Spielberg Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 8, 1955

112 N.L.R.B. 1080 (N.L.R.B. 1955)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon request , make available to the National Labor Relations Board or its
agents, for examination and copying , all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records necessary
for determination of the amounts of back pay due under the terms of this Proposed
Order.
(c) Post at its office in Houston , Texas, and in any other places within the
Houston labor area described in the section entitled "The Remedy," and mail to Rich-
ard G. Andrews, Raymond Campbell, J. A. Holcomb, W. T. Hurt, Noel Edward
Johnson, Elie Preston Lowe, H. W. Scott, Leroy A. Soehnge, and Victor Waddle,
copies of the notice attached hereto and marked "Appendix." Copies of such
notice , to be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent 's representative , be posted by the Re-
spondent for sixty ( 60) consecutive days thereafter in conspicuous places including
all places where notices to employees are customarily posted . Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered , defaced,
or covered by any other- material.
(d) Notify the Regional Director for the Sixteenth Region , in writing , within
ten (10 ) days from the date of this Proposed Order as to the steps Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that the Respondent
has violated Section 8 (a) (3) and ( 1) of the Act by conduct other than that found
to be violative herein , be, and it hereby is, dismissed.
Spielberg Manufacturing Company and Harold Gruenberg. Case
No. 14-CA-1103. June 8, 1955
DECISION AND ORDER
On November 30, 1954, Trial Examiner Reeves R. Hilton 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
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not committed any unfair labor practices in
connection with the discharge of Mae Biondolillo and recommended
the dismissal of that allegation of the complaint. Thereafter the
Respondent filed exceptions to the Intermediate Report and a sup-
porting brief,' and the General Counsel filed a brief in support of the
Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case and, for the reasons set forth below, has decided to dismiss
the complaint in its entirety.
The Trial Examiner found that the Respondent had violated Sec-
tion 8 (a) (1) and (3) of the Act by its refusal to reinstate Lillian
Dalton, Rita Burzinsky, Mary Hocher, and Vida Henthorne at the
1 The Respondent 's request for oral argument is hereby denied because the record , includ-
ing the exceptions and briefs, adequately presents the issues and the positions of the
parties.
112 NLRB No. 139.
SPIELBERG MANUFACTURING COMPANY 1081
conclusion of a strike at the Respondent's plant. In reaching this re-
sult lie rejected the Respondent's two primary defenses, which were
(1) its refusal to reinstate these employees was in accordance with an
arbitration award and therefore proper; and (2) the misconduct of
these employees during the strike was in any event sufficient to warrant
a refusal to reinstate them. Contrary to the Trial Examiner, we agree
with the Respondent's first defense. We therefore find it unnecessary
to pass upon its contention with respect to the strike misconduct.
As part of the settlement of a strike of the Respondent's employees
called by Luggage and Leather Workers Local 160, herein called the
Union, the Respondent and the Union agreed to arbitrate the question
of whether the four above-named strikers, whom the Respondent did
not wish to reinstate because of conduct they assertedly engaged in on
the picket line, should be reinstated.
Thereafter, the union membership ratified the contract negotiated
by the Union and the Respondent, which provided, inter alia, that the
arbitration would be held. An agreement executed by the Respondent
and the Union simultaneously with the collective-bargaining contract
described the method of choosing a three-man arbitration panel and
provided that the parties would be bound by the decision of the panel
majority.
Shortly thereafter, as described in the Intermediate Report, the
arbitration proceeding was held. The Respondent submitted evidence.
Three of the four strikers appeared personally and testified. All four
were represented by an attorney who filed a brief in their behalf. In
these circumstances, it is clear that the four individuals concerned, as
well as the Union, actively participated and acquiesced in the arbitra-
tion proceeding.
The arbitration award, by a majority of the panel, with the union
member dissenting, held that the Respondent was not obligated to
reinstate these four employees. Thereafter, they filed a charge, and
the complaint upon which this proceeding is based issued.2 In finding
that the Respondent's refusal to reinstate these four strikers violated
the Act, the Trial Examiner rejected the defense based on the arbitra-
tion award, on the ground that the Board is not bound by such an
award.
