Selig Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1948

79 N.L.R.B. 1144 (N.L.R.B. 1948)

In the Matter Of SELIG MANUFACTURING COMPANY, INC. and UNITED
FURNITURE WORKERS OF AMERICA , LOCAL No. 154, C. I. O.
Case No. 1-C-601.Decided September 30, 1948
DECISION
AND
ORDER
On November 26, 1946, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices I and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
with the Board a "Supplemental Brief Based on Intermediate Re-
port," in substance attacking certain of the unfair labor practice
findings 2
The Board 3 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the Respondent's "Supplemental Brief," and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, insofar as they are consistent
with this Decision and Order.
1. We agree with the Trial Examiner that the Respondent's initial
discharge of the three complainants on August 29, 1945, was due to
'The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which
the Trial Examiner found were violated , are continued in Section 8 (a) (1) and (3) of
the Act, as amended
The power of the Board to issue a Decision and Order in a case such as this, where the
charging union has not complied with the filing requirements set forth in Section 9 (f),
(g), and (h) of the Act, as amended, was affirmed by the Boaid in Matter of Marshall and
Bruce Company, 75 N L R B. 90. See also , N L. R B v W7atittenburg, 165 F. (2d),
102, 104-105 (C. C. A. 5).
2 On June 24, 1948, the Board advised the parties that it was iesccnchng its previous
grant of the Respondent's request for oral argument and that, in lieu thereof, a supple-
mental brief or written argument might be filed within 20 days No such brief or argu-
ment has been filed.
"Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -man panel consisting of the undersigned
Board Members [ Chairman Herzog and Members Murdock and Gray]
79 N. L. R. B., No. 155
1144
SELIG MANUFACTURING COMPANY, INC. 1145
their C. I. O. activities and not to any alleged rule violations. We so
find on the record. It is significant, too, that the Respondent, in its
brief before the Board, did not contest this finding. On the con-
trary, the brief in effect concedes that these discharges were
discriminatory.
The Respondent does contend, however, that its performance un-
der the terms of a Settlement Agreement between the parties con-
stitutes a bar. But, as pointed out by the Trial Examiner, this Settle-
ment Agreement never went into effect. It expressly provided that
"should the Board fail to approve the terms and conditions herein,
this Settlement Stipulation and agreement shall become null and void
and of no effect...." It was never approved by the Board. We find
the contention without merit.
2. We likewise agree with the Trial Examiner that the Respond-
ent's reinstatement of the complainants was not made in good faith
or with the intention of fulfilling its obligations under the Act, and
hence did not constitute reinstatement within the meaning of the
Act 4
3. We also agree with the Trial Examiner that the Respondent's
second discharge of the complainants, within a few hours of their
reinstatement on April 8, 1946, was discriminatory. We rely on two
facts: (a) the proviso to Section 8 (3) did not and does not authorize
the Respondent to make an agreement requiring past membership
in a labor organization as a condition of present employment ,5 or to
discharge employees expelled for dues arrears which accrued during
such period; (b) in any event the Respondent knew that the con-
tracting union had deprived the complainants of membership because
of their timely activity on behalf of a rival union.6
4. We agree with the Trial Examiner that the Respondent violated
Section 8 (1) of the Act independently of the discharges. However,
we rely only on Selig's conversation with Marien and Roy on August
29, 1945, in which he threatened that he would "close the shop" be-
fore signing a contract with the C. 1. 0.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Selig Manufac-
4 See Matter of A. Sartorius & Co , Inc , 40 N L. R B 107, 141-2
a See_Matter of Colonic Fibre Company, Inc., 69 N. L. R B 589, 71 N. L. R. B. 354.
6 See Matter of E L. Bruce Company (Little Rock Plant), 73 N. L. It. B. 992; Matter of
Rheem Manufacturing Company, 70 N L. R B. 57; Matter of The Iron Fireman Manufae-
tumng Company, 69 N. L. It. B. 19.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turing Company, Inc., 'Leominster, Massachusetts, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers of
America, Local No. 154, C. I. 0., or any other labor organization, by
discharging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Furniture Workers of
America, Local No. 154, C. I. 0., or any other labor organization, to
bargain collectively through representatives -of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act. -
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Leandre Roy, William Marien, and Alphonse Landry,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges;
(b) Make whole the employees named above in Section 2 (a) of
this Order for any loss of pay suffered by reason of the Respondent's
discrimination against them, by payment to each of them of a sum
of money equal to that which he normally would have earned as
wages from the date of the discrimination against him to the date of
the Respondent's offer of reinstatement, less his net earnings during
said period;
(c) Post at its plant in Leominster, Massachusetts, copies of the
notice attached to the Intermediate Report, marked "Appendix A."'
Copies of said notice, to be furnished by the Regional Director for
the First Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced,
or covered by any other material;
I This notice shall be amended , however, by striking from the heading the words "THE
RECOMMENDATIONS OF A TRIAL EXAMINER" and substituting therefor the words
"A DECISION AND ORDER." If this Order is enforced by a decree of a United States
Circuit Court of Appeals, there shall be inserted in the notice, before the words, "A DECI-
SION AND ORDER" the words "A DECREE OF THE UNITED STATES CIRCUIT
COURT OF APPEALS ENFORCING."
SELIG MANUFACTURING COMPANY, INC.' 1147
(d) Notify the Regional`Director for the First Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
INTERMEDIATE REPORT
Leo J. Halloran, Esq., for the Board.
Bernard C. Riemer, Esq., of Boston, Mass., for the Respondent.
Frederick C. Cohen, Esq., of Boston, Mass., for the CIO.
STATEMENT OF THE CASE
Upon a charge duly filed by United Furniture Workers of America, Local No.
154, C. I. 0., herein called the CIO, the National Labor Relations Board, herein
called the Board, by its Regional Director for the First Region ( Boston, Massa-
chusetts ), issued a complaint dated February 7, 1946, against Selig Manufac-
turing Company , Inc., Leominster , Massachusetts , herein called Respondent,
alleging that Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and (3) and
Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint , accompanied by notice of hearing
thereon, and notices of postponement of the hearing, were duly served on
Respondent and the CIO.
With respect to unfair labor practices the complaint alleged, in substance, that
Respondent interfered wj.th, restrained , and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act by: (1) discharging William
Marien, Alphonse Landry, and Leandre Roy, its employees, on or about August
29, 1945, because of their union and concerted activities ; and (2 ) from on or
about August 28, 1945, and continuing to the date of the complaint , by (a) inter-
rogating its employees concerning their CIO activities, (b) discouraging and
prohibiting its employees from passing a petition seeking support of the CIO,
(c) stating to certain employees that the CIO had been in the plant once and
caused a lot of trouble , that it would not sign a contract with the CIO , and would
close its plant before it would do so, and (d ) assisting a rival union to obtain
possession of a petition circulated by certain of its employees on behalf of
the CIO.
