Southwester Co.

National Labor Relations Board - Board Decisions

Mar 1, 1955

111 N.L.R.B. 805 (N.L.R.B. 1955)

SOUTHWESTER CO. 805
MEMBER MURDOCK , dissenting :
I cannot agree with my colleagues ' conclusion that the Employer's
preelection conduct did not interfere with the employees' freedom of
choice in the election. As found by the Regional Director, the an-
nouncement of the pension plan was made by the Employer's vice
president in a speech delivered to the employees on company time
just outside the 24-hour period defined in the Peerless Plywood case.'
The facts as to employee knowledge of the plan were reported by the
Regional Director as follows : (1) A few employees had worked on
various phases of the plan; (2) in 1952 the Employer had obtained
some information to be used in formulating the plan by means of
employee questionnaires; (3) at that time a few employees were told,
when they asked the purpose of the questionnaires, that the Company
was considering a pension plan. This evidence does not, in my opin-
ion, support the majority's finding of "substantial employee aware-
ness" that the plan was near fruition. On the contrary, it supports
the Regional Director's conclusion that the employees were unaware
that such a plan was close to reality until so notified in the Employer's
speech of August 6. In announcing the plan just before the election,
the vice president said, "This plan will probably be placed in effect
early in 1955." Upon the basis of these facts, it is clear to me that
the institution of a pension plan was not anticipated by the employees
prior to the announcement and that the relationship between the an-
nouncement (which preceded the earliest possible effective date of the
plan some 5 months) and the election was not a temporal coincidence.
Accordingly, I would find that the timing of the announcement was
governed solely by the imminence of the election and, therefore, it was
deliberately calculated to, and did, interfere with the employees' free-
dom of choice of a bargaining representative .4 I would, therefore, set
aside the election as recommended by the Regional Director.
3 Peerless Plywood Company, 107 NLRB 427.
4 Knickerbocker Manufacturing Company, Inc ., 107 NLRB 507.
MORRIS SEIDMON , GOLDIE SEIDMON , HARRY HENKIN AND LEONARD
SEIDMON, D/B/A SOUTHWESTER Co. and INTERNATIONAL CHEMICAL
WORKERS UNION, AFL. Case No. 13-CA-1401. March 1, 1955
Decision and Order
On March 8, 1954, Trial Examiner Herbert Silberman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that the Respondents cease and
desist therefrom and take certain affirmative action, as set forth in
111 NLRB No. 136.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the copy of the Intermediate Report attached hereto. The Trial'
Examiner also found that the Respondents had not engaged in certain
other alleged unfair labor practices and recommended that the com-
plaint be dismissed with respect thereto. Thereafter, the General
Counsel and the Respondent filed exceptions to the Intermediate
Report and supporting briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in,
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the exceptions, additions,
and modifications noted below.
1. The Trial Examiner found that certain remarks by Seidmon, one
of the Respondent-partners, that the alien employees might be de-
ported by the Immigration Department if they joined the "Com-
munist" Union, and that the Union, if it won the election, would
control the hiring and would replace the present employees with per-
sons having greater union seniority and with allegedly undesirable
persons, violated Section 8 (a) (1) of the Act. We do not agree. The.
question to be determined is whether such remarks were privileged
under Section 8 (c) or were unprotected because they contained threats,
of reprisal. We can find no threats of reprisal in these statements.
Seidmon merely opined concerning the possible actions of third par-
ties, completely detached from the Respondents, should the employees
continue their adherence to the Union. The statements contained no^
threat that the Respondents would take any steps to induce the hap-
pening of the predicted events. Accordingly, we find that the above
statements were privileged under Section 8 (c) and therefore did
not constitute violations of Section 8 (a) (1).
2. We do not agree with the Trial Examiner's finding that the
Respondents violated Section 8 (a) (5).
Upon the basis of authorization cards signed by a majority of the
employees in the appropriate unit the Union, on December 19, 1952,
requested recognition of the Respondents. Within a few days there-
after the Union filed a petition for certification. From the date of
the request for recognition to on or about March 10, 1953, the date of
the certification election, the Respondents engaged in certain unfair
labor practices. Of the 45 ballots cast in the election, 9 were for the
Union, 18 were for no union, and 18 were challenged. The Union
later withdrew its petition. Although the Union obviously had
knowledge of the Respondents' unlawful acts committed before the
date of the election, it chose to await the results of the election before
1 The Respondents also moved to have oral argument in this case We find that the record,
together with the briefs in this case , is sufficient for full consideration of the issues, and
therefore we deny the Respondent 's motion.
SOUTHWESTER CO. 807
it filed its charge of an unlawful refusal to bargain, which it did on
March 17, 1953.
In view of the foregoing and for the reasons stated in Aiello Dairy
Farms, 110 NLRB 1365, we do not find that the Respondents have
violated Section 8 (a) (5) of the Act, and we will not order the Re-
spondents to bargain in this case?
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondents, Morris Seidmon, Goldie
Seidmon, Harry Henkin and Leonard Seidmon, d/b/a Southwester
Co., Chicago, Illinois, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Chemical Workers
Union, AFL, or any other labor organization, by discharging any of
their employees or otherwise discriminating in regard to their employ-
ees' hire or tenure of employment or any term or condition of employ-
ment.
(b) Interrogating employees concerning their membership in, or
activities on behalf of, the International Chemical Workers Union,
AFL, or any other labor organization, in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1).
(c) Threatening employees with reprisal or promising them benefits
to discourage their affiliation with or support of any labor organization.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Chemical
Workers Union, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Hans Eelmae and Leinbit Piiroja immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges, and
make then whole in the manner set forth in the section entitled "The
Remedy" in the Intermediate Report for any loss of earnings they
9 Member Peterson, who dissented in Aiello, considers himself bound by the majority
decision in the case
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may have suffered by reason of the Respondents' discrimination against
them.
(b) Upon request make available to the Board or its agents, for
examination and copying, all payroll and other records necessary or
useful to the analysis of the amount of back pay due under the terms
of this Order.
(c) Post at their plant in Chicago, Illinois, copies of the notice
attached hereto and marked "Appendix A." 3 Copies of said notice,
to be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed in behalf of the Respondents, be posted
by them immediately upon receipt thereof, and maintained by thelnm
for sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps they
have taken to comply herewith.
IT IS ORDERED that the complaint be dismissed insofar as it alleges
that the Respondents have discriminated in regard to the hire and
tenure of employment of Karl Aavik, Endel Torim, and Walter Rei-
naru, in violation of Section 8 (a) (1) and (3) of the Act, insofar as
it alleges that the Respondents have interfered with, restrained, and
coerced their employees by furnishing food and beverages to their
employees on March 9 and 10, 1953, and by defacing election posters,
in violation of Section 8 (a) (1) of the Act, and insofar as it alleges
a refusal to bargain, in violation of Section 8 (a) (5).
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
3 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees regarding their union
membership or activities.
WE WILL NOT threaten our employees with reprisal or promise
them benefits to discourage their affiliation with or support of
any labor organization.
SOUTHWESTER CO. 809
WE WILL NOT discourage membership in International Chemical
Workers Union, AFL, or any other labor organization, by dis-
charging any of our employees, or in any other manner discrimi-
nating against them in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist International
Chemical Workers Union, AFL, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right .may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer Hans Eelmae and Lembit Piiroja immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges and make them whole for any loss of earnings they may
have suffered by reason of their discharge.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named Union, or any
other labor organization, except to the extent that this right may be
affected by an agreement to conformity with Section 8 (a) (3) of
the Act.
MORRIS SEIDMON, GOLDIE SEIDMON, HARRY
HENKIN AND LEONARD SEIDMON, D/B/A
SOUTHWESTER CO., Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,,
and must not be altered , defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by International Chemical Work-
ers Union, AFL, herein called Chemical Workers, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Thirteenth Region (Chicago,
Illinois), issued a complaint, dated June 23, 1953, against the Respondents, Morris
Seidmon, Goldie Seidmon, Harry Henkin and Leonard Seidmon, d/b/a Southwester
Co., alleging that the Respondents had engaged in and were engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. Copies of the charges, complaint, and notice of hearing thereon
were duly served upon the parties. The respondents in their answer, verified on July
3, 1953, denied that they had committed the alleged unfair labor practices. There-
after, the said Regional Director, on September 22, 1953, issued amendments to
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint in the above-entitled matter. Copies of said amendments to the com-
plaint and an amended notice of hearing thereon were duly served upon the parties.
With respect to the unfair labor practices, the complaint, as further amended dur-
ing the hearing, alleges, in substance, that the Respondents: (1) Although requested
to do so, since on or about December 20, 1952, have failed and refused to bargain
collectively with the Chemical Workers as the exclusive representative of the employ-
ees in an appropriate unit and have engaged in various acts set forth in the complaint
for the purpose of destroying or dissipating the Chemical Workers' status as the
said exclusive representative, in violation of Section 8 (a) (5) of the Act; (2) dis-
criminatorily discharged and thereafter have failed and refused to reinstate Hans
Eelmae, Endel Torim, Lembit Piiroja, Karl Aavik, and Walter Reinaru, in violation
of Section 8 (a) (3) of the Act; and (3) since December 19, 1952, by the foregoing
acts and by other conduct set forth in the complaint, have interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, in violation of Section 8 (a) (1) thereof.
Pursuant to notice, a hearing was held at Chicago, Illinois, beginning on Septem-
ber 28, 1953, and concluding on October 13, 1953, before Herbert Silberman, the
duly designated Trial Examiner. All parties were represented at the hearing by
counsel, and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. Respondents' motions,
made at the opening of the hearing, for additional time to answer or otherwise
plead to the amended complaint and to dismiss the amended complaint were denied.
During the presentation of the General Counsel's case, the General Counsel was
permitted to amend further the complaint by striking therefrom the allegations
that Aldo Lattemae was discharged in violation of Section 8 (a) (3) of the Act
and for the purpose of destroying the Chemical Workers' status as the exclusive
representative of Respondents' employees in an appropriate unit. Respondents'
motion, made at the conclusion of the General Counsel's case, to dismiss the amended
complaint was denied with leave to renew upon the entire record at the close of
the case. At the conclusion of the entire case, Respondents renewed their motion
to dismiss the amended complaint. Decision on this motion was reserved and it
is now disposed of in accordance with the findings of fact and conclusions of law
made below. A motion to conform the pleadings to the proof was granted. All
parties were granted opportunity to present oral argument, and to file briefs and
proposed findings of fact and conclusions of law with the Trial Examiner. Briefs
were received from the General Counsel and the Respondents and have been care-
fully considered.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Morris Seidmon, Goldie Seidmon, Harry Henkin and Leonard Seidmon, d/b/a
Southwester Co., a partnership organized and existing under the laws of the State o
of Illinois, are engaged at their plant located in Chicago, Illinois, in the manufacture
and sale of fishing rods and other sports equipment. During all times material hereto,
the Respondents, in the course and conduct of their business, annually purchased
raw materials, supplies, and equipment valued in excess of $75,000, of which more
than 50 percent originated outside the State of Illinois and was shipped directly
to their plant in Chicago; and the Respondents annually sold finished products
valued in excess of $250,000, of which more than 50 percent was shipped from
their plant in Chicago to points outside the State of Illinois.