We agree with the Trial Examiner that the Board is not bound, as a
matter of law, by an arbitration award. As the court said in the
Disney case : 3
Clearly, agreements between private parties cannot restrict the
jurisdiction of the Board. We believe the Board may exercise
3 we find no merit in any of the Respondent's contentions based upon asserted irregu-
larities in the issuance of the complaint, and agree with the Trial Examiner's disposition
of them in the Inteiinediate Report
3 N L. It B v. Walt Disney Produetsons, 146 F. 2d 44 (C. A. 9), cert. denied 324 U S.
877.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jurisdiction in any case of an unfair labor practice when in its
discretion its interference is necessary to protect the public rights
defined in the Act.
The Board has exercised its discretion in the past to remedy an
unfair labor practice even though the parties had used arbitration to
dispose of an issue. In so doing, in the Monsanto case,4 the Board said :
There can be no justification for deeming ourselves bound, as a
policy matter, by an arbitration award which is at odds with the
statute. We shall therefore disregard the award in this case.
And in the Wertheimer case,' the Board pointed out that where the
arbitration had been carried out over the opposition of the individual
involved the circumstances were not such as to warrant the Board, in
the exercise of its discretion, to decline to assert its jurisdiction.
In the instant case the factors which impelled the Board to exercise
its jurisdiction in Monsanto and Wertheimer are not present. Thus,
the arbitration award is not, as it was in Monsanto, at odds with the
statute. This does not mean that the Board would necessarily decide
the issue of the alleged strike misconduct as the arbitration panel did.
We do not pass upon that issue. And unlike Wertheimer, all parties
had acquiesced in the arbitration proceeding. In summary, the pro-
ceedings appear to have been fair and regular, all parties had agreed
to be bound, and the decision of the arbitration panel is not clearly
repugnant to the purposes and policies of the Act. In these circum-
stances we believe that the desirable objective of encouraging the vol-
untary settlement of labor disputes will best be served by our
recognition of the arbitrators' award. Accordingly, we find that the
Respondent did not violate the Act when, in accordance with the
award, it refused to reinstate the four strikers.6 We shall therefore
dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
• Monsanto Chemical Company, 97 NLRB 517, enfd. 205 F 2d 763 (C A. 8).
B Wertheimer Stores Corp , 107 NLRB 1434.
9 As noted above, we do not, by this decision, express any opinion as to the legality of
the picket-line conduct
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the Labor Management Relations
Act of 1947, 61 Stat. 136 (herein called the Act) was heard in St. Louis, Missouri,
on October 18, 19, and 20, 1954, pursuant to due notice to all parties. The complaint
issued on July 23, 1954, by the General Counsel of the National Labor Relations
Board,' based on charges, as amended, duly filed and served, alleges that Spielberg
Manufacturing Company, herein called the Respondent or the Company has engaged
in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act by
reason of its refusal to reinstate 4 employees following a strike and discharged 1 em-
ployee because of their membership in and activities on behalf of the Leather and
'The General Counsel and the staff attorney appearing for him at the hearing are
referred to as the General Counsel, and the National Labor Relations Board as the Board.
SPIELBERG MANUFACTURING COMPANY 1083
Luggage Workers Union , Local No. 160, herein called the Union . The answer of the
Respondent admits certain allegations of the complaint but denies the commission of
any unfair labor practices.
At the outset of the hearing the Trial Examiner , without objection , granted the
motion for leave to intervene by the International Handbag, Belt and Novelty Workers'
Union, AFL, herein called the Intervenor or the International , since the local Union
is an affiliate of that organization.
All parties , except Attorney Gruenberg , were present and represented at the hear-
ing and were afforded opportunity to be heard, to examine and cross -examine wit-
nesses, to introduce relevant evidence , to argue orally , and to file briefs . At the con-
clusion of the hearing counsel argued the case and thereafter the General Counsel
and counsel for the Respondent submitted briefs which have been duly considered.
Prior to the hearing counsel for the Respondent filed a motion for dismissal of
the complaint and for abatement of the proceedings on the grounds that: (1) The
charges do not contain a proper jurat ; ( 2) the Regional Director 's refusal to issue a
complaint was overruled by the General Counsel on appeal by one of the alleged
discriminatees rather than the charging party; and ( 3) the Union and the Company
submitted to arbitration the question of whether the four strikers had been unlawfully
refused reinstatement and the arbitrators entered a decision to the contrary. The
motion was referred to a Trial Examiner who denied the same. The Respondent
then made application for special permission to appeal from the ruling , which appli-
cation was denied by the Board on October 5, 1954. Counsel renewed his motion
at various stages of the hearing and each time the Trial Examiner denied the same.
