Sorg Paper Co.

National Labor Relations Board - Board Decisions

Jul 27, 1940

25 N.L.R.B. 946 (N.L.R.B. 1940)

In the Matter Of SORG PAPER COMPANY Mid UNITED PAPER WORKERS
LOCAL INDUSTRIAL UNION No. 112, AFFILIATED WITH THE C. I. 0.
Case No. C-1498.-Decided July 27, 1940
Jurisdiction : paper manufacturing industry.
Unfair Labor Practices
In general,: responsibility for activities of supervisory employees without
authority to hire or discharge.
Attorney hired by persons acting in behalf of respondent in forming
company union held also to act on behalf of respondent.
Inter Terence, Restraint, and Coercion: anti-union statements ; interrogation
concerning union membership ; action of supervisory employees in signing and
encouraging employees to sign a petition opposing union's contention respect-
ing the appropriate unit; encouraging employees to vote against union in
the election.
Company-Dominated Unions: employee representation plan, continuation of,
created by employee representatives under plan ; participation by repre-
sentatives of management in formation and administration ; contribution of
support ; permitting employees to solicit members on company time and
property while denying the same privilege to outside labor organization ;
failure to take any action with regard,to abandonment'of Plan or to notify
employees of its neutrality ; limitation of bargaining to inconsequential
conditions of employment ; recognition on basis of membership reports sub-
mitted by accountant which it hired while refusing to deal with outside
union certified by the Board.
Discrimination: discharge ; refusal to reinstate following shut-down ; charges of,
dismissed as to certain persons.
Collective Bargaining: designation of majority by certification; refusal to
meet and negotiate ; objections concerning appropriate unit and results of
election held without merit.
Remedial Orders : disestablishment of company-dominated unions and abroga-
tion of contracts ordered ; reinstatement and back pay awarded ; ordered
to bargain collectively upon request. -
Respondent ordered to reinstate insurance policies lost by employee when
respondent refused to accept premiums after discriminatory discharge
or to provide a substantially equivalent substitute therefor upon payment
of the money which would have been paid on the insurance policies.
Unit Appropriate for Collective Bargaining : production employees in both the
Paper Mill and the Bag Division, excluding office workers, supervisory
employees who have the right to hire and discharge, and watchmen. -
25 N. L. R. B., No. 104.
946
SORG PAPER COMPANY 947
Mrs. Mary Telker Iliff, for the Board.
Nichols, Wood, Marx c6 Ginter, of Cincinnati, Ohio, by Mr. Robert
S. Marx, Mr. Edward M. Brown, and Mr. Harry Kas fir, for the
respondent.
Mr. Elliott D. Levey, of Middletown, Ohio, for the Sorg
Association and the Superior Association.
Mr. Edward Scheunemann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Paper
Workers Local Industrial Union No. 112, affiliated with the C. I. 0.,
herein called the United, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Ninth Region
(Cincinnati, Ohio), issued its complaint dated January 23, 1939,
against Sorg Paper Company, Middletown, Ohio, herein called the
respondent, alleging that the respondent had engaged in and was
engaging 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. Copies of the complaint, accompanied by notices of hearing
thereon, were duly served upon the respondent, the United, the Sorg
Paper Company Employees Association, herein called the Sorg
Association, and the Superior-Lawrence Employees Association,
herein called the Superior Association.
The complaint alleged in substance (1) that on or about April 1,
1938, the respondent formed, and at all times thereafter encouraged
and contributed support to the Sorg Association; (2) that on or
about August 15, 1938, the respondent formed and at all times there-
after encouraged and contributed support to the Superior Associa-
tion; (3) that on November 28, 1938, and at all times thereafter, the
respondent refused to bargain with the United, the exclusive repre-
sentative of the employees in an appropriate unit; (4) that at various
times between June 15, 1937, and December 3, 1938, the respondent
discriminated in regard to the hire and tenure and terms and condi-
tions of employment of eight named employees because they joined
and assisted the United; and (5) that by these acts, by derogatory
remarks concerning the United, by threats to close one of its plants,
by the circulation of anti-union pamphlets, and by surveillance of
the union activities of its employees since July 5, 1935, the respond-
'948 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
ent interfered with, restrained, and coerced its employees in .the
exercise of rights guaranteed in Section 7 of the act.
On January 28, 1939, the respondent filed its answer in which it
(1) admitted that on and after November 28, 1938, it refused to
bargain with the United and that it laid off, demoted, or discharged
-the employees named in the complaint, (2) alleged that the United
did not represent a majority of the employees in an appropriate unit
and that it terminated the employment of the persons named for
proper cause, and ' (3) denied that it had engaged in any of the
unfair labor practices alleged in the complaint. The answer con-
-cluded by moving that the complaint be dismissed. The motion is
hereby denied.
On January 25, 1939, the Sorg Association moved for permission
-to intervene; on January 28, 1939, the Regional Director granted
the motion. On February 7, 1939, the Superior Association moved
for permission to intervene and the Regional Director granted the
motion?
Pursuant to notice and notices of postponement, a hearing was
held at Middletown, Ohio, from February 9, 1939, with intermittent
adjournments, to April 8, 1939, before Earl S. Bellman, the Trial
Examiner duly designated by the Board. The Board, the respondent,
-the Sorg Association, and the Superior Association were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
hearing the Board moved orally to) amend the complaint by adding
in substance the allegations (1) that the respondent on or about
iNovember 27, 1937, terminated the employment of Dorace Crain 2
and at all times thereafter refused to reinstate him because he joined
:and assisted the United, and (2) that on or about June 15, 1937, the
respondent terminated the employment of Dorothy Montgomery
.and at all times since July 1, 1937, refused to reinstate her because
she joined and assisted the United.
The Trial Examiner, over the objection of the respondent, granted
-the motion of the Board, and ruled that no testimony would be
taken on the additional allegations for 5 days during which period
the respondent could file its answer to them. The ruling is hereby
affirmed. On March 4, 1939, the Board introduced in evidence
its written amendments to the complaint incorporating the oral
amendments referred to above, and on March 27, 1939, the respondent
introduced in evidence its amendments to the answer in which it
i We shall occasionally herein refer to the Sorg Association and the Superior Association
jointly as the Intervenors.
2 Also referred to in the record as "Dorsey Crane."
SORG PAPER COMPANY 949
admitted that it had terminated the employment of Crain and
Montgomery, alleged that the failure to include their names in
the complaint originally constituted a waiver and abandonment of
their claims, and denied that it had engaged in the unfair labor
practices alleged in the amendment.
During the course of the hearing the Trial Examiner made a
number of other rulings on motions and on objections to the admis-
sion of evidence. In its exceptions and its brief the respondent con-
tends, among other things, that it was denied a fair hearing and
prejudiced in the presentation of its defense on the grounds that
the Trial Examiner refused to require the attorney for the Board
to make available to it all written statements and affidavits of wit-
nesses for the Board so that the respondent might use them in cross-
examination; that he denied the respondent's application for sub-
poenas ordering the United to produce its membership lists and
other documents; that he refused to require the production of
charges filed by Effie Wikel prior to the fifth amended charge, which
is the basis of the complaint herein; and that he did not protect
adequately the respondent's witnesses from intimidation.,
We have examined and reviewed the record of the instances at
the hearing cited by the respondent in support of its contentions and
conclude that the respondent was not denied a fair hearing or
prejudiced by the rulings of the Trial Examiner. His rulings are
hereby affirmed.
On May 1, 1939, at the conclusion of the hearing, the respondent,
the Superior Association, and the Sorg Association filed briefs with'
the Trial Examiner.
On February 26, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. He found
that the respondent had engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (2), (3), and (5) of
the Act, and recommended that the respondent cease and desist from
"The i espondent's contention in this i espect is based on the following incident At the
close of the morning session on March 7, 1939, counsel foi the respondent reported to the
Trial Examinei that Heibert Isbell, son of Sam Isbell, one of the claimants in this pno-
ceedmg, had struck Paul Herb (also referred to in the record as "Pete" Heib) and had
threatened Ilei b and Edward Ells, two of the respondent's witnesses, because of testi-
mony they had green concerning Sam Isbell The Trial Examiner adjourned the healing
until 2 00 p in of the Caine day, and at 2 00 p in the hearing was adjourned further
-until March 27, 1939; because of the illness of the Timl Examiner At that time, the
Trial Examiner subpenaed Herbert Isbell, Heib, and Ellis and examined them concerning
the incident At the conclusion of the examination, he adiised Isbell that his conduct
appeared to be definitely improper, lead to him Section' 12 of the Act providing for
prosecution for nnterleience with the agents of the Boaid, and warned him that such
conduct on has pant m the futnie would make him subject to.severe penalties under the
laws of.the United States Isbell piomised to abstain from any interference with the
hearing or the witnesses Both Herb and Ellis testified that the incident did not affect
their testimony At the conclusion of the lieaiing• all parties stated that no other such
incident hall subsequently been called to their attention
28'10i0-42-vol 2: --61
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such violations, disestablish the Sorg Association and the Superior
Association and withdraw recognition from them, reinstate with back
pay the employees discriminatorily discharged or laid off and not
reinstated, and proceed to bargain collectively with the United. He
also found that some of the discharges and lay-offs alleged in the
complaint were not discriminatory and recommended that the
complaint be dismissed as to them.
On April 8, 1940, the respondent, the Sorg Association, and the
Superior Association filed exceptions to the Intermediate Report.
On the same day the respondent filed a Motion to Reopen the
Record to admit certain testimony and exhibits received by the Special
Committee to Investigate the National Labor Relations Board.' The
material sought to be incorporated in the record concerned the pro-
ceedings subsequent to the United's Petition for Investigation and
Certification of Representatives, filed December 9, 1937, and culmi-
nating in the certification of the United as exclusive bargaining
agency on October 11, 1938.' We have taken judicial notice of the
testimony and exhibits sought to be incorporated in the record, and
find them to be immaterial to the present proceedings. The motion
to reopen the record is hereby denied.
On May 6, 1940, the respondent, and on May 14, 1940, the Superior
Association and the Sorg Association filed briefs with the Board.
On May 14, 1940, pursuant to notice, a hearing was held before
the Board in Washington, D. C., for the purpose of oral argument.
The respondent, the Sorg Association, and the Superior Association
were represented by counsel and presented argument.
The Board has considered the exceptions to the Intermediate Re-
port, and the briefs in support thereof, and, save as the exceptions
are consistent with the findings, conclusions, and order set forth
below, finds them to be without merit.
Upon the entire record in the case, the Board snakes the following :
FINDINGS OF FACT
1. THE RESPONDENT AND-ITS BUSINESS
The respondent is an Ohio corporation with its principal office
and place of business in Middletown, Ohio. It was formed by the
merger on January 2, 1931, of the W. B. Ogelsby Company, the Paul
A. Sorg Paper Company, and the Frank Smith Paper Company.
In May 1936, the respondent acquired the assets of the Lawrence Bag
Company and the Superior Bag and Paper Corporation, also located
in Middletown, Ohio, and has since operated said properties as its
Established pursuant to H R 258 of the 76th Congress, First Session
^9N L. R B.186.
BORG PAPER COMPANY 951
Bag Division. The Bag Division is located at a distance of a few
blocks from the Paper Mill.
The respondent manufactures various grades of paper in its Paper
Mill and paper bags in its Bag Division. It obtains approximately
90 per cent of the raw materials used in its Paper Mill from sources
outside the State of Ohio, and it sells approximately 33 per cent of
the finished paper outside the State of Ohio. It obtains approxi-
mately 5 percent of the raw materials used in its Bag Division from
sources outside the State of Ohio, and it sells approximately 70 per
cent of the finished bags outside the State of Ohio.
The respondent employs approximately 456 employees in' its Paper
Mill and 180 employees in its Bag Division, exclusive of office
employees.
II. THE ORGANIZATIONS INVOLVED
United Paper Workers Local Industrial Union No. 112 is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership production employees of the respondent.
The Sorg Paper Company Employees Association is an unaffiliated
labor organization. It admits to membership the respondent's em-
ployees in the Paper Mill.
The Superior-Lawrence Employees Association is an unaffiliated
labor organization. It admits to ,»enibersliip the respondent's em-
ployees in the Bag Division.