Upon due notice , a hearing was held on March 25, 1946 , at Leominster , Massa-
chusetts , before Charles W. Schneider , a Trial Examiner duly designated by
the Chief Trial Examiner . The Board , Respondent and the CIO were represented
and participated in the hearing. After introduction of the Board 's formal
papers, and before any testimony was taken , the hearing was adjourned subject
to being reconvened upon 5 days' notice to the parties . This action was taken
at the request of the parties who, during a recess, had executed a settlement
stipulation which provided , inter alia , for reinstatement with back pay of the
three employees named in the Board's complaint , the said stipulation being
entered into subject to approval of the Board.
Thereafter, upon due notice , a further hearing was held on October 1, 2, and
3, before William E. Spencer , the duly designated Trial Examiner. . The Board,
Respondent , and the CIO were represented and participated in the hearing.
All parties were afforded full opportunity to be heard , to examine and cross-
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examine witnesses, and to introduce evidence bearing upon the issues. At the
opening of the hearing on October 1, the undersigned granted without objection
a motion by Board's counsel to amend the complaint to allege, in substance :
On April S, 1946, the Respondent purported to reinstate . . . William
Marien, Alphonse Landry and Leander Roy to their former positions at the
Respondent's plant, but on the same day did again discharge the said
employees
because of their union and concerted activities'
Respondent in its answer admitted the jurisdictional allegations of the Board's
complaint, that the charging union was a labor organization within the meaning
of the Act; and that it had discharged the three named employees on the dates
alleged. It denied all allegations of unfair labor practices and stated as affir-
mative defense that it discharged the three named employees on August 29, 1945,
because of their violation of a no-solicitation rule : that it reinstated them in
good faith on April 8, 1946, in accordance with the Settlement Stipulation ; and
that it discharged them on the same date because it was required to do so
under the closed-shop clause of a valid existing contract between itself and
Upholsterers' International Union of North America, affiliated with the Ameri-
can Federation of Labor.
After all evidence had been taken, the undersigned granted without objec-
tion a motion by Board's counsel to conform the complaint to the proof in matters
not going to the issues of the case. Motions by Respondent's counsel made
at the close of the Board's case-in-chief and renewed after all parties had rested,
to strike all evidence of intra-union activities or of an intra-union character,
were denied. The parties were advised that they might argue orally before
the undersigned but except for statements in response to questions put by the
Trial Examiner, no oral argument was had. The Board, Respondent, and the
CIO have each filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned in addition to the foregoing makes the following :
FINDINGS OF FACT
I. THE BUSINESS-OF RESPONDENT
Respondent, Selig Manufacturing Company, Inc., is a Massachusetts corpora-
tion with its office and place of business at Leominster, Massachusetts, where
it is engaged in the manufacture of boudoir chairs. Its annual purchase of
raw materials used in its business, consisting mainly of fabrics, wood, metal,
glue, and wrapping, is in excess of $250.000 in value and approximately 66%
percent of this amount is for materials shipped to its plant at Leominister
from points outside Massachusetts. The annual value of finished products
manufactured at its Leominster plant is in excess of $500,000, approximately
90 percent of which represents products shipped by it to points outside Massa-
chusetts.
Respondent admits, and the undersigned finds, that is is engaged in commerce
within the meaning of the Act.
1 Board 's counsel stated, and it was not disputed , that notice of the motion to amend
the complaint was served on Respondent more than 10 days in advance of the date on
which the hearing was reconvened.
SELIG MANUFACTURING COMPANY, INC. 1149
II. THE ORGANIZATION INVOLVED
United Furniture Workers of America, Local No. 154, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting to membership
employees of Respondent.
III. THE :UNFAIR LABOR PRACTICES'
A. Narrative of events
At some time prior to 1943, Respondent had a bargaining contract with a
union affiliated with the CIO. This CIO union was succeeded as bargaining rep-
resentative of Respondent's employees by Upholsterers' International Union of
North America, an AFL affiliate, herein called the AFL. On July 1, 1943,
Respondent and the AFL executed a bargaining contract which included union
shop and check-off provisions This contract remained in force without change
or modification at least until July 1, 1945, at which time, it is contended by
Board's counsel, it was terminated. It is undisputed that negotiations on a
new contract were begun in May 1945, and culminated in the, execution of a new
agreement in September 1945. This new contract contained union shop and
check-off of union dues clauses almost identical with those contained in the
original contract.
On.August 28, 1945;-:there was a meeting of the AFL local in Leominster, com-
posed entirely of employees of Respondent, attended by some 12 or 13 members.
This meeting was held at a public hall in Leominster, this union having no local
office or meeting place of its own. Alphonse Landry, acting president of the
local, presided. There was a discussion of the poor attendance at the meetings
of the local,' and Oscar Racine, shop chairman, suggested that a petition be cir-
culated among Respondent's employees to ascertain how many were affiliated
with the AFL, for the purpose of assessing a fine on those members who did not
attend the union meetings 4 There was also dissatisfaction expressed at the
failure of Harold H. Litchfield, the AFL business agent, to attend the meeting.'
Following the close of the meeting, a group, including Racine, the three dis-
chargees named in the complaint, Landry, Leandre Roy, and William Marien,
and others gathered informally near the entrance of the hall and discussed the
desirability of changing their bargaining representative. Roy suggested that it
would be a good idea to get the names of those employees who were in favor of
the CIO in order to find out if there was a majority of employees who desired
the change, and it was agreed that he should prepare a petition for circu-
lation among the employees. Roy prepared such a petition and it was circulated
in Respondent's plant on the following day. The petition was headed, "The
2 All findings herein unless otherwise specifically noted are based on undisputed and
credible evidence.
I The record does not disclose how many employees were in the bargaining unit at this
time. Respondent's general superintendent, Porell, testified that the total employment
after he came with Respondent was about 812.
4 As will hereinafter appear, it is significant that although Respondent's contract pro-
vided that it should "retain in its employ none but members of said UNION in good
standing," admittedly not all employees were members of the AFL and therefore it is clear
that there was no strict enforcement of the union shop provision.
6 Litchfield was also international representative of the New England district of this
union , had no office in Leominster, and apparently was in Leominster only on occasions
when the business of the local required his presence
1150 DECISIONS OF NATIONAL' LABOR - RELATIONS 'BOARD
undersigned favor the CIO," or words-to that effect:' It was circulated mainly if
not entirely before working hours or during the morning and afternoon rest
periods, on August 29. Roy. Marien, and Landry were chiefly responsible for'its
circulation, although they were assisted by some other employees. ' Racine appears
to have taken no part in its circulation.