The rulings are hereby affirmed. It is well settled that the General Counsel has final
authority in respect to the issuance of a complaint under Section 10 (b) and the
exercise of that power is purely a matter of administrative discretion for which the
Act makes no provision for review by either the Board or the courts . (Lincourt v.
N. L. R. B., 170 F. 2d 306-307 (C A. 1).) Further, the argument that the discrimi-
natee 's appeal did not comply with the technical requirements of the Board's Rules and
Regulations is without merit. But assuming it to be true , neither the Administrative
Procedure Act nor the Act prohibit the General Counsel from sustaining the appeal
for it is always within the discretion of a court or an administrative agency to relax
or modify its rules when in a given case the ends of justice require it . Such action is
not reviewable , except upon a showing of substantial prejudice and here no such
showing has been made . (N. L. R. B. v. Monsanto Chemical Company , et al., 205
F. 2d 763 (C. A. 8)) That phase of the motion based upon the effect of the arbi-
tration award is discussed below.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
The pleadings and the stipulation of the parties disclose that the Company, a Mis-
souri corporation , maintains its office and manufacturing facilities in St. Louis, Mis-
souri , where it is engaged in the manufacture and sale of ladies' handbags. The
Company annually sells products valued in excess of $100,000 to Edison Brothers
Stores, Inc ., located in St . Louis, which company sells and ships the products thus
purchased from their place of business to places outside the State of Missouri. The
Trial Examiner finds that the Company is engaged in commerce within the meaning
of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
The International Union and the Union are labor organizations as defined in
the Act.
III THE UNFAIR LABOR PRACTICE
A. Preliminary statement
Walter A. Deans, an organizer employed by the International Union, testified the
Union commenced organizing the employees about April or May 1953 ,2 and on
August 5, a strike was called, which ended August 24. At that time the Company,
according to Saul Spielberg, its president , had some 220 production employees.
Richard Kavner, who represented the Union , said that approximately 100 employees
actually participated in the strike , with about 30 more refraining from working.
2 All dates refer to 1953 , unless otherwise stated.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 22, the Company and the Union executed a contract effective for a
period of 5 years. The Company reinstated all striking employees, whose reemploy-
ment was requested by the Union, except the four persons herein, namely, Rita Bur-
zinsky, Lillian Dalton, Mary Hocher, and Vida Henthorne, each of whom was de-
nied reinstatement because of misconduct on the picket line On September 22, the
Company and the Union agreed to special arbitration procedure as to these indi-
viduals and a special board of arbitration met on October 5 to hear the cases. On
October 19, a majority of the board decided that the Company had valid and suffi-
cient reasons for refusing to reinstate them.
B. The issues
The questions to be determined here are: (1) whether the discriminatees engaged
in conduct of such a character as would warrant the Company's refusal to reinstate
them; and (2) whether the arbitration award constitutes a bar to these proceedings.
C. The activities of the discriminatees during the strike
The discriminatees were all members of the Union, served on the strike or organiz-
ing committee, which was composed of about 18 members, and performed picket
duty during the strike. Burzinsky stated, and it is not disputed, that the Company
occupied 1 floor in a 7-story building and picketing took place at both the front and
rear entrances to the building. Dalton said that at the outset of the strike there were
about 80 or 90 persons on the picket line but after a day or so the number fell off
and the Union arranged a schedule so that during the normal work shift only 2 pickets
were maintained at each entrance. Dalton further stated that the pickets at the front
entrance were required to walk near the curb of the sidewalk and that a policeman
was on duty at all times. Each of the discriminatees admitted asking the employees
not to cross the picket line and calling "scabs" to those who did so. They denied
using profane, insulting, or vile language toward any of the company officials or
workers.
In support of its contention, the Company, in addition to other witnesses pro-
duced 2 supervisors and 6 employees who related their experience with the indi-
viduals in question. Their testimony concerning the acts and conduct of the respec-
tive discriminatees is as follows-
Rosemary Walters, department supervisor, said the 4 individuals were the loudest
on the picket line and when employees would leave the building in the evening,
usually in groups of 20 or 30, they used "foul language to everyone." Walters heard
Dalton and Burzinsky call the girls "prostitutes and whores and bitches." She could
not remember Hocher or Henthorne saying anything. Walters heard of no com-
plaints from the employees in respect to working with the discriminatees in the event
of their reemployment.