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events; inter f erence, restraint, and coercion
Early in March 1937 the United began organizing the employees
of the respondent. On or about March 16, 1937, Fred Taulbee, Lloyd
Burnett, and Boyd Cox, employees in the finishing department of the
Bag Division, circulated a petition among some of the employees to
determine whether they desired to be represented by the United.
Shortly thereafter, E. E. Brown, manager of the Bag Division, called
Taulbee and Burnett into his office separately, accused them of trying
to start trouble in the plant, and told Taulbee that lie "was due for
a bump" if be continued his activity.?
1
9 The above statement of facts is taken from a stipulation of the pasties as couected
at the hearing
'Brown testified that his conversations with Taulbee and Burnett referred only to
,reports which Marion Faulkner, a foreman, had made to him that Taulbee, Burnett and
others were attempting to force another employee, Earl Wilson, to slow down his to oduc-
tion Taulbee denied any such attempts or that Brown had ever spoken to him conceunmg
it. Without deciding whether the conversations were concerned in part with the alleged
"slow dawn," we are satisfied from the findings of the Trial Examiner, the testimony of
Taulbee and Burnett, and from Brown's subsequent speech to the employees, hereinafter
referred to, that Brown's conversations with Taulbee and Burnett were directed toward
their activity in organizing the United It is clear that Taulbee and Barnett so interpreted
then
952 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
On March 17,1937, Manager Brown made a speech to the employees
of the Bag Division assembled at his request immediately after work-
ing hours on the second floor of the plant. He'testified that he was
concerned because production in the Bag Division was below stand-
ard, and that he had called the employees together to read to them
a speech which he had dictated beforehand. The speech, a copy of
which was introduced in evidence by the respondent, calls attention
to the fact that the Bag Division was losing money and requests in
substance that the employees increase their efficiency and their pro-
duction. It begins with the words, "I have asked you to meet with
me this afternoon because I have learned that there is an effort being
made to organize the workers in the plant." The employees called
by the Board who testified concerning the speech stated in substance
that Brown, after making the statement quoted above, referred to
the cost of the strikes then being conducted in the automobile in-
dustry, and said that he did not want any trouble such as he had had
in 1934 with another union while he was operating the Lawrence Bag
Company,' that there was no law which could compel him to ride
Pullmans and airplanes to get orders to keep the employees at work,
and that he would shut down the plant and rent it for storage space
before he would allow an outside union to come in "and tell him
how to rtin his business." Brown denied making the foregoing state-
ments and contended that he confined himself to the written speech
Which was introduced in evidence. His testimony in that respect is
corroborated by that of his secretary to whom he dictated the speech.
A witness called by the Superior Association testifed that she
"couldn't remember much about the speech," but that she did not
believe from it that Brown "was anti-C.I.O." Two other witnesses
were called by the respondent to testify concerning the speech. Both
stated that they "didn't remember" any references to the United,; but
that some of the employees believed after the speech that Brown
intended to close the plant if the United continued. One of them
also testified that Brown said that the union at the Lawrence Bag
Company had "double-crossed" its members, and that he could "do as
much for [the employees] as any outsider that could come in to run
the business." It is undenied that Brown spoke for from 30 to 45
8 The "trouble" referred to arose out of an attempt by the International Brotherhood
of Pulp, Sulphite and Paper Mill workers to organize the employees There was appar-
ently dissension within the union because some of the employees believed that one of the
organizers had absconded with union dues In addition, a controversy arose between
Brown and one of the union officials relative to proposals which Brown was alleged to
have made concerning the abolition of night work in the paper-bag industry in the codes
of fair competition then being set up under the National Industrial Recovery Act The
trouble culminated in the collapse of the organizing efforts after B_owwn had called the
employees together and vigorously expressed his resentment because lie believed "the
union had called hint a liar " Shortly after the speech an emplo ee circulated a petition
for an "inside union" advising the other employees that "if we wanted to work there we
had better sign "
SORG PAPER COMPANY 953
minutes whereas the copy of the speech to Which he contends he con-
fined himself is short, and_even if react very slowly could not have
taken more than 15 minutes. In this respect the Trial Examiner re-
ported, from his observation of the witness and his demeanor on the
stand, that :
Manager Brown is a very dynamic and somewhat volatile indi-
vidual who might have extemporized 10 minutes of notes into a 3/4
hour speech.
We find, as did the Trial Examiner, that Brown did not confine
himself to the prepared speech, that he made the remarks set out
above' and that the effect and intent of his remarks was to discourage
membership in the United.°
On June 15, 1937, the respondent closed the Bag Division because
of a shortage of paper and paper pulp. On June 17, 1937, it re-
sumed production and began to reinstate the employees who had been
working previous to June 15. On July 6, 1937, Fred Taulbee, one
of the most prominent union members, was called back to work.
He testified, but Brown denied, that on the same clay Brown called
him into the office, asked him if he was not "getting discouraged
with the Union," and if he did not think the union organizer was
unfair in filing charges with the Board. We find, as did the Trial
Examiner, that Brown made the foregoing statements, and that they
Were intended to restrain Taulbee's activity on behalf of the United.
In November 1937 the United asked the respondent to recognize
it as the exclusive bargaining agent for the employees. The re-
spondent refused to do so until the United proved that it represented
a majority of the employees. On December 13, 1937, the United
filed its petition with the Board requesting an investigation and cer-
tification of representatives. On January 14, 1938, the Board ordered
a hearing on the petition, which, by agreement of the parties, was
finally scheduled for March 18, 1938.
On March 7, 1938, the respondent discharged Sam Isbell, a janitor
in the Paper Mill, under circumstances which we shall discuss here-
after.
° In July 1937, following the shut-doisn of the Bag Division, hereinafter discussed,
several conferences were held between agents of the Board and the respondent relative to
a charge filed by the United alleging that the respondent had "locked out" its employees
in violation of Section 8 (3) of the Act and to the reinstatement of employees who had
been laid off It appears that at one of the conferences, attended by representatives of
the Board, the United and the respondent, Brown's speech of March 17 was also discussed
As a result of the conferences the respondent voluntarily posted notices setting forth
Sections 7 and 8 of the Act, and stating that it was the policy of the respondent to abide
by them. The respondent contends in its brief that this constituted a settlement of the
issues arising out of events prior to the shut-down which we should not disregard. We
cannot accept the contention since the conferences were concerned with the "lock-out"
charge, Nihich is not a part of this proceeding, there is no evidence of any agreement or
settlement concerning Brown 's speech , and, as we shall note hereafter , the respondent
continued to engage in activity also in violation of Section 8 (1) of the Act
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before the hearing on the petition, Judge Marx, attorney
for the respondent, interviewed several employees, including Emil
Boxwell, foreman in charge of the truck drivers, in preparation of
the respondent's case at the hearing. Walter Thompson, president
of the United, and one of the six truck drivers working under Box-
well, testified that immediately after the interview, Boxwell told him
he had asked Marx why the respondent did not recognize the United
and that Marx had replied "Mr. Aull [president of the respondent]
does not believe in an outside organization." According to Thomp-
son's testimony, Boxwell also stated that he had been instructed by
Marx "to keep an eye on [Thompson], and get something on him." io
Thomas Murphy, another truck driver under Boxwell's supervision,
testified that Boxwell had told him that lie had been instructed in
the office "to watch Mr. Thompson close and if he could get anything
on him, report it to the office and Thompson would be dismissed at
once." Boxwell admitted stating to Murphy that "if we ever get
anything on [Thompson] it would be too bad" because of "the way
he was peddling the C. I. 0." He admitted further stating to
Thompson that "Aull would never stand for the C. I. 0." He, testi-
fied that the statements he made to Thompson and Murphy were his
own opinions, and that he felt that Thompson would have to be
more careful than the other employees because of his union activity.
He denied, however, that Marx or the officers of the respondent had
so instructed him.
It is not necessary to decide whether Marx or the respondent's
officers specifically told Boxwell that they would not "stand for the
C. I. 0." and instructed him to "get something on Thompson." Box-
well was a supervisory employee in charge of the truck drivers and
the agent of the respondent in dealing with them." His belief that
the respondent opposed the United and intended to discriminate
against its leaders is indicative that the respondent's policy was to
oppose and defeat the attempts of the employees toward self-organi-
1° The Trial Examiner commented in the Intermediate Report that Thompson's testi-
mony in this respect was first opened up on cross-examination by counsel for the Inter-
venors and was "quite spontaneous and highly credible "
11 The respondent contends that Boxwell does not represent the respondent as a super-
visory employee because, although challenged, he was allowed to Note in the election of
August 9, 1938. The Direction of Election, however, did not bar all supervisory em-
ployees, but only those who had the right to hire and dischaige It is well settled that
employees performing supervisory duties but having no power to hire or discharge may
bind their employer Ni hen they engage in conduct amounting to unfair labor practices We
find that Boxuell's position is such that the respondent is responsible for his statements
Int Assn of Machsnasts, Tool and Die Mal.crs Lodge No 35. et al v N L R. B, 110
F (2d) 29 (C A. D C ) enf'g Matter of^The Serric'„ Corp and Tat Union, United Auto-
mobile Workeis of Amer, Local No 459, S N L R B 621 . Swift & Company v N L R B ,
106 F (2d) 87 (C. C A. 10) enf'g as mod , Matter of Swift & Co and Amal Meat Cutters
and Butcher Worlmen of N. A, 7 N L R B 269; American Manufacturing Co, v
N. L R. B , 106 F. (2d) 61 (C C A 2) enf'g.Matter of American Manufacturing Co
et al and Textile (Porters Organ. Comm . C 1 0, 5 N L R B 443
SORG PAPER COMPANY 955
zation in the United , whether or not the policy was expressed ex-
plicitly by its officers. Moreover, even had he acted without specific
authorization from the officers of the respondent, it is clear that
Boxwell's statements made to employees directly under his supervi-
sion could only convey to them a direct warning that they should
not engage in union activity, and that the respondent opposed their
attempts at self-organization.
The respondent contended at the hearing on the petition that the
Paper Mill and the Bag Division should be treated as separate units
for purposes of collective bargaining. Immediately after the hear-
ing, Carl Thompson, who subsequently became the organizer of the
Superior Association, and certain other employees, circulated a peti-
tion during working hours in the Bag Division. The petition, ad-
dressed to, the Board, stated that the employees of the Bag Division
desired to be treated as a separate unit from the Paper Mill. It
was signed by a large number of employees, including four super-
visory employees, C. C. Eagle, superintendent of manufacturing,
Richard McMahon, superintendent of maintenance, Robert Leonard,
foreman of the printing department, and Marion Faulkner, foreman
of the finishing department. Although the petition is'-directly op-
posed to the United's contention that the two divisions constitute one
unit, it was nevertheless signed by four members of the United, all
of whose signatures appear after that of Superintendent Eagle. One
of them, Nora Walton, testified that Thompson called her into
Eagle's office and requested that she sig i. When she replied that
she did not understand it and "didn't want to sign anything that
would be against the United," Eagle instructed her "Go ahead, it's
all right." Eagle admitted signing the petition but denied that he
had advised Walton to sign. Thompson did not testify concerning
the incident. We find, as did the Trial Examiner, that Eagle en-
couraged Walton to sign the petition in the manner set out above.
In April 1938, shortly after the hearing, several employees of
the Paper Mill formed the Sorg Association, which we shall discuss
more fully hereafter.
On July 27, 1938 , the Board issued its Decision and Direction of
Election oii the United's petition." It found that a question affect-
ing commerce had risen concerning the representation of the em-
ployees of the respondent in an appropriate unit consisting of all
production employees in both the Paper Mill and the Bag Division,
excluding office workers , supervisory employees who have the right
to hire and discharge, -and watchmen. The Board directed the
Regional Director for the Ninth Region to conduct an election by
secret ballot to determine whether the employees in the appropriate
12 8 N L R B 657
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit desired to be represented by the United for purposes of collec-
tive bargaining.
Prior to the election, Charles Aull, assistant secretary of the re-
spondent in charge of the building mainlenance and repair crews
in the Paper Mill, and brother of J.- A. Aull, president of the
respondent, asked Vernon Puckett, foreman in charge of the yard
gang under Aull, if he belonged to the United. Puckett replied
that he did not and Aull said, "Don't then. II don't think it is
right for the men that is giving you your bread and butter to give
the Labor Board a whack at us." On August 8, 1938, the day before
the election, Aull asked Puckett if he knew "where the men stood."