The Respondents admit that they are engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory findings
Southwester Co. was organized about 5 years ago. Of the Company's four
pailners, Leonard Seidmon is the most active in the business and is primarily re-
sponsible for its management. Goldie Seidmon, another partner, is in charge of
SOUTHWESTER CO. 811
the office and works under the general supervision of her brother, Leonard. Morris
Seidmon has no fixed duties with respect to the operations of the Company and
only occasionally is at the plant. Harry Henkin is in charge of maintenance of
the Company's plant and works at the Company's premises part time. For approxi-
mately 2 years, until he was discharged on September 6, 1952, Forrest Miles was
employed as the Company's production manager. He was replaced by Joseph
Angelo Nava who was hired on September 29, 1952. Miles and Nava were super-
visors within the meaning of the Act during all times they were employed by
Respondents.
The principal operations at the Company's plant consist of the manufacture of
glass rods, sometimes referred to as dowels or blanks, in a separate room, called the
glass room, and the subsequent machining and assembly of the glass dowels into
fishing rods. The production operations do not require the exercise of craft skills
and the transfer of employees from one job to another is not uncommon.
From the middle of December 1952 to the end of March 1953, which is the period
involved in this proceeding, a majority of the production and maintenance employees
at Respondents' plant were aliens of Estonian origin. With few exceptions the ability
of these employees to understand and speak English was limited. Employees
Eelmae, Lattemae, and Mikkau, who had greater facility with English than the other
Estonians at the plant, acted as interpreters.
On December 18, 1952, at the Company's premises, 25 of approximately 35 to 37
production and maintenance workers then employed signed authorization cards
designating the Chemical Workers as their collective-bargaining representative. Two
of the employees, Hans Eelmae and Aldo Lattemae, took charge of distributing the
cards to the employees, assisting the employees in filling out the cards and collecting
the signed cards. Eelmae and Lattemae were discharged upon reporting to the plant
for work the next morning.
On December 27, 1952, Respondents received a letter from the Chemical Workers
asserting the Union's claim as the designated representative of a majority of Re-
spondents' production and maintenance employees, requesting a meeting for the
purpose of engaging in collective bargaining and also advising Respondents that a
representation petition had been filed with the National Labor Relations Board.
Respondents did not answer this letter. On March 10, 1953, a representation election
was conducted under the auspices of the Board. Although the Chemical Workers
did not receive a majority of the votes cast and counted in the election, the chal-
lenged ballots were sufficient in number to affect the results of the election. Also,
objections to conduct affecting the results of the election were duly filed. However,
the representation petition was withdrawn before any resolution of the questions
raised by the objections and challenges was made.
The violation of Section 8 (a) (5) of the Act alleged in the complaint flows from
Respondents' failure to reply to the Chemical Workers' request to engage in collective
bargaining and Respondents' efforts to destroy the Union's majority. Respondents
in defense assert that they, in good faith, doubted the Union's majority status and
were entitled to await the results of the Board election before according recognition
to the Chemical Workers as their employees' bargaining representative. The General
Counsel disputes Respondents' assertion of good faith. He contends that Respond-
ents, on December 19, 1952, entered upon a course of unlawful action which was
designed to dissipate the Union's majority, and by such conduct the Respondents
deprived themselves of whatever right they might otherwise have had to predicate
collective bargaining with the Chemical Workers upon the Union establishing its
majority at a secret-ballot election. Resolution of the refusal-to-bargain issue must
thus await consideration of the other conduct alleged to have been violative of
Section 8 (a) (1) and (3) of the Act.
A substantial portion of the evidence adduced by the General Counsel in support
of the allegations of the complaint relates to conduct of and statements made by
Leonard Seidmon. The latter denied nearly all the incriminatory testimony adduced
by the witnesses who appeared on behalf of the General Counsel. Thus, the credi-
bility of Leonard Seidmon is a significant issue in this case . Leonard Seidmon,
when he was questioned by the General Counsel, was curt, argumentative, and
irritable in his manner. His answers, in large part, were abrupt or evasive. His
memory of facts relevant to the issues in this case was bad. However, when he was
examined by Respondents ' attorney , Leonard Seidmon 's testimony was expansive
and voluble. Then, in marked contrast to his testimony when he was examined by
the General Counsel, his answers not only were responsive to the questions asked
by his counsel but often included unnecessarily copious details. Moreover, his ca-
pacity to remember small matters was very good when necessary to answer questions
posed by his attorney. This faculty was noticeably absent when he was questioned
by the General Counsel. In various particulars Leonard Seidmon's testimony con-
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
flitted with the testimony of other witnesses who appeared on behalf of the Re-
spondents and in some particulars conflicted with his own testimony given at different
intervals during the hearing. Furthermore, parts of Leonard Seidmon's testimony
are implausible in the light of undisputed facts. Because of the foregoing and
particularly because of his demeanor while testifying at the hearing herein, I am
of the opinion that Leonard Seidmon was an unreliable witness.
B. Interference, restraint, and coercion
The advent of organizational activity among their empioyees was met with Re-
spondents' immediate opposition. On December 18, 1952, union authorization cards
were signed by a majority of their employees. Respondents at once entered upon
a campaign to dissipate the Chemical Workers' majority and to defeat the selection
of a collective-bargaining representative by their employees. This campaign was
characterized by a course of unlawful action which included discriminatory dis-
charges, discussed in the next section below, and other conduct alleged to have
interfered with, restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
1. Interrogation, threats, etc.
Employees Artur Mikkau and Walter Reinaru testified to a series of conversations
with Leonard Seidmon during the months from January through March which are
the principal bases for the Respondents' alleged violations of Section 8 (a) (1) of
the Act independent of the discriminatory discharges and the Unlawful refusal to
bargain.
Artur Mikkau testified that in the first or second week of January 1953, Leonard
Seidmon asked him whether he had signed an authorization card. Mikkau answered
yes. Seidmon then asked him whether he knew anybody else who had signed a
card and Mikkau replied that he did not. Seidmon then explained that the Union
was bad for the workers and would cost the workers a lot of money; that the Union
would put into the plant "fat, stinking negroes" and he and the employees would
not like that; and that the Union would put into the plant people with more union
seniority so that the Respondents would have to fire their present employees who had
just joined the Union. Seidmon said he hoped Mikkau understood that the Union
was bad for the Estonian employees and instructed Mikkau to tell the employees
to vote against the Union if there were an election. Seidmon also said that he knew
Reinaru was working for the Union and he might have to fire Reinaru.
Walter Reinaru testified that on January 14 or 15, 1953, he had a lengthy meet-
ing with Leonard Seidmon which was attended by Artur Mikkau. According to
Reinaru, Leonard Seidmon said to him that he was working with the Union and
must be a Communist. Reinaru denied he was working with the Union and pro-
tested that there was no reason for him to be treated that way. To this, Seidmon
replied that he fully understood Reinaru, Reinaru being a Jew and Jews are perse-
cuted by the Communists too, but the Government in Washington did not under-
stand the position of "our people" and it would be better for Reinaru to stay
away from unions. He was warned by Seidmon that if the latter saw or heard
of Reinaru working for the benefit of the Union he would be fired immediately.
During this conversation, Leonard Seidmon also said that he had discharged Lattemae
and Eelmae "because they were working opposite to the interest of the company
and for the benefit of the union." Seidmon further said that if the Union came
into the factory, there would not be any more overtime work, Seidmon would no
longer have control over the hiring of new workers, and the Union would put
their own workers into the factory and "black, stinking Negroes" might then be
employed. Finally, Seidmon told Reinaru that any employee who did not work
for the benefit of the Union could continue with the Company as long as he wanted to.
Mikkau, in general, corroborated Reinaru's testimony. According to Mikkau,
among other things, Seidmon told Reinaru that the Union is communistic and
Estonians who are not American nationals must be very careful of "those things
and Government might not like it." Seidmon also told both men to watch the other
factory employees and report to him anybody who acts for the Union.
During the period following this meeting and until March 8, 1953, Reinaru had
several more conversations with Leonard Seidmon relative to the same subjects.1
1 Reinaru tried to fix the dates and what was said at each of these meetings. Although
there is some ambiguity in Reinaru 's testimony as to the date of each meeting and whether
particular statements were made at one or another of the meetings, I credit Reinaru's tes-
timony as to the substance of what Seidmon said to him on various occasions during the
3 months from January through March 1953.
SOUTHWESTER CO. 813
Reinaru testified that these conversations with Seidmon were all initiated by the
latter . With regard to these meetings , Reinaru 's testimony , in relevant part, is as
follows: About January 22, Leonard Seidmon asked Reinaru if Reinaru knew which
of the factory employees were in favor of the Union. On that occasion, Seidmon
repeated that the Union was communistic and the employees must be told that the
Union was no good for them. About a week later, there was a meeting between
Reinaru and Seidmon at which Mr. Lopatka, Respondents' attorney, was present.
Mr. Lopatka told Reinaru that he had gone to see the Union to try to find out if
it was communistic; however, he had not come to any conclusion as to whether
the Union was communistic so everyone had to draw his own conclusion. At this
meeting, or at a meeting held about the same time, Seidmon asked Reinaru if he
knew what was the mood of the workers and what was their opinion with regard
to the election. Seidmon made it clear that the Union was no good and that he
had been a friend of the Estonian people. Sometime during the early part of
February, Seidmon told Reinaru that he would not get an increase in pay, which
had previously been promised him, "before the production had been increased, and
all those troubles which the filling out of the union cards by our people caused
him were over ." Early in March , Leonard Seidmon again accused Reinaru of
cooperating with the Union, "but since he wasn't quite sure if [Reinaru] was work-
ing for them or not, he asked [Reinaru] to talk to the people and influence them
that they would be for Mr. Seidmon in this election, since elections were near." On
March 8 , 1953, Leonard Seidmon met Reinaru in the washroom and asked him
who would be for the union in the election and who would be against it. Reinaru
replied that everyone was old enough to vote as he saw fit and that he did not know
the ideas of the other people.
Two or three weeks before the March 10 election, according to the testimony of
Mikkau, Leonard Seidmon told him that Respondents fired Piiroja because he
acted for the Union during working hours and disturbed other employees. About
the same time, in answer to an inquiry from Mikkau, Seidmon told him that Aavik
was fired because he ran around during working hours disturbing other workers and
talking about the Union.2
Mikkau also testified that prior to the election , during another meeting with
Leonard Seidmon at which Mr. Lopatka was present, Seidmon told him that if the
Estonian employees voted for the Union they would have trouble with the Immigra-
tion Department because the Union is a Communist organization . Seidmon in-
structed Mikkau to relay this information to the other employees in order that
they understand the necessity for voting against the Union in the forthcoming
,election. Mikkau's testimony in this regard was as follows:
Mr. Leonard Seidmon and Mr. Lopatka told me they received a letter from
Immigration Department, and Immigration Department was very interested
about Estonians, what kind of people they are, and I asked Mr. Seidmon why,
and he told me that is all because of the union. The Immigration Department
told him that they would investigation on every Estonian in this country and
they might deport some of the Estonians because of the activity of the union.
