtain the cards were improper.
While it is true that a labor organization that is asking recognition
of an employer as the exclusive representative of the employees in an
appropriate unit is under a duty to furnish proof that it represents,a
majority of such employees, it is likewise true that an employer is
obligated to accept reasonable proof of such facts, and that the em-
ployer's doubt as to designation of such organization by a majority
SANCO PIECE DYE WORKS , INC. 711
of his employees must be bona fide . As shown above , Sanco made no
issue of the genuineness of the signatures on the cards nor did it ques-
tion the accuracy of the check . At the conferences above , discussed,
Sanco repeatedly asserted that its belief in the invalidity of the cards
was based upon affidavits in its possession establishing intimidation
and coercion in the procurement of the cards. No such affidavits were
produced at the hearing . We have heretofore discussed all the evi-
dence of alleged intimidation and coercion in procuring the cards.
Most of it, if not all, came to the knowledge of Sanco through ques-
tioning of employees in the Sanco office in the course of the hearing.
If in November 1938 Sanco had at its disposal evidence other than that
adduced at the hearing upon which it based its alleged belief in the
invalidity of Federation membership cards and its consequent doubt
that the Federation represented a majority of its employees , Ave fail
to understand why such evidence was not adduced at the hearing.
Sanco's refusal to recognize the Federation after the card-check had
disclosed that a majority of the employees had designated that organi-
zation as their representative lends support to our conclusion that
Sanco's refusal was at no time inspired by a bona fide doubt as to the
Federation 's status as a majority representative . We find that
Sanco's alleged doubt as to the validity of the Federation 's claims to
majority representation constituted nothing more than a subterfuge
which it hoped would enable it to escape its obligations under the
Act and that Sanco's refusal to recognize the Federation constituted 'a
deliberate refusal to bargain.
We find that by its refusal on November 3, 1938, and at all times
thereafter , to recognize the Federation , Sanco refused to bargain
collectively with the Federation as the representative of its employees
in the appropriate unit with respect to rates of pay, wages, hours of
employment, and other conditions of employment , and that Sanco
thereby interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
D. Other interference, restraint , and coercion
In addition to the acts already' discussed aild which we have found
to constitute unfair labor practices proscribed by the Act , Sanco was
otherwise active in its efforts to discourage membership in the Federa=
tion and thereby escape the necessity of entering into collective bar-
gaining with it.
Mario La Greca, a Sanco employee , joined the Federation on
July 22, 1938. Early in August 1938 Sanco discharged him. The
Federation thereafter filed a charge with the Regional Director,
alleging that La Greca had been discharged because of his meu1-
bei.ship in and activity oil behalf of that organization. On October
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7, 1938, an agreement was entered into between Sanco and the Fed-
eration which provided, inter alia, that the Federation would with-
draw its charge and that Sanco would immediately reinstate La
Greca. Pursuant to the agreement La Greca was reinstated. On
the day following his return to work he had a conversation with
Sands in the plant office, in the course of which Sands told him
"not to bother with the union" and that he was to be given a new
position in charge of several employees. La Greca agreed to refrain
from all activity on behalf of the Federation. He was thereupon
promoted from his former 'position as a tubing-machine operator to
that of foreman.
In June 1939, at which time, we have found, the Federation's
membership drive was resumed after a lull of several months, Sands
called Thomas Finigan into the plant office, told him that he had
seen him frequently with Stander and Zeller, and said, "You know,
they are trying to organize the union here. Any time you go down
through Paterson, you can see the mills that was put out of business
by union activities, that is the reason why Paterson is so dull today."
Sands then told Finigan to "lay off" Stander and Zeller.
On or about June 18, 1939, on a day when the Sanco plant was
not in operation, the Federation held a meeting for Sanco employees
on the second floor of a tavern known as Washington Hall. At the
time of the meeting several foremen, including Palso, who lived some
20 miles from Garnerville at the time, and Fredericks, were present
at the bar on the ground floor and spoke to employees who were
going to or from the meeting. Palso later told Sands of the meet-
ing. Sands stated that he was already aware of it. Witnesses
for Sanco explained that the foremen were present because it was
customary for them, as well as for other employees, to gather for
drinks at the Washington Hall on holidays. The circumstances
under which these supervisory officials of Sanco appeared near the
Federation's meeting place on the day in question give rise to doubt
that their purpose was not to discourage employees from attending
the meeting and see who actually did attend. However, in view of
the explanation for their presence made by Sanco's witnesses and in
the absence of any evidence that they directly attempted to dissuade
employees from going to the meeting, we do not think it established
that they were there for an illegal purpose.
In April 1939 Cherbonnier was brought into the case as counsel
for Sanco. He thereupon went to the plant and asked several em-
ployees "whether or not they wanted the union to bargain collec-
tively for them." In some cases Cherbonnier advised the employees
whom he questioned that he was acting as attorney for Sanco; in
others he did not. Zeller testified that at about this time Sands in-
SANCO PIECE DYE WORKS, INC. 713
troduced him to Cherbonnier, who asked him whether he was a
member of the Federation, who had started its membership drive
in the plant, and how Zeller thought the Federation would fare in
an election among Sanco's employees.
Pellegrini testified that on April 16 or 17, 1940, he and William
Pellegrini, his brother and a Sanco employee, had a discussion in
the plant concerning Sands, who had just then returned from a
session of the hearing in this case. After they agreed that Sands
was feeling rather dejected, William Pellegrini volunteered to "write
up a vote of confidence and show Mr. Sands that there are a lot of
men that still are behind him." Pellegrini said that he thought that
a good idea and told his brother to "write up something; bring it in;
we will read it over, and we will see what I think of it, and see what
we can do." He further testified that on the following morning
William Pellegrini handed him a handwritten draft of his "vote of
confidence." After they discussed its terms, corrected "a couple of
words misspelled," and showed it to DeCunto, who expressed his
approval of it, Pellegrini took the draft to Tavaroni, who was at
that time Sands' personal secretary, and had her type it. The docu-
ment which Pellegrini thus claimed was drafted by his brother,
William, reads as follows:
APRIL 18, 1940.
In this era of controversial strife between employer and em-
ployee, we cannot help but realize how extremely fortunate we
are in being employed by a concern whose policies of fairness
and honesty have tended to spread a feeling of good will and
harmony among us.
We feel deeply indebted to our superiors for their unceasing
and relentless endeavors to secure the maximum amount of busi-
ness which thereby has enabled us to earn liveable wages through
the entire year.
We wish to express, therefore, our sincere appreciation for
the kindness and the deep-rooted interest which you have shown
in our behalf. It is with a feeling of confident assurance that
you will continue the same policies in the future which you have
practiced in the past, that we say we are obliged to you for
making of us a unit of contented employees.