Puckett replied that he did not know, but that he might find out -
and Aull said, "I wish you would and tell them how to vote." On
the same day Aull asked Lewis Carter, one of the employees under
his supervision, if he knew how to vote in the election. Carter
replied that lie did, and Aull said, "Don't vote for the C. I. O. because
this is serious. This means butter and bread, this is a serious
matter; these organizers, they come and get the money and then
they will sit down and don't do anything and they will leave you
with the bag to hold."
Early in September 1938, after the election but before the certifi-
cation of the United, Aull asked Earl Wilson, an employee under
his supervision, if he belonged to the C. I. O. Wilson answered
that he did, and explained that "he was just sticking with the other
fellows." Aull then asked him if he "thought he was doing right,"
and stated that the respondent had always been "good to the fel-
lows," and their action in joining the C. I. O. was "like sticking a
knife in our backs."Is
The respondent, by Brown's interviews with Taulbee and Burnett,
his threats to give Taulbee "a bump" if he continued his union ac-
tivity, and his speech to the employees on March 17,1937; by Boxwell's
statements that the respondent would not stand for the C. I. 0., and
would attempt "to get something on Thompson"; by the action of its
supervisory employees in signing a petition opposing the United's con-
tention respecting the appropriate unit; by Eagle's action in encourag-
ing Walton to sign the petition; by Aull's interrogation of the
employees concerning their union membership; and by his statements
to the employees encouraging them to vote against the United in the
election, clearly expressed its hostility to the United, and its opposition
to the union membership and activity of its employees.
We find that the respondent by the foregoing statements and activ-
ities,of its officers and agents interfered with, restrained, and coerced
13 Aull denied making any of the foiegoing statements In view of the findings of the
Trial Examiner, the testimony of Wilson, Puckett, and Caitei, and Aull's activity con-
cerning the discharging of Sam Isbell, noted below, we do not credit his denial
SORG PAPER COMPANY 957
its employees in the exercise of their rights to self -organization, to
form, join , or assist labor organizations , to bargain collectively through
representatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid and
protection as guaranteed in Section 7 of the Act.
B. The refusal to bargain
1. The appropriate unit
The complaint alleged, the answer denied, and the Trial Examiner
found that the production employees of the. respondent in both the
Paper Mill and the Bag Division, excluding office workers, super-
visory employees who have the right to hire and discharge, and watch-
men, constitute a unit appropriate for purposes of collective
bargaining. The respondent takes exception.
The respondent contended at the hearing on the United's petition
for investigation and certification 'of representatives, and contends
here, that the employees of the Paper Mill and those in the Bag Di-
vision constitute separate appropriate units. In our Decision and
Direction of Election on July 27, 1938, we rejected the respondent's
contention and found the combined unit to be appropriate.14 We have
reviewed the evidence offered with respect to the unit and find no
reason to depart from our previous determination. In fact, we believe
the present record discloses further the community of interest existing
between the employees of the Paper Mill and the Bag Division. Such
evidence as exists purporting to show a desire on the part of the em
ployees to be separated into two units is clearly attributable to the
respondent, which, through its supervisory employees, signed and en-
couraged other employees to sign, the petition requesting separate
units; urged its employees to vote against the United, and finally, as
we find below, dominated and supported separate organizations in
the Paper Mill and the Bag Division.
For the reasons expressed in our previous decision, and upon the
entire record in the case, we find that the production employees of the
respondent in both the Paper Mill and the Bag Division, excluding
office workers, supervisory employees who have the right to hire and
discharge, and watchmen, constitute and at all times material herein
constituted a unit appropriate for the purposes of collective bargaining.
2. Representation by the United of a majority in the appropriate unit
On August 9, 1938, the Regional Director conducted an election,
pursuant to our Decision and Direction of Election , among the em-
ployees in the appropriate unit. On August 26, 1938, the Regional
148N L R B 657
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director issued and duly served upon the parties his Intermediate
Election] Report on the balloting and the conduct of the election.
He reported that 265 unchallenged, votes were cast for the United, 257
unchallenged votes against the United, and that 13 ballots were chal-
lenged, 3 contested, 1 spoiled, and 12 blank. He recommended that
one of the contested ballots be counted, and that the challenges be
allowed as to five of the ballots, not allowed as to six, and that the
two remaining challenged ballots be disregarded unless a disposition
of the challenges as to them became necessary to determine the result
of the election . In each case he set forth a statement of the facts upon
which he based his recommendation. He recommended, finally, that,
since the United would have a majority even if all of the challenged
ballots which he recommended be counted were cast against it, the
Board certify the United as exclusive bargaining representative. On
August 31, 1938, the respondent filed with the Board its Objections to
the Ballot and the Intermediate Report, in which it opposed the recom-
mendations of the Regional Director, set forth a' statement of the
evidence upon which it based its contentions, and requested a hearing
on its objections. The Board duly considered the Intermediate Re-
port, the respondent's objections thereto, and the respondent's motion.
It concluded that the respondent's objections raised no substantial or
material question with respect to the balloting or the conduct of the
election. On October 11, 1938, the Board denied the respondent's
motion for a hearing and, pursuant to the recommendations of the
Regional Director, certified the United as exclusive bargaining repre-
sentative of the employees in the appropriate unit.'
We have reviewed the Intermediate [Election] Report and the
respondent's objections thereto and find no reason to depart from our
previous determination.
We find that on April 9, 1938, and at all times thereafter, the United
was the duly designated representative of a majority of the employees
in the appropriate unit, and that by virtue of Section 9 (a) of the Act
it was the exclusive representative of all the employees in said 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
The respondent, the United, and the Board stipulated, in substance,
that on or about November 29, 1938, the United, requested and the re-,
spondent, then, and at all times thereafter, refused to bargain with
the United as the exclusive bargaining representative of the employees
in the appropriate unit. We have found the respondent's objections
concerning the appropriate unit and the results of the election, upon
15 9 N L. R B 136
SORG PAPER COMPANY 959
which it contends it based its refusal to bargain, to be without merit.
Moreover, we are'not persuaded ithat the respondent's refusal was based
in, good faith upon such contentions. From 'the beginning of the
United's organizing campaign, the respondent, as we have noted above,
sought to discourage the union membership and activity of its em-
ployees. After the hearing on the United's petition, the respondent
encouraged its employees to oppose the unit requested by the United,
by signing a petition stating that they desired separate units. Before
the Board issued its Decision and Direction of Election, and before
the contentions concerning the appropriate unit had been decided, the
respondent took the issue into its own hands, as will hereafter appear,
by dominating and supporting the Sorg Association, organized in a
unit consisting only of the Paper Mill employees. After the Direc-
tion of Election had been issued, the respondent urged and advised its
employees to vote against the United in the election. Finally, after
the election, while its contentions respecting the unit and the election
were still pending before the Board, and without waiting for the de-
termination of the results of the election among its employees, the
respondent recognized the Superior Association, which it also dom-
inated and supported, as the representative of the Bag Division em-
ployees in a separate unit. The respondent's above-mentioned
activities exhibit its determination not to deal with the United, regard-
less of the employees' desires as to their bargaining representative or
the unit in which they should be represented.
We find that the respondent on November 28, 1938, and at all
times thereafter, refused to bargain collectively with the United
as the exclusive representative of its employees in an appropriate
unit, and that the respondent thereby interfered with, restrained,
and coerced its employees in the' exercise of rights guaranteed in
Section 7 of the Act.
C. Discrimination in regard to hire or tenure of employment
The complaint, as amended at the hearing, alleges that the re-
spondent discriminated against 10 employees in regard to their hire
and tenure of employment. At the hearing, the Trial Examiner
dismissed without prejudice the allegations concerning Dorace Crain,
who did not appear to testify. In his Intermediate Report, the
Trial Examiner dismissed the allegations concerning Charles Terrill,
Dorothy Montgomery, Matt Combs, Vernon Puckett, Sie Powers,
Charles Nolan, and Harry Newcomb. No exceptions have been filed
by any of the parties to the dismissal of these allegations." We
10 The respondent excepted to the ruling dismissing the complaint as to Dorace Crain
without prejudice The ruling of the Trial Examiner was based on the absence of proof
that Crain had been notified that his name had been added to the complaint In view
of the time which has elapsed since the hearing, we shall at this time - dismiss the allega-
tions as to Crain without qualification
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have, nevertheless, reviewed the evidence bearing upon the alleged
discrimination against these eight employees, and conclude that none
of them was discriminatorily laid off or discharged in order to dis-
courage membership in the United. Accordingly, we shall- dismiss
the allegations of the complaint, as amended, with respect to Terrill,
Montgomery, Combs, Pocket, Powers, Nolan, Crain, and Newcomb.
The Trial Examiner found that in not reinstating Effie Wikel
after June 14, 1937, when the Bag Division was closed temporarily,
and by discharging Sam Isbell on March 7, 1938, the respondent
discriminated against them because of their union affiliation and
activity. The respondent takes exception.
Sam Isbell began working for the respondent in 1930 as a com-
mon laborer. In 1936, at his request, Charles Aull appointed him
janitor of the Smith Mill, one of the respondent's mill buildings,
formerly owned by the Frank Smith Paper Company. On or about
March 7, 1938, he was discharged by Edward Ellis, superintendent
of the Smith Mill. A few days later, in a conference with union
representatives, the officials of the respondent decided to support
Ellis' action despite the contention of the United that Isbell had
been discharged for his union activity.
Isbell had joined the United in May 1937. He wore his union
button constantly while at work, and painted the letters "C. I. 0."
on the box which he pushed through the mill collecting trash and
dirt. He was credited by Walter Thompson, president of the United,
with being the most active employee in soliciting membership in its
behalf.
It is clear that- Isbell's union membership and activity had come
to the attention of the respondent's officials. Homer Feerer, tour
boss,17 told Isbell in substance, apparently as a platter of friendly
advice, that he was "too old to fool with" the United and that he
had better stop doing so before he was fired''
Approximately 3 weeks before he discharged Isbell, Superintendent
Ellis questioned Arnold Pergram concerning Isbell's union activity.
Pergram testified concerning the conversation, in part, as follows:
The he [Ellis] went on, and he, says "What office does that
old man that works down in the basement hold?" I says, "What
" As tour boss reerei exercised general supervision over the employees operating ma-
chines in the beater room of the Smith Mill, and had power to recommend hiring and
discharging
1s Feerer denied the conversation with Isbell, but admitted that he knew Isbell belonged
to the C I. 0 The,Trial Examiner, who heaid the testimony and observed the witnesses,
found that the conversation, in part, occurred substantially as set out above We, there-
fore, do not credit Feerer's denial
SORG PAPER COMPANY 961
old man do you mean?" He says, "The old man that sweeps
the basement out and cleans the oil and stuff up."
Q. And what did you answer?
A. I told him that Mr. Isbell didn't hold any office over there,
to my knowledge, although he was a member of the Union.',,
On or about March 7, 1938, when Isbell was discharged, Ellis took
the extraordinary precaution of calling Feerer and Paul Herb as
witnesses to observe' oily rags which Ellis alleged Isbell had allowed
to remain in the basement,'' and also of writing out a statement of
the events surrounding the discharge. The statement was prepared
by Ellis before he discharged Isbell at the suggestion of Lloyd Ritz,
comptroller of the respondent, who testified that he considered it
advisable because of they United's petition for certification as bargain-
ing representative then pending before the 'Board. No such pre-
cautions, however, were taken concerning the discharges of other
employees during the same period.
Approximately 3 weeks after Isbell had been discharged, Charles
Aull, who befriended Isbell by obtaining for him a temporary job
on a golf course, asked Isbell to sign an affidavit stating that he did
not belong to the C. I. O. Aull's testimony concerning the conver-
sation and events preceding the request is contradictory, but the
ultimate reason for his request is clear :
Q. You thought you [Aull] could get hunt [Isbell] his job back
if he signed that paper?