Near the close of working hours, Marien and Roy were summoned to the
office of Mendell Selig, Respondent's treasurer,'who appears also to have been
the executive in charge of the plant. They were questioned by Selig concern-
ing their part in the circulation of the petition and Selig demanded that they
let him see it. Upon their refusal to do so, he discharged them. Landry, who
had received permission to leave the plant before the close of working hours
and who had gone home, received a telephone call from Selig that same afteri
noon. Selig asked Landry, Acting President of the AFL local, for his permis-
sion to discharge Roy and Marieu "on account of that petition " When Landry
refused to assent to the discharge, Selig told him, "I'm going to fire them any-
way." A few moments later Selig again called Landry and told him that he
was discharged also.
As set forth in the opening statement of the Case, the original complaint in
this proceeding alleged the discriminatory discharge on August 29, 1945, of Roy,
Marien, and Landry, and a hearing on the original complaint was conducted
by the Board on March 25, 1946. This hearing was recessed at the request of
the parties, and during the recess the parties executed a stipulation providing
for reinstatement and back pay for Roy, Marien, and Landry. This stipulation,
as is customary, was made subject to the approval of the Board.T It contained
a denial by Respondent that it had engaged in any of the unfair labor practices
alleged in the Board's complaint.
Respondent by letters dated April 3, 1946, offered Roy, Marien, and Landry
reinstatement as of April 8, 1946. These employees reported at Respondent's
plant on April 8, the date specified, and were put back to work. Shortly after
noon that same day they were summoned to the office of Respondent's Personnel
Manager Killelea, who showed them a letter signed by officers of the AFL local
which demanded their release because they were "six months in arrears in pay-
ment of dues," had been "automatically" expelled therefor, and therefore were
not "eligible" for employment by the Respondent. Killelea then discharged
Roy, Marion, and Landry, and advised them that if they could "fix that up with
the union" it would be satisfactory with Respondent to put them back to work.
B. The issues; concluding findings
1. The August 29, 1945, discharges
Respondent's defense to the allegation of discriminatory discharge of Marien,
Roy and Landry on August 29, 1945, is that they violated Respondent's no-
solicitation rule and were discharged for that reason. The rule, according to
General Superintendent Porell, prohibited solicitations of all kinds in Respond-
6 That this was the substance of the text appearing at the head of the petition is estab-
lished by the uncontroverted and credible testimony of several Board witnesses who signed
the petition.
' The stipulatiop contained the following clause :
All stipulations herein made are subject to the approval of the National Labor Rela-
tions Board and should the Board fail to approve the terms and conditions herein,
this Settlement Stipulation and agreement shall become null and void and of no effect
and the proceeding in this matter shall be in the same status as if no stipulation had
been entered into.
SELIG MANUFACTURING COMPANY, INC. 1151
ent's plant during working hours unless permission was first had from a foreman
or other officer of management. Porell testified that he made the rule shortly,
after he became Respondent's general superintendent in 1943 and that it had
been in effect ever since. He admitted that the rule was never reduced to writ-
ing and that, except for advising the union stewards concerning .it, with the un-
derstanding that they would pass the information on to the employees, Respond-
ent has never published it to the employees generally 8 Marien, Landry, and
Roy, as well as several other employees of Respondent, some of whom had served
as union stewards or, officers, testified that they had never been advised of such
a rule and had no knowledge of its existence.' These witnesses also testified
without contradiction that solicitation in the plant for various purposes, both
during and outside working hours, was frequent and customary, and there is no
evidence that it was carried on only after permission had been obtained from su-
pervisory personnel. The testimony of these witnesses is credited. Upon the
entire evidence the undersigned finds that Respondent's no-solicitation rule,
if there was one, was never made known to the employees generally in such
manner that they might reasonably be charged with notice of it,, and was not
customarily enforced.
In any event, assuming arguendo the existence of the rule, restricted as it was
to working time, the undersigned is convinced that the circulation of the CIO
petition on August.29 by Marien, Roy, and Landry, represented at most no more
than a minor infraction of the rule. These witnesses testified that they cir-
culated the petition before working hours and during the morning and afternoon
recess periods, though it appears that the petition may have changed hands a
few times either just before or immediately following one of the recess periods 10
Henry LeBlanc, the foreman who Porell testified reported to him that Marien
and Roy were soliciting during working hours, and upon whose information
Respondent allegedly acted, did not testify. There is in fact 'no substantial
evidence that the circulation of this petition was carried on in such manner
that it normally would have invited or justified the censure of management"
8 Porell testified, "I couldn't tell you, sir, if every employee understood it," and admitted
that many new employees , including the three dischargees , had been hired subsequent to
the date when lie first promulgated the rule.
0It is noted in this connection that the 1943 contract provided with respect to shop
rules : "It is understood and agreed that employees shall comply with the rules and regu-
lations that are mutually agreed upon between the Company and the Union ." Obviously,
if there had been such agreement Landry and other officers of the local would have been
advised concerning it. Significantly, in the new contract executed in September 1945,
this language was changed to read as follows : "It is understood and agreed that employees
shall comply with the rules and regulations of the Company."
10 There is some confusion in the testimony as to the exact time of the morning and
afternoon recesses during which the employees are permitted to leave their jobs Porell
gave extensive testimony on this point , apparently for the purpose of showing that the
recess periods came at different hours from those stated by the Board ' s witnesses, and
therefore that they actually circulated the petition on company time. He admitted,
however , that there had ,been various changes in the recess periods at or about this time
and that he was not certain his recollection was accurate . The undersigned is satisfied
that the testimony of Marien, Roy, and Landry is substantially correct in this matter.
11 Although, according to Porell, there were 11 foremen at this time, and the foreman who
had supervision over Marien was. not LeBlanc but Malo, Porell admittedly acted solely
on information furnished him by LeBlanc . He testified on cross -examination :
Q . . . and the offense reported to you is that Mr. Marien was talking to Roy
with a piece of paper in his hand and later was seen on his own floor talking to some
other employees with a piece of paper in his hand?
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This conclusion is further supported by the circumstances under which the dis-
charges were effectuated. Porell testified that at about 2: 30 p. in. Foreman
LeBlanc reported that he had seen Marien and Roy circulating a paper and
asked if Porell had granted them permission. Porell later saw Selig and
asked the latter if he had granted permission for the circulation of the paper.