Pellegrini placed the typewritten document on the desk in his office
where it was first signed by DeCunto. Although, with the excep-
tion of testimony by James Gallo, an employee, that Pellegrini asked
him to sign, there is no evidence to show how the employees in gen-
eral knew of the document's existence, a large number of them left
their work and went into Pellegrini's office for the purpose of
signing it. Pellegrini testified that "as they came in I read it to them
714 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
and explained just what it meant." A copy of,the document, intro-
duced into evidence herein, discloses that it was signed by 90
employees of Sanco, including several foremen.
Inasmuch as Pellegrini played a material part in the preparation
of the instrument, it was in some manner brought to the attention
of a large number of employees, and Pellegrini explained its purpose
to many of them, we cannot believe Pellegrini's statement that "they
came in voluntarily and wanted to sign it." Many of those who
igned were members of the Federation. An effort was at the time
being made to establish the rights of Sanco's employees under the
Act, following Sanco's previous repeated violations of those rights.
Under these circumstances it is clear that the document was nothing
more than a subtly worded endorsement of Sanco's existing labor
policies; thus, indirectly, an attack upon the aims of the Federation.
Through Pellegrini's active cooperation, Sanco was thus able to
induce 90 of its employees to become parties to that endorsement.
That such action by a large number of employees, induced by Sanco
at that particular time, had the effect of discouraging employees in
their efforts to secure the rights • guaranteed them under the 'Act
cannot be questioned.
We find that by this whole course of conduct, including Sand's
statements to Zeller, Finigan, and La Greca, his promotion of La
Greca upon the latter's agreement to refrain from activity on behalf
of the Federation, Cherbonnier's questioning of employees as to their
desires to be represented by the Federation and his interrogation of
Zeller concerning Federation affairs,'7 and, Sanco's efforts through the
use of the so-called "vote of confidence" to enlist employees on its side
of the controversy with the Federation, Sanco interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
IV. CAPITOL'S UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion.
One of the first of Capitol's employees to join the Federation, after
the start of its membership campaign in July 1938, was Robert Danna,
who signed a card on August 2. Immediately thereafter he became
active in soliciting membership in the Federation and in a short time
succeeded in inducing approximately 20 Capitol employees to join.
Sometime in August, having learned of the Federation's activity and
"At the bearing counsel for the Board moved to amend the complaint in the Sanco case
by adding an allegation that, by Cherbonnier's questioning of employees during the course
of the hearing concerning the authenticity of signatures on the Federation 's membership
cards , 'Santo violated Section 8 (1) of the Act That motion was denied by 'the Trial
Examiner and we have affirmed his ruling It will be noted that our finding , above, is not
based upon the evidence which gave rise to that motion.
SANCO PIECE ;DYE twORKS, INC. 715
of Danna's part therein; Sainuel Koenig, Capitol's secretary and plant
manager, told Danna that he„had heard that,Danna had joined the
Federation and that he was the leader among the employees. Danna
said that ,he did not understand what Koenig meant, whereupon the
latter- said, "Well, you are holding meetings in your apartment. You
inust•be a leader; you :re, .the head, of it. ... If you fellows join
the Union it is 'going to be too bad because I will have to move out
of the Terminal." , By October 31,4938, the Federation had succeeded
in obtaining,a large number of members among Capitol's employees.
On that date it wrote to Capitol requesting recognition as the repre-
sentative of a majority. On November 3 Capitol replied ,to the Fed-
eration's request, stating that before recognition could be granted,
Capitol would have to have adequate proof of majority representa-
tion?$ Very soon after the request for recognition, Koenig again
had, a conversation with. Danna concerning the Federation, in the
course of which he repeated his threat that, if the Federation sue-
ceded in organizing, its employees, Capitol would move its plant out
of the Terminal.
Patzy Mazzucco testified that late in November 1938, Richard Zelen,
Capitol's treasurer and, assistant plant manager, said to him, "You
know, Pat, only over my dead body would a union come in here, because
hi-Paterson itrwasidue to a union that my father's health broke down."
While, Zelen admitted. having explained to employees the meaning of
items appearing in the press concerning organizational activity, he
denied generally that he had discussed questions concerning the Fed-
eration with, them. However, he did not specifically deny making
the foregoing, statement to Mazzucco. , Mazzucco's testimony disclosed
that he had a clear recollection of the statement and the circumstances
under,-.which,it was made. We credit,his testimony.
. As will be shown below, the Federation's efforts to bargain with
Capitol, which were instituted by the letter of October 31, 1938, and
continued throughout the month • of ;November, proved fruitless.
Upon its failure to achieve recognition; activity in the Capitol plant
on the. Federation's, behalf came to a halt. , However, the member-
ship drive was resumed early in March 1940.
On,.April 8, 1940,,Mervin Livsey, an employee, asked Joseph
Danna, another employee, ; -,Nvhether he had joined the Federation
and, having received a negative reply, said that he had a paper and
that he proposed to "get the fellows to sign it -up, that we don't want
the Union any more." After asking Joseph Danna to sign, Livsey
left -his machine and spoke .to several employees in the finishing
department in which he was employed. On the following day Ed-
'S The November 3 reply of Capitol and Sanco to the Federation's requests were contained
in one letter written by Miller, then attorney for both corporations
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ward Cestaro, a foreman, held a 15-minute discussion in the finish-
ing room with Livsey and two other employees, Casey Finnerty and
Albert Donato. Cestaro then returned to his duties and the others,
with the assistance of James Finnerty, another employee, and John
Curran, who at that time was doing trucking work for Capitol, took
other employees, one by one, from the finishing room into one ad-
joining it. There, according to the testimony of three employees,
Curran, Livsey, and the Finnertys asked them to sign a slip of paper
upon which was written a statement that the signer did not desire
to be represented by the Federation. Joseph Danna testified that
when he was taken into the adjoining room, Finnerty showed him
a large number of the signed statements. Under these circumstances
we conclude that, in every instance where an employee was invited
into that room on April 9, he was asked to sign an anti-Federation
statement. No supervisory employees of Capitol actually partici-
pated in securing the signatures of finishing-room employees on the
anti-Federation statements. Nevertheless, Capitol's connection with
and responsibility for that activity, is established. Cestaro partici-
pated in the conference immediately prior thereto, thereby giving his
approval to if not actually directing the efforts of Livsey, Curran,
Donato, and the Finnertys. Their activity resulted in repeated vio-
lations of Capitol's plant rule against leaving work during working
hours, without the slightest objection from Cestaro, who was present
during the entire time.