A. I did.,
wwEllis denied the foregoing conversation oath Petgiam and futthet denied that he
knew Isbell belonged to the C. 1 0 In view of the evidence that Isbell's menibeisiup was
open and notorious, and in view of the findings of the Tiial Examiner, we do not credit
his denials
20 E,1118 testimony, in pant is as follows
Q And you also took Pete IIeib there with you as a witness
A At this particular time, yes
Q And also y on took Feerer to be anothet w fitness duln t i on
A Absolutely, yes
Q Why did you need witnesses, Mi Ellis
A Well, my woad is good I didn't ha%e to have anv witnesses in pantr(ulai They
just happened to be with me
Q You called their over, didn't ) on
A No They was with me
Q And you told them you needed witnesses, didn't yon'
A I didn't tell them I needed witnesses
Q And then yon asked them to sign a paper that they had witnessed it"
A I didn't ask them to sign nothing
Q Didn t then sign a paper that they had witnessed it'
A I didn't ask them to sign any thing
Herb testified that Ellis had come to hint and said "Paul, heie, (Intel(, I want to show
you and-get Feerei theie and Satn,' and had then taken hint into the basement to obseive-
the rags lie testified further that Ellis requested both him and Feeret to sign a written
statement concerning the discharge Feeier also testified that Ellis had taken him into
-the basement to observe the rags , he did not testify w liether Ellis asked him to sign the
statement
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And you wanted to help him out?,
A. I did. I always tried to help him all I could.21
The respondent contends that it discharged Isbell because he was
inefficient. In support of its contention the respondent called several
witnesses who testified that in their opinion Isbell did not perform
his duties properly. Much of this testimony is so general as to
be meaningless. Moreover, it is contradicted directly by the testi-
mony of other witnesses.22 At the time it discharged Isbell, the re-
spondent, through Ellis, relied on two specific instances of Isbell's
alleged inefficiency, first, that Isbell had not cleaned the third floor
as he had been instructed to do, and, second, that he had allowed
"oily rags" to remain in the basement. Concerning the first instance,
the testimony of the roustabouts who worked on the third floor
establishes that Isbell had cleaned it in accordance with the instruc-
tions given him. It is clear that Ellis made no investigation of
Isbell's purported deficiency but, merely seized upon the alleged
violation of his instructions as a pretext for discharging Isbell.
With respect to the second instance, Isbell testified that a boy em-
ployed in the Smith Mill customarily removed the oily rags from the
trash box in which Isbell collected them and stored them in the
basement until he could take them home to burn. On the occasion
in question, Isbell testified that the boy had placed some of the
rags under the stairway without first informing him, and that he had
removed the rags as soon as he discovered their presence. The testi-
mony of the respondent's witnesses, Ellis, Feerer, and Herb concern-
ing the incident, is conflicting and inconsistent, and is contradicted
in part by that of another employee, Milton Miller.23 We find it
unnecessary to resolve the conflicts involved because we conclude,
21 Aull answered repeatedly on direct and on cross-examination that he asked Isbell to
sign the affidavit only because he had believed Isbell to be opposed to the United and was
suiprised to find that he was not. On' redirect examination, however, lie testified that he
had requested Isbell to sign the affidavit because the respondent's attorney had told him
that such action would cancel the charges before the Board On recross-examination, he
testified that he asked Isbell to sign before he-talked with the attorney for the respondent.
Following a recess, he then returned to the stand and again testified that he asked Isbell
to sign only after the respondent's attorney had suggested it
22 The conflicting opinions are apparently due in part to the fact that Isbell's duties
were not clearly defined, and to friction and misunderstanding between Ault and Ellis
concerning supervision over Isbell and other employees in the Smith Mill. It is apparent,
for instance, that Isbell believed and with some justification, that Ellis was giving him
more duties than Ault had intended lie should have, while Ellis on the other hand com-
plained that Ault was interfering too much in the Smith Mill
23 We have previously noted the conflict between Ellis and Herb concerning Herb's
being called by Ellis to witness the presence of the rags and refuse on March 7 when
Isbell was discharged Herb testified that the rags were under the machine in the base-
ment, Feerer that they were under the stairway and that they had been there since
10 days before when some repair work had been done Miller, an oiler, testified that his
crew had repaired the pulleys in the basement on March 7, that there was no accumulated
dirt or refuse on the floor at that time and that they had then cleaned the entire base-
ment with kerosene because of the dirt and grease which their own repair work had
caused to fall on the floor
SORG PAPER COMPANY 963
as did the Trial Examiner, that whatever happened to the rags, the
incident was not of sufficient importance to the respondent to consti-
tute a reason for discharging Isbell and was not the reason for his
discharge, particularly since his successor, Melvin Martin, testified
that the respondent's officials had never given him any instructions
concerning the disposition of such rags and refuse.
On the basis of the findings of the Trial Examiner, Isbell's long
service-with the respondent, his advanced age, and the inconclusive
and often inconsistent nature of the testimony concerning his work,
we conclude that the record does not support the respondent's con-
tention that it discharged Isbell for inefficiency.
On the contrary, the statements of Feerer and Ellis, the extraor-
dinary precautions surrounding the discharge, the respondent's cam-
paign in opposition to the United then being conducted and evidenced
by acts and statements heretofore and hereafter noted, and the frank
belief of one of the respondent's own officials, Charles Hull, that Isbell
might be reinstated if he renounced the United, make it clear that
the respondent discharged Isbell because of his union membership
and activity.
We find that by discharging Sam Isbell on or about March, 7,
1938, the respondent discriminated in regard to his hire and tenure
of employment thereby discouraging membership in a labor organiza-
tion and interfering with, restraining, and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act.
At the time of his discharge Isbell was earning approximately
40 cents per hour. From the date of the discharge to the time of
the hearing he has been employed on a golf course temporarily for
approximately 6 months at an hourly rate of 40 cents. At the time
he was discharged lie carried two insurance policies through the re-
spondent both of which he lost when the respondent refused to accept
further payments after his discharge: Isbell desires reinstatement
and also seeks to have his insurance policies reinstated.
Effie Wi1cel operated an automatic bag machine in the Bag Divi-
sion. She was laid off on June 15, 1937, when the Bag Division was
shut down temporarily because of a shortage of paper pulp. She
had note been reinstated at the time of the hearing.
Wikel was an experienced machine operator. She-had worked
on the automatic bag machines at various times since 1918 at the,
Advance Bag Company and at the Superior Bag and Paper Cor-
poration in Middletown. She was employed at the Superior Cor-
poration when it was acquired by the respondent in 1936, and began
working for the respondent shortly after the consolidation.
In May 1937 she joined the United. Thereafter, she was active
in the United as a member of the negotiating committee and as record-
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing secretary, which position she held at the time of the hearing.
It is apparent that Manager Brown knew Wikel was a member of
the United during July 1937, when she attended, as a union delegate,
one of the conferences held on or about July 26, between the re-
spondent, the United, and agents of the Board relative to the rein-
statement of the Bag Division employees and to the United's charge
that the respondent was conducting a "lock-out" of its employees.
Superintendent Eagle testified, in substance, that he also knew Wikel
was a member of the United when he heard in July that she had
attended the conference. Wikel angered Brown by insisting at the
conference that a copy of a speech which Brown produced did not
correctly represent the speech-he delivered to the employees on March
17, 1937.24 At that time Brown told-her that "he was still running
the bag plant, and nobody was telling him how to run it."
At the time of the conference the respondent had reinstated some
of the employees who had operated bag machines prior to the
shut-down. It continued, during the summer, to call employees
back to work or to reinstate them upon request, and by September 1,
1937, it had reemployed substantially all the operators who had been
working on June 15.
Wikel applied to Superintendent Eagle for reinstatement in the
summer of 1937. Eagle told her that she would have to see Brown.
Thereafter, she made several attempts to reach Brown by telephone
or to see him in his oflice.2' She did not succeed in seeing him per-
sonally until sometime in the spring of 1938.
She testified that at that time she told Brown, in substance, that
she needed employment and wanted to come back to work, that
"her vanity was hurt" because she felt her work had been better
than that of some of the employees who had been recalled previously,
and that she had always tried to do an honest day's work. She
testified further that Brown indicated that he "had nothing against
her work record," but that employees had been coming to him with
"tales of woe," that he had no way of knowing those who were most
in need of work, and that he intended to take back all the employees.
During the interview, Wikel asked whether her activity on behalf
of the United and the United's action in filing charges with the
Board had "anything to do" with his failure to recall her. Brown
4 Brown testified that someone at the meeting had said the written speech he produced
was not the one lie ga\e, but that "he did not recall" who said it The Trial Examiner
found that Wikel's "flat disagreement" with Brown was deeply resented by him , and com-
mented, "The undersigned had an opportunity for extensive observation of both Wikel and
Brown dining the course of the hearing Even under normal conditions, Effie Wikers
tendency to he independent and outspoken would be irritating to Manager Brown To have
been flatly contradicted in public by such an employee must have seemed to -Manager Biown
almost unforgivable "
25 Upon one occasion Wikel requested Fred Taulbee to see Brown to try to get her rein-
stated Brown, howevei, iefused to see Taulbee because he thought Taulbee was "hying
to iun the plant" and he would not meet w ith a man of that type "
SORG PAPER COMPANY 965
replied, in substance, "Damn the C. I. 0.," that he did not see "why
anyone who did-not have enough faith in his truthfulness should
expect a job from him"; and that he felt she "would rather go and
listen to Fred Taulbee" 25 ' and that she thought Taulbee could "do
more for her" than Brown could. Brown denied that Wikel had
ever been in his office or that he had ever had such an interview.
Wikel's testimony is corroborated in part by that of Katherine Slnith,
who testified that she accompanied Wikel to the plant and talked
with Eagle while Wikel talked with Brown. Brown's testimony is
corroborated in part by that of his secretary Maude Faulkner, who
testified that Wikel had not been in the office to her knowledge. We
find in the light of, the entire record, and in accordance with the
finding of the Trial Examiner, who heard the testimony and observed
the witnesses, that the interview occurred substantially as set out
above.
The respondent contends that it did not call WWikel back to work
or reinstate her upon request because'she was an inefficient employee.
With respect to this contention the respondent relies primarily
on the machine tenders reports which it introduced in evidence, upon
the testimony of Ellis Taulbee, Wlkel's machine tender in the spring
of 1937, and upon the testimony of the three ' inspectors in her depart-
ment. The machine tenders reports show that Wikel's production,
correlated to a standard expected from the machines, was less than
that of five operators who operated the small machines in the spring
of 1937 and better than that of the renlanung operator. We have
considered the reports as one factor in arriving at our determination,
but it is clear, and Brown admitted, that the reports do not present
a complete picture of an operator's efficiency. Moreover, they are
not sufficiently extensive to form a basis for a final determination
of the relative efficiency of Wikel and other employees who worked
on similar machines and who were reilistated.27
Fred Tani bee , IVikel s cousin , was the most actr,e union member in the Bag Di ision
a Although the testimony of witnesses both for the Boar d and loi the respondent 'estab-
hshes that wicel had at various times operated 2, 3, 4, 5, and 6 pound machine for the
respondent and that employees were frequently transferred from one machine to another,
the reports in evidence grne her production only on the 1-pound machine which she opei-
.ited for a 2-month pei rod preceding the lay-off The iepoit of the only other eurploice who
operated the i-pound machine to any extent duung the same period shows that her produc-
tion was lower than that of Wikel The remaining reports of the other operators deal with
machines either smaller or slightly larger than 1-pound Moreover , it is obvious from the
ioports that the same operator nray be efficient on one machine and poor on another For
instance, the first report for Isabell Tucker produced by the respondent shows her produc-
tion to be 1447 above the standard production expected from the machine and 92 below
standard on the IA marline, while a supplemental report, produced at the request of counsel
for the Board , shows that on the 3A machine , her production was 16 above and 7 9 below
the standard production expected Supeimtendeal ' Eagle testified that some operators
worked more efficiently on the larger than on the smaller machines and were occasionally
transferred Consequently , since it is apparent that the efficiency of an operator may Vary
with the machine upon which she works, and since the reports do not give the records of
woik on the heavier machines, nor of other operators who were reu»tated on those nnr-
chines w e cannot consider the i eports conclusive of wrkel s efficiency
283036-42-n of 2:r-62
'966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ellis Taulbee testified that Wikel compared unfavorably with the
other girls who operated small machines in the spring of 1937, but
that he had never complained of her work even though his own
record depended'in part upon her production. Moreover, his'knowl-
edge of her work was limited largely to her record on the 1-pound
machine which she operated immediately preceding the lay-off.
The inspectors testified, in substance, that Wikel did not run her
machine as steadily as she should have, and that she occasionally
allowed too many defective bags to remain in her, "run." They were
unable to say, however, whether her Work was better or worse than
that of the other employees.