Emma Favier, a supervisor, stated she always used the front entrance of the build-
ing and constantly observed Dalton and Burzinsky "scream and holler and call the
girls s- o- b-s." She saw Hocher and Henthorne only once or twice but made
no mention of any remarks by them. While some of the girls in her department said
they would not want to work with Dalton, Favier made no report of their sentiment
to management officials
Nellie Williams considered the four girls to be ringleaders of the strike and
while she heard the pickets curse the employees, she said, "but to point out one
certain one, I won't, but there were certain ones " Williams and Hocher had been
good friends and prior to the strike Hocher had solicited her to sign a union card.
Although Williams did not sign up she said she would not cross a picket line.
Williams worked on August 5, and that evening Hocher telephoned her and called
her a liar because she went through the picket line. Williams replied the strike
was not justified because no vote had been taken and Hocher then told her some
of the girls would beat her up if she continued to work. Hocher called her a second
time but Williams did not relate this conversation other than "she wasn't so mad
then." Except for 1 day, Williams worked throughout the strike She also told
her supervisor, Margaret Renner, she would quit if Hocher returned to work.
Hocher said she telephoned Williams and asked her to sign up and stay out
with the strikers She also reminded Williams of her earlier promise not to cross a
picket line and she answered the strike was not legal.3
Julia York related that on one occasion Hocher remarked she was a "yellow scab
a-" and a "big sucker" for working. Another time she called her a "b---d."
3 The transcript incorrectly shows her reply to be, "it's not me gal."
SPIELBERG MANUFACTURING COMPANY 1085
While Burzinsky called her a yellow scab she could not remember her using any
foul language. Dalton likewise called her a yellow scab and a "damned scab."
York concluded by saying "they would scream out and call us names but I don't
recall any particular ones." York made no mention of any remarks by Henthorne.
She also told Renner she would not work with Hocher
Elda Heinen stated that she used the front entrance and practically every morning
Hocher called her a "dirty" or "yellow b-d," "a- kisser" and scab. She in-
formed Renner of these remarks and added that if she returned there would be
trouble and she did not care to work with Hocher. Burzinsky and Dalton also
cursed and called names to Heinen and other employees. One evening Burzinsky
told her to "Kiss Dimples good night because you have kissed his a- all day."
One morning when Heinen used the rear entrance Henthorne offered her a pamphlet
and remarked "take this, you old scab."
Elizabeth Ely said she saw the four discriminatees at various times on the picket
line. She could not remember "too much" about Burzinsky except that she was
with the pickets who were "real loud" and one time, in the presence of Saul Spielberg,
called her a "suck a-" for working Dalton addressed a similar remark to her
and also cursed her because she "didn't appreciate the trouble they were going to"
in an attempt to obtain better wages and working conditions. She also heard Dalton
call Saul Spielberg an "s- o- b-," but she did not say whether the remark
was made to him or about him. Ely told Favier she would quit if Dalton came
back to work. Ely never heard any remarks on the part of Hocher or Henthorne.
Mae Gillardi related that one time when Hocher was leading the pickets she
touched her and called her a scab. Another time she cursed her and called her
names. Burzinsky and Dalton also cursed her and called her vile names and one
time when she was using the rear entrance Burzinsky shoved her. Gillardi made
mention of Henthorne.
Louis Dawson, porter and messenger, stated that Hocher and Burzinsky cursed
him and called him a "yellow nigger" and all sorts of "nasty names like that."
Dawson made no reference to Dalton or Henthorne
Eli Spielberg, secretary-treasurer of the Company, said he was at one of the
entrances every morning and evening and heard "a constant flow of abusive lan-
guage." Dalton, he stated, called him a "fat bd" and "Jew s- o- b-."
Dalton and Burzinsky constantly cursed the girls and called them "streetwalkers"
and "whores " When questioned about Henthorne's conduct Spielberg answered.
Well, I can't remember, I mean I would be guessing, but Vida used words and
mannerisms and as far as the girls were concerned, the same thing. Constantly
cussing them and calling them names for going in there and "don't go in there,
the dirty S. B."