He told me that he and Mr. Lopatka, when they received the letter went to
Washington to stop this investigation. And he stopped it but only for short
time, and if the Estonians vote now for the union, they will have much trouble
with the Government. And I asked Mr. Seidmon about the union, what is so
bad about the union, and he told me that the union is a Communistic organiza-
tion and everybody who works with the union are probably Communists too,
and naturally, the Government don't like it and the Government also said that
Estonians are enemy aliens because Estonians occupied from Russia now. He
told me to tell that to the other people too, and they should understand and
vote again the union... .
This testimony was in part corroborated by Leonard Seidmon. The latter testified
that he was approached by Mikkau who stated that he (Mikkau) was a friend of
the Company's and was against the Union and would like to get information from
the Company that he could relay to the employees to answer questions concerning
the Union which were troubling them. Mr. Seidmon was told by Mikkau that the
employees were very much concerned with the problem of Communism because they
2 Although I find below that Aavik quit his employment, in the light of the events bear-
ing upon Aavik's quitting his job and Respondents' efforts to persuade their employees
against voting for the Chemical Workers in the forthcoming election, I do not believe it
improbable that Seidmon told DMikkau that Aavik was discharged for the reason stated
above
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came from a Communist -dominated country and many of the employees and mem-
bers of their families had suffered under Communist treatment. Mikkau said the
employees were very much concerned about whether the Union was a Communist
or Communist-dominated organization. Seidmon replied that he asked the Union
whether it had complied with the law and filed non-Communist oaths, but he received
no answer from either the Union or from the Board regarding the compliance status
of the Union. Seidmon further testified, "The Union refused or could not give us
that information; that came up any number of times afterwards when he asked me
the very same question because it kept bothering the employees during the entire
time before the election, and to this date we still have not been given that
information."
The day after the election Leonard Seidmon showed Mikkau a paper upon which
nine names were written. Seidmon said to Mikkau that he was keeping a record of
the people who he (Seidmon) believed voted for the Union. He asked Mikkau
whether the latter knew who voted against the Company and for the Union. Mikkau
replied that before the election Seidmon had told the employees that everything
would be forgotten after the election. Seidmon answered that he will not do anything
but he is just keeping a record; he knows who the nine people are.
2. Alleged defacing of election posters
Mikkau testified that several days before the election Leonard Seidmon gave him
two copies of the Board's official notice of election and directed him to mark "X" in
the "no" square on each copy and post one on the bulletin board on the main floor
and the other on the second floor of the factory. Mikkau marked the notices as
directed and posted them. Leonard Seidmon denied that he instructed Mikkau to
mark any of the official notices of election and further testified that no notices of
election with unauthorized marks on them were posted in the plant. Goldie Seidmon
corroborated her brother's testimony. She testified that she saw the notice of election
which was posted and it contained no unauthorized markings. If notices of election
in a defaced condition had been posted, employees in addition to Mikkau would
have seen them. However, the General Counsel offered no evidence corroborating
Mikkau's testimony. In this circumstance, I do not find that the General Counsel
has established by a preponderance of the evidence that notices of election were
unauthorizedly marked and posted.
3. Furnishing employees food and beverages prior to the election
At the end of the workday on March 9, 1953, the eve of the Board election,
Leonard Seidmon instructed all the employees to punch their timecards and assemble
in the plant. At this meeting Respondents' attorney read a speech to them about
the Union and the election in English and then gave the speech to Mikkau to
translate into Estonian. Seidmon also spoke to the employees about the election.
While the speeches were being delivered, and afterward, Respondents served beer,
wine, and whisky to the employees. On the day of the election, March 10, Respond-
ents furnished coffee and sweet rolls to the employees during the 10 a. in. coffee
"break" and during their lunch period. Mikkau testified that he was told by Leonard
Seidmon that the coffee and rolls were being served so that it would be unnecessary
for the employees to leave the plant where they might meet and talk with union
representatives. Seidmon also told Mikkau to "keep an eye on the workers and if
anybody goes out to tell him right away." During the noon hour, two employees
went out to eat and Seidmon sent Mikkau out to observe them and to overhear what
they might say.3
4. Concluding findings
I have considered the testimony of each witness who was questioned concerning
the events discussed in this section ("Interference , Restraint , and Coercion") sepa-
rately and in relation to all other evidence adduced at the hearing, and I am satisfied
that the testimony of Reinaru and Mikkau , except as noted above, is credible against
the controverting testimony adduced by the Respondents . Upon the basis of such
credible testimony, I find that the Respondents violated Section 8 (a) (1) of the
Act by:
1. Querying Mikkau , before the election , as to whether he signed an authorization
card and whether he knew which other employees signed cards and , after the election,
3 The General Counsel does not allege that these instructions to Mikkau constituted
unlawful surveillance of employees' union activities.
SOUTHWESTER CO. 815
whether he knew who voted for the Union; questioning Reinaru as to the sentiments
of the employees with regard to the Union and who would vote for the Union in
.the election; seeking to elicit information from Reinaru concerning his union sym-
pathies by accusing Reinaru of cooperating with the Union; and requesting Reinaru
and Mikkau to report to Leonard Seidmon the employees who are active in behalf
,of the Union. This interrogation which took place in an atmosphere of employer
hostility towards the Union "carried with it more than the implication of curiosity." 4
It served to restrain and to coerce employees in the exercise of their right to self-
organization by "its natural tendency to instill in the minds of the employees fear
of [future] discrimination." 5
2. Threatening that employees who are active on behalf of the Union would be
discharged; advising Reinaru and Mikkau that several employees had been discharged
because of their union activity; promising security in their jobs to employees who
oppose the Union; and telling Remaru that his pay increase was contingent upon the
resolution of the trouble "which the filling out of the union cards" caused.
3. Making unfounded assertions as to the adverse effect upon the employees' con-
ditions and tenure of employment at the plant if the Chemical Workers should be-
come their accredited representative; 6 and advising employees that the Chemical
Workers was a Communist organization and that the alien employees who join the
Union might be deported. These latter remarks were especially pernicious. Re-
gardless of whether unfruitful inquiries had, in fact, been made to ascertain whether
the Chemical Workers had filed non-Communist affidavits pursuant to the Act, these
remarks to Mikkau and Reinaru on at least two different occasions were made in
the presence of the Company's attorney, who as a competent practitioner in the
field of labor relations knew that the Board would not have issued the notice of
representation hearing on December 31, 1952, had the Chemical Workers not
filed non-Communist affidavits as required by law.7 It would be unreasonable to
presume that Leonard Seidmon was not aware of this fact. Falsely accusing the
Chemical Workers of being a Communist organization was, particularly in this
case, an especially effective method of combating the Union's organizational at-
tempts. Seidmon knew that many of the employees had fled Communist persecu-
tion, some had had loved members of their families killed by Communists, and,
in addition, as immigrants they feared deportation. Leonard Seidmon's unfounded
accusation that the Chemical Workers was a Communist organization and assertion
that employees who join the Union might be deported was calculated to prey upon
the employees' very real fears that they might lose the priceless privilege of con-
tinuing as residents of the United States. In the circumstances, it would be unreal-
istic to assume that the immigrant employees were able to recognize such deliberate
attempt to deceive them as mere election propaganda. Where a matter so vital
to their welfare as possible deportation was linked by their employer's statements
with union activity, it cannot be excepted that their perspective was unaffected and
they were able to knowledgeably and calmly evaluate such statements. Leonard
Seidmon's statements that the Chemical Workers was a Communist organization
and that employees who join the Union might be deported unquestionably resulted
in greater coercive effect and greater restraint upon the employees' union activi-
ties than, for instance, his comparatively lesser threat that they would lose their
jobs.8
41V L R B v. Syracuse Color Press, Inc., 209 F. 2d 596 (C A 2).
5N L. R B. v West Coast Casket Co, Inc., 205 F. 2d 902, 904 (C A. 9). Accord:
Joy Silk Mills, Inc. v. N L. R B, 185 F 2d 732 (C A, D. C.), cert. denied 341 U. S. 914.
6 Leonard Seidmon's assertions that the Union would cause Respondents to replace
present employees with persons having greater union seniority and would cause Respond-
ents to hire allegedly undesirable persons could only be accomplished by action which
would violate Section 8 (a) (1), 8 (a) (3), 8 (b) (1) (A), and 8 (b) (2) of the Act.
Such assertions fall into a completely different category from statements relating to pos-
sible lawful economic consequences of union organization. The assertions by Leonard,
Seidmon that the Union would act unlawfully and in a manner detrimental to the interests
of the employees were intended to be, and I find were, coercive. See N L R. B. v. Beatrice
Foods Company, 183 F 2d 726 (C A 10) ; L. Ronney & Sons Furniture Manufacturing
Co. 93 NLRB 1049. 1052, enfd 206 F 2d 730 (C A. 9), cert. denied 346 U. S 937.
Leonard Seidmon did not indicate in his testimony that he had any information to
support an honest belief that the Chemical Workeis was a Communist organization or was
dominated by Communists, or that any of his alien employees might be deported if they
joined the Union
8 See N. L It B v. Kropp Forge Co., 178 F 2d 822 (C. A 7), where the court stated:
It also semis cleat to us that in considering whether such statements or expressions
aie protected by Section 8 (c) of the Act, they cannot be considered as isolated words
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The pervasiveness of Respondents ' unlawful activities described in this section'
should not be measured solely by the fact that Leonard Seidmon's remarks were di-
rected to only two employees , Mikkau and Reinaru . The coercive remarks were
made to these two "with the knowledge and intention that their substance would
be communicated to other employees ." 9 There were not many employees in the
plant with whom Leonard Seidmon could communicate with any degree of ease be-
cause of their inability to speak and understand English. Mikkau , who after De-
cember 19 , 1952, was the only employee whom the Respondents used as an inter-
preter, was a logical person to be selected to act as a conduit through whom Leonard
Seidmon's remarks would pass to the Estonian employees.
With regard to Respondents ' activities on March 9 and 10 , 1953 , the General
Counsel does not direct attention to the subjects of the speeches which were made
on March 9 as being unfair labor practices , but does contend that furnishing
beverages and food to the employees on the day of the election and the preceding-
evening was an effort to influence the employees ' vote in the election and accord-
ingly violated Section 8 (a) (1) of the Act. However , the Act does not forbid
an employer from attempting to influence his employees to vote against a union
in a Board -conducted election. It only proscribes the use of unlawful means for-
exercising such influence . I do not find that in the circumstances here Respondents
have interfered with the employees ' freedom to select a bargaining representative
by offering them beverages and food, although one of Respondents ' reasons for
doing so was to induce employees to remain in the plant during their rest period'
and lunch period on the day of the election where they would not have an oppor-
tunity to meet with union representatives 10
C. The discharges
1. Hans Eelmae
Hans Eelmae was hired by the Respondents in April 1950 at an hourly rate of
$1.20. Eelmae first was assigned to operate a drill press and after several months he-
was assigned to operate a grinder . Beginning in October or November 1952 he also.
assisted Production Manager Nava by picking up and delivering material in his
automobile and relaying orders to the other production employees . These latter-
functions were referred to by various witnesses as expediting work . Eelmae was
considered a highly satisfactory employee. Despite a break in service , his starting
wage was successively increased until he was being paid $1.80 per hour at the
time of his discharge, which, according to Nava, was about 20 cents per hour more
than any other production employee was being paid.