We find that by this whole course of conduct, including Koenig's
threats that if the employees joined the Federation and it thereby
succeeded in its organizational drive the Capitol plant would be
moved from the Terminal, Zeller's statement to the effect that the
Federation would succeed in organizing the employees "only over my
dead body," Cestaro's threat to discharge Mazzucco if he saw the
hitter distributing Federation cards, discussed in Section IV, B,
infra, and the evidencing of its approval of the campaign of several
employees to secure anti-Federation commitments from employees
in the finishing room and the permitting of that campaign to be
openly conducted in violation of working rules, Capitol interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B. Discrimination with respect to hire and tenure of employment
Robert Donna and Frank Attigtiato. Both Danna and Attigliato
had been employed by Capitol more than 2 years when they were dis-
charged on March 23, 1940. Danna joined the Federation on August
2, 1938. For a time thereafter he was, as we have found in Section IV,
A, supra, active in inducing other employees to do likewise and his
SANCO PIECE DYE WORKS, INC. 717
activity came to the attention of Koenig. Late in November 1938
Danna ceased his organization efforts on behalf of the Federation.
But in March 1940 he assumed a leading part in the Federation's mem-
bership drive, which had then been resumed. Through solicitation in
the plant during working hours, Danna induced at least six employees
of Sanco to sign Federation cards between March 19 and 21, 1940.
Attigliato joined the Federation on August 5, 1938. Although he
attended an organizational meeting of the Federation on March 18,
1940, he was not otherwise active in Federation affairs.
Danna and Attigliato worked on the day shift at Capitol at the time
they were discharged. Danna also worked in the evenings selling
automobiles for a local dealer. In the week preceding his discharge
Danna, in the company of Attigliato, entered the Capitol plant after
completion of the day shift at least three times, for the purpose of
talking to Sidney Tischner, an employee to whom Danna was attempt-
ing to sell a car. It is Capitol's contention that Danna and Attigliato
were discharged on March 23 because, by thus entering the plant after
the completion of their shift, they had violated a rule forbidding em-
ployees entrance to the plant unless they were going in to work.,'
Koenig testified that on Thursday morning, March 21, he reprimanded
Danna and Attigliato for violating the rule on the previous evening,
after having been informed of such violation by the night foreman. It
is apparently Capitol's position that at that time Koenig decided to
discharge them. He testified that he waited until Saturday, March
23, to do so because he did not like to discharge employees in the
middle of the .week. Koenig further testified that when he did dis-
charge Daiwa and Attigliato he stated to them that they were dis-
charged "for coming in, taking away people from their work when
they were not supposed to."
Danna admitted that on Thursday, March 21, Koenig talked to him
about his efforts to sell a car to Tischner but denied that he was crit-
icized for entering the plant at night. On Friday evening, March 22,
Danna, accompanied by Attigliato, went into the plant and spoke to
Tischner about buying a car. Tischner refused to buy until Danna
obtained permission from Cestaro to sell the car in the plant ex-
plaining to Danna that Cestaro and Zelen had theretofore taken him,
Tischner, into the office and told him that they thought he was working
with Danna in the interests of the Federation and that they held
19 Koenig and Zelen testified that the rule was adopted in April 1033 after an injury to a
day-shift employee which occurred while he was in the plant at night Koenig claimed
to have informed every employee on the day shift about the rule, and Zelen said that he too
had informed several employees of its adoption Although one employee testified that he
was criticized for being in the plant on the evening of the accident which occasioned the
adoption of the rule, none corroborated Koenig and Zelen concerning its promulgation
Several employees , including Danna and Attigliato , testified that they had never heard of
the rule. There was also proof that it was common practice for employees to visit the
plant after hours.
718 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Danna responsible for organizational activities in'the plant . For that
reason, Tischner said, he desired Cestaro's approval before dealing
further with Danna. Thereafter Danna told Cestaro of his conver-
sation with Tischner . Cestaro said that Tischner 's statement was not
true; that he merely wanted ' to' know whether Danna was "really
selling him a car or was '... talking about something else." Danna
stated that his purpose was to sell a , car and Cestaro told him,to `'go
ahead. " Danna then closed the sale with Tischner and Danna and
Attigliato left the plant. Cestaro did, not testify at the hearing and
we have accepted Danna's uncontradicted version ' of the events of :t he
evening of March 22. - • = ' . .
According to the testimony of Danna and Attigliato, they went to
the time clock to punch out after completion of their work ' at about
1: 00 p. m. on March 23, found their time cards missing from the rack,
and went into the plant office to inquire about them . There Koenig
explained that he had the cards , then said to Danna, "Bob , you know
that outside you can organize all you want for the- union , but when you
do it in my plant it is time for me to get rid of you. I saw cards on
you myself , and I also have six witnesses anytime you want to prove it
to you, that you were giving out the union ' cards,in the plant." Koenig
then turned to Attigliato and said, "That goes for you too:" He there-
upon gave Danna and Attigliato their pay checks. Thus, Dania and
Attigliato 's version of what Koenig said when he discharged them is
at some variance with Koenig's testimony in respect -thereto • Upon
all the evidence , we find that Koenig made the statements attributed to
him by Danna and Attigliato.
It appears that Capitol 's officials and supervisory employees were
aware of the resumption of the Federation's membership drive in
March 1940 . It is also clear that Capitol's officials and supervisory
employees knew that Danna was playing a leading role in that drive.
Capitol's explanation that Danna and Attigliato were discharged for
violating a company rule is not convincing . We have found in Section
IV A, supra,, that, in their efforts to ' secure signatures on anti-Federa-
tion statements, other employees repeatedly violated Capitol's rule
against leaving work during working hours without objection from
the supervisory staff . The rule involved here, if it in fact existed, had
likewise been repeatedly violated by employees without retribution
from Capitol's officials or supervisory employees . No reason appears
why Koenig should so suddenly determine upon a policy of strict en-
forcement of the alleged rule.' Under all the circumsttinces , we are of
the opinion that Koenig discharged Danna, not because he had violated
the alleged rule but because he was a member and at the time extremely
active in the affairs of the Federation .. While Attigliato was not active
in the Federation's 1940 membership drive, he was often in the company
of Danna, whose activities on behalf of the Federation were known to
. , P, . . • SANCO PIECE ,DYE WORKS, INC. 719
Koenig. We are convinced that,- because of his association with
Danna, Koenig concluded that Attigliato too was an active organizer
for the Federation and therefore discharged him in furtherance of
Capitol's effort to discourage membership in that organization.