He also stated that acts of violence were almost a daily occurrence, which acts
consisted of "grabbing the girls . . . physically tampered with them. .. Spielberg
was not interrogated concerning the acts or conduct of Hocher. Spielberg stated
that 3 or 4 days after the strike started from 12 to 50 or 60 pickets, many being
employees from nearby factories, would gather at the building in the morning and
during the day picketing was limited to 6 or 10 employees. In evening this number
increased slightly but the principal picketing, insofar as numbers were concerned,
took place in the morning. Spielberg heard pickets, other than those in question,
use vile language.
Saul Spielberg testified he could not recall the number of employees participating
in the strike but after its termination he reemployed all of them, perhaps 100,
except the 4 persons involved here, whose activities during the picketing were
outstanding In this respect he stated that Dalton and Burzinsky cursed him and
the employees and he received reports from their supervisors concerning their
conduct. Hocher likewise called the employees vile names Spielberg said he
received information from his supervisors on Henthorne's activities during the strike
and added that she called him a "dirty jew," jostled an employee and "was very
boisterous" on the picket line. For these reasons Spielberg refused to reinstate
the four strikers
Irl B. Bares, company attorney, was advised of the events occurring on the picket
line the first day, so early the following morning he went to the scene "to observe
first hand the characters described" to him. Bares, after walking about the entire
area, stationed himself at the rear entrance where there were 12 or 15 pickets
including Dalton and Henthorne. While the other pickets called the workers
"scabs," Dalton and Henthorne "were the ones that really used the vile language."
He related that when the pickets became aware of his identity "they called me a
variety of names," and in particular Dalton called him a "lanky shyster s- o-
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b-." Dalton and Henthorne also directed profane language towards the workers
and called them "whores, prostitutes , a- suckers . . . and things of that nature."
Again, while other pickets simply requested employees not to cross the line, Dalton
and Henthorne used the expression "don't go to work for that b-d, don't
cross our picket line you s- o- b- and things of that nature."
Sid Miller, operator of a handbag concession in a store , said he went to the
building several times during the strike and one time he observed Dawson attempting
to load his truck while 8 or 10 pickets were around him. One of the pickets, he
did not know which one , cursed Dawson, and he identified Henthorne as being
in the group . He stated that police officers immediately dispersed the pickets and
Dawson proceeded with his work.
Testifying on rebuttal , Burzinsky , Hocher , and Henthorne reiterated their denials
that they used profane or abusive language to anyone and stated that Gillardi, Ely,
and York cursed them as they went through the picket line.
Alleged Damage to the Company Truck ; Remarks to Customers
Eli Spielberg said that one time the air was let out of the truck tires and again
sugar was put in the gas tank which ruined the engine . Following one of these
acts one of the discriminatees asked him if he would like to know who did it. At dif-
ferent times he also heard all girls say that Dawson , who drove the truck , "would be
gotten."
Saul Spielberg stated that Burzinsky intimated that something might happen to the
truck and the next day the air was let out of the tires.
Dawson said that once someone let the air out of one tire. In respect to the threats,
he stated that "a bunch" of pickets , Burzinsky and Dalton being present, "as a whole"
said something about getting him.
Miller related that on one occasion he was looking at the company window dis-
play when two pickets rushed up and told him "not to buy that crappy merchandise."
He immediately reported the incident to Saul Spielberg and the two of them then
returned to the street where he identified Henthorne , and apparently Dalton, as
the persons making the remark.
Henthorne admitted addressing the remark to Miller.
It is sufficient to state that there is no evidence even remotely connecting any of
the discriminatees with the alleged damages to the truck and Henthorne 's single,
innocuous comment to Miller can hardly be construed as a boycott of the Com-
pany's products. The Trial Examiner so finds.
D. Settlement of the strike ; the collective-bargaining contract and the
agreement to arbitrate
Kavner, representative of the International Brotherhood of Teamsters , Chauf-
feurs and Warehousemen, AFL, and director of negotiations for its St. Louis local,
stated that during the course of the strike , around August 22, he received a request
from Ossip Walinsky, president of the International Union , asking his assistance
in settling the dispute . Kavner had no connection with either the International
Union or the local Union , nor did he have any part in the strike against the Com-
pany. Upon receiving this request Kavner talked to one of his superiors , Harold
Gibbons, an officer of the Teamsters Union in St . Louis, who granted him permis-
sion to enter into the instant controversy.
On August 24, Kavner met with Victor Packman , company attorney , and dis-
cussed the possibility of resolving the dispute by means of a collective -bargaining
agreement . Packman suggested that the picket line be removed at once to insure
better bargaining conditions and also stated one of the "troublesome features" in
concluding an agreement would be the reinstatement of certain employees because
of their conduct during the strike. Kavner believed it would be desirable to remove
the picket line without an agreement , although he was concerned as to whether the
Union would be successful in working out the details of an agreement , especially on
the question of arbitration in the event of the Company 's refusal to reinstate some
of the strikers . Packman then prepared a letter for Kavner, dated August 24, in
which he expressed confidence that a contract could be reached but that picketing
should be terminated at once. When this was accomplished the Company would
resume normal operations and within 1 week, "reemploy those not working for one
reason or another." The letter concluded by stating that when terms, already
"informally understood ," had been worked out the contract would cover present
and new employees of the Company.
The same day Kavner called a meeting of the strike committee and read the letter
to them. Kavner discussed the subject with them and informed them that if the
SPIELBERG MANUFACTURING COMPANY 1087
Union and the Company could not agree on the question of reinstatement , the issue
would be submitted to arbitration . That afternoon the Union held a meeting of the
striking employees at which time they voted to end the strike.
Approximately 1 week later, Kavner and Walinsky met with Packman, his asso-
ciate Baris, and Saul Spielberg and concluded an agreement subject to ratification
by the union members and resolution of the question of reinstatement of 12 strikers.
The parties then held a series of meetings and by September 20, the Company had
agreed to reinstate all the strikers except the four discriminatees . As to these persons,
the parties tentatively agreed, by separate memorandum , that their cases be sub-
mitted to a "special board of arbitration ," which agreement was to be considered as
part of the contract.
On September 21, the Union held a meeting of its employee members at which
Deans read the entire contract and Walinsky explained its terms and conditions.
Kavner and Deans were certain that Walinsky advised the members of the special
arbitration clause and the fact that the issue concerning the Company 's refusal to
reinstate the four employees would be submitted to arbitration . The membership
then voted to accept the agreement.
As previously stated the Company and the Union executed a contract , on Septem-
ber 22, effective for a period of 5 years , and which provided, inter alia , for main-
tenance-of-membership and checkoff of dues and provisions governing grievance
and arbitration procedure . At the same time the parties also executed the memoran-
dum agreement providing for special arbitration procedure in the cases of the four
discriminatees . The agreement stated that Kavner and Packman would be members
of the special board of arbitration and would select a third member of the board.
It concluded by stating that the decision of the board would be binding upon the
parties and the employees to the exclusion of any other procedure or tribunal.
Deans testified that on August 23, Kavner advised him the Company had tenta-
tively agreed to contract terms but he was afraid that 12 employees might not be
reinstated . Kavner told Deans not to mention this to any of the strikers since he did
not have the names of the employees involved. Deans stated that at the meeting
of August 24, the membership voted to terminate the strike with the understanding
that all strikers would be reinstated by August 31, and no mention was made of any
arbitration matters at this meeting . By September 21 the Company had reinstated
all strikers whose reinstatement had been requested by the Union , except the four
discriminatees . At the meeting held on the above date Deans read the entire agree-
ment to the membership and Walinsky referred to the fact that the Company and the
Union had agreed to arbitrate the cases of certain employees whom the Company
had refused to reinstate. The members then voted to accept the contract . About a
week or 10 days after August 31, Deans informed the individuals of the Company's
refusal to reinstate them and that they would submit their cases to arbitration.
Burzinsky testified that at the meeting of the strike committee on August 24,
Kavner read Packman 's letter and advised them if the picket line was removed the
strikers would be called back to work by August 31. When Dalton inquired what
would happen if all the employees were not called back , Kavner replied , "You will
be called back and if not you will be paid for every day you are out after August 31."
Later that day at the meeting of the membership Kavner and Deans reiterated that if
the picket line was removed all the strikers would be reemployed by August 31. Bur-
zinsky and the three other individuals were not reemployed and several weeks later
Deans advised her that the Company and the Union would arbitrate their cases. At
the meeting of September 21, Walinsky explained the terms of the contract and while
he stated there would be arbitration proceedings he did not outline the same nor did
the membership vote on whether the cases should be submitted to arbitration . Dalton,
Hocher, and Henthorne testified to substantially the same effect.
E. The arbitration proceedings
Kavner and Packman agreed upon Felix Kraft as the third member of the board
of arbitration . In brief, Kraft , a public accountant , testified that he had known Pack-
man for some 20 years, that they had represented mutual clients, not including the
Company, and that he had had no prior experience in matters of this kind . In agree-
ing to act as arbitrator Kraft said he understood from Packman that the proceedings
"wouldn't last long" and he "got the impression that it would be more or less of a
formality."
On October 5, the board met in Packman 's office with Burzinsky , Dalton, Hocher,
Attorney Harold Gruenberg , Deans, Baris, and the Spielbergs present. Henthorne
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was informed of the meeting but was sick and unable to attend .4 The evidence per-
taining to the events at this meeting is to the effect , as stated by Bans, that at the
outset Gruenberg , who acted as counsel for the Union, questioned Kraft 's qualifica-
tions to act as arbitrator and announced he would not be bound by any decision of
the board . Bans and Packman then showed him the memorandum agreement of
September 22, and Gruenberg , after conferring with Deans , agreed to proceed with
the matter . The meeting lasted about 2 hours during which Saul Spielberg read a
statement giving his position and the 3 discriminatees were asked some questions
by counsel.
As appears above, a majority of the board , Kraft and Packman, entered a written
decision which merely states that the Company was justified in refusing to reinstate
the four individuals . Kavner said he disagreed with the majority.
The discriminatees were notified of the decision and thereafter , about October 26,
met with Gruenberg , Kavner, Deans, and Gibbons , at the latter's office . Dalton
asked why they were not being reinstated and Gibbons told her, "Well, in a case like
this some people have to sacrifice their job to get a union contract in, that is what
happened here." Gibbons concluded by saying the only thing that could be done
would be to find new jobs for them. Burzinsky , Hocher, and Henthorne corroborated
Dalton 's testimony concerning her conversation with Gibbons.
Deans said Gibbons told them it was regrettable but "they ought to look on the
fact their jobs were now lost as a sacrifice for the overall good of the rest of the
workers .. .
At this hearing the International Union took the position that although they dis-
agreed with the decision they would honor their agreement with the Company and
abide by its terms.
Concluding Findings
The testimony bearing upon the conduct of the discriminatees on the picket line
is sharply conflicting with numerous company witnesses stating they were cursed
and vilified by these persons and the discriminatees denying the use of improper
language and , in turn, asserting some of the nonstrikers directed profanity to them.
The eight employee -witnesses produced by the Company uniformly testified that
these individuals were the loudest of the pickets and described the various name-
calling incidents to which they were subjected to on one or more occasions. Al-
though Burzinsky , Dalton, and Hocher were accused of name-calling at some time
or another by one or more of this group of witnesses, not one of them mentioned
the use of any improper language or conduct on the part of Henthorne. On the
other hand Saul Spielberg related that Henthorne personally called him an insulting
name and Baris , on the basis of his single visit to the scene , declared that she and
Dalton were cursing and degrading the nonstrikers who crossed the picket line.
While Eli Spielberg could not remember Henthorne 's conduct , nevertheless he pro-
ceeded to testify that she acted in the same manner as the other discriminatees and
cursed the nonstrikers . Oddly enough , he did not refer to any misconduct by
Hocher, although 5 of the employee -witnesses branded her as one of the principal
offenders and 2 of them , Williams and York, claimed they would not work with
Hocher, if she was reemployed
The evidence adduced by the Respondent with respect to Henthorne is plainly
inconsistent and contradictory . Thus, eight of its employee -witnesses absolved her
of any misconduct while the Spielbergs and Baris claimed the contrary. Certainly,
if Henthorne had engaged in the activities asserted by company officials , those acts
would have been well known to the nonstrikers and, in view of the attitude of those
appearing at the hearing , it is reasonable to assume they would have testified to any
such actions on her part . In the teeth of this testimony it would surely tax one's
imagination to find that although Henthorne did not use abusive language to the
workers, yet she personally insulted Saul Spielberg , the company president. More-
over , Eli Spielberg , concededly without any knowledge or basis therefor , proceeded
to condemn her for constant cursing and name-calling . Likewise, Baris, as a result
of his one visit to the picket line, accused her of misconduct . The testimony of the
Spielbergs and Baris considered in the light of their other witness is neither plausible
nor convincing , and leads to the conclusion that they were simply attempting to
support a case against Henthorne . Accordingly , their testimony is rejected. The
4 During the cross -examination of Ienthorne , counsel for the Intervenor inquired if
Attorney Gruenberg had