On December 18, 1952, during the morning rest period , Eelmae picked up union,
authorization cards at a nearby restaurant , returned to the plant , and distributed'
the cards to other employees. Before noon , Nava sent Eelmae out of the plant.
Prior to leaving , Eelmae gave the remaining cards to Aldo Lattemae and instructed
Lattemae to collect the signed cards during the lunch hour . About 2 : 30 p. m. the
same day Lattemae returned the signed cards to Hans Eelmae.
The next morning upon entering the plant and before he had an opportunity to.
punch his timecard , Eelmae was met by Production Manager Nava . Nava led
Eelmae to the Company's office and there discharged Eelmae. According to Eelmae,
Nava told him that "he [Nava] is very sorry he has to give me the check. He
likes me very much and he don 't want to lose me because I am a good worker
here, help him lots of times, but the order of the company he has to do that, and,
he is very sorry for that."
cut off from the relevant circumstances and background in which they are spoken A
statement considered only as to the words it contains might seem a perfectly innocent
statement , including neither a threat nor a promise. But, when the same statement
is made by an employer to his employees , and we consider the relation of the parties,
the surrounding circumstances , related statements and events and the background of
the employer 's actions, we may find that the statement is a part, of a general pat-
tern which discloses action by the employer so coercive as to entirely destroy his
employees ' freedom of choice and action To permit statements or expressions to be,
so used on the theory that they are protected by either the First Amendment or by
Section 8 ( c) of the Act , would be in violation of Section 7 and contrary to the ex-
pressed purpose of the Act.
N L. R B v Syracuse Color Press, Inc, supra.
10 W, T Grant Company, 104 NLRB 338 ; Herbert Men's Shop Corporation , 100 NLRB
670; L Ronney d Sons Furniture Manufacturcng Co., supra, at 1051.
SOUTHWESTER CO. 817
The Respondents acknowledge that Eelmae was a satisfactory employee, but con-
tend that he resigned and was not discharged. Leonard Seidmon testified that in
November 1952 he was told by Eelmae that the latter had been classified 1-A
and expected to enter military service after the first of the year and that the Com-
pany should get a replacement for him. Harry Henkin and Joseph Nava testified
to the same effect. On December 15, 1952, Respondents hired Virgil Hunter.
Although, according to Leonard Seidmon and Nava, Hunter was hired as a replace-
ment for Eelmae, their positions with the Company were in several respects dis-
similar . Eelmae was an experienced grinder and during the period he did expedit-
ing work he also operated a grinder if Respondents "were short of help." Hunter
was not qualified to operate a grinder . Eelmae was paid an hourly wage while
Hunter was a salaried employee. Hunter, occasionally, was authorized to initial
timecards for employees who worked overtime, which Eelmae was not authorized
to do.
According to the testimony of Leonard Seidmon and Nava, the decision to termi-
nate Eelmae 's employment was reached on December 18, 1952, in the afternoon,
possibly after the end of the workday. Seidmon testified that he asked Nava, "How
is Mr . Hunter working out as Mr. Eelmae's replacement?" When Nava replied
that Hunter "appears to be all right and is catching on very nicely," Seidmon instructed
Nava to terminate Eelmae's employment because it was useless to have two men
doing the same job." However, reflecting unfavorably upon the genuineness of
this reason for terminating Eelmae's employment in the morning of December 19
is the following testimony by Nava:
Q. I think we should get this straight , Mr. Nava. Hans did not leave.
He was fired, was he not?
A. That question I can 't answer because I had no part in that other than
giving the man his check.
Q. You just gave him his check.
A. That's right.
Q. Did not say a word to him?
A. I told him that I was told to give him his check and his services were
terminated.
Q. You could not give him a reason , could you?
A. Give him what?
Q. You could not give him a reason then , could you?
A. No, I hadn't made the decision.
Q. Your friend Hans Eelmae , was discharged against your wishes, was
he not9
A. No, I wouldn't say that quite bluntly like that.
Q. You approved of his discharge?
A. I was instrumental in interviewing a replacement for Hans. I couldn't
have too much of an opinion one way or the other on it.
Q. You wanted to retain Hans Eelmae, did you not?
A. . I may have felt that a few additional days might help me, but I
couldn't have wanted to retain him completely when I had a replacement
for him.
Q. Hans Eelmae could have been used as a grinder , could he not?
A. I don't believe so.
Q. Why not?
A. Because both grinders, I believe, at the time were already operated by
two individuals.
Q. But, it was during the same period you tried Endel Torim on the
grinder and found him unsatisfactory.
A. Yes.
Contrary to the contention of the Respondents , I find that Eelmae did not re-
sign on the morning of December 19, but was discharged by the Respondents. Al-
though Eelmae had advised officials of the Company that he expected to go into
military service after the beginning of the year 1953, there is no evidence indicating
that he intended or advised the Respondents that he would leave their employ prior
n Before Hunter was hired Hans Eelmae was not the only employee who performed ex-
pediting functions . Leonard Seidmon testified that he, Joe Nava, and Harry Henkin acted
as expediters and "a number of others, in part, were acting as expediters in their respec-
tive departments "
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that time.12 Nor did Respondents advise Eelmae, prior to December 19, that
his employment would be terminated as soon as a suitable replacement for him was
found. Eelmae was encouraged to believe the contrary, that he could remain with
the Company until he was inducted into military service. In this regard Eelmae
testified, without contradiction, that in September 1952 he had a conversation with
Leonard Seidmon during which Seidmon said:
. He [Seidmon] told me if I stay here and work, and he going to give me
raise, going to make a foreman out of me, and I told him that I am going
to maybe Army pretty soon and I don't belong here. He said that if I going
to come back I get my job back and be a foreman in the plant.
Further, if Eelmae had resigned, as Respondents contend, it would not have been
necessary for Leonard Seidmon to instruct Nava to terminate Eelmae's employment.
I do not credit Leonard Seidmon's denial of knowledge on Respondents' part of
Eelmae's activities on December 18 with regard to the union authorization cards.
The Respondents' plant is small in size and number of employees. During Decem-
ber 1952, they employed about 35 to 37 production and maintenance employees.
The partners, especially Leonard Seidmon and Harry Henkin, as well as Production
Manager Nava, made frequent inspections of the plant and mixed freely and regu-
larly with the employees. Furthermore, Eelmae and Lattemae were not furtive in
conducting their organizing activities on December 18. These circumstances give
rise to a reasonable inference that Eelmae's union activities in the plant on De-
cember 18 came to the attention of Respondents' management officials.13 In addi-
tion, Walter Reinaru and Artur Mikkau credibly testified that Leonard Seidmon
told them that he discharged Eelmae and Lattemae because they "worked opposite
to the interest of the Company and for the benefit of the Union."
Leonard Seidmon's testimony that on December 18 he decided to terminate
Eelmae's employment because "it is useless to have two men [Eelmae and Hunter]
doing the same job" is wholly unconvincing. Hans Eelmae, one of the highest paid
and concededly one of the most satisfactory production employees, was discharged
during Respondents' busy season 14 when the number of production and mainte-
nance employees was being increased and a majority. of the production employees
were working overtime.15 Production Manager Nava admitted that it might have
helped him to retain Eelmae at least for a few additional days. Apart from doing
expediting work Eelmae was a qualified grinder. At approximately the same time
that Eelmae was discharged Endel Torim was hired as a temporary employee and
tried as a grinder. On the other hand, without prior warning and with no explana-
tion being given,15 Eelmae's employment was terminated upon reporting to work
on Friday, December 19. Respondents' precipitate action in discharging Eelmae,
a relatively long time, responsible, and competent employee before the end of the
workweek was "not natural " 17
In my opinion, there was more than a mere coincidental connection between
Eelmae's union activities on December 18 and the abrupt termination of his em-
"Nava testified that he was told by Eelmae that if the latter was not called into mili-
tary service , he still wanted to leave Southwester Co in order to find employment at a
place that might give him a deferment Absent evidence that Eelmae told Respondents he
intended to leave their employ prior to January 1953 or that Respondents learned some-
how that he had such intention , I do not believe that this statement by Eelmae to Nava
or the other statements by Eelmae to representatives of the Respondents , testified to in
this hearing , caused Respondents to conclude that Eelmae intended to leave their employ
prior to Januaiy 1, 1953.
13 N. L. R B . v Abbott Worsted Mills, 127 F. 2d 438 , 440 (C A. 1 ) ; Cary Lumber Com-
pany, 102 NLRB 406 , 411; Quest -Shon Mark Brassiere Co., Inc., 80 NLRB 1149, 1150,
enfd 185 F 2d 285 ( C A. 2), cert denied 342 U S 812
14 The evidence shows that the Respondents ' production activities are greatest during
the period from October or November to March or April
15 Leonard Seidmon testified that between December 20, 1952 , and January 15, 1953,
Respondents employed approximately 35 to 37 production and maintenance workers, in-
cluding supervisors Upon further examination , he testified that for the week ending
January 10 , 1953 , there were 39 production and maintenance workers employed of whom
25 worked more than 40 hours, and for the week ending February 14, there were 41 such
employees of whom 25 worked more than 40 hours
16 See N L R B. v El Paso-Ysleta Bus Line Go, 190 F 2d 261, 262 (C. A. 5) ; N L. R. B.
v. Piedmont Wagon & Mfg Co, 176 F 2d 695 , 696 (C A 4).
17 See E Anthony & Sons v. N. L. R. B , 163 F 2d 22 , 26 (C A., D C ), cert denied 332
U 5.773
SOUTHWESTER CO. 819
ployment the following morning.18 The Respondents opposed the selection of a
bargaining representative by their employees and regarded with disfavor activities
by any of their employees looking towards organization of their plant.19 They of-
fered a specious and unconvincing explanation for the termination of his employ-
ment. The only conclusion consistent with the preponderance of the credible testi-
mony is that Eelmae was discharged because, as Leonard Seidmon stated to Mikkau
and Reinaru, he "worked opposite to the interest of the Company and for the benefit
of the Union." I conclude and find that Hans Eelmae was discharged on December
19, 1952, because of his union activities and that Respondents by thus discharging
Eelmae, and by their failure thereafter to reinstate him, discriminated with regard
to his hire and tenure of employment, thereby discouraging membership in the
Chemical Workers and interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Endel Torim
Endel Torim was hired as a temporary employee about December 8, 1952, and
was discharged about January 7, 1953. At the time he was hired, Torim told
Nava he was a painter and wanted employment only until spring when he would
resume his painting work. He was absent from work on December 18, 1952, and
therefore did not sign a union authorization card on that day, nor did he sign one
thereafter. Early in January 1953, Torim had a conversation with Virgil Hunter.20
Hunter wanted to know Torim's opinions about unions. Torim replied that he did
not care whether or not a union came into the plant and that he already belonged to
a union, referring to the Painters, Decorators and Paper Hangers Union. The next
day, Torim was discharged by Leonard Seidmon, who told him that Respondents
were not able to use temporary workers. Torim protested that he was hired as
a temporary employee. Nava, who was also present, acknowledged this fact.