', We find; that in discharging and thereafter refusing to reinstate
Danna and Attigliato, Capitol discriminated in regard to their hire
and tenure of' employment, thereby discouraging membership in the
Federation and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
Patsy Mazzucco. Mazzucco joined the Federation on August 5,
1938, but did not take part in the organizational drive conducted that
year.,. However, when that campaign was resumed in 1940, he became
active in• soliciting membership. On March 22, 1940, while at work in
the,plant, he left his machine for 10 or 15 seconds and handed a Federa-
tion card to Nicholas Popovich, an employee. About 15 minutes later
Cestaro approached Mazzucco and said, "Mr. Koenig knows you gave
Nick a card. I didn't see you but somebody told me. I don't want to
see you peddling no more cards in the place. If I catch you I will
throw you out." Cestaro reported the incident to Koenig that after-
noon. Shortly after 1: 00 p. in. on March 23, while' Mazzucco was at
work, Cestaro told him to "get your hat, coat and stuff and go in the
office., , You see what is going to happen to you? . . . The same thing
that happened to Frank and Bobby." In the office a moment later,
Koenig approached with a check -in his hand and, according to Maz-
zucco, said, "I don't care, you men can organize outside but you can't
do it on my time." He then handed the check to Mazzucco. At the
hearing Koenig at one point testified that when he discharged Mazzucco
he merely said "I don't think it is right for you to leave the machine
while the cloth is running and go away and take up somebody else's
time." He also testified, however, that Cestaro had reported to him
that Mazzucco was "over by the dryer, with a card. He happened to
see the card., Talking to the fellow by the dryer . . .," and that, "I
called him in Saturday and explained him all those things and sent him
away." ,We.find that Koenig made the statement attributed to him by
Mazzucco.
Capitol contended that Mazzucco was discharged for the reason that
he left his machine while it was in operation on the afternoon of March
22. Capitol introduced evidence tending to show that this constituted
a violation of a plant rule and that the nature of Mazzucco's position
required close attention to his work. Koenig testified that Cestaro
had reported that lie had had many occasions to warn Mazzucco against
leaving his machine in operation. On the other hand, Mazzucco and
other employees testified that under certain circumstances it was en-
tirely permissible-and sometimes necessary to leave a machine in opera-
tion. Mazzucco denied that he was ever warned against doing so.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, we do not think that Mazzucco's as-
serted violations of rules on March 22 or on previous occasions were
the operative cause of his discharge. We are convinced by all the
testimony concerning the events of March 22 and 23 that Capitol's
decision to discharge Mazzucco was motivated by the fact that he had
been apprehended in the act of giving a Federation card to another
employee. Not a little support is given to this conclusion by the fact
of two other discharges for Federation activity only a few minute's
prior to Mazzucco's dismissal, those of Robert Danna and Frank
Attigliato.
We find that in discharging and thereafter refusing to reinstate
Mazzucco, Capitol discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Federation and
interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Mario Victor Tambolleo. Tambolleo was hired by Capitol in
August 1937. He joined the Federation on July 30,1938. It does not
appear that he was active in either of the Federation's membership
campaigns. He was discharged on March 25,1940, prior to which time
he had been employed on the night shift. The reasons assigned by
Capitol for his dismissal were that he repeatedly left his work and
annoyed other employees; that, although it was customary for one
night shift employee to leave the plant each night for the purpose of
buying and bringing suppers to the other employees, Tambolleo left
the plant much oftener than such custom required; that for a long
period of time he had been in the habit of sleeping during working
hours; and that he was insubordinate. Koenig and Zelen testified
that they had warned Tambolleo many times concerning these offenses.
He himself admitted the truth of some of the charges but contended
that his acts did not violate rules and that other employees were equally
guilty. Zelen testified that in the week prior to Tambolleo's discharge
he had heard a conversation between Cestaro and Michael Laneve, the
regular night foreman, concerning their difficulties with Tambolleo
and that as a result Zelen then decided to discharge Tambolleo, after
permitting him to complete the regular work week. Zelen did not
advise Koenig of his intention, he said, because he feared that the latter
would want to give Tambolleo "another chance."
The fact that Tambolleo was discharged just 2 days after Capitol
had discharged three other employees to discourage membership in
the Federation creates doubt that his discharge was not motivated by
the same purpose. Yet upon the entire record, we are satisfied and
find that he was dismissed for other reasons. We find that by dis-
charging Tambolleo, Capitol did not discriminate against him with
regard to his hire and tenure of employment or any terms or conditions
of his employment to discourage membership in a labor organization.
SANCO PIECE DYE WORKS, INC. 721
C. The refusal to bargain collectively
1. The appropriate unit
The complaint in the Capitol case alleges and Capitol in its answer
does not deny that all employees of Capitol employed at its Garner-
ville plant, excluding office and supervisory employees, constitute a
unit appropriate for the purposes of collective bargaining. We find
that all employees of Capitol at its Garnerville plant, excluding office
and supervisory employees, at all times material herein constituted
and that they now constitute a unit appropriate for the purposes of
collective bargaining and that said unit insures to the employees of
Capitol the full benefit of their right to self-organization and to col-
lective bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Federation of the majority in the appropriate
unit
At the hearing, lists of those employed by Capitol, as of November 1
and 5, 1938, were introduced into evidence. The November 1 list con-
tained the names of 59 employees, none of whom were clerical or super-
visory employees. The November 5 list contained 57, including that
of Michael Laneve, a foreman. All those whose names appeared on
the latter list, with the exception of Laneve, were also listed as em-
ployed as of November 1. We find that the 59 employed on November 1
were in the appropriate unit. Zelen testified that work in the plant was
-slack during October and November 1938, that because of that fact
employees were in many instances permitted to work only every alter-
nate week in order to afford employment to all, and that, therefore, the
lists in evidence did not disclose the names of all regular Capitol
employees. Thus, it was Capitol's contention that Enrico Angelo,
Stephen Finnerty, Ed Laiso, and Nick Leone, none of whom appear
on the list of those employed on November 1, should be included in the
appropriate unit. We accept Capitol's contention. The inclusion of
these 4 employees brings the total in the unit to 63.
At the hearing, 46 Federation cards similar to those described in
Section III C, 2, supra, and purporting to bear the signatures of
Capitol employees were introduced into evidence. Seven of the cards
were dated more than a year after the time of the alleged refusal to bar-
gain and will therefore be disregarded in our consideration of the issue
of majority representation as of the time of the alleged refusal. One
card bore the signature of Laneve, whom we have found should be
excluded from the appropriate unit, and another was signed by Frank
Monte, who testified that he was employed by Capitol on August 9,
1938, the date he signed the card, and also on April 8, 1940, but did not
- 418861-42-vo1.88-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specifically claim to have been working at the time of the alleged re-
fusal to bargain. His name did not appear on the November 1 list.