Wikel was one of the older and more experienced employees in
the bag machine department and, as one of the employees w lio had
worked for the Superior Bag and Paper Corporation before it was
consolidated with the respondent, she was apparently entitled to
preference in employment over machine operators who came from
other plants.21 Neither Eagle, Brown, nor any supervisory officer
had criticized her work prior to the lay-off and for the 2-month
period immediately preceding the lay-off, she had been assigned to
the smaller machines which required more skill and agility than the
heavier ones, and which. were generally operated only by the-most
skilled operators. The respondent's records show that of the seven
girls who worked on the small machines during this period, Wikel
Worked more hours than three of them, the same number of hours as
the fourth girl, and less than the remaining two.
In view of her long experience as a machine operator, the fact
that the respondent assigned her to work generally reserved for its
more highly skilled employees, the absence of any criticism of her
work prior to the lay-off, Brown's statement in the spring of 1938
that he had "nothing against her work record," and the findings of
the Trial Examiner, we conclude that the record does not support the
respondent's contention that Wikel was noticeably less efficient than
.other employees doing the same type of work.
The respondent contends further that, as a matter of policy, it,
called back to work only the employees it considered efficient; and
that the others, among whom it included Wikel, were reinstated only
after they had made personal application to Brown. We have noted
previously that the record does not support the respondent's con-
In his speech to the employees on March 17, 1937, Brown stated in part, When the
Lawrence Bag Company dissolved, we demanded trom the Lawrence executives, the resig-
nation of all their employees and requested them to advise their people if they wanted to
work for the new company [the respondent] they were to appear at the office on May 12,
1936, and file proper application The only people that continued to work and were then
definitely assured of work were those connected with the Superior Bag and Paper Corpora-
tion "
SORG PAPER COMPANY 967
tention that it considered Wikel a noticeably inefficient employee.
Even assuming arguendo, that the respondent followed the above-
stated policy, We are not persuaded therefore that it considered it
necessary that Wikel make personal application to Brown. We have
found further that Wikel made personal application to Brown
in the spring of 1938, at which time Brown told her in effect that her
work had been satisfactory. Thereafter some new and inexperienced
employees Were hired along With employees who were experienced
but who had not been working for the respondent at the time of the
lay-off. _ Had the respondent. in faict followed the policy which it
contends it followed, it would have reinstated Wikel following her
interview with Brown. Its failure to reinstate her then indicates
that no such policy was in existence with respect to her. Moreover,
the record does not support the respondent's contention that it fol-
lowed' such a policy prior to the spring of 1938. Some employees
were called back to work without application, others were reinstated
upon application to Eagle alone, and still others were referred to
Brown. Some of those who Were hired without leaking personal
application to Brown were new employees whose efficiency was not
known to Brown and whom he had not interviewed.
It is clear that Brown knew that Wikel desired reinstatement
during the entire period that he, was calling back old employees,
reinstating others on request, and hiring new ones. He was advised
of her desire to return to work by her attendance at the conference
in July •1937, by her application to Eagle, which Eagle admittedly
discussed with him, and finally by his interview with her in the
spring of 1938.' The action of the -respondent in hiring new em-
ployees and employees not on the pay roll at the time of the lay-off iii
preference to Wikel under such circumstances can only be explained
by the respondent's resentment toward her outspoken stand on behalf
of the United.
Making due allowance for administrative considerations which
might normally have entered into the reinstatement of the employees
following the shut-down, we find that in failing to reinstate Effie
Wikel on or about September 1, 1937, when operations in the Bag
Division returned to normal, the respondent discriminated in regard
to her hire and tenure of employment, thereby discouraging member-
ship in a labor organization and interfering With, restraining, and
29 The respondent sought to prove that Wikel had stated to other employees that she did
not desire to return to work, and that it had relied, in part, on such statements in not
reinstating her. Wikel denied making such statements, and, explained, in substance, what
she had told the other employees We do not believe that the respondent in fact relied on
such hearsay statements in not reinstating Wikel, in the face of her affirmative acts showmc
her desire for reinstatement.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act.30
At the time she was laid off, Wikel was earning approximately
$14.80 per week. From the date of her lay-off to the-date of the
hearing she had worked on a temporary job for approximately 5
weeks in a Middletown store.
D. Domination of, interference with, and support to the Sorg and
Superior Associations
1. The Sorg Association
The complaint alleged, the answer denied, and the Trial Examiner
found that the respondent dominated, interfered with, and contributed
support to the Sorg Association and the Superior Association. The
respondent takes exception.
Soon after the passage of the National Industrial Recovery Act
on June 16, 1933, the respondent,, which at that time owned and
operated only the Paper Mill, formulated and instituted without
obtaining the advice or consent of its employees, a Plan of Employee
Representation, herein called the Plai1.31 The Plan provided for an
Employees Committee composed of representatives to be elected from
departments or groups of not less than 20 employees. Only employees
who had been employed for 1 year, who were 21 years of age, and
who were American citizens, were eligible for election as representa-
tives. The Plan provided also that the respondent should be repre-
sented as follows :
The Management shall appoint a SPECIAL REPRESENTATIVE who
shall keep the Management informed at all times as to the activi-
ties of the Employees' Committee and be the contact between
the Management and the Committee.
30 The respondent, in its brief and in argument objects to the consideiation and pi oposed
reinstatement of Wikel because of the time which elapsed between her lay-off and the filing
of charges in her behalf. It should be noted, however, that the complaint, par ticulai ly with
respect to'the 8 (3) allegations, is based on events which were developing over a period of
many months, and that, since Wikel's case is based upon the respondent's failure to rein-
state her, the respondent's discriminatory action as to hci was not apparent at the time
of the lay-off and became so only after considerable time had elapsed and intervening
events such as the hiring of other employees made evident the respondent's intention not
to reinstate her, as it did other employees, in the normal course of business
31 The Plan came into existence in to July 5, 1935, the effective date of the Act Al-
though the respondent's conduct occurring prior to the effective date of the Act does,not
constitute unfair labor piactices such conduct is relevant in the consideration of the re-
spondent's activity after the effective date of the Act N L R B v Pennsylvania Grey-
hound Lines, Inc, 303 U S 261, rev'g N L R B v Pennsylvania Greyhound Lines, 91 F
(2d) 178 (C C A 3) and enf'g Matter of Pennsylvania Greyhound Lines, Inc., Greyhound
Management Co, a corporation and Local Division No 1063 of Amalgamated Ass'n of Street,
Electric Railway and Motor Coach Employees of America, 1 N L. R B 1.
SORG PAPER COMPANY 969
At all times the Company shall have in office a number of
MANAGEPZENT'S REGULAR REPRESENTATIVES , appointed by the
Management which shall not be less than three nor more than
the number on the Employees' Committee.
At each meeting of the Joint Committee, foir whatever purpose,
the Managements' Committee and the Employees' Committee
shall have the same number of votes, regardless of the number
of repi esentatives in attendance.
Action of the Joint Committee shall be by majority vote, and
a majority vote of the Joint Committee means a majority of
the Employees' Committee and a majority of the Management's
Committee.
The scope and procedure of the Plan was contained in the fol-
lowing sections :
The Management and the direction of the working forces, in-
cluding the right to hire, suspend, discharge, or transfer, and
the right to relieve employees from duty because of lack of
work or other legitimate causes, is rested exclusively in the
Management; and except as expressly restricted herein, these
rights shall not be abridged by anything contained in this Plan.
Any matter which in the opinion of an employee requires ad-
justment, and which such employee has been unable to adjust
with the foreman of the work on which he is engaged, may be
taken up with the Employees' Committee through the commit-
teeman representing the department or group in which the
matter originates . The matter may thus be brought to the
attention of the Joint Committee for adjustment and thence
through the following steps :
First-The Superintendent of the Department.
Second-The management's Special Representative.
Third-The General Manager or President of the Company.
If the matter has not been adjusted satisfactorily through the
procedure outlined in Paragraph 1 above, upon approval of
the President of the Company and the members of the Em-
ployees' Committee, it may be referred to one or more arbi-
trators who shall be selected by the Joint Committee.
The Plan provided for no dues; it was financed completely by
the respondent and thus dependent on the respondent for its oper--
tion. The employees participated in the Plan only in the annual
elections , which were held in the plant and financed by the respondent
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who printed the ballots. Charles Long, chairman of the Plan, testi-
fied that the ballots were simply stacked in the departments and that
"almost anyone could have voted all the ballots." No general mem-
bership meetings were either' provided for in the Plan or held as a
matter of practice; no opportunity was provided whereby the em-
ployees might formulate their demands and instruct their repre-
sentatives; and the employees consequently had no effective voice
in the determination of issues or in decisions on policy.32
Long described the operation of the adjustment provisions of the
Plan as follows :
The employee representatives at meetings would put before
the entire representative committee such grievances as had been
reported. All of these meetings were attended by the manage-
ment's representatives and he, in turn, took whatever action
he saw fit to adjust the grievance. In some cases he made per-
sonal adjustments, and in other cases he referred it to the
management.
Lloyd Ritz, who was at that time assistant treasurer and a mem-
ber of the respondent's executive committee, and who is now comp-
troller, was the first Management Representative.. In November
1937, after the United had begun its organizing campaign, the re-
spondent removed him upon Long's complaint that he was not suf-
ficiently cooperative, and appointed another member of its executive
committee, Donald Driscoll, now general manager, in his stead.
The Plan was served with notice of the hearing on the petition
of the United for certification. Its leaders, however, entertained
grave, doubts concerning the legality of the Plan under the Act and
did not seek to intervene. They therefore refrained from calling
the regular April meeting of the Plan and decided instead to form
the Sorg Association in order to prevent the designation of the
United as bargaining representative. The respondent took no action.
with regard to the abandonment of the Plan, and at no time notified
the employees that it was no longer in effect.
Harry Newcomb, an employee called by the Board, testified that
during this period Long told him that Brown, attorney for the
respondent, had called Long into the office and suggested that he
start a "company union," and that when Long 'had demurred be-
cause of the expense of hiring a lawyer, Browii had suggested that
32Cf Matter of Colorado Fuel and Iron Corp and Int'l Union of Mane, Mill and Smelter
Workers, Local 4i2, 22 N. L. R. B. 184; National Labor Relations Board v. Newport
News Shipbuilding & Dry Dock Company, 308 U S 241, rev'd mod of cider in Newport
News Shipbuilding if Diy Dock Company v National Labor Relations Board, 101 F. (2d)
841 (C C A 4) and aff'g Matter of Newport News Shipbuilding if Dry Dock Company and
Industrial Union of Marine if Shipbuilding Workers of Attie) tea, 8 N L R B 866
SORG PAPER COMPANY ' 971
he hire an inexpensive lawyer "and probably get started that way.733
On or about March 18, 1937, the, time of the representation hear-
ing on the petition of the United, Long and Clifford Newcomb went
to the office of Elliott D. Levey, a Middletown attorney, to solicit
his aid in organizing the Sorg Association. At the hearing, the
parties stipulated that Levey was associated on a fee-participation
basis with B. F. Harwitz, the attorney for a Middletown bank of
which J. A. Aull, president of the respondent, is also president,
and that Levey and Harwitz did not directly or indirectly represent
the respondent. Newcomb, an electrician, acted at that time as
working foreman over, approximately 10 electricians on occasions
when his brother Dick Newcomb, the regular foreman, was absent.
At the time of the hearing Dick Newcomb had died, and Clifford
Newcomb had succeeded him as working foreman.35, We find that
Clifford Newcomb was at all times material herein a supervisory
employee for whose activities the respondent 'was responsible.35
After conferring with Levey, they authorized him to draft rules
and regulations and arranged for a second meeting to discuss them.
On or about April 5, 1938, Long invited seven other employees to
meet with him in Levey's office. With one exception 31 they consti-
tuted themselves the executive committee of the Sorg Association and
approved the articles drawn by Levey. Newcomb was at first desig-
nated chairman and Lou,- secretary, but shortly thereafter, by con-
sent of the executive committee, Long became chairman.