"Then," according to Torim, "Mr. Nava started to talk to me about the unions, `that
you are a union member' and then Mr. Seidmon, he hit him, and then he stopped
talking about the unions."
Leonard Seidmon testified that Torim was absent from the plant an excessive
number of days during the month of December 1952. On the day Torim's employ-
ment was terminated, Seidmon told Tarim that irregular attendance could not be
tolerated and that Torim would have to decide whether he wished to remain with
the Company on a permanent basis or wished to leave. Torim replied that he would
not stay with the Company because he could not work full time 2'
Respondents' asserted reason for terminating Torim's employment is plausible and
supported by the evidence. On the other hand, there is no persuasive evidence estab-
lishing that Torim was discharged because of union activity or sympathies. Torim
did not join the Chemical Workers and did not participate in any organizational
activities at Respondents' plant. I find that the General Counsel has failed to prove
that Endel Torim was discharged in violation of Section 8 (a) (3) of the Act.
3. Lembit Piiroja
Lembit Piiroja was hired by Respondents on September 28, 1950, at a rate of
$1.20 per hour. He received three raises and when he was discharged on Thursday,
January 8, 1953, he was being paid $1.40 per hour. Except for a brief period of
time, Piiroja worked in the glass room during his tenure with the Respondents.
Piiroja signed a union authorization card on December 18, 1952. With respect to
>s Angwell Curtain Company, Inc v. N L R B., 192 F 2d 899, 903 (C. A. 7) ; N L. R. B.
v. S S. Coachman & Sons, Inc., 203 F. 2d 109, 111 (C. A 5)
19 The testimony of Forrest Miles regarding Respondents' policy of refusing to hire per-
sons who were members of a union and of discharging employees who became affiliated with
a labor organization was too vague to be dependable and I have not relied upon such testi-
mony to support any inference or conclusion. However, events which transpired subse-
quent to Eelmae's discharge, such as those described in section B, above, reflect upon Re-
spondents' purpose and motive for terminating Eelmae's employment. N. L. R. B. v Nemec
Combustion Engineers, 207 F. 2d 655 (C A. 9), cert. denied 347 U. S 917.
20 Contrary to the contention of the General Counsel, I find the evidence does not e,tab-
lish that Hunter was a supervisor within the meaning of the Act.
21 Contrary to the testimony of Tormi and Seidmon, Nava testified that he discharged
Torim upon receiving instructions from Leonard Seidmon to do so. I do not credit Nava's
testimony in this regard
344056-55-vol 111-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P,iiroja's discharge, Artur Mikkau credibly testified that 2 or 3 weeks prior to
the March 10, 1953, election, Leonard Seidmon said to him "that they fired Piiroja
because Piiroja was acting for the Union during working hours and disturbing other
employees." 22 Respondents deny that Piiroja's union membership and activities
motivated his discharge and assert that the principal reason for Piiroja's discharge
was that beginning in September 1952 he engaged in "slowdown" tactics and there-
after failed to maintain reasonable production standards.
Piiroja was an operator of 1 of 2 similar resin tanks in the glass room. The
operation of each tank requires the cooperative efforts of a team of two employees.
An electric motor draws several skeins of fiberglass, which are wound on large spools,
simultaneously through a tank containing a resin solution into tubes or molds.23
Piiroja's duties, as described by Leonard Seidmon, involved constant repetition of
a sequence of manual operations. First, he attached a hook connected with the elec-
tric motor to a string on each fiberglass skein. Then he signaled his partner by hand
to press the button which operated the electric motor and the fiberglass skeins
were pulled into the molds. When the skeins were drawn the correct distance into
the molds, Piiroja signaled his partner to stop the motor. He then cut each skein
of fiberglass with a pair of shears. After this was done he signaled his partner to
start the motor again and to pull the skeins through the tubes an additional inch
or two. Finally, Piiroja put a cork in the end of each tube. This completed the
cycle. The glass, when removed from the molds and after baking, is referred to as
dowels or rods. According to Seidmon's description of Piiroja's duties when operat-
ing the resin tank, the latter was required to give at least three hand signals to his
partner during each cycle.
Lembit Piiroja is an immigrant of Estonian origin and his ability to speak and
understand English is limited. During his first year of employment, Piiroja worked
with Karl Aavik, another Estonian, as his partner in the operation of the resin tank.
Karl Aavik was replaced as Piiroja's teammate by Karolis Vazgauskas, a deaf-mute
of Lithuanian origin, who was able to comprehend English but not the Estonian
language. During Piiroja's last 3 days at Respondents' plant, a new employee,
referred to in the record as Robert, who was of Polish origin and could speak
English but not Estonian, was assigned as Piiroja's working partner.
Considerable testimony concerning Piiroja's production record was adduced at
the hearing. Piiroja testified that during the year he worked with Aavik, they pro-
duced an average of 700 to 800 glass dowels each day and occasionally reached a
peak of 900 rods per day. During the year he worked with Vazgauskas, their
average daily production was 600 glass dowels. Piiroja attributed the decline in
production to the fact that, "The boy couldn't talk any language I could under-
stand, and working with Karl, we could talk to each other." The first day Piiroja
worked with Robert they produced 300 dowels and on each of the next 2 days
they produced 350 dowels. Piiroja testified that prior to January 5, 1953, he was
never reprimanded for unsatisfactory work performance. Piiroja also testified that
he never deliberately slowed down production.
Leonard Seidmon and Nava to a substantial extent controverted Piiroja's testi-
mony. Production Manager Nava testified that during October 1952 Piiroja s
average production was about 350 rods per day and during November and Decem-
ber 1952 it was about 450 rods per day. During the same 3 months, according to
Nava, the operators of the other resin tank produced from 550 to 620 dowels per
day; and for the same period the spoilage, or number of defective rods produced,
by the resin tank operated by Piiroja was 15 to 20 percent greater than that of the
other tank.
Leonard Seidmon testified that during the months from September to December
1952, Piiroja's production "dropped considerably under 50 percent" to a rate of 200
to 400 rods per day and "more than 50 percent of them were bad." He also testi-
fied that the operators of the other tank produced between 700 and 800 dowels
per day and the scrap record of the second tank was under 1 percent while the
scrap record of the tank operated by Piiroja was 30 percent or more. Although
Respondents maintain records which show the daily production from each resin
tank, these records were not produced and Leonard Seidmon did not consult them
prior to giving the foregoing testimony, but testified from memory.
Nava and Leonard Seidmon also contradicted Piiroja's testimony to the effect
that he was not reprimanded during the period he worked with Vazgauskas. Nava
=Respondents do not assert as a reason for Piiroja's discharge that he disturbed other
workers or that he violated any no-solicitation rule.
' The resin tank to which Piiroja was assigned had 6 molds attached to It, while the
other tank had 3 molds attached to it.
SOUTHWESTER CO. 821
testified that once in November and again in December 1952, Piiroja was repri-
manded by Leonard Seidmon.24 Leonard Seidmon testified that he spoke to Piiroja
concerning the poor quality and low quantity of his production once in September
1952, several times in October, and many times in November and December.
Both Nava and Leonard Seidmon testified that Piiroja had engaged in a deliber-
ate slowdown and on various occasions they saw Piiroja signal Vazgauskas by hand
indicating that production should be slowed down. Neither testified that anything
was said to Piiroja about the matter prior to January 5, 1953. Leonard Seidmon
testified that on Monday, January 5, 1953, in his office and in the presence of Nava
and Bill Ingles, he criticized Piiroja for his inferior work and warned Piiroja that
he was beng placed on probation. Also, Seidmon wrote the following on Piiroja's
time card:
Warning today Must do better Must stop telling Karolis to slow down.
The timecard was signed by the four persons, including Piiroja, who were present.
On January 6, 1953, there was another meeting attended by the same persons.
On this occasion, Leonard Seidmon wrote on Piiroja's timecard:
Production not up to standard warning given over 100 rods spoiled.
The next day there was still another meeting attended by the same four persons
during which Leonard Seidmon wrote on Piiroja's timecard:
Warning given Making bad blanks.
Those present signed the timecard.
Piiroja was discharged early in the morning on January 8, 1953. He punched in
and went to the glass room, but before he could begin work Nava called him into
the office. Piiroja waited for more than an hour until Leonard Seidmon arrived.
Seidmon criticized him for insufficient production and asked why he could not
produce as many rods as the other workers Piirola in his poor English tried to
explain that he could not do as well with an inexperienced partner, referring to
Robert. Seidmon, nevertheless, gave him his final paycheck and told Nava not to
permit Piiroja to contact any of the employees in the glass room. Nava accompanied
Piiroja while he went from the office to the washroom, changed his clothes, and
until he left the plant.
The only competent evidence in support of Respondents' contention that Piiroja
was engaged in a deliberate "slowdown" is Seidmon's and Nava's testimony that they
observed Piiroja give hand signals to Vazgauskas indicating to the latter that the
work should be slowed down.25 Nava testified that he once witnessed Piiroja
pointing to the clock, which signified that Vazgauskas should slow down. Seidmon
testified that on a number of occasions he also saw Piiroja by gestures tell Vazgauskas
to slow down.
However, it is clear from the description of the glass room operations that Piiroja
during a normal workday and in the regular performance of his duties was required
to give Vazgauskas between 150 and 300 hand signals. Furthermore, because
Vazgauskas is a deaf-mute there was no other means for Piiroja to communicate
with his working partner except by hand signals. In these circumstances, the
testimony of Nava and Leonard Seidmon concerning the hand signals by Piiroja,
even if credited, is inconclusive evidence of a deliberate slowdown on his part.
Both Nava and Leonard Seidmon testified from memory, although records are
available, concerning the production from the tank operated by Piiroja and the
production from the other tank. There is substantial variance between the testimony
of Nava and Seidmon as to the quantity of glass rods produced and the proportion
of defective rods produced from each tank during the period in 1952 from September
to the end of the year. It is suspicious indeed that Seidmon who many times during
the hearing was unable to remember significant facts, including the names of the
employees in the glass room, without consulting his records, in this instance was
able to recall the glass room employees' average daily production figures without
consulting any records. Respondents' failure to introduce into evidence the glass
room production records, which Leonard Seidmon testified he believed were still
in the Company's possession, leads me to infer that such evidence would not support
24 Nava also testified to a third reprimand being given Piiroja in January 1953. At that
time, however, Piirola was working with Robert.
21 Both Nava and Leonard Seidmon testified that they were told by Bill Ingles that
Piiroia was deliberately slowing down his production. Such testimony is hearsay and
therefore not competent evidence of the fact
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nava's or Seidmon 's testimony , but would be against Respondents ' "interest and
insistence." 26
Significant with respect to Respondents ' contention that the principal reason for
Piiroja's discharge was that from September through December Piiroja was deliber-
ately slowing down his production and as a result there was a substantial decline
in the quantity and quality of rods produced by him, is that there is no evidence
in the record that the Respondents took disciplinary action with regard to Vaz-
gauskas 27 Vazgauskas was Piiroja 's working partner during this entire period.