These two cards will likewise be disregarded.
Capitol did not question the sufficiency of proof of the genuineness of
any of the signatures on the cards except those of five employees from
whom it elicited testimony to the effect that they did not sign the cards
purporting to bear their signatures. We shall not, as we did not in
the Sanco case, include those cards in computing the number of em-
ployees who had designated the Federation as their representative.
After the exclusion of the cards specifically mentioned above, 32
valid cards remain. Thus, by November 3, a majority of Capitol's
employees in the appropriate unit had designated the Federation as
their representative for the purposes of collective bargaining.
We find that on November 3, 1938, and at all times thereafter, the
Federation was and that it is the duly designated representative of a
majority of the employees of Capitol in the unit found to be appro-
priate. Pursuant to Section 9 (a) of the Act, the Federation was and
is, therefore, the exclusive representative of all the .employees in such
unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment.
3. The refusal to bargain collectively
As we have found, in Section IV A, supra, on October 31, 1938, the
Federation requested recognition as the representative of Capitol's
employees and on ,November 3, 1938, Miller, acting as attorney for
both Capitol and Sanco, advised the Federation that recognition could
not be granted without "adequate proof" of majority representation.
For the most part, the Federation's experience in its efforts to obtain
recognition from Capitol paralleled that of Sanco. Thus, on or about
November 6, officials of the Federation met with Miller in the latter's
office and asked recognition from Capitol as the representative of its
employees. Miller thereafter conferred with Capitol and on the fol-
lowing day advised the Federation that Capitol refused so to recog-
nize it. On November 9 the Federation filed charges with the Board
alleging that Capitol had violated Section 8 (1) and (5) of the Act.
Miller attended the conference of November 16, discussed in Section
III, C, .3, supra, as a representative of Capitol, as well as of Sanco.
His contention that the Federation did not represent a majority be-
cause some of the cards had been obtained by intimidatory and coer-
cive methods, his suggestion that a consent election be held, and his
agreement to the conduct of a check of the cards against a list of em-
ployees were made on behalf of Capitol as well as of Sanco. Our find-
ings with respect thereto in,Section III, C, 3, supra,are,equally appli -
cable to the Capitol case. The card-check, which was held pursuant to
SANCO PIECE DYE WORKS, INC. 723
Miller's agreement with officials of the Federation and the Board's Field
Examiner, and in which a list, submitted by Capitol, showing the
names of its employees as of November 5, was used, disclosed that there
were cards for 37 of the 57 employees on the list. The check thus
showed that almost 65 per cent of Capitol's employees had designated
the Federation as their collective bargaining representative. On
November 19 the Board's Field Examiner advised Miller of the results
of the check and on November 21 Miller acknowledged receipt of that
advice and agreed to confer with Capitol concerning it. In the fol-
lowing week or 10 days other conferences between Miller and the Fed-
eration were held, at all of which Miller, on behalf of Capitol, refused
to accept the results of the card-check as determinative of the issue of
majority representation and continued to refuse to grant recognition,
urging on each occasion that the methods used by the Federation to
obtain the cards were improper. Our conclusion in Section III, C, 3,
supra, with respect to Sanco's lack of good faith in contending that the
Federation did not represent a majority is equally applicable to
Capitol.
We find that by its refusal on November 3, 1938, and thereafter, to
recognize the Federation, Capitol refused to bargain collectively with
the Federation as the representative of its employees in the appropri-
ate unit with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and that Capitol thereby interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
V. LARKIN'S UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the summer of 1937 the Federation was seeking to organize the
employees of Bates Piece Dye Works, another establishment located in
the Terminal. In connection therewith, Frank Sferruzzo and Leonard
Ross, then organizers for the Federation, applied at the entrance to the
Terminal for permission to see one of the officials of Bates Piece Dye
Works. They were ushered into the office of the Holding Company
where, after they had explained the nature of their mission, Larkin
said to them, "Look, fellows you better get the hell out of town. Take
your roller skates and get out. I built this thing here and nobody is
going to break it up. Your fight is not with the dye shops in here. It
is with me." Sferruzzo's testimony concerning this incident was ob-
jected to by the respondents on the ground that it was outside the scope
of the allegations of the complaints herein. We do not so view it.
Clearly, it shows that before the start of efforts to organize the employ-
ees of Sanco and Capitol, Larkin had adopted an attitude of hostility
724 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
to the Federation. Also, although his remarks were made prior to such
efforts, their effect was to discourage organization of all employees in
the Terminal, including those of Sanco and Capitol, and thereby inter-
fere with the rights guaranteed them by the Act.
About an hour after Zeller advised Sands, on October 21, 1938, that
he had joined the Federation,29 Sands told him that Larkin wanted to
see him. Accordingly Zeller left his work and went to Larkin's office.
There Larkin stated that he understood that Zeller had joined the
Federation. Upon Zeller's admitting that fact, Larkin said, "You
know what happened to the other fellows in Bates." Larkin's reference
was to Bates Piece Dye Works, mentioned above, where, according to
Zeller, those who had joined the Federation were no longer permitted
to work. At the end of this conversation, which lasted about 45 min-
utes, Zeller stated that henceforth he would "be against the union."
Larkin then said, "All right, behave yourself. If you need a dollar,
come up and see me."
On November 3, 1938, John E. Long, who was employed by the
Holding Company as a guard at the entrance to the Terminal and
assisted Larkin in the operation of his employment service, approached
Robert Danna in the Capitol plant and said, "So you are going union
on me, how (sic)." When Danna asked how he knew that fact, Long
replied, "I know, the big boss wants to see you tonight. There is a
meeting in Forrester's Hall in Garnerville . . . that goes for the
rest of the fellows. You had better go ahead and tell them too." By
"big boss," Long explained that he meant Larkin. Danna and Long
thereafter went through the Capitol plant, in the presence of and
without objections from Cestaro, notifying other employees of the
meeting. That same day Larkin sent Long to the Capitol plant to
call Mazzucco to the Terminal office. There, according to Mazzucco,
Larkin said to him, "I hear you are having a little trouble over in
Capitol . . . I hear there is trouble about the union . . . I think
you fellows would be better off if you would get together and set-
tle without an outside organization. Do you think you could round
up the fellows for Capitol and see if you can arrange for a meeting."
Mazzucco thereafter returned to the plant and notified several em-
ployees of the meeting scheduled for that evening. He was paid by
Capitol for the half hour he spent in Larkin's office. The meeting was
attended by from 35 to 50 employees of Capitol, including some night
shift employees, who were paid for their time in attendance and at
least 1 of whom obtained permission to attend from the night fore-
man. Larkin addressed the meeting. In the course of his remarks,
he said, "Fellows, I don't know whether you know what you are doing
or not, but I think there must be a misunderstanding. I hope that I
20 See Section III, B, supra
SANCO PIECE DYE WORKS, INC. 725
can straighten this matter out, if it is not too late. Of course, when you
signed those cards I don't think you realized what you were signing.
You never saw these men before, you don't know who they are, you
don't know where they will be after they get out of here. You would
not think of signing a blank check and handing it to a stranger.
Well, that is just what you have done here." Larkin threatened that
if the employees joined the Federation, Capitol would "pick up their
coats and hats and walk out" and said that if the employees desired
higher wages, he could "do something about that." Thereafter, Larkin
discussed with Koenig the possibility of pay increases at Capitol.
The latter agreed to raise the minimum wage standard and suggested
to Larkin that he tell the employees to select a committee and direct it
to wait upon him. Larkin then conveyed Koenig's remarks to a group
of employees. Some days later a number of individual pay increases
were granted by' Capitol. Larkin testified that the meeting with the
employees of Capitol resulted from a request by several employees that
he represent them in their efforts to obtain pay increases, that the
meeting occurred after November 4, and that he never told Capitol
employees that he was opposed to activities on behalf of the Federa-
tion. He claimed that his meeting with Mazzucco in the Terminal
office was for the purpose of explaining to him the results of his dis-
cussion with Koenig. For reasons hereinafter stated, we do not credit
Larkin's testimony in this regard.
At the hearing Larkin testified that he was interested in the Garner-
ville Community Club because he thought that it would benefit him
as a stockholder in the Holding Company. This opinion was appar-
ently based upon his belief that the Garnerville Community Club
would promote "a better feeling of cooperation" among employees in
the Terminal. We have already referred to the meeting of November
4, 1938, which Larkin conducted and addressed in his efforts to enlist
support for the Garnerville Community Club.21 At that meeting,
which was attended by many who worked at plants in the Terminal,
Larkin pointed out that he had a large amount of money invested in
the Holding Company and that he desired all residents of the com-
munity to cooperate in making a success of it. He then stated that he
wished "We would all stick together" and that "if an outside organ-
ization gets into my plant, the first thing you know the owners of the
plant will move out and we are all out of a job."
On April 13, 1940, after the start of the hearing herein, Larkin had
a conversation with Stander in which, after discussing the testimony
which Stander was to give at the hearing, Larkin said that Stander
did not have to appear as a witness if he did not desire to do so.
When Stander explained that he had been served with a subpena to
21 See Section .III, 2., supra.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testify, Larkin replied, "Aw, you don't have to appear because you
are subpenaed. I will hire the best lawyer you want and get you out
of that. I will pay for it out of my own pocket." Stander declined
Larkin's suggestion that he disobey the subpena, whereupon Larkin
said, "All right. I don't want you to go outside and talk about this
conversation we had." Stander was called and testified as a witness
for the Board on April 15.
We find that by this whole course of conduct, including his state-
ments to the Federation organizers in the summer of 1937, his ques-
tioning of Zeller concerning the latter's affiliation with the Federation
and his statement to Zeller upon learning that Zeller had joined, his
statements to Capitol employees on November 3 and to Sanco em-
ployees at the meeting of November 4, and his efforts to dissuade
Stander from testifying at the hearing herein, Larkin interfered with,
restrained, and coerced the employees of Sanco and Capitol in the
exercise of the rights guaranteed in Section 7 of the Act.
B. Larkin's status as an employer and his relatioaship to Sanco and
Capitol
Obviously, Larkin's relationship to the employees of Sanco and
Capitol is not that of an employer within the generally accepted mean-
ing of that term. But, when used in the Act, the term "employer"
includes "any person acting in the interest of an employer, directly or
indirectly." We have found that Larkin is an official of and a large
stockholder in the Holding Company, a corporation which depends
for its income upon rents received from the industrial establishments
to which it leases its premises. As such he is, by his own admission,
vitally interested in the success of the business of those establish-
ments. It follows, we think, that when Larkin pursues a course of
action designed to assist those establishments, in order to benefit him-
self as a stockholder in the Holding Company, he is acting in their
interest.
Larkin's relationship to Sanco and Capitol and the other concerns
in the Terminal is not that of an independent third person who might
be more or less remotely concerned with their affairs. By virtue of
his management of the business of the Holding Company, his mainte-
nance of an employment office, and his issuance of passes permitting
entrance to the Terminal, he not only exercises a certain degree of
control over the employment practices of concerns in the Terminal
but creates the impression among those there employed that he is
the "big boss" and that he is connected with the management of those
concerns. The activities of Sanco and Capitol have aided not a little
in the creation and maintenance of that impression. We have found
that Sands sent Zeller to the office of the Terminal where Larkin
SANCO PIECE DYE WORKS, INC. 727
questioned and admonished him concerning his membership in the
Federation. Notices of a meeting to be conducted by Larkin were
posted in the Sanco plant and supervisory employees of Sanco urged
employees to attend that meeting. Likewise, Capitol cooperated with
Larkin in his efforts to discourage its employees from becoming or
remaining members of the Federation by permitting Long and Danna
to notify employees of a meeting to be conducted by Larkin and by
dealing with him as the representative of its employees and granting
wage concessions as a result of negotiations for whose institution he
was responsible.
Witnesses for Sanco and Capitol, in addition to Larkin himself,
testified that Larkin was not their agent and had never been author-
ized to act in their behalf. Nevertheless, we think that by their
cooperation with him and their condonation of his activities they
ratified his antiunion acts. Certainly they cannot be heard to say,
under the circumstances, that they were ignorant of the nature of his
activities. While Sanco and Capitol may not have expressly author-
ized Larkin to act for them, they knew of his activities and there
can be no question but that he was acting in their interest and that
they willingly accepted the results of his action.
Under all the circumstances of this case, we are satisfied and find
that Larkin's acts, which we have found to constitute unfair labor
practices, if not authorized by Sanco and Capitol, were committed in
their interest and, therefore, that Larkin is an "employer" within the
meaning of the Act.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Sections
1111, IV, and V above, occurring in connection with the operations of
the respondents 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.
VII. THE REMEDY
Having found that the respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom. In
addition, we shall order the respondents to take certain affirmative
action which we find necessary to effectuate the policies of the Act_
We have found that Sanco dominated and interfered with the for-
mation and administration of the Club and the Association, and con-
tributed financial and other support thereto. Inasmuch as the Club
has been disbanded and all activity in its behalf has ceased and the
Association, although it has not been dissolved, is completely inactive,
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we shall not order Sanco to .disestablish them. However, since the
Association is subject to the possibility of revival by Sanco at any
future time when that course of action might appear desirable, we
shall order Sanco to refuse to give the Association any recognition
as a collective bargaining agency if it should ever become active under
its present name and form or any other.
We have further found that Sanco and Capitol refused to bargain
collectively with the Federation on November 3, 1938, and thereafter.
The evidence shows that between November 1, 1938, and April 6, 1940,
the number of Capitol's employees in the appropriate unit increased
from 63 to 74. Although, as disclosed by Federation cards in evi-
dence, a number of employees joined the Federation subsequent to
November 3, 1938, counsel for the Board admitted at the hearing that
on April 6, 1940, the Federation did not represent a majority of the
74 employees then in the appropriate unit. However, Capitol should
not be relieved of its duty to bargain merely because of a fortuitous
increase in the number of employees in the appropriate unit. In order
to effectuate the policies of the Act, we must restore, as nearly as
possible, the status quo before Capitol's unfair labor practices were
committed and secure to the employees their right to bargain through
the representative they have selected.22 We shall, therefore, base our
order in the Capitol case upon the majority obtaining on the date of
the first refusal to bargain. We shall order Sanco and Capitol to
bargain with the Federation, upon request, in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
We have found that Sanco discriminatorily discharged and there-
after refused to reinstate Nicholas Acquaviva, and that Capitol dis-
criminatorily discharged and thereafter refused to reinstate Robert
Danna, Frank Attigliato, and Patsy Mazzucco, and that Sanco and
Capitol thereby discouraged membership in the Federation. At the
hearing Sanco attempted to show that Acquaviva had, since his dis-
charge, obtained other and substantially equivalent employment. In
April 1939 Acquaviva obtained employment at the Yale Piece Dye
Works in Paterson, New Jersey. The record does not establish, how-
ever, that this new employment is as regular as that at Sanco or that
the working conditions are similar. On the contrary, it affirmatively
appears that, because of a policy of seniority in force at the Yale Piece
Dye Works, Acquaviva, as a new employee, is one of the first to be laid
22See Inteinational Association of Machinists ; Tool and Die IVoileis Lodge No. 35,
etc v N L. R B, 311 U. S 72, aft g 110 F (2d) 29 (App D C ), enf'g Matter of The Ser-
rich Corporation and International Union, United Automobile Workers of America, Local
No 459, 8 N. L R B. 621; John J Oughton, et at v N L. R B, 8 L R R 42 (C C. A 3),
enf'g as mod. Matter of John J Oughton, et al and Textile Workers 0) ganizing Committee
(C. I. 0 ), 20 N. L R. B. 301; N. L. R. B. v. New Era Die Co, Inc, 8 L. R R 46 (C. C A. 3),
enf'g as mod Matter of New Era Die Company and International Association of Machinists,
Lodge 243, (A F. of L.), 19 N. L. R B., 227
SANCO PIECE DYE WORKS, INC. 729
off in times of slack work, a condition which apparently does not obtain
at Sanco, where he had been employed approximately 2 years at the
date of his discharge. We find that Acquaviva has not since his dis-
charge by Sanco obtained other regular and substantially equivalent
employment. In order to effectuate the policies of the Act'we shall
order Sanco to offer to Acquaviva and shall order Capitol to offer to
Robert Danna, Attigliato, and Mazzucco immediate reinstatement to
their former or to substantially equivalent positions, without prejudice
to their seniority and other rights and privileges. We shall further
order Sanco and Capitol to make whole each of said employees for any
loss of pay he may have suffered by reason of the discrimination against
him by payment to him of a sum of money equal to that which he nor-
mally would have earned as wages from the date of the discrimination
against him to the date of the offer of reinstatement, less his net earn-
ings 23 during said period.
Even were it true, as Sanco contends, that Acquaviva had obtained
other regular and substantially equivalent employment we would never-
theless, in the exercise of the authority granted by Section 10 (c) of
the Act, order his reinstatement with back pay, since we find that such
remedial order is necessary to assure effectively the right of self=
organization to Sanco's employees and thus effectuate the policies of
the Act 24
Since we have found that Sanco did not discriminate with respect to
the hire and tenure of employment of Zeller or Stander and that Capitol
did not discriminate with respect to the hire and tenure of employment
of Tambolleo, we shall order the respective complaints dismissed in so
far as they allege such discrimination.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Federation of Dyers, Finishers, Printers & Bleachers of America
is a labor organization within the meaning of Section 2 (5) of the Act.
2. Sanco Benefit and Social Club was, until about May 1939, a labor
organization within the meaning of Section 2 (5) of the Act.
23By "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 respective respondents , which would not have been incurred but for
the unlawful discrimination against him and the consequent necessity of his seeking employ-
ment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of
Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8
N. L. it. B 440 Monies received for work performed upon Federal, State , county, -mu-
nicipal , or other work-relief projects shall be considered as earnings . See Republic Steel
Corporation v. N. L. R. B, 311 U. S. 7.
ii See Phelps Dodge Corporation v N. L. R. B., April 28, 1941, (U. S. Sup. Ct. ), aff'g as
mod. 113 F. ( 2d) 202 (C. C. A. 2), enf'g as mod. Matter of Phelps Dodge Corporation, a cor-
poration and International Union of Mine , Mill and Smelter Blotters, Local No 30, 19 N. L
R. B. 547.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Sanco Protective Association is a labor organization within the
meaning of Section 2 (5) of the Act.
4. By dominating and interfering with the formation and adminis-
tration of Sanco Benefit and Social Club and Sanco Protective Asso-
ciation and by contributing financial and other support thereto, Sanco
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (2) of the Act.
5. By discriminating in regard to the hire and tenure of employment
of Nicholas Acquaviva and thereby discouraging membership in Fed-
eration of Dyers, Finishers, Printers & Bleachers of America, Sanco
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
6. All employees of Sanco at its Garnerville, New York, plant, ex-
cluding office and supervisory employees, at all times material herein
constituted, and they now constitute, a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 .(b)
of the Act.
7. Federation of Dyers, Finishers, Printers & Bleachers of America
was on November 3, 1938, and at all times thereafter has been, the
exclusive representative of all the employees in such unit for the
purposes of collective bargaining, within the meaning of Section
9 (a) of the Act.
8. By refusing to bargain collectively with Federation of Dyers,
Finishers, Printers & Bleachers of America as the exclusive representa-
tive of its employees in an appropriate unit, Sanco has engaged in
and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
9. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, Sanco
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act.
10. By discriminating in regard to the hire and tenure of employ-
ment of Robert Danna, Frank Attigliato, and Patsy Mazzucco and
thereby discouraging membership in Federation of Dyers, Finishers,
Printers & Bleachers of America, Capitol has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
11. All employees of Capitol at its Garnerville, New York, plant,
excluding office and supervisory employees, at all times material
herein constituted, and they now constitute, a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
12. Federation of Dyers, Finishers, Printers & Bleachers of Amer-
ica was on November 3, 1938, and at all times thereafter has been,
the.exclusivc representative of all the employees in such unit for the
SANCO PIECE DYE WORKS, INC. 731
purposes of collective bargaining within the meaning of Section 9 (a)
of the Act.
13. By refusing to bargain collectively with Federation of Dyers,
Finishers, Printers & Bleachers of America as the exclusive repre-
sentative of all its employees in an appropriate unit, Capitol has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (5) of the Act.
14. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, Capitol
has engaged in and is engaging in unfair labor practices within' the
meaning of Section 8 (1) of the Act.
15. William F. Larkin is an employer within the meaning of Sec-
tion 2 (2) of the Act.
16. By interfering with, restraining, and coercing the employees of
Santo and Capitol in the exercise of the rights guaranteed in Section
7 of the Act, Larkin has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (1) of the Act.
17. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
18. Larkin has not engaged in unfair labor practices within the
meaning of Section 8 (2) 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 :
A. The respondent, Sanco Piece Dye Works, Inc., Garnerville, New
York, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Sanco
Benefit and Social Club or Sanco Protective Association, or with the
formation or administration of any other labor organization of its
employees, and from contributing financial or other support to Sanco
Benefit and Social Club, Sanco Protective Association, or any other
labor organization of its employees;
(b) Discouraging membership in Federation of Dyers, Finishers,
Printers & Bleachers of America, or any other labor organization of
its employees, by discharging or refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to their hire
or tenure of employment or any term or condition of employment;
(c) Refusing to bargain collectively with Federation of Dyers, Fin-
ishers, Printers & Bleachers of America, as the exclusive representative
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all its employees at its Garnerville, New York, plant, excluding of-
fice and supervisory employees ;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, or to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Refuse to recognize Sanco Protective Association under its pres-
ent name and form or any other, as a representative of any of its em-
ployees for the purposes of dealing with Sanco concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment;
(b) Offer to Nicholas Acquaviva immediate and full reinstatement to
his former or a substantially equivalent position without prejudice to
his seniority and other rights and privileges ;
(c) Make whole the said Nicholas Acquaviva for any loss of pay he
may have suffered by reason of Sanco's discrimination in regard to
his hire and tenure of employment by payment to him of a sum of
money equal to that which he normally would have earned as wages
during the period from February 25, 1939, the date of such discrimina-
tion, to the date of the offer of reinstatement, less his net earnings25
during said period;
(d) Upon request, bargain collectively with Federation of Dyers,
Finishers, Printers & Bleachers of America as the exclusive representa-
tive of all its employees at its Garnerville, New York, plant, excluding
office and supervisory employees ;
(e) Post immediately in conspicuous places throughout its Garner-
ville, New York, plant and maintain for a period of at least sixty (60)
consecutive days, notices stating (1) that Sanco will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a),. (b), (c), and (d), and that it will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), and (d) of Section A of this
Order; and (2) that its employees are free to become or remain mem-
bers of Federation of Dyers, Finishers, Printers & Bleachers of
America and that it will not discriminate against any employee because
of membership or activity in that organization ;
(f) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
25 See footnote 23, supra
SANCO PIECE DYE WORKS, INC. 733
B. The respondent, Capitol Piece Dye Works, Inc., Garnerville, New
York, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Federation of Dyers, Finishers,
Printers & Bleachers of America, 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 employment;
(b) Refusing to bargain collectively with Federation of Dyers,
Finishers, Printers & Bleachers of America, as the exclusive representa-
tive of all its employees at its Garnerville, New York, plant, excluding
office and supervisory employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or 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 National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robert Danna, Frank Attigliato, and Patsy Mazzucco
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other
rights and privileges;
(b) Make whole the said Robert Danna, Frank Attigliato, and Patsy
Mazzucco for any loss of pay they may have suffered by reason of
Capitol's discrimination in regard to their hire and tenure of employ-
ment, by payment to each of them of a sum of money equal to that
which he normally would have earned as wages during the period from
the date of the discrimination against him to the date of the offer of
reinstatement, less) his net earnings 26 during said period;
(c) Upon request, bargain collectively with Federation of Dyers,
Finishers, Printers & Bleachers of America as the exclusive repre-
sentative of all its employees at its Garnerville, New York, plant,
excluding office and supervisory employees;
(d) Post immediately in conspicuous places throughout its Garner-
ville, New York, plant and maintain for a period of at least sixty (60)
consecutive days, notices stating (1) that Capitol will not engage in
the conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), and (c), and that it will take the affirmative action set forth
in paragraphs 2 (a), (b), and (c) of Section B of this Order; and
21 See footnote 23, supra.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) that its employees are free to become or remain members of Federa-
tion of Dyers, Finishers , Printers & Bleachers of America and that it
will not discriminate against any employee because of membership or
activity in that organization;
(e) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10 ) days from the date of this Order, what steps it
has taken to comply herewith.
C. The respondent , William F. Larkin, Garnerville , New York,
and his agents , successors , and assigns shall :
1. Cease and desist from in any manner interfering with, re-
straining , or coercing the employees of Sanco Piece Dye Works, Inc.,
and Capitol Piece Dye Works, Inc., at their respective Garnerville,
New York, plants , in the exercise of their right to self -organization,
to form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing , or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places at his office and on
the entrance to the premises in Garnerville , New York, commonly
known as the Haverstraw Industrial Terminal , and maintain for a
period of at least sixty ( 60) consecutive days, notices stating that
he will not engage in' the conduct from which he is ordered to cease
and desist in paragraph 1 of Section C of this Order;
(b) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10 ) days from the date of this Order, what steps
he has taken to comply herewith,
AND IT IS HEREBY FURTHER ORDERED that the complaint in the Sanco
case be, and it hereby is, dismissed in -so far as it alleges that Wil-
liam F. Larkin formed , dominated , interfered with, and contrib-
uted support to Sanco Benefit and Social Club and Sanco Protective
Association and in so far as it alleges that Sanco Piece Dye Works,
Inc., discriminated in regard to the hire and tenure of employment
of Andrew Zeller and Edmund Stander,
AND IT IS HEREBY FURTHER ORDERED that the complaint in the Cap-
itol case be, and it hereby is, dismissed in so far as it alleges that
Capitol Piece Dye Works , Inc., discriminated in regard to the hire and
tenure of employment of Mario Victor Tambolleo.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.