When Selig replied in the negative, Porell had LeBlanc send Marien and7Roy to
Selig's office. This was after 5 p. in. o'clock. Until Marien and Roy arrived at
Selig's office, no foreman or other supervisory official had spoken to them about
their circulation of the petition or made any effort to stop them, although, ac-
cording to Porell, Foreman LeBlanc had reported that he first observed the circu-
lation of the petition that morning, and Porell, according to his own testimony,
though first informed of the matter at about 2: 30 p. in., took no action concerning
it until near closing time.
Marien was first to be summoned to Selig's office. Selig asked him, "What do
you know about this paper that is circling around the shop?" Marten replied,
"I don't know anything about it. Which paper?" Selig then said, "The paper
that has been going around for the CIO," and that he had been informed about
it that morning.12 Marien said that Roy had given him a paper to hand to
Landry. Roy was then called to the office, and questioned by Selig concerning
the petition. He admitted having participated in its circulation." Selig then
requested that they let him see the petition and they refused. Porell, who was
A. That is correct, air.
Q. And that was the extent of the information that was passed on to you by the
foreman ; is that correct?
A. Correct, sir.
Q. And you had no other information than that relative to the activities on these
men ?
A I had none, sir.
Q. And you then went to Mr. Selig a few hours later and asked him if he had given
any permission'?
A. That is- correct, sir.
Q. And you told Mr. Selig that the foreman had reported to you of the action of
Marien in talking to Roy with a piece of paper in his hand and in talking to some
people of the first floor with a piece of paper in his hand ; is that right?
A. That is correct, sir.
Q. Whereupon you say Mr. Selig called these boys in and inquired as to what was
in the paper?
A. Correct.
12 These findings are based on Marten's testimony. Selig did not testify and there
was no showing that he was unavailable as a witness . Porell gave a somewhat different
version of what was said. According to him, when questioned about the petition, Marien
said, "What is the sense of kidding with me, Mr. Selig. You know that it is a C. I. O.
petition." Insofar as the issues are concerned, it makes little difference which version is
accepted since either shows that Selig was informed concerning the character of the petition.
u Porell testified that Marien and Roy volunteered the information that they had circu-
lated the petition during working hours :
Q When you called Air Marien and Mr. Roy in, did either you or Mr Selig ask
them if it [the petition] was being circulated during working hours?
A. Mr. Selig didn't ask them, they told him it was being circulated during working
hours
Marien and Roy also testified that they were not questioned by Selig whether or not
they had circulated the petition during working hours but denied that they volunteered
the information or admitted that they had done so. Under all the circumstances it is
entirely improbable that they did, and the undersigned is unable to credit Porell in this
respect Also, if solicitation during working hours were the gravamen' of the offense,
certainly they would have been questioned by Selig or Porell concerning the hours during
which the petition was circulated.
:SELIG MANUFACTURING COMPANY, INC . - 1153
present during most or all of the time that Marien and Roy were in Selig's office,
testified :
And Mr. Selig told them that if they weren't willing to show the paper they
were distributing through the plant, or passing around from machine to
machine, that he would have to let them go because of the rule that applied
to the plant.
Marien and Roy were thereupon discharged.
It is clear from the foregoing, and admitted by Superintendent Porell, the
only witness for Respondent who testified concerning the incident, that Selig
had knowledge of the character of the petition before he demanded that it be
shown to him and, upon their refusal to surrender the petition, discharged the
two employees. This is further borne out by the following statements made by
Selig during the course of the interview : 1. That the CIO had been in the plant
before and had caused "a lot of trouble" both for the employees and manage-
ment ; 2 . That before he would sign a contract with the CIO he would "close the
shop" ; and 3 that "there was a law to protect one union against another." "
These statements and the sum of them, independently of the discharges , consti-
tuted interference, restraint, and coercion within the meaning of Section 8 (1)
of the Act, and the undersigned so finds.
That it was the character of the petition, and not its circulation during work-
ing hours, which caused the discharges is further borne out by the following facts.
1 After he had been discharged and gone back into the plant to get his tools,
Marien returned to Selig's office. On this occasion, Selig, after offering Marien
a drink, repeated his remarks about the CIO, and, as testified to by Porell, when
Marien asked for "another chance," told Marien "that if he could show him
the paper that he was carrying for purposes of knowing what was going through
the plant, that he would be glad to talk with him." He also told Marien, accord-
ing to Marien's undisputed and credited testimony, "As soon as Harold Litch•
field [the AFL business agent] comes back to town, I'll send him to see you.
Don't do anything for a few days. I don't think you 'll lose out of this."
2. Selig discharged Landry in a telephone conversation when the latter, as
acting president of the AFL local, refused to give his consent to the discharge
of Marien and Roy. No reference was made in the telephone conversation
between Selig and Landry concerning the circulation of the petition duriaag
working /toms and the record is devoid of any evidence whatever that Selig had
been advised by anyone, or had any reason to believe, that Landry had partici-
pated in the circulation of the petition on company time." On the morning
following his discharge, Landry saw Selig in the latter's office, and at this time,
Selig repeated his remarks previously made to Marien and Roy concerning his
antipathy toward the CIO, and told Landry that he "did a great wrong" by
permitting the circulation of the petition in the shop
. 3. A few clays following the discharge, Litchfield visited Marien, Roy, and
Landry, and insisted on being shown the petition before he would seek their
reinstatement. When they refused to surrender the petition, Litchfield advised
them in effect that he would do nothing to assist them in getting their jobs back,
and threatened them that they would be unable to obtain employment in a.i AFL
shop. Litchfield denied that he knew that the petition in question was for the CIO
14 These findings are based on the undisputed and credited testimony of Roy and Marten.
u Porell testified that he knew nothing concerning the circumstances under which Landry
was discharged.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although he admitted that he was informed by Oscar Racine, who apparently
succeeded to Landry's place as acting president of the AFL local, that "it was
purported to be a CIO paper." , The undersigned believes that it is evident that
Litchfield acted on the assumption and belief that the petition was in favor of
the CIO, since otherwise his refusal to assist the dischargees, one of whom was
acting president of the AFL local and all three of whom were members of the
AFL in good standing at the time of the discharge, would be inexplicable.16 On
or about September 7, Marien arranged to see Selig with reference to getting his
job back and on this occasion Selig told him, "We have to leave things stand as
they are, because Litchfield didn't tell me to reinstate anybody." Communication
and 'close' cooperation between Selig and Litchfield concerning the character of
the petition and those involved in its circulation is evident from the foregoing.
Upon the entire record, the undersigned finds that the Respondent did not
discharge Roy, Marien, and Landry on August 29, 1945, because of their violation
of a company rule, but did discharge them on that date because of their activity
in behalf of the CIO. By the said discharge Respondent discouraged member-
ship in a labor organization and thereby interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act.