Even if Piiroja was primarily responsible for a slowdown , Vazgauskas would have
had to participate and acquiesce in it. Thus , if such deliberate slowdown and
decline in production had taken place and Respondents intended to censure the
employees who were responsible , it is logical that Vazgauskas also would have been
disciplined.
I do not credit Nava's and Leonard Seidmon 's testimony that beginning in Sep-
tember 1952, Piiroja was engaged in a deliberate slowdown which adversely affected
the quantity and quality of the work he produced , but I believe Piiroja's denials.
Although Piiroja testified through an interpreter , his answers to questions asked him
were responsive and straightforward . I was impressed that Piiroja was an honest
and sincere witness. Likewise , I credit Piiroja's denials that he was reprimanded
prior to January 5, 1953.
The events during the 3 days preceding Piiroja's discharge further tend to refute
the genuineness of Respondents ' asserted reasons for terminating Piiroja's employment.
On January 5, Leonard Seidmon criticized Piiroja because of his poor production
and wrote on his timecard , "Warning today Must do better Must stop telling Karolis
to slow down ." However, on that very day Piiroja 's working partner was changed
so that he was no longer working with Karolis Vazgauskas . Despite the fact that
on January 5 Piiroja began working with a new partner and a substantial drop in
production could reasonably be expected during the time necessary to train his new
teammate , on each of the 2 following days he was given further warnings . It does
not appear from the record that Robert, Piiroja's new working partner, was given
any warning relative to their production . Furthermore , when Pliroja was repri-
manded on January 5, 6, and 7 by Leonard Seidmon , this was done in the presence
,of Nava and Bill Ingles, notations that the reprimands were given were made on
Piiroja's timecards , and on January 5 and 7 the persons present were asked to sign
the timecards . These elaborate transactions are less consistent with an assumption
that the real purpose of the three meetings was to warn Piiroja about his work and
are more consistent with an assumption that'by January 5, 1953, Leonard Seidmon
had decided to discharge Piiroja and was attempting to disguise his real reason by
manufacturing evidence to support an alleged nondiscriminatory motive for termi-
nating Piiroja 's employment.
At the hearing , the Respondents injected two additional matters which they al-
leged were contributing factors motivating Piiroja's discharge . These matters were
adduced through the testimony of Leonard Seidmon. He testified that on Decem-
ber 23, 1952 , Piiroja initialed the line on his timecard which indicated he had
worked overtime instead of asking one of the partners or other authorized person
to do so, in accordance with the policy of the Company; 28 and that several times
during December 1952 and January 1953 Piiroja was insolent towards him. These
matters, if true, did not motivate Piiroja's discharge , but were condoned or not
considered sufficiently important by Respondents to warrant disciplinary action.
The incident with respect to initialing the timecard was obviously trivial. Leonard
Seidmon testified that he rebuked Piiroja on account of the matter the following
day, and he did not testify that anything similar occurred before or after Decem-
ber 23, or that it was ever again called to Piiroja 's attention . As to Piiroja's alleged
insolence , there is no testimony that he was reprimanded for such behavior. On the
day of Puroja 's discharge and on each of the 3 preceding days , Piiroja was sub-
jected to various criticisms and reprimands by Leonard Seidmon. If the incident
of December 23 or Piiroja's alleged insolence were considered by Respondents to
have been culpable, Piiroja would also have been criticized for these matters. Re-
spondents ' contentions in these respects have all the appearances of "specious after-
thoughts ," 29 and the belatedness which attended giving these reasons for the termi-
26N. L R . B v. Ohio Calcium Co, 133 F 2d 721, 727 ( C. A. 6) ; N. L. R . B. V. Reming-
ton Rand, Inc., 94 F. 2d 862, 868 ( C. A. 2), cert. denied 304 U. S 576 and 585.
2"7 Vazgauskas is still in Respondents ' employ.
23 Respondents do not contend that Puroja was not authorized to work overtime on that
day or that he falsely reported the number of hours he worked on the day in question.
u N. L. R. B. V Botany Worsted Mills, 106 F. 2d 263 , 268 (C. A. 3).
SOUTHWESTER CO. 823
nation of Piiroja's employment furnishes additional support for the conclusion that
the Respondents were attempting to hide their true reasons by pretexts which did
not motivate their action30
The explanations offered by Respondents for Piiroja's discharge do "not stand
up under scrutiny." 31 I find the evidence herein predominates in favor of the Gen-
eral Counsel's contention that Lembit Piiroja was discharged, not for the reasons
asserted by the Respondents, but because of Piiroja's membership in the Chemical
Workers and Respondents' belief that he was actively supporting the Union's organ-
izational drive among its employees 32 I further find, especially in the light of the
other unlawful conduct on the part of the Respondents, described above, that Piiroja
was discharged to discourage his and other employees' membership in any labor
organization in violation of Section 8 (a) (3) and (1) of the Act.
4. Karl Aavik
On January 15 or 16, 1953, Karl Aavik's employment with Respondents was ter-
minated. Respondents contend that Aavik was not discharged, but voluntarily quit
his job. Joseph Nava testified that, on that day, Leonard Seidmon was administer-
ing a reprimand to Aavik in the presence of Nava and Virgil Hunter, when Aavik
interrupted by saying, "I don't have to be tied down to a machine and if I am going
to, why, I am quitting." Karl Aavik then "just walked out of the room and left
the building " Nava's testimony in this regard was corroborated by the testimony
of Leonard Seidmon. Aavik, whose command of English is limited, testified with-
out the benefit of the interpreter concerning his final conversation with Seidmon.
His testimony is garbled, but is not inconsistent with Nava's and Leonard Seidmon's
assertions that he quit his job. The General Counsel neither availed himself of the
services of the interpreter to clarify Aavik's testimony in this regard nor recalled
Aavik to the stand to rebut the testimony offered on behalf of the Respondents.
I find, therefore, in accordance with Respondents' contention, that Aavik voluntar-
ily quit his job and was not discharged and that the termination of his employment
does not constitute a violation of the Act.
5. Walter Reinaru
Walter Reinaru, on Saturday, March 28, 1953, notified Respondents he had an-
other job. The General Counsel contends, however, that Rernaru abandoned
employment with Respondents because he could no longer endure the "hostile con-
ditions imposed on him by Seidmon" and that his resignation in such circumstances
constituted a constructive discharge in violation of Section 8 (a) (3) of the Act.
About the middle of March, Rernaru told Nava that he was not going to work for
Respondents much longer and would be looking for a job because "I couldn't work
anymore in such atmosphere which had become hostile to me." Without giving
specific prior notice to Respondents, on March 23, 1953, Reinaru began working
elsewhere as a painter. On Saturday, March 28, Reinaru returned to Respondents'
plant to get his check. Reinaru told Joseph Nava that he had another job. Nava
asked Reinaru to work that Saturday and train his replacement. About 10:15
a. in. Reinaru was called into Leonard Seidmon's office. Leonard Seidman's testi-
mony is not contradicted that Reinaru, before leaving the meeting, said:
Mr. Nava asked me to stay this morning to help the new man to do the work
and I only stayed because Mr. Nava asked me to. I don't work here any
more. I have quit.
I do not agree with the General Counsel that the evidence herein establishes a
"constructive" discharge of Reinaru. Reinaru testified concerning a series of con-
versations with Leonard Seidmon beginning about the middle of January 1953
in which Seidmon repeatedly denounced the Union and threatened employees who
were active in behalf of the Union with discharge and other reprisals. In these
conversations, Seidmon, among other things, tried to enlist Reinaru's support in
30 Mugnolta Petroleum Co. v. N. L R B , 200 F. 2d 148, 150 (C A 5).
31 N. L. R. B. v. Abbott Worsted Mills, 127 F. 2d 438, 440 (C. A. 1) ; N L. R. B v Bird
Mach-me Co , 161 F. 2d 589, 592 (C A. 1)
32 That Respondents had knowledge of Piiroja's union membership is established di-
rectly by the testimony of Mikkau that Serdmon told him Piiroja was fired because of his
union activity, and circumstantially by the fact that Respondents employed a small num-
ber of workers and the management officials closely mixed with the employees. Leonard
Serdmon testified that it was common knowledge at the plant that the employees talked
about the Union during their lunch hour and rest periods
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents' campaign against the organization of their employees and requested
Reinaru to transmit Seidmon's views to the other employees. Thus, although
Reinaru may not have found the subject of these conversations with Seidmon pleas-
ing, Seidmon's attitude towards him could not have been entirely hostile and un-
conciliatory. Reinaru was designated as an observer for the Chemical Workers at
the March 10, 1953, election Thereafter, according to Reinaru, the atmosphere
in the plant became "hostile" towards him. In this connection Reinaru testified as
follows:
Q. Did you discuss at this time with Mr. Nava, what you meant by a hostile
atmosphere?
A. There was a certain kind of angry behavior when some fishing rod was
brought to me, it was just thrown on the table before me.
Q. Who threw the fishing rods on the table before you?
A. Mr. Seidmon.
Mr. LoPATKA Will the witness again identify which Mr. Seidmon, please?
Q. (By Mr. Curran) Which Mr. Seidmon9
A. Mr. Leonard Seidmon. Another occasion was on some night Joe Nava
asked me to stay after work. There was another man who was going to take
over my job, so I could help him how it was to be done. And then Mr. Seid-
mon came and he yelled at me, have you punched out your card. What are
you doing here.
I do not find the above evidence sufficient to estalbish that Respondents unlaw-
fully coerced Reinaru into quitting his job in violation of the Act. Reinaru did
not find it necessary to leave his job precipitately, as did employee Short in Olin
Industries, Inc., 97 NLRB 130, cited by the General Counsel. Reinaru continued
working for Respondents until he found other employment. His working environ-
ment and duties were not changed in a manner calculated to cause hardship or
physical suffering.33 Nor was the harassment to which he was subjected sufficiently
extreme to affect his health and make his job unbearable.34 Reinaru did not testify
that his job was so impossible that he had no alternative but to resign 35 Reinaru's
reason for leaving appears to be no more than that Leonard Seidmon was unfriendly
and unpleasant towards him after his union adherence became firmly established.
However, an employer's friendliness, cheerfulness, and pleasantness, or absence of
such characteristics, are not, in my opinion, "any term or condition of employment"
within the meaning of Section 8 (a) (3) of the Act. Any change in an employer's
manner in these respects is neither the basis for finding discrimination in itself nor
the basis for finding a constructive discharge.
D. The refusal to bargain
1. The appropriate unit
The complaint alleges, and the Respondents admit , that all production and main-
tenance employees at the Respondents ' Chicago, Illinois, plant , excluding office
clerical employees, watchmen , professional employees , and supervisors , as defined
in the Act, constitute an appropriate unit. Accordingly, I find that at all times
material hereto the above-described unit was appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (a) of the Act.36
2. The authorization cards; the Chemical Workers' majority
On December 18, 1952, 25 employees signed cards authorizing the Chemical
Workers, or its representatives, to bargain collectively in behalf of the person sign-
ing the card "with regards to Wage, Hours and Working Conditions." Five of these
employees were witnesses in this proceeding and testified that they signed the cards
bearing their names. The balance of the cards were authenticated by the testimony
of Aldo Lattemae as having been signed by the individuals whose names appear
33 Indianapolis Wire-Bound Box Company, 89 NLRB 617, 622; A . Sartoriua cE Co., 40
NLRB 107, enfd 140 F 2d 203 (C A. 2).