The Rules and Regulations of the Sorg Association provide that
representation shall be by departments and that there shall be a
representative for each 25 members of a department. The provisions
governing eligibility of employees for election as a representative
and those governing the procedure for adjustment of grievances
are substantially the same as those provided for in the Plan. The
sa Long, called as a witness b} the respondent, denied the incident He testified how-
ever, that lust betore the hearing. Blown had called him into the otlree ind questioned him
conceinnig the details of the Plan Brown, called by the Superior Association, did not
testify concei ning the incident
'° The following notice signed b} Driscoll was posted by the respondent in the plant
Dick Newcomb's death is a terrible shock to all of its who had such a very high regard for
him, and he will be greatly missed However we must early on as he would want us to
Temporarily-, Cliff Newcomb will act as working totenian as he has in the past when Dick has
been away. The Electrical Department will be under the supervision of G Il Subs as chief
power and electiical engines
3' Int'l Ass'n of Machinists, Tool and Die 21a!cis Lodge No 35 et al v N L B B, 110
F (2d) 29 (C A D C ), cert granted 60 S Ct 721, enf g flatter of the Seri ick Cot p. and
Int'l Utiiiia United Automobile 11,orbers of Anietice, Local No 459, 8 N I, R B 621
3" The one exception was Robert Petgrani who mfotmed the others present that lie was
at the time a member of the United , lie was nevertheless invited to stay at the meeting
Counsel for the Intervenors contends in his brief that their willingness to have a nrenibet
of the United remain is indicative of the frank and open nature of the organization and its
freedom from company domination The conclusion does not necessarily follow, paiticu-
larl.) in view of I'ergrain s testinion3 that he was not much interested" in the United or
any unions and had dropped out of the United at the time of the election
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remaining provisions are in some instances identical in language
to those provided in the Plan, and in others so similar in content
and in language as to make inescapable the inference that Levey,
in drafting the Articles, had available a copy of the Plan.37 There
is no evidence that any of the organizers possessed a copy of the
Plan; Long, the- president, testified that he had never seen 'one, and
that neither he nor Newcomb furnished Levey with a copy of any
plan prior to the time Levey drafted the Articles.
Levey undertook the work of forming the Association without
setting a fee for his services, and, moreover, provided funds and
credits to finance the initial expenses of the Association. The Asso-
ciation produced no treasurer's books, receipts, or minutes showing
any payments to Levey for the credits which he advanced or for his
services which extended over a considerable period cf'tilne.3s
Between the time of the representation hearing and the election
ordered by the Board, the Association carried on a vigorous member-
ship campaign by letters, leaflets, and posters, which it mailed to the
employees at their homes or at the respondent's plant urging them to
vote against the United in the election. The campaign was conducted
on three themes : denunciation of the C. I. O. and- "outside organiza-
tions" as "Communist"; threats that "if you want to keep on working
and have a steady job you must vote against the C. I. O."; and state-
ments that the respondent would look with more favor on an "inside
organization" and that the employees could consequently obtain more
advantages from the respondent through the Association than through
the United. 39
It is clear that many of the employees, and even some of the organ-
izers who joined the Sorg Association, did so in the belief that it was
31 The inference was emphasized repeatedly by the attorney for the Board at the hearing
Long when called as a witness by the Boaid, testified that Levey drew up the Rules and
Regulations after a conference with himself and Newcomb and that lie and Newcomb
"positively" furnished Levey with no mateual or any constructive suggestions concerning
them Later, called by the Intervenors, Long testified that he was not sine whether Levey
drew up the Rules and Regulations after the first or second meeting and that perhaps lie
made suggestions to Levey fiom a copy of the iepresentation plan in effect at Frigidaire
'Corporation In oral argument before the Board, Levey said that Long gave lion a copy
of the plan in effect at Dayton Power and Light Company The Intervenors did not intro.
duce a copy of either plan in evidence
3' In view of the fact that with Levey's knowledge the dues of the Sorg Association wei e
fixed at $1 00 per year and were not to begin until January 19-h), and that, also with his
knowledge, the Association incurred considerable expenses in waging its campaign in oppo-
sition to the United, it is difficult to see how Levey could have expected payment for his
services from the Association
30 On April 15, for instance, 10 days after the first meeting of the organizers, the Asso-
ciation sent out a lettei over the signatures of Long and James Sennett stating in part
"Any employee who belongs to this Association cannot be discharged unless the Sorg
Paper Company shall submit in writing to the Executive Committee of this Association
reasons for his discharge " The same provision is also carried in the "Rules and Regula-
tions of the Sorg'Paper Company Employees Association" which were printed and dis-
tributed prior to the election and befoie the Association had sought to bargain with the
respondent
SORG PAPER COMPANY 973
merely a continuation of the Plan instituted by the president. James
Sennett, secretary of the Plan and later of the Sorg Association,
testified in part as follows:
I will tell you the truth, when we first talked about this asso-
ciation, I didn't pay much attention to anything about the C. I. O.
in those clays. We were just anxious in continuing this old em-
ployees' representation, that is all we were interested in.
Q. What was your particular sales talk when you signed up,
the people in the Association?
A. Well, I didn't have to have much sales talk. They flocked
in like bees in that machine-room, kind of knocked me down
signing them up. I didn't have to do much talking.
Q. Well, you had to explain to them what you were signing
them up for, didn't you?
A. No.
Q. They knew that, did they?
A. I just told them that we were trying to form this Associa-
tion and have representatives and all like we used to and they
flocked right in, they fell right in with it.
Although the respondent posted a notice on its bulletin board that
no employee should leave his department except on "company busi-
ness" and contends that it instructed its superintendents not to allow
solicitation on the respondent's time and property, Long, Sennett,
and Clifford Newcomb, the principal organizers, admitted that they
engaged in extensive activities on behalf of the Association during
working hours. Such activity was conducted in many instances with-
out regard to the presence of supervisory employees who knew of and
tolerated "such activity.
On one occasion Cliflorcl Newcomb circulated membership cards
among the employees in the beater room of the Paper Mill and col-
lected clues from the members of the Association. Walter Thompson,
president of the United, asked the foreman of the beater room, Chris
Hedges, who was standing just outside, if he did not know that New-
comb was soliciting and was not supposed to be in the department.
Hedges replied, "That is why I am out here. What good would, it do
for me to put them out." 40 -
Arnold Pergram testified that on or about April 21, 1938, Homer
Feerer, the tour boss, stood outside the machine room and allowed
Long to explain literature concerning the Association to Pergram and
other employees in the machine room for approximately 4,5 minutes,
40 Hedges denied the foregoing incident , but testified that Newcomb was often in his de-
partment on business Newcomb admitted that he distributed approximately six member-
ship cards on the occasion in question, but that Hedges was not anywhere neat Earnest
Wilson and Edward Back corroborated Thompson's testimony concerning the conversation
with Hedges and we find that it occuri ed as set out abov e
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but immediately thereafter followed Walter Thompson into the room
when he attempted to speak to Pergram.41
James Sennett, secretary of the Association, admitted that one night
when he was not on duty, he took a box of applications for the Asso-
ciation into the beater room and the machine room and that in both
rooms groups of employees congregated around him while they were on
duty and listened to his "sales talk" on behalf of the Association. Be
admitted further that the tour bosses, who were in charge of the de-
partments at night, were "probably around" while he was talking
and distributing cards, but that they are friends of mine. I didn't
pay any attention to them especially."
During the same period, Thomas Murphy, a truck driver, who
attempted to solicit members for the United during working hours was
called into the office and warned by L. C. Anderson, one of the respon-
dent's officers, that if lie continued to do' so he would be discharged.
In addition to the specific instances set forth above, substantially
all the witnesses who testified that they were members of the Sorg
Association admitted that they had joined or paid their dues during
working hours and in the plant.42
On or about May 5, 1938, the Association requested that the re-
spondent recognize it as exclusive bargaining representative. The
respondent refused unless the Association proved that it represented
a majority of the employees. A few days later, pursuant to agree-
ment between the respondent and the Association, Attorneys Levey
and Brown checked the membership cards of the Association against
the respondent's pay roll. Their check resulted in a determination
that the Association had either no majority or such a small one that
recognition should be postponed until the Association acquired a
larger membership and until the charges filed by the United' with the
Board had been settled.
In October 1938, just prior to the time that the Board certified the
United, the Association again requested recognition. At the sug-
gestion of the respondent, the pay roll and application cards were
submitted to a certified public accountant, paid by the respondent.
He certified that the Association had the signed application cards
of a majority of the eniployees.43
41 Feerer denied the foregoing incident We find, as did the Trial Examiner, that it
occurred as set out above
4i A few witnesses also testified that they had joined the United during working hours,
and Long testified that the United solicited on company time. There is no evidence. how-
ever, that the solicitation occurred with the knowledge of any supervisory employee or
officer of the respondent
11 Such a certification is obviously meaningless under the circumstances here presented
The only guarantee of the authenticity of the signatures to the cards was an affidavit by
the membership committee that the signatures had been obtained without coercion or
intimidation, and the signers of the affidavit admitted that they did not have personal
knowledge of the statements made therein. Moreover, the Rules and Regulations specifi-
cally provided that "The Association shall in no way . . . abridge or conflict with [the]
SORG PAPER COMPANY 975
On December 8, 1938, the respondent recognized the Association
its exclusive bargaining agent and signed a contract with it. The
single substantive provision of the contract establishes a grievance
procedure, and also provides that the respondent shall give the Sorg
Association its reasons for discharging any member of the Associ-
ation if requested to do so. The grievance procedure is substantially
the same as that established in the Rules and Regulations of the
Sorg Association which in turn, was substantially that provided in
the Plan. The provision requiring the respondent to give reasons
for discharging employees is substantially the same as the one which
had been used by the Sorg Association as all inducement to member-
ship by the Association long before it bargained with the respondent.
The subsequent bargaining between the Sorg Association and the
respondent has been of a cursory nature. The Sorg Association sug-
gested to the Company "that if they could see their way clear to giving
the employees a Christmas present, it would probably increase and
promote good will between the management and the employees."
The respondent approved the suggestion by giving each employee a
ham for Christmas. The respondent granted the Association's re-
quests and gave four members of the Association individual raises
in pay, rearranged the division of work in the beater room, instructed
a tote' boss not to allow one of his employees to go home for lunch,
and instructed the elevator operators not to leave the doors open
when they were absent from the elevators.
At the time of the hearing, although the Association had been
in existence for over a year, not one employee representative had
been elected and the original self-appointed executive committee con-
tinued to govern. It had, in January 1939, notified the members
that if 90 per cent of the members in any department had paid their
dues and if they were dissatisfied with their appointed temporary
representative, then they might elect a permanent one.
2. The Superior Association
Shortly before the Board's decision on the United's petition, Long
talked with Carl Thompson, an employee in the Bag Division, con-
cerning the United's activity, and told hiin that the Sorg Association
was being organized at the Paper Mill. Thereafter, Lou(,, visited
Thompson's home, where they discussed the independent association.'4
right of [an employee] to belong or not to belong to any lawful society, fraternity, union
or other organization The retold ieveals that many employees belonged both to the United
and the Sorg Association, yet under the above "certification" they are all considered as
having authorized only the Sorg Association as their bargaining representative It the
accountant's report is correct, it is apparent that a large number of those who signed cards
for the Association nevertheless voted for the United in the election. The fact is indicative
of the purely nominal character of much of the Association's membership
43 Thompson testified that this was the first time Long had eN er been at his home, and
that Long just "dropped in."
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result of his conversations with Long, Thompson determined to
form the Superior Association.45
On or about July 28, 1938, the day after the Board's decision direct-
ing an election on the United's petition. Thompson visited Levey,
whom he knew to be attorney for the Sorg Association, to obtain
his advice in starting an organization. He testified that he was willing
at that time to pay personally whatever fee Levey charged.
On or about August 3 Thompson invited 11 other employees in the
Bag Division to meet with him in Levey's office. The testimony of
many of the employees who attended shows clearly that they were not
informed previously of the purpose of the meeting. Levey explained
the Act to them, and told them what the Sorg Association was doing
in the Paper Mill. Budd Simonton,4G one of the employees present,
seggested that they do the same thing in the Bag Division. The
rest of the employees -present concurred, and they thereupon drew
up a letter, which they mailed to all employees in the Bag Division on
August 5, 1938. The letter announced the formation of the Superior
Association, solicited opposition to the United, and gav e assurances
that the committee which signed the letter was only a temporary one
and that "your representatives will be elected immediately after the
[Board's] election next Tuesday." In addition to the letter announc-
ing the formation of the Superior Association the following letter was
also inserted :
MIDDLrTOWN, Or-1Io, August 5, 1938.