2. The dual unionism aspect of the case
Respondent has made no contention that the discharge of Roy, Marien, and
Landry on August 29, 1945, was made pursuant to the union or closed shop pro-
visions of its contract with the AFL, and clearly there was no demand made by the
AFL for the discharge of these employees on the stated date To the contrary,
when Respondent sought to obtain the AFL's permission for the discharge of
Marien and Roy by communicating with Landry, the acting president of the AFL
local, permission was denied and Landry's own discharge followed. Subsequent
to the discharge, the AFL through Litchfield, its business agent, refused to seek
the reinstatement of the discharged employees because of the latter's activity
on behalf of the CIO, and it is a reasonable inference from all the testimony,
and particularly that of Marien concerning his conversations with Selig regarding
his reinstatement, that Respondent was fully advised of the AFL's position in
the matter. In this connection, and for whatever bearing it may have on the
subsequent discharge on April 8, 1946, of the same three employees, it is perti-
nent to inquire if the CIO activity engaged in by the dischargees was timely in
the sense that they were protected from discharge therefor under closed or
union shop provisions then existent in a contract between Respondent and the
AFL.
The contract executed by Respondent and the AFL on July 1, 1943, included
the following union membership provision :
The COMPANY hereby agrees to retain in its employ none but members
of said Union (AFL) in good standing to perform whatever work may be
necessary in the manufacture of its products in all its branches while in
the employ of the COMPANY. All new employees must become members of
the UNION after two weeks employment.
1e Litchfield testified in this connection :
Q And you didn't intend to do anything for them'
A Not if they are taking part in a dual organization Absolutely not. Under our
general laws, we can't.
SELIG MANUFACTURING. COMPANY, INC. 1155
The contract also provided: -
-- The employer- agrees'to deduct from the second pay check of each month,
each employees financial obligations to the Union and turn such money over
to the Financial Secretary of the Union.
The termination provisions of the contract read as follows :
THis cowry or shall go into effect on July 1, 1943, and shall con-
tinue for a period terminating July 1st one year after armistice has been
declared by the United States, Germany, Italy and Japan, or for a year
terminating after removal of all Governmental restrictions on the supplies
and use of the raw materials used in this industry and upon prices that may
be charged for the finished products of this industry.
It is agreed that in the event the parties are unable to come to an agree-
ment of any signatory year that all of the provisions of the then existing
contract shall remain in full force and effect during the period of
negotiations.
Wage schedules may be reviewed once every twelve months during the
terms of this contract upon 30 days written notice from the Union to the
Company.
There appears to have been no modification or change in the July 1, 1943, con-
tract prior to July 1, 1945, at which time, it is contended by Board's counsel, the
contract was terminated.
Litchfield testified that in May 1945, when requested by members of the AFL
local to seek additional contractual benefits, he "stated at that time that the
present agreement had not expired," but that he "did not like the present agree-
ment," and "felt that it should be changed." He further testified that he sought
a new agreement with Respondent and that "after four or five months bickering
back and forth," a new agreement was executed. Porell, Respondent' s general
superintendent, testified that beginning in May 1945, there were a number of
conferences between Respondent and AFL representatives "relating to a new
contract." It is not disputed that a new contract, superseding the July 1, 1943,
contract, was executed by Respondent and the AFL in September 1945. It is
also clear from the testimony of Litchfield and Porell, set forth above, that the
new contract was the result of negotiations which started in May 1945
While negotiations on the contract, according to Litchfield, were completed
prior to August 28, 1945, the agreement was subject ,to ratification by mem-
bers of the AFL local, and it was not until after the discharge of the three
employees on August 29, 1945, that the contract was submitted to the member-
ship and ratified by it. This occurred in Respondent's plant during working
hours, at Litchfield's request. The new contract, though it bears the date
August 30, was actually executed on or about the first week in September 1945.
Its union shop and check-off provisions are almost identical with those con-
tained in the old contract.
The undersigned believes it is clear, and finds, that the activity of the dis-
charged employees in seeking to change their bargaining representative, initi-
ated on August 28 and followed on August 29 by their circulation of the CIO
petition, was timely and protected in the sense that the union membership clause
of Respondent's contract with the AFL afforded and could afford no justification
for their discharge.
. The termination provisions of the 1943 contract are ambiguous for while one
clause provides that it shall continue "for a period terminating July 1st one
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year after armistice has been declared by the United States, Germany, Italy
and Japan, or for a year terminating after removal of all Governmental restric-
tions on the supplies and use of the raw materials used in this industry and
upon prices that may be charged for the finished products of this industry,"
the next clause provides that "in the event the parties are unable to come to
an agreement by June 30 of any signatory year that' all of the provisions of the
then existing contract shall remain in full force and effect during the period
of negotiations," implying that the parties are--not bound to wait until the condi-
tions set forth in the first clause have been met, but-may negotiate a new agree-
ment in the interim. It makes little difference here which construction of the
contract is accepted, for in any event, the result would be the -same. If the
first clause quoted above is considered controlling, the contract would fall into
the general category of contracts of indefinite duration, and since it had
already run for more than 2 years before the discharged employees undertook to
change their bargaining representative, they were free to do so ; to hold other-
wise would be contrary to one of the primary purposes of the Act: namely,
to guarantee the freedom of employees in their choice of a bargaining repre-
sentative. If the second view is accepted, and the undersigned believes it is
the more tenable one, the contracting parties prior to July 1, 1945, agreed to
terminate the 1943 contract, and it was thereafter continued in force only subject
to the execution of a new contract.
The undersigned, however, does not rely on a technical construction of termi-
nation clauses of the 1943 contract for ultimate conclusions, but upon the actual
performance of the contracting parties. Admittedly, as previously set forth,
Litchfield in May 1945, notified Respondent that it was dissatisfied with the
then existing contract and wanted to execute a new one to supersede it. The
existing contract was thereupon opened up for all purposes," and beginning
in May and continuing through August, the parties negotiated with the intent
and purpose of executing a new contract which they did in fact execute early
in September 1945. The employees were advised that the old contract was
being terminated as of July 1, and that negotiations were in progress on a new
one." The activity of the discharged employees in seeking to change their
bargaining representative occurred prior to the execution of the new contract.
Under these circumstances the undersigned believes there can be no doubt, and
accordingly has found, that the activity of the employees described herein in
seeking to change their bargaining representative was protected within the
meaning of Board and Court decisions.19
11 Porell testified that among the subjects discussed in negotiations on a new contract
were seniority, holidays with pay, vacation dates, sick leave. It is clear therefrom, and
from the entire testimony, that the contract was not opened up merely for a review of
wage schedules under the clause which provides that "Wage schedules may be reviewed
once every twelve months . . . upon 30 days written notice from the Union to the
Company," but for all purposes.