M N L R B. v Saxe-Glassman Shoe Corp , 201 F. 2d 238 (C. A. 1).
as Macon Textiles , Inc, 80 NLRB 1525, 1536.
16 See Southwester Co, 102 NLRB 1492
SOUTHWESTER CO. 825
thereon 37 Respondents in an endeavor to overcome the evidence adduced by the
General Counsel as to the authenticity of the 25 cards offered testimony purporting
to prove that: (1) The signatures on some of the authorization cards are not genu-
ine; and (2) it was not possible for the events described by Lattemae relative to the
signing of the authorization cards to have occurred.
As to the authenticity of the signatures, Leonard Seidmon, who was not qualified
on the record as a handwriting expert, testified that he compared the signatures
of Vazgauskas, Artur Tammela, and Piiroja as they appear on the authorization
cards with the signatures of the same individuals as they appear on other documents
in the Respondents ' possession and, in his opinion , the signatures on the authoriza-
tion cards were not genuine . However , Piiroja, who was a witness at the hearing,
affirmatively testified that the signature on the authorization card bearing his name
was written in his own hand. I credit Piiroja's testimony and find that Piiroja's
signature on the card bearing his name is genuine.
The basis for Leonard Seidmon's opinion that Vazgauskas' and Tammela's cards
are not valid was that the signatures on their authorization cards are in printed char-
acters whereas the signatures on the documents with which Seidmon compared the
authorization cards are in scrip characters. However, Vazgauskas and Artur Tam-
mela were in the employ of the Respondents at the time of the hearing, but were
not summoned as corroborating witnesses . In view of Respondents ' failure to call
upon these individuals to testify with respect to the signatures on the cards bearing
their names , the absence of qualification on the part of Leonard Seidmon to judge
the genuineness of handwriting , and the frivolous reason assigned by him as the
basis for his opinion, Leonard Seidmon's testimony does not raise any substantial
question as to the validity of the two cards. On the other hand, in view of Latte-
mae's credible testimony that he assisted both Artur Tammela and Karolis Vazgaus-
kas in filling out their cards and saw these employees sign their cards, I find that
the two cards in question bear the genuine signatures of Artur Tammela and Karolis
Vazgauskas.
Respondents ' further effort to impeach the authenticity of the authorization cards
centers upon an attempt to discredit Lattemae 's testimony . Lattemae testified that
he helped many employees fill in their cards, saw most of the employees sign their
cards, and received the executed cards from almost all the employees who signed
them.38 According to Lattemae , his activities in this regard took place in the plant
during the half-hour lunch period on December 18, 1952, and he was at the glass
inspection table during that part of the lunch period when he was assisting those
employees who requested his help in filling out their cards.
With the object of discrediting Lattemae's testimony, Respondents offered evidence
purporting to show that these events could not have occurred in the manner described
by Lattemae. First, several witnesses on behalf of the Respondents testified that
the glass inspection table was surrounded by various machinery and equipment so
that "no more than two people could be at that table at any one time." However,
Lattemae did not testify that more than one other person and himself were at the
glass inspection table at any time. Therefore, there is no inconsistency between the
testimony adduced by Respondents' witnesses and Lattemae's testimony that he was
at the glass inspection table while he helped other employees fill out their cards.
Second, Respondents, through the testimony of Joseph Nava and Harry Henkin,
offered evidence purporting to prove that the employees did not sign the authorization
cards in the plant during the lunch period on December 18. Nava testified that it
was his custom to walk through the plant during the employees' lunch period to see
that there were no disturbances and that the machines are not in operation and he
does not recall seeing anything unusual happen on the day in question. Harry
Henkin testified that it was his practice, during the employees' lunch period, to
station himself in the plant where he has "a vantage point in the entire shop" and
nothing unusual took place during the lunch period on December 18 and he did not
see employees sign cards of any kind39
3" It was not contended by Respondents that the cards were not freely passed along
to the Chemical Workers by the employees who signed the same See Hunter Engineering
Co, 104 NLRII 1016
38 Lattemae specifically identified each employee whom he helped fill out a card and each
employee whom he saw sign'a card.
39 Henkin further testified that Lattemae was not at the glass inspection table during
the period in question because a woman, whose name Henkin was unable to recall and who
left the employ of the Company a long time ago, was sitting at the table eating lunch and
reading a magazine However, on his cross-examination, Henkin modified his earlier testi-
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lattemae's recapitulation of his activities on December 18 is only inferentially
contradicted by the testimony of Nava and Henkin. On the other hand, Lattemae's
version of the events is substantially and directly corroborated by the testimony of
Eelmae, Aavik, and Piiroja. Upon consideration and evaluation of all the evidence
bearing upon the events that transpired on December 18, I find that the 25 author-
ization cards introduced into evidence in this case are genuine and were duly signed
on December 18, 1952, by the persons whose names appear thereon. N. L. R. B. V
Somerset Shoe Co, 111 F. 2d 681, 687 (C. A. 1).40
During the period between December 20, 1952, and January 15, 1953, Respond-
ents employed approximately 35 to 37 production and maintenance employees,
including supervisors. Lattemae and Eelmae were discharged on December 19.
Without counting their cards and without determining how many of the 35 to 37
production and maintenance employees were supervisors and therefore excluded from
the unit, nevertheless, on December 27 when Respondents received the Chemical
Workers' bargaining request, the Union was authorized by a clear majority of the
employees in the appropriate unit to represent them for the purposes of collective
bargaining.
3. The representation proceeding
On December 22, 1952, the Chemical Workers filed a petition with the Board
requesting that it be certified as the collective-bargaining representative of Respond-
ents' production and maintenance employees. A hearing in the matter, which was
assigned Case No. 13-RC-3139, was held on January 8 and 12, 1953. Pursuant
to a Board Decision and in accordance with its direction, an election was conducted
on March 10, 1953, to determine whether or not Respondents' production and
maintenance employees desired to be represented by the Chemical Workers. The
tally shows that 45 valid ballots were cast of which 9 were for the Chemical Workers,
18 were against the Union, and 18 were challenged 41 On March 17, the Chemical
Workers filed timely objections to conduct affecting the results of the election. On
the same day, the Chemical Workers filed a charge of unfair labor practices against
the Respondents and on April 10 filed an amended charge. It is these charges that
initiated the instant proceeding. After an investigation of the challenges and ob-
jections in the representation proceeding, the Regional Director for the Thirteenth
Region, on June 24, 1953, issued his report recommending that a hearing be held
on the challenges and objections and that such hearing be consolidated with the
hearing in the instant unfair labor practice proceeding because the specifications
in the complaint, in considerable part, depend upon the same evidence that neces-
sarily must be considered in resolving the issues raised by the objections and chal-
lenges. The Board, on July 31, 1953, duly issued an order adopting the Regional
Director's recommendations Thereafter, on August 18, 1953, the Board granted
the request of the Chemical Workers to withdraw its petition for certification of
representatives and revoked its order of July 31 directing a hearing on challenged
ballots and objections.
4. Effect of the withdrawal of the petition in the representation proceeding
Respondents, citing N. L. R. B. v. Flotill Products, Inc., 180 F. 2d 441 (C. A. 9),
argue that the Board's order of August 18, 1953, granting the Chemical Workers'
request to withdraw their petition for certification of representatives in Case No.
13-RC-3139 was a final determination against the Union of its status as the
collective-bargaining representative of Respondents' employees. The Flotill case
which involved the application of the principle of the Midwest Piping case 42 to
mony by testifying that the woman ate at the bagging table, another table in the vicinity
of the inspection table Henkin's testimony in this regard was as follows :
Q You are talking about the inspection table?
A. Now we are
Q. Is that where the lady ate lunch
A. No ; she ate at the bagging table
Q. Did she eat lunch there every day
A. If she was working she ate there every day.
4° Respondents sought to impugn Lattemae's veracity gen0erally and also specifically
in regard to his testimony concerning his activities on December 18 However, Lattemae,
during his appearance on the witness stand. impressed me as being a forthright and truth-
ful witness Despite Respondents' contentions to the contrary, I find Lattemae's testi-
monv credible and reliable
41 Thus, challenged ballots were sufficient in number to affect the results of the election.
0 63 NLRB 1060.
SOUTHWESTER CO. 827
alleged violations of Section 8 (a) (1) and (3) of the Act is inapposite to the issue
of Respondents ' refusal to bargain present in this case.
Respondents ' argument overlooks the distinction between Sections 9 and 10 of
the Act. While Section 9 (c) of the Act provides that a certification in a represen-
tation proceeding can be predicated only upon an election following proceedings
which are initiated by the filing of a petition , this proceeding is not under Section
9, but under Section 10 which empowers the Board to prevent unfair labor prac-
tices. "Each section is complete in its field , and the respective functions of the
Board under the two are entirely separate and distinct ." 43 I find no merit in
Respondents ' contention that the withdrawal of the Chemical Workers' petition in
the representation proceeding bars Respondents ' prosecution in this unfair labor
practice proceeding for alleged refusal to bargain collectively with the Union.
Holmes Company, Ltd. v. N. L. R. B., 179 F. 2d 876 (C. A. 5); 44 N. L. R. B. v.
Kobritz, 193 F. 2d 8,14 (C. A. 1).
5. The request to bargain
Respondents contend that a duty to bargain collectively with the Chemical Work-
ers never matured because the Union did not present them with an adequate request
to engage in negotiations . On December 27, 1952, Leonard Seidmon received the
following letter, dated December 19, 1952, from the Chemical Workers: 45
This is to notify you that the International Chemical Workers Union repre-
sents a majority of all production and maintenance employees of your Company.
We are asking you to meet with our Union at your earliest convenience
so that we may discuss setting up a collective bargaining meeting for the
benefit of all concerned.
I have already filed with the National Labor Relations Board with regard
to our desire to bargain for the above-mentioned unit.
Respondents did not reply to this letter and contend that the letter was not a
request to engage in collective bargaining but was merely a notice that a represen-
tation proceeding had been initiated.
There is no requirement that a request to bargain use any special formula or form
of words to fulfill its intended purpose; it is sufficient that the party receiving the
same be clearly appraised of its purpose. The first and second paragraphs of the
Chemical Workers' letter, quoted above, contain an unambiguous assertion of the
Union's representative status and a request to engage in collective bargaining with
the Respondents. The purpose and intent of the letter could not reasonably have
been misconstrued by the Respondents.
The fact that the Chemical Workers' request to bargain was coupled with a
statement indicating that the Union had initiated a representation proceeding does
not sterilize the request or render impotent the Union's assertion of majority.46
By filing a petition for certification of representatives a union does not necessarily
admit a doubt exists that it represents a present majority or that there is an absence
of proof of such majority. A union may seek Board certification for reasons apart
from the establishment of its majority status.47 Correlatively, the pendency of a
representation proceeding does not necessarily suspend an employer's obligation to
bargain collectively. Neither Section 9 (a) nor Section 8 (a) (5) of the Act con-
ditions such obligation upon Board certification of the Union's representative status.