FELLOW EMPLOYEE : Enclosed you will find a sample ballot
showing you how to vote "NO" against the C. I O. in this elec-
tion. You must mark the ballot in the same manner when one
is given you on Tuesday. If you do this you wilt vote out the
C. I. O. and protect your jobs.
REMEMBER in every city where the C. 1. 0. has fought with its
employers it has meant strikes, loss of time and loss of jobs.
REIVEY BER if you want to keep working steadily vote out the
C. I. O
REMEMBER you have to join no union or association but you
must vote out the C. I. 0.
REMEMBER Governor Davey of Ohio says the C. I. O. are all
communists and deliberately cause strikes , loss of homes and loss
of jobs.
4a Thompson testified also that he wanted to tot in the Superior Association because he
believed the Bag Division and the Paper Mill should be separate bargaining units, and
because Long had told him of statements made by Martin Coffee, an of icei of the American
Legion , at a Soig Association meeting in which Coffee said he would offer $ 10,000 to any-
one who could prove that the national and international leaders of the United were not
Communists
46 Simonton testified that lie had quit his job in the Bag DiN ision shortly after the March
1937 Shut-down Brown told him at that time that " lie would never get his job back again."
He returned to work , however , and immediately became active in the Superior Association
SOEG PAPER COMPANY 977
REMEMBER that unless you want the C. I. O. to run the
Lawrence Bag Company and be dictated to by outside organizers
and sympathizers you must vote "NO" in this election.
REMEMBER if the C. I. O. wins this election everybody will
have to join the C. I. O. and be forced to pay thirteen dollars
($13.00) a year before you will even be able to work.
PROTECT yourselves and your families and your jobs and
keep your employer in Middletown and vote out the C. I. O. on
next Tuesday.
Respectfully,
ELLIOT D. LEVEY,
Attorney for the Sorg Paper
Company Employees Association.,
P. S. I 'am enclosing a copy of the letter sent to the employees
of the Sorg Paper Company.
Also enclosed was a sample ballot marked against the United. Some
of the employees present at the meeting testified that they had not
seen either the letter signed by Levey or the sample ballot; others
said Levey had been authorized to enclose them. Regardless of the
authorization, it is clear ,that the draftsmanship was Levey's.
Levey told the employees from the Bag Division who met in his
office not to "worry about the money until your treasury is in a
position to stand it; I will trust you and give you credit." There-
after, he furnished the funds and credits necessary to. finance the
printing and mailing of the letters and literature the Association
used during its organizing period. Clarence Greene, one of the em-
ployees present at the meeting, volunteered to guarantee payment.
At the same meeting, the employees present elected Greene, presi-
dent, Simonton, vice president, Forrest Fleming, treasurer, and Addie
Collins, secretary. The officers then appointed Thompson a member
of the executive committee to avoid a deadlock. Greene, Simonton,
and Thompson were three of the older employees in the Bag Division.
They were employees of the Lawrence Bag Company in 1936 at the
time it was acquired by the respondent as a part of the Bag Division.
They were at that time active in an Employee Representation Plan
which had been suggested and instituted by one Elliot, manager of
the Lawrence Bag Company. All three were employee representa-
tives under this plan of which Thompson was apparently, a leading
proponent. As nve have noted in Section III A above, Thompson
was active also on behalf of the respondent in circulating, with the
cooperation of Eagle and other supervisory employees, the petition
addressed to the Board after the March 1937 hearing requesting that
the Bag Division be considered a separate unit from the Paper Mill.
Thompson and Simauton were head adjusters in the Bag Division.
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They assigned the machine operators to the various machines and
changed them from one to the other . At the time of the hearing,
both were head adjusters on night work where they are in charge
of the work , since the superintendent and foreman are not on duty.
Fleming, secretary of the Association , had been placed in charge of
the printing room at night approximately 1 week before the present
hearing started.
At another meeting, held on or about August 23 , 1938, approxi-
mately 2 weeks after the election, the executive committee met with
Levey and drafted a constitution and set of bylaws patterned after
those of the Sorg Association which they used as' a model.
The constitution evidences that there was no doubt in the minds of
its draftsmen that the Superior Association would be recognized by
the respondent , for it provides , inter alia, that :
Officers and representatives shall be elected for the term of one
year, the expiration date of office to be on the anniversary of
the recognition of the Association as sole bargaining agency for
the employees of the Superior -Lawrence Bag Company.
The original officers and representatives of the Association shall
be elected from employees who were members prior to the re-
cognition of the Association by the Company management.
(September 21).47
Shortly before the election and thereafter , the Superior Association
conducted a'vigorous membership campaign. Letters were mailed to
employees at the Bag Division and distributed in the plant ; notices
were posted on the bulletin boards , although the respondent had,re-
fused the request of the Superior Association for permission to use
the bulletin boards; others were tacked on the walls iii the plant;
members of the Association solicited applications freely in the plant,
and occasionally warned other employees that they should sign if
they wanted to continue working. On one occasion , Greene kept his
application blanks in the office of Superintendent Leonard , and told
Bertha Ingram, an employee who desired to join the Association, to
go in Leonard's office and sign one.
On or about September 6, 1938, Greene requested E. E. Brown,
manager of the Bag Division , to recognize the Superior Association
as exclusive bargaining agent of the employees in the Bag Division.
Brown replied that the Association would have to prove that it repre-
sented a , majority of the employees by submitting membership cards
to a certified public accountant . The Association agreed to do so.
On September 15, 1938, the accountant , hired by the respondent, sub-
-1 The date inserted originally and still contained in the cai bon copy was "August 1 " It
had been stricken in ink and " September 21" inserted as the actual date of recognition.
SORG PAPER COMPANY 979
mitted his report showing that the Association had membership cards
from a majority of the employees in the Bag Division.48
On September 26, 1938, the respondent recognized the Association
as exclusive bargaining representative for the employees in the Bag
Division, despite the fact that no final decision had yet been issued
by the Board on the election to determine the bargaining representa-
tive, and although the respondent was still urging its objections to
the Intermediate (Election) Report.
The subsequent bargaining between the respondent and the Superior
Association has been as follows: the respondent granted the Asso-
ciation's request for additional equipment for the company hospital;
the Association requested, and the respondent refused, a 10-cent per
hour wage increase for the nien employed in the, Bag Division and
it 5-cent per hour increase for the women; the respondent offered
instead, and the Association accepted the offer, to pay a bonus to
all employees who met a standard rate of production and apparently
to discharge those who did not, after they had been warned and
given an opportunity to improve their records; the Association re-
quested that the respondent help the Association make contributions
to needy families and the respondent refused on the ground that it
was too difficult to determine the most needy; the respondent instead,
as in the Paper. Mill, gave each employee a ham for Christmas.
On or about October 13, 1938, Greene, president of the Associa-
tion, circulated a petition among the Bag Division employees with
the knowledge of Superintendent Eagle. The petition states, in sub-
stance, that regardless of the Board's decision in the representation
case, which "decrees that the C. I. O. shall be the bargaining agency,"
the signers of the petition will not be a, party to any demands made
by the C. I., 0., and that in the event of a strike they request the
management to buy paper elsewhere in order to continue manufac-
turing bags, and to make provisions "for the protection of NON-
STRIKERS wlule )v.orking."
In January 1939 the respondent granted permission to the Associa-
tion to install rent-free in the plant candy-vending machines from
which the Association receives 10 per cent of the proceeds and the
owner of the machines receives the remainder.49
At the time of the hearing in the present proceeding, the Superior
Association had been in existence approximately 8 mouths. Al-
though its organizers had promised the employees that they would
be allowed to elect representatives immediately after the Board
98 See footnote 44, sups a
49 The Superioi Association received $4 50 from the maclnnes in the.month preceding the
hearing Since 'the Superior Association ANould have received appioxnn,ttely $9 per month
had all its members paid their $1 per year dues, the sum received front the machines con-
stitutes a substantial part of its mconie
,)80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election in August 1938, no representatives had been elected at the
time of the hearing; the original officers and organizers still retained
complete control; no grievances had been reported to the Association
or carried to the respondent; the Association had no funds on hand,
and had never paid Levey for any of his services.50
3. Concluding findings
The Plan was formulated and instituted by the respondent. By
its terms, which restricted the choice of employee representatives to
employees of the respondent and, moreover, to the older employees,
required them to meet in the presence of a Management Representa-
tive, made action by the Plan dependent on a majority vote not only
of the Joint Committee but of the Management Representatives
therein as well, and failed to provide for financial support inde-
pendent of the respondent or to provide for employee participation,
the respondent assured itself of control of the representation which
the Plan purported to grant to the employees. We find that the re-
spondent dominated and interfered with the formation and admin-
istration of the Plan and contributed support to it.',
It is clear that the Sorg Association was a continuation of the
Plan in a different form, and subject to the same employer domina-
tion, interference, and support. The provisions of its constitution
were similar to and in many respects identical with those of the Plan;
its subsequent docile and ineffective bargaining attempts, the appar-
ent lack of interest on the part of the employees and the failure of
those who were members to contribute financial support, bears out
in actual operation the substantial similarity of the Sorg Association,
and the Superior Association, as well, to the Plan. • The Sorg Associa-
tion was organized by'Long, Sennett, and Newvconib, officers and rep-
resentatives of the Plan, with the cooperation of the respondent.
They had continued the Plan in existence despite its obvious illegality
until the United invoked the machinery of the Act by filing its
petition for certification. They organized the Sorg Association then
to oppose the United by methods less obviously illegal.
Long, Newcomb, and Sennett were acting in behalf of the respond-
ent as representatives and officers of the Plan; in undertaking the
5 IIeie,'as in the case of the Sorg Association, it does not appear that Levey ever set a
fee or requested pavmnent
^^N L R B v Newport News tirlaipluiidinq d Dii Dock Company, 308 U S 241, rev'g
mod of order in Newport News Shipbuildmq d- Dry Dock Company Y N L R B, 101 F
(2d) 841 (C C A 4) and affg ill otter of Newport Ncios Shipbuildonq d Dri., Dock Com-
pany v Industrial Union of Mmme d Shipbuilding Ihoaders of America, 8 N L R B 800;
Matter of Colorado Fuel and Iron Corp and Int'l Union of Mine, Mill and Smelter Workers
Local 44 , 22 N L R B 184 Since the Plan apparently went out of existence prior to
the issuance of the complaint :aid is not mentioned therein, we shall issue no remedial order
with i egard to it
SORG PAPER COMPANY 981
similar activity of organizing the Sorg Association they continued
to act with the apparent authority of the respondent. The language
and reasoning of the Court of Appeals for the District of Columbia
in a similar situation is applicable here :
Acme Welfare was a company-dominated organization. It
follows necessarily that its leading promoters were company
representatives. Men accustomed to such submission seldom re-
gain independence overnight. The interval, if there was one,
required for the transfer of their allegiance from the Plan and
the Company to the I. A. M., was too brief for disruption of
the old and basic loyalty. The evidence supports the conclusion
that it was not disrupted but continued, though manifested in less
obvious but more effective form. All that they did therefore
was imputable to the respondent.52
Moreover, under the circumstances here presented we- credit the
testimony of- Harry Newcomb that Long admitted he had been in-
structed by the attorney for the respondent to hire an attorney and
start a "company union." .
Levey was the attorney hired by ,Long. ^ Since, -Long's activities
were on behalf of the respondent, those of his agent,; Levey, were
correspondingly in the respondent's behalf. Levey ; took, an • active
part in organizing both the Sorg and Superior Associations.- Atthe
time of the hearing, he had not set a fee for his services, and he had
not been paid by either Association. We have noted previously the
similarity between the Plan and the Rules and Regulations of the
Sorg Association which Levey drafted. Long's testimony that, even
though he was chairman of the Plan, he had never seen a copy of it
and did not furnish Levey with one, the contradictory statements
of Long and Levey as to whether 'the plan, if any, which Long had
given Levey as a model, was that of the Frigidaire Corporation or
the Dayton Power and Light Company, and finally, the failure of
the Sorg Association'to introduce either plan in evidence gives rise
to the plain inference that Levey was furnished a copy of the Plan
through the respondent which, it must be remembered, had inaugu-
rated and controlled the Plan.
Long who acted with the apparent authority of the respondent,
and Levey, who received the -cooperation of the respondent, were
responsible in large part for the formation and administration of
the Superior Association. Long, by his conversations with Thomp-
52 Int'l Ass'n of Machinists, Tool and Die Makers Lodge No 35 et at. v. N L. R B , 110
F. (2d) 29 (C. A D C ), cert. granted 60 S. Ct 721, enf'g Matter of The Serrick Coipora-
t1on and Int'l Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B.