18 Marien, Landry, and Armand Malo, an employee, testified that Litchfield advised them
to this effect ; Litchfield denied that he so stated, but it is clear from his own testimony
that it was at the suggestion and urging of members of the AFL local that he began
negotiations on a new 'contract, and that the matter was fully discussed in union meetings.
1° In the so-called closed shop cases, the Board has sought to reconcile the basic policy
of the Act to promote the stabilization of industrial relations through collective bargaining,
with its equally important guaranty that employees shall be free in their choice of a
bargaining representative. It accordingly has held that a closed shop clause may not
serve as justification for the discharge of an employee who seeks to change his bargaining
representative at an appropriate time, where the employer has knowledge that the
employee's dual unionism is the real cause of the contracting union's demand for his
release. An appropriate time is generally defined as a time when a question of representa-
SELIG MANUFACTURING COMPANY, INC.
3. The April 8, 1946, discharges
1157
As previously stated, pursuant to a stipulation of the parties executed on
March 26, 1946,20 Marien, Roy, and Landry were returned to work by Respondent
on Apii1'8, 1946, and after they had been at work only a few hours they were
again discharged. It is the position of counsel for the Board and the CIO
that this action by Respondent did not represent a bona fide reinstatement
under the terms of the stipulation nor reinstatement at all as the term applies
in remedial orders directed by the Board, and that in any event, the discharge
of the same three employees on this latter date was, as in the case, of, their
initial' discharge, discriminatory. Respondent contends that it reinstated the
employees in good faith and that its action in again discharging them was justi-
fied and required by the closed shop clause of the contract which it executed
with the AFL in September 1945. -
. Respondent, when it agreed to reinstate the discharged employees, must have
known that such action would meet with the disapproval and opposition of
the AFL, since in December 1945, it had received a letter from the AFL advis-
ing it that Marien, Roy, and Landry had been "expelled" from that union.
Also, prior to actual reinstatement of the three employees, Porell had on April
5, 1946, advised Racine, then president of the AFL local, that such action was
being taken by Respondent. Porell testified, "he [Racine] advised me then that
we couldn't take them back. I told him we were going to take them back in
our plant." At or about 8: 30 a. ern. on April 8, or only a short time after the
three discharged employees had been returned to work, Racine handed Porell
a letter signed by officers of the local which bore the following text:
This is to notify you that the following persons, namely, William Marien,
Leandre Roy, Alphonse Landry, are six months in arrears in payment of
dues. Therefore under the present contract between this Company and said
Union, these persons are automatically expelled from this Union and are
not eligible for employment with this Company.
tion exists, or when the Board normally would direct an election upon an appropriate
petition filed with it. The Board's rationale is set forth in the Rutland Court case (Rut-
land Court Owners, Inc, 44 N. L R. B 587, 46 N L. R B 1040) :
. . To insist that employees can never transfer their affiliation from one union
to another, or to prevent employees toward the close of one contract period from
changing their representative for the purpose of negotiating and administering a new
contract for the succeeding term is to impair rather than protect self-organization,
to thwart rather than encourage collective bargaining by representatives of the
employees' genuine choice, and accordingly to produce contracts which will not tend
to stabilize mutually satisfactory labor relations or safeguard industrial peace. The
stability intended by the Act is not that involved in a perennial suppression of the
employees' will.
In the Wallace Corporation case (323 U S 248, affirming 141 F. (2d) 87 (C C. A. 4),
enforcing 50 N. L. R. B 138 ), the Supreme Court similarly stated:
We do not construe the provision authorizing a closed shop contract as indicating
an intention on the part of Congress to authorize a majority of workers and a com-
pany, as in the instant case , to penalize minority groups of workers by depriving
them of that full freedom of association and self-organization which it was the prime
purpose of the Act to protect for all workers
See also, Portland Lumber Mills, 56 N. L R B. 1336 ; Colgate-Palmolive-Peet Co., 70
N. L It. B. 1202. Cf. Southwestern Portland Cement Company, 65 N L R B. 1.
r' Since the stipulation in question was made subject to the approval of the Board and
was never approved by the Board, it has no binding effect on the parties ; it is, however,
material to an evaluation of Respondent's good faith in reinstating the employees in
question.
809095-49-vol. 79-74
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly with ( sic) in accordance with our contract we demand their
immediate release.
Later that same morning Litchfield called on Porell and demanded the discharge
of the three men. After communicating with its attorney, Respondent then
.directed the discharge. The three men were summoned to Personnel Manager
Killelea's office, shown the AFL letter demanding their release , and discharged.
It was not until they had returned home that night, that Marien, Roy, and Landry
received notice directly from the AFL that they had been expelled because they
were "six months in arrears in payment of dues." 21 This was the first notice
of any sort that any of them had received from the AFL since their discharge
on August 29, 1945.
It has been noted that both the 1943 and the September 1945 contract between
Respondent and the AFL, contained the following check-off provision :
The employer agrees to deduct from the second pay check of each month,
each employee's financial obligations to the Union and turn such money
over to the Financial Secretary of the Union.
It is established in the uncontradicted and credited testimony of the witnesses,
that the check-off thus provided under the contract was the customary and sole
method by which Respondent's employees paid their union dues. The AFL
local was composed exclusively of Respondent's employees and no officer of the
local was authorized to accept union dues or fees directly from a union member.
Marien, Roy, and Landry had each authorized the check-off of their union dues
and the said authorizations were never withdrawn or cancelled by them. It is
also established that employees who were absent from their work for periods
of a month or more, were not normally subjected to summary expulsion from
the AFL because of failure to pay dues currently during such periods." The
undersigned believes that Respondent was well aware of the prevailing custom
concerning dues' payments," both because of the check-off provision of its con-
tract with the AFL and its close cooperation with that union which, as has been
seen, exceeded the bounds of permissible cooperation in the discriminatory dis-
charge of Marien, Roy, and Landry on August 29, 1945. Significantly when the
three employees returned to work on April 8. although they were directed to
21 The letter was dated April 6 but u as postmarked April 8
22 Several Board witnesses testified to this effect, without contradiction Litchfield
admitted that it was customary to notify members concerning their expulsion or suspension
for non-payment of dues, but as has been seen, although in December 1945 the AFL notified
Respondent that Marien, Roy, and Landry had been expelled, they received no notice what-
ever until after their discharge on April 8, 1946 He also admitted that laid-off employees
were not required to keep up their dues payments, but that if discharged they must remain
members in "good standing." Admittedly, he did not advise Marien, Roy, and Landry of
any requirement that they must continue to pay dues subsequent to their discharge.
Finally, Litchfield testified that it was optional with the local union in discharge cases
whether an employee discriminatorily discharged could "pay up" on reinstatement through
dues deductions "I don't know what the procedure has been here in the city," he admitted.
22 Porell admitted that he knew of no other employee who had been discharged at the
demand of the union for failure to pay dues, that where employees had been out for a
month or two because of illness, no dues deductions were made for the period during which
they received no pay, and that Respondent had never been requested by the AFL to deduct
dues for men out on account of illness It is noted also that the union shop clause had not
in the past been strictly enforced See footnote 4, supra.
SELIG MANUFACTURING COMPANY, INC. 1159
Killelea's office where they signed some papers relating to -their employment,
nothing was said to them concerning the contract executed by Respondent and
the AFL subsequent to their discharge on August 29, 1945, or,their obligation to
maintain their membership in this organization through the payment of dues
or otherwise; in fact, at no time were they notified either by the AFL or Re-
spondent that a new contract requiring union membership as a condition of
employment had been executed.
Upon consideration of the foregoing and the entire evidence, the undersigned
finds :
1. The purported reinstatement of Marien, Roy, and Landry on April 8, 1946,
was not in fact an actual reinstatement since prior thereto Respondent well
knew that the AFL opposed such action. The reinstatement was therefore quali-
fied because Respondent must have known, and the undersigned believes it did
know, that the AFL would demand the release of the three employees and, if
Respondent intended to yield to such demand, it could not have entered into
the stipulation for their reinstatement in good faith .24
2. The moving cause of the discharge on April 8, 1946, was not that Marien,
Roy, and Landry were in arrears in their dues payments to the AFL, but that
they had engaged in dual unionism. That their dual unionism was the real
cause of the AFL's demand for their release is so clearly established that it
requires no further discussion ' While Respondent's counsel argues in his brief
that Respondent is not chargeable with knowledge that dual unionism was
the basis for the AFL's discharge demand, the undersigned is unable to
agree. Selig did not testify and Litchfield though testifying was evasive
when questioned whether he had met with Selig concerning the release of the
employees on April 8. Porell, who was Selig's subordinate, testified only con-
cerning his own actions relative to the discharge. There is no substantial evi-
dence therefore to refute the reasonable inference of knowledge to be drawn from
the entire situation. But whether or not Respondent hail specific knowledge of
the moving causes behind the AFL's discharge demand, the undersigned is
nevertheless convinced that Respondent would not have acceded to such demand
in the precipitate manner in which it did except for Selig's antipathy toward the
CIO and determination to keep it out of the plant. With full knowledge that
union dues were required to be paid through pay-roll deductions; that Marien,
Roy, and Landry had each authorized such pay-roll deductions ; that the union
shop clause of the contract was not strictly enforced ; and that the AFL had never
previously demanded the release of any employee because of the failure to pay
dues, Respondent, had it not been motivated by discriminatory considerations,
would certainly have resisted such an arbitrary demand at least until the employ-
24 Respondent 's counsel in his brief quotes the undersigned as having stated on the record
that the position of the Board ' s counsel in contending that the dischargees were never
"legally reinstated " was not well taken. Properly construed , and as intended by the under-
signed however , the undersigned 's statement to Board's counsel , " I don't think the
position is well taken ," refers to that counsel ' s objection to the development by Respondent
of evidence relating to its efforts to comply with the stipulation. This is shown by the
following consecutive statement on the record by the undersigned : "I am sorry we can't
have this matter stipulated , but since it can't be , you may proceed to develop it, Mr.
Riemer "
w Thus Litchfield testified that he investigated the August 29 discharges "To see that
justice was done " The following examination ensued :
Q Well , you subsequently took care of that, didn ' t you, on April 8th?
A. Positively.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in question had been afforded some opportunity to meet the union membership
requirements of the then existing contract It was, in fact, under a duty to do
,so. Instead, in violation of its stipulation which called for an absolute and not
a qualified reinstatement, and without even advising the three employees of the
union membership provisions of a contract executed subsequent to their initial
discharge, Respondent acceded to the AFL's demand promptly upon being
advised by its-attorney that such action would be legal. A comparison of Selig's
action in overriding AFL local's Acting President Landry when he objected to
the discharge of Marien and Roy, and in discharging Landry because he did
.object and had himself participated in the circulation of a CIO petition, with
Selig's prompt compliance on April 8 with the AFL's demand for the discharge
of the same three employees, demonstrates the weakness of Respondent's position
that in the second instance it acted solely on account of its contractual obliga-
tions to the AFL.
3. The dischargees were not required to pay up their arrears in union dues for
the period between their discharge on August 29, 1945, and their purported re-
instatement on April 8, 1946, as a condition of continuing employment, and any
discharge for their failure to do so, under the facts of this case, was unlawful.
As previously stated, these employees were paid-up members of the AFL in good
standing at the time of their first unlawful discharge. They had been notified
that the 1943 contract had been terminated, and were given no notice by either
party of the execution of a new contract subsequent to their discharge. While
the validity per se of this latter contract is not placed in issue by the pleadings
in this case, it is clear that Respondent by its discharge on August 29 of the three
employees because of their participation in the circulation of a CIO petition, took
the most effective step in its power to discourage membership in the CIO and,
conversely, to guarantee the continuation of the AFL as the bargaining repre-
sentative. This action, taken at a crucial time when there was a movement
afoot among the employees to change their bargaining representative, followed
by the execution of a new contract with the AFL, effectively barred the employees
from further effort to bring about a change in their bargaining representative at
that time. A contract executed under such circumstances cannot and should not
afford justification for the subsequent discharge of the same three employees for
their failure, in the period between August 29, 1945, and April 8, 1946, to maintain
their membership in a union which, in the lawful exercise of their rights under
the Act, they had sought to displace as their bargaining representative. To hold
otherwise would be to encourage employers and unions acting in concert to violate
one of the basic concepts of the Act, namely, the freedom of employees in their
choice of a bargaining representative. Furthermore, the discharged employees
cannot be considered bound by the terms of a contract of which they had no
notice."
4. The discharge of the three employees on April 8, 1946, cannot operate in
such'manner as to deprive the Board of its power under the Act to require such
remedial action to be taken in a case of unfair labor practices as will effectuate
the policies of the Act. As found by the undersigned, Respondent on August 29,
1945, discharged Marien, Roy, and Landry, because of their CIO activities. The
normal remedy of the Board in such cases-and there would be no valid reason for
departing from customary practice in this case-is to require the reinstatement
with back pay of the employees found to have been discriminatorily discharged.
Such reinstatement does not, of course, render the reinstated employee immune to
28 Electinc Vacuum Cleaner Co, Inc, 18 N . L R. B 591 , 614, 628 , affirmed 315 U. S. 685.
-SELIG iMANUFACTURING COMPANY, INC. 1161
further discharge for lawful reasons ; it is required , however, that such rein-
statement shall be made in good faith . In the instant case , it would do little
to effectuate the policies of the Act if upon formally complying with the Board's
order of reinstatement , Respondent could then with impunity again discharge
these employees upon demand of the same union which Respondent had unlawfully
assisted in its initial discharge action without first affording them an oppor-
tunity to 'comply with the union membership provisions of the then existing
contract. The undersigned believes that to condone such action would be to
impair the effectiveness of the remedial powers of the Board.
By its discharge of Marien, Roy, and Landry on April 8, 1946, Respondent
discouraged membership in a labor organization in violation of Section 8 (3) of
the Act and interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with its operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to be unfair labor practices tend to
lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDYx
Having found that Respondent has violated Section 8 (1) and (3) of the Act,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action which the undersigned finds is necessary to effectuate
the policies of the Act.
Having found that Respondent discriminated in regard to the hire and tenure
of employment of Leandre Roy, William Marien, and Alphonse Landry by dis-
charging them on August 29, 1945, and again on April 8, 1946, because of their
union and concerted activities, the undersigned will recommend that Respondent
offer them immediate and full reinstatement to their former or substantially
equivalent positions; 7 without prejudice to their seniority or other rights and
privileges, and that Respondent make them whole for any loss of pay they may
have suffered by reason of Respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount which he normally would
have earned as wages, from the date of, his discharge on August 29, 1945, to the
date when, pursuant to the recommendations herein, Respondent shall offer him
reinstatement, less his net earnings 2' during said period.
21 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827.
Zs By "net earnings" is meant earnings less expenses, such as for transportation, room.
and board, incurred by an employee in connection with obtaining work and working else
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N. L. R B. 440. Monies received for work performed upon
Federal , State, county ; municipal , or other work-relief projects shall be considered as earn-
ings. See Republic Steel Corporation v. N. L. R. B , 311 U. S 7.
1162 DECISIONS OF NATIONAL, LABOR RELATIONS - BOARD
- Respondent in,its discharge of Marien, Roy, and Landry, resorted to the most
effective means at its disposal ;to defeat what the Supreme Court has termed "the
prime purpose of the Act," namely, its 'guarantee to employees of "full freedom of
association and self-organization." 29. Concurrently with the discharge, Respondent
made the threat that it would close its plant before it would execute a contract
with the .union which these,employees were seeking to have represent them.
The undersigned is convinced that the unfair labor practices found herein reflect
on the part of Respondent "an attitude of opposition to the purposes of the Act
to protect the rights of employees generally," 30 and the consequent likelihood of
Respondent resorting to other acts of-interference, restraint, and coercion in
violation of the Act. The preventative purposes of the Act will be thwarted unless
the order is coextensive with the threat. In order, therefore, to make more
effective the interdependent, guarantees 'of Section 7, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which burdens and
obstructs commerce, the, undersigned will, recommend that Respondent cease
and desist from in any manner infringing upon the rights guaranteed in Section 7
of the Act. •
• Upon the basis of the above findings of fact and the entire record in the case;
the undersigned makes the-following :
,,, CONCLUSIONS OF, LAW
1. United Furniture Workers of America, Local No. 154, affiliated with the
Congress of Industrial Organizations is a labor organization within the meaning
of Section 2 (5) of the Act. ' _ -
2. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed.in Section 7 of the Act, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(1) of the Act.
3. By- discriminating in regard,, to the hire and tenure of employment of
Leandre Roy, William Marien, and Alphonse Landry, thereby discouraging mem-
bership in United Furniture Workers of America, Local No 154, affiliated with the
Congress of Industrial Organizations, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 3 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning, of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On the basis of the above findings of fact and conclusions of law, the under-
signed recommends that Respondent, Selig Manufacturing Company, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from t
(a) Discouraging membership in United Furniture Workers of America, Local
No. 154, affiliated with the Congress of Industrial Organizations, or any other
,labor organization, by discriminatorily discharging any of its employees or by
discriminating in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
29 Wallace Corporation v. N L R . B., 323 U S. 248
30 May Department Stores Company v. N. L. R. B., 326 U. S. 376.
SELIG MANUFACTURING COMPANY, INC . 1163
tions, 'to join or assist United Furniture Workers of America, Local No. 154,
affiliated with the Congress of Industrial Organizations , or any other labor
organization , to bargain collectively through representatives of their own choos-,
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Offer to Leandre Roy, William Marien, and Alphonse Landry, immediate
and full reinstatement to their former or substantially equivalent positions,31
without prejudice to their seniority or other rights and privileges , and make them
whole for any loss of pay suffered by reason of Respondent's discrimination
against them , by payment to each of them of a sum of money equal to that which
he normally would have earned as wages from August 29 , 1945, the date of the
initial discriminatory discharge , to the date when, pursuant to these recom-
mendations , Respondent shall offer him reinstatement , less his net earnings,82
during said period ;
(b) Post at its plant in Leominster , Massachusetts , on all bulletin boards or
such places as notices customarily are posted , copies of the notice attached hereto,
marked "Appendix A." Copies of said notice , to be furnished by the Regional
Director for the First Region, shall , after being signed by Respondent 's repre-
sentative , be posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty ( 60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(c) Notify the Regional Director for the First Region in writing, within ten
(10) days from the receipt of this Intermediate Report what steps the Re-
spondent has taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, Respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring Respondent to take the action
aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board , Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen ( 15) days from the date of service of
the order transferring the case to the Board , pursuant to Section 203.38 of said
Rules and Regulations , file with the Board, Rochambeau Building , Washington
25, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections ) as he relies
upon, together with the original and four copies of a brief in support thereof;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203.39,
See footnote 27, supra,
82 See footnote 28, supra.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the,Board within ten (10) days from the
date of service of the order transferring the case to the Board.
WILLIAM E. SPENCER,
Trial Examiner.
Dated November 26, 1946.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist UNITED FURNITURE WORKERS OF AMERICA,
LOCAL No. 154, affiliated with the Congress of Industrial Organizations, or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their- former or substantially equivalent positions. without
prejudice to any seniority or other rights and privileges previously enjoyed,
and to make them whole for any loss of pay suffered as a result of the
discrimination.
Leandre Roy
William Marien
Alphonse Landry
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any of our employees because of membership in or activity on behalf of any
labor organization.
SELIG MANUFACTURING COMPANY, INC.,
Employer.
Dated--------------------- By ------------------------------------------
(Representative) (Title)
NOTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.