Thus, in this case, the question of Respondents' violation of Section 8 (a) (5) of
the Act revolves not about the sufficiency of the Chemical Workers' bargaining
"Utah Copper Co et al v N L R. B., 139 F 2d 788, 791 (C. A. 10), cert denied 322
U. S 731. Accord. American Federation of Labor v N L. R. B., 308 U. S. 401, 405-406.
" A decree in this case was entered on April 11, 1950, ordering the Respondent therein,
among other things, upon request, to bargain collectively with the Union involved as the
exclusive i epresentative of the employees in the appropriate unit
s:, The envelope in which the letter was enclosed shows that it was transmitted by regis-
tered mail and several unsuccessful attempts had been made to deliver the letter prior
to December 27, 1952
46 Inter-City Advertising Company of Greensboro, N. C, Ine, 89 NLRB 1103, 1110, enfd.
190 F 2d 420 (C A. 4), cert. denied 324 U S 908
'7 See General Box Company, 82 NLRB 678 Also, in the expectation that the employer
may question the union's maloiity and in order to save time at some stage during the nego-
tiations with the employer, the union may file a representation petition in advance of the
initial bargaining conference
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request, but about whether the Respondents in good faith questioned the Union's
majority.
6. Concluding findings
As has been found above, the Chemical Workers, on December 18, 1952, was
designated by a majority of the employees in the appropriate unit as their bargaining
representative. On December 27, Respondents received the Union's request to engage
in collective bargaining. Respondents chose to ignore the request thereby, in effect,
it is found, refusing to comply with it.48 Respondents justify their failure to answer
the Chemical Workers' letter by asserting that prior to December 27, they had no
knowledge that an attempt was being made to organize their employees and, because
they entertained a bona fide doubt concerning the Union's majority, they were entitled
to await the results of the secret ballot election for a determination of the repre-
sentation question.
An employer who acts in good faith and with due recognition of employee rights
under the Act, without subjecting himself to an infraction of Section 8 (a) (5),
may challenge a union's asserted majority and require proof of such majority by an
election or other appropriate method before according the union recognition as his
employees' statutory representative and before engaging in collective bargaining with
the union. While a secret ballot election provides a more reliable method than a
card count for determining employees' true representative desires, the Act does not
require that a union 's majority status be established at a Board-conducted election
as a necessary prerequisite to the maturing of an employer's obligation to bargain.
Thus, an employer who purports to raise a question concerning representation may
not insist upon an election where he is motivated, not by a good-faith doubt as to
the union's majority, but by a desire to gain time within which to undermine the
union's support. Such employer is not relieved from his duty to bargain and is not
shielded from the consequences of his unfair labor practices by insisting upon an
election which because of his antecedent unlawful conduct cannot reflect the em-
ployees' free and uncoerced representative desires 49
In this case, on December 19, the day following the inception of organizational
activities at their plant, Respondents discriminatorily discharged Hans Eelmae, the
leader in these activities. Following the issuance of the notice of hearing in the
representation proceeding, on December 31, 1952, Respondents continued their cam-
paign to undermine the Chemical Workers' support among their employees by dis-
criminatorily discharging Lembit Piiroja and engaging in other conduct, described
above, which interfered with, restrained, and coerced their employees in the exer-
cise of the right to self-organization and to join and assist the Chemical Workers.
This conduct also deprived their employees of the opportunity to exercise their
franchise in the March 10, 1953, election in the manner contemplated by the Act-
The results of the election, therefore, are meaningless as a reflection of the em-
ployees' desires to be or not to be represented by the Chemical Workers 50
Furthermore, Respondents' conduct during the period between December 19,
1952, and the day of the election convinces me that Respondents' failure to reply
to the Chemical Workers' request to bargain was not motivated by any bona fide
doubt as to the Union's majority, or by the pendency of the representation proceed-
ing. But Respondents took advantage of the representation proceeding to gain
time in which to attempt to destroy the Union's majority and thereby avoid their
statutory duty to bargain collectively. Respondents, who by their unfair labor prac-
tices prevented the tabulation of their employees' desires with regard to being rep-
resented by the Chemical Workers in a free and uncoerced secret ballot election,
may not now insist upon a Board certification of the Chemical Workers' majority
as a predicate to their obligation to bargain collectively with the Union. Respond-
ents are not in an equitable position to object to reliance upon the authorization
cards for the purpose of determining the existence of the Chemical Workers'
majority.51
As has been found above, the March 10, 1953, election was invalid, and must
therefore be regarded as a nullity. It must be presumed, and it is found here, that
.s Respondents' rejection of the Chemical Workers' request is further evidenced by
Respondents' unlawful conduct which occurred before and after they received the request
Somerset Classics, Inc, 90 NLRB 1676. 1680, enfd. 193 F 2d 613 (C A. 2), cert denied
344 U. S. 816
49 Joy Silk Mills V N L R B , 185 F 2d 732 (C A, D C ). cert denied 341 U. S 914.
' The Great Atlantic 4 Pacific Tea Company, 101 NLRB 1118; Knickerbocker Manufac-
turing Company, Inc., 107 NLRB 507
ci Smith Tra'nsfer Co v N. L. It. B, 204 F. 2d 738, 740 (C A 5) ; N L It. B. v. Kobrstz,
supra.
SOUTHWESTER CO. 829
since the Chemical Workers enjoyed a majority on December 27, 1952, when the
Respondents refused to comply with the Union's bargaining request, any subsequent
defection of support from the Union was attributable to the Company's intervening
unfair labor practices and "cannot operate to change the bargaining representa-
tive previously selected by the untrammeled will of the majority." 52 I therefore
find that on December 27, 1952, and thereafter, Respondents unjustifiably refused
to recognize and bargain with the Chemical Workers as the exclusive representa-
tive of their employees in the appropriate unit, and thereby have interfered with,
restrained, and coerced their employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, in violation of Section 8 (a) (1) and (5) of the Act.
In the circumstances of this case, a bargaining order is appropriate despite the
fact that a representation proceeding was instituted by the Chemical Workers con-
temporaneously with their bargaining request and that such proceeding never re-
sulted in a conclusive determination of the purported question of representation
raised by the Union's petition.53 Furthermore, even if no separate finding of vio-
lation of Section 8 (a) (5) of the Act were made in this case because Respondents
did not receive a proper request to bargain or because on December 27, 1952, the
Respondents entertained a good-faith doubt concerning the Chemical Workers' ma-
jority, I still would find a bargaining order to be appropriate in order to remedy
the effect of Respondents' other unfair labor practices and to effectuate the poli-
cies of the Act 54
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in
connection with the operations of the Respondents described in section 1, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents unlawfully discriminated in regard to the
hire and tenure of employment of Hans Eelmae and Lembit Puroja. It will be rec-
ommended that the Respondents offer each of them immediate and full reinstatement
to his former or substantially equivalent position without prejudice to his seniority
or other rights and privileges and make each of them whole for any loss of earn-
ings he may have suffered by reason of the Respondents' discrimination against him
by payment to him of a sum of money equal to that which he normally would
have earned from the date of his discharge to the date of the Respondents' offer of
reinstatement, less his net earnings during said period. Said loss of pay shall be
computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. It will also be recommended that the Re-
spondents make available to the Board, upon request, payroll and other records
to facilitate the determination of the amounts due these employees under this rec-
ommended remedy.
522V L It. B v. Bradford Dyeing Association, 310 U. S. 318, 340. Accord : Franks Bros.
Co. v N L R B., 321 U S. 702
^N L. R B. v. Howell Chevrolet Co., 204 F 2d 79 (C. A. 9), affd. 346 U. S. 482; Joy
Silk Mills v. N L It. B, supra; Armco Drainage d Metal Products, Inc, 106 NLRB 725;
M. H Davidson Company, 94 NLRB 742
ra The record establishes that the Union had a clear majority when the Respondents
began their course of unfair labor practices directed at destroying that majority. To the
extent the election ievealed a loss of union support thereafter , such loss has been found
attributable to the Respondents' unfair labor practices. It is axiomatic that an employer
may not by his own misconduct destroy a union's majority and then claim to be relieved
of his duty to bargain with it on the ground that it no longer is the statutory representa-
tive Medo Photo Supply Corp v. N L. It. B , 321 U. S 678 In such circumstances, in
order to restore the Union to the status it would have enjoyed but for the Respondents'
unfair labor practices and to deprive the Respondents of the opportunity of profiting from
their own wrongdoing, a bargaining order is appropriate even absent any specific violation
of Section 8 (a) (5) of the Act. N. L it. B v. Falstaff Distributing Company, 209 F. 2d
265 (C A. 8) , Holmes Cpmpany, Ltd v. N L R B., supra; Texarkana Bus Co. v.
N. L. R. B, 119 F. 2d 480, 484-5 (C. A. 8).
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the Respondents have refused to bargain collectively with
the Chemical Workers as the exclusive representative of the employees in the ap-
propriate unit described above. It will be recommended that the Respondents bar-
gain collectively , upon request, with the Chemical Workers as the exclusive repre-
sentative of the employees in the appropriate unit and, if any understanding is
reached , embody such understanding in a signed agreement.
The Respondents ' violation of the Act, herein found , are related to other unfair
labor practices proscribed by the Act, and the danger of their commission in the
future is to be anticipated from Respondents ' conduct in the past. The preventive
purposes of the Act will be thwarted unless the remedial order is coextensive with
the threat . In order, therefore , to make effective the interdependent guarantees of
Section 7 of the Act, and to prevent a recurrence of unfair labor practices , it will
be recommended that the respondents cease and desist from infringing in any man-
ner upon rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Morris Seidmon , Goldie Seidmon, Harry Henkin and Leonard Seidmon,
d/b/a Southwester Co., are, and at all times relevant herein were, engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. International Chemical Workers Union, AFL, on December 18, 1952, was,
and at all times since has been, the exclusive representative of all production and
maintenance employees at the Respondents ' Chicago, Illinois, plant , excluding office
clerical employees , watchmen , professional employees , and supervisors as defined
in the Act, for purposes of collective bargaining within the meaning of Section 9
(a) of the Act.
3. By refusing on and after December 27, 1952, to bargain with the Chemical
Workers as the exclusive representative of the employees in the appropriate unit,
the Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Hans
Eelmae and Lembit Piiroja to discourage membership in the Chemical Workers,
the Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
5. By interfering with, restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act
7. The Respondents have not engaged in any unfair labor practices by reason
of the termination of employment of Endel Torim, Karl Aavik, and Walter Reinaru;
by reason of furnishing employees food and beverages on March 9 and 10, 1953;
and by reason of alleged defacement of election posters.
[Recommendations omitted from publication.]
BEWLEY MILLS and GENERAL DRIVERS, WAREHOUSEMEN & HELPERS OF
AMERICA, LoCAL UNION 968, AFL. Case No. 39-CA-389. March
1, 1955
Decision and Order
On November 8, 1954, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
111 NLRB No. 137.