621 ; Matter of Baldwin Locomotive Works and Steel Workers Organizing Committee, 20
N L R B 1100
283036--42-61 25-63
982 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
son, initiated it, and thereafter, Levey, as its attorney, directed its
formation and administration. ' In so doing, they utilized Thomp-
son, Greene, and Simonton, minor supervisory employees, who by
their participation in the employee representation plan at the Law-
rence Bag Company, and by their activity in support of the respond-
ent's opposition to the United, had indicated their willingness to
act in the respondent's behalf.
The respondent contributed substantial support to the Sorg and
Superior Associations. It did not occupy a neutral position in the
contest between the United and the Associations for the right to
represent its employees. It made no attempt to notify its employees
on or after July 5, 1935, when the Act became effective, or in 1937,
when the United began to organize, or in 1938 when the Sorg Asso-
ciation was formed, that the Plan, which it dominated and main-
tained, was not legal under the Act. Moreover, despite the obvious
appearance of continuity between the Plan and the Sorg Associa-
tion, and despite the fact that the Sorg Association widely claimed
the respondent's support in its contest with the United, the respond-
ent made no announcement to its employees that the Plan was no
longer in effect, or that it intended to abide by the Act in the future
and to forsake the policy it had followed for several years of domi-
nating and supporting the Plan which it had originally brought into
being.- Instead, as the United States Court of Appeals for the Second
,Circuit said in an analogous situation, "it was content to let them
assume, what was true, that the `Independent' had arisen out 'of
the Plan, and to believe as they quite naturally might have done
that it preferred the successor to the C. I. 0. Local ..."153
By its failure to take any action with regard to abandonment of
the Plan or to notify the employees of its neutrality, the respondent
contributed substantial support to the Sorg Association. It is clear
that the employees, when solicited to join the Sorg Association by
the men who had functioned'as officers and representatives of the com-
pany-instituted Plan, which the employees knew to be favored by
the respondent, could not feel free to join or not to join as they
desired. ' The advantage thus given to the Sorg Association in its
contest for membership with the United, was further strengthened
by the respondent's active opposition to the United evidenced by the
acts and statements set out in Section III A above. -
s' Westinghouse Electric & Manufacturing Company v. National Labor Relations Board,
112 F ( 2d) 657 (C C A 2) aff'g as mod Matter of Westinghouse Electric & Mantiufac-
turing Company and United Electrical Radio & Machine Workers of America , Local 410, 18
N L R B 300; Kansas City Power and Light Company, a corporation v National
Labor Relations Board and Association of Employees of the Kansas City Power and Light
Company, 111 F (2d) 340 (C C A 8),'aff'g as mod Matter of Kansas City Power d Light
Company and International Brotherhood of Electrical Workers, Local Union B-412, 12
N.L R B 1414.
SORG PAPER COMPANY 983
Moreover, in addition to the support described above, the respond-
ent supported the Sorg and Superior Associations by allowing them
to organize on company time or property, and by denying the same
right to the United in the Paper Mill; its supervisory employees,
Hedges and Feerer, allowed the organizers of the Sorg Association
to solicit in the Paper Mill even though their attention had been
called expressly to such activity ; another supervisory employee,
Newcomb, participated as one of the organizers and leaders of the
Sorg Association; one of its officers, Charles Aull, warned and urged
the employees to vote against the United in the Paper Mill, and thus,
in effect, for the Superior Association; and the respondent contrib-
uted financial support to the Superior Association by allowing it to
install candy-vending machines, rent-free, in the Bag Division.,
Finally, the respondent contributed substantial support to the
Sorg Association and to the Superior Association by recognizing
them as bargaining representatives on the basis of membership re-
ports submitted by accountants hired by the respondent, while at the
same time refusing to recognize or deal with the United, despite the
fact that it had been certified by the Board following a secret ballot
election among the employees. The respondent's complete willing-
ness to deal with the Sorg and Superior Associations and its fixed
determination not to bargain with the United clearly contributed
to the membership of the Sorg and Superior Associations and re-
strained employees from becoming members of the United.
We find that the respondent dominated and interfered with the
formation and administration of the Sorg Association and the Su-
perior Association and contributed support to them, and that it
thereby interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occurring in connection with the operations of the re-
spondent described in Section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Since we have found that the respondent has engaged in unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of
the Act.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the respondent dominated and interfered with
the formation and administration of the Sorg Association and the
Superior Association, and contributed support to them. Their con-
tinued existence is a consequence of violation of the Act, thwarting
the purposes of the Act. In -order to effectuate the policies of the
Act and to free the employees of the respondent from such domina-
tion and interference, and the effects thereof, which constitute a
continuing obstacle to the exercise by the employees of the rights
guaranteed them by the Act, we shall order the respondent to with-
draw all recognition from the Sorg Association and the Superior
Association as representatives of any of its employees for the purposes
of collective bargaining with respect to grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of
employment, and to disestablish the Sorg Association and the Su-
perior Association as such representatives.
Since the contract between the respondent and the Sorg Association
embodies recognition of the Association as exclusive representative,
and represents the fruits of the respondents unfair labor practices
and a device to. perpetuate their effects, we shall order the respondent
specifically to cease and desist from giving effect to this or any other
agreement it may have entered into with the Sorg Association in
respect to rates of pay, wages, hours of employment, or other condi-
tions of work.
We have found that the respondent discriminated in regard to hire
and tenure and terms and conditions of employment of Sam Isbell
and Effie Wikel because of their union membership and activity.
We shall order the respondent, accordingly, to offer to them imme-
diate and full reinstatement to their former or substantially equiva-
lent ppsitions, without prejudice to their seniority and other rights
and privileges, and to make them whole for any loss of pay they
have suffered by reason of the discrimination against them by pay-
ment 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 the re-
spondent's discrimination against him to the date of the offer of rein-
statement, less his net earnings,54 during said period.
sa 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 and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L 11 B 440 Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings, but as provided below in the Order, shall be
deducted from the sum due to the employee, and the amount thereof shall be paid over
to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief projects. Matter of
Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. ri B 219,
enf'd, as modified as to other issues, Republic Steel Corporation v. National Labor Rela-
tions Board, 107 F. (2d) 472 (C C. A 3), cert. granted as to this issue May 20, 1940.
SORG PAPER COMPANY 985
We shall also order the respondent to reinstate Isbell's insurance
policies which lapsed because the respondent refused to accept payment
on them, or to provide him with a substantially equivalent substitute
therefor, upon payment by him of the money he would have paid on
the insurance policies had the respondent not discriminated against
him.55
We' have found that the respondent refused to bargain collectively
with the United as the exclusive representative of its employees in the
appropriate unit. We shall, therefore; order the respondent, upon
request, to bargain collectively with the United.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Paper Workers Local Industrial Union, No. 112, affiliated
with the C. I. 0., Sorg Paper Company Employees Association, and
Superior-Lawrence Employees Association are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of, and contributing support to the Sorg Paper Company
Employees Association and the Superior-Lawrence Employees Asso-
ciation the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to hire and tenure and terms and
conditions of employment of Sam Isbell and Effie Wikel, thereby
discouraging membership in United Paper Workers of America, Local
Industrial Union, No. 112, affiliated with the C. I. 0., and encouraging
membership in the Sorg Paper Company Employees Association and
the Superior-Lawrence Employees Association, the respondent has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The production employees of the respondent in both the Paper
Mill and the Bag Division, excluding office workers, supervisory em-
ployees who have the right to hire and discharge, and watchmen, at
all times material herein constituted and they now constitute a unit
appropriate for purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
as Continental Oil Company, a Corporation v N L R B., 113 F. (2d) 473 (C. C A 10),
enf'g in part Matter of Continental Oil Company and Oil Workers International Union, 12
N. L. R. B. 789.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. United Paper Workers Local Industrial Union No. 112, affiliated
with the C. I. O. was on April 9, 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.
7. By refusing to bargain collectively with United Paper Workers
of America, Local Industrial Union, No. 112, affiliated with the
C. I. 0., as the exclusive representative of its employees in the appro-
priate unit, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
9. The respondent has not discriminated in regard to the hire
and tenure of employment of Charles Terrill, Dorothy Montgomery,
Matt Combs, Vernon Puckett, Sie Powers, Charles Nolan, Dorace
Crain, and Harry Newcomb within the meaning of Section 8 (3)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Sorg Paper Company, Middletown, Ohio, and its officers,
agents,, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the formation or administra-
tion of the Sorg Paper Company Employees Association or the
Superior-Lawrence Employees Association, or the formation or
administration of any other labor organizations of its employees,
and contributing support to the Sorg Paper Company Employees
Association or the Superior-Lawrence Employees Association, or to
any other labor organizations of its employees;
(b) Recognizing the Sorg Paper Company Employees Association
or the Superior-Lawrence Employees Association as the representa-
tive of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of employment;
(c) Discouraging membership in United Paper Workers of
America Local Industrial Union, No. 112, affiliated with the C. I. 0.,
or any other labor organization of its employees, by discharging,
laying off, or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire or tenure of
employment or any term or condition of their employment;
SORG PAPER COMPANY 987
-(d) Giving effect to any agreement or contract which it may have
entered into with or through the Sorg Paper Company Employees
Association or the Superior-Lawrence Employees Association in
respect to rates of pay, wages, -hours of employment, or other
conditions of employment ;
(e) Refusing to bargain collectively with United Paper Workers
of America Local Industrial Union No. 112, affiliated with the
C. I. 0., as the exclusive representative of its production employees
in the Paper Mill and the Bag Division, excluding office workers,
supervisory employees who have the right to hire and discharge, and
watchmen, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and. to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the Sorg Paper Company Em-
ployees Association and the Superior-Lawrence Employees Associ-
ation, as the representatives of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of employ-
ment, and completely disestablish the Sorg Paper, Company
Employees Association and the Superior-Lawrence Employees
Association as such representatives;
(b) Offer to Sam Isbell and Effie Wikel immediate and full rein-
statement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(c) Reinstate the insurance policies of Sam Isbell which lapsed by
reason of the respondent's refusal to accept payment thereon after his
discharge, or provide him with a substantially equivalent substitute
therefor, upon payment by him of the money which he would have
paid on the insurance policies had the respondent not discriminated
against him ;
(d) Make whole Sam Isbell and Effie Wikel for any loss of pay
they may have suffered by reason of the respondent's discrimination
in regard to their hire and tenure and terms and conditions of
employment, by payment to each of them respectively, of a sum of
money equal to that which he would normally have earned as wages,
during the period from the date of the discrimination to the date
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of reinstatement, less his net earnings 56 during said period ; deduct-
ing, however , from the amount otherwise due to each of the said
employees, monies received by said employees during said period for
work performed upon , Federal , State, county , municipal , or other
work-relief projects; and pay over the amount so deducted to the
appropriate fiscal agency of the Federal , State, county , municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(e) Upon request , bargain collectively with United Paper Workers
of America , Local -Industrial Union No. 112, affiliated with the
C. I. O., as the exclusive representative of its production employees
in the Paper Mill and the Bag Division , excluding office workers,
supervisory employees who have the right to hire and discharge and
watchmen, in respect to rates of pay , wages, hours of employment,
or other conditions of employment;
(f) Post immediately , in conspicuous places at its plants, and
maintain for a period of at least sixty ( 60) consecutive days from
the date of posting, notices to its employees stating : ( 1) that the
respondent will not engage in-the conduct from, which it is ordered
to cease and desist in paragraphs 1 (a), (b), (c ), (d), (e), and (f)
of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this
Order; ( 3) that the respondent 's. employees are free to become or
remain members of United Paper Workers of America, Local Indus-
trial Union , No. 112, affiliated with the C . I. 0., and the respondent
will not discriminate against any employee because of membership
or activity in that organization;
(g) Notify the Regional Director for the Ninth Region in writing
within ten (10 ) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTI--IER ORDERED that the complaint , in so far as it alleges
that the respondent discriminated in regard to the hire and tenure
and terms and conditions of employment of Charles Terrill , Dorothy
Montgomery, Matt Combs, Vernon Puckett, Sie Powers, Charles
Nolan, Dorace Crain , and Harry Newcomb, be , and it hereby is,
dismissed.
MR. WILLIAM M. LETSERSON took no part in the consideration of the
above Decision and Order.
58 See footnote 54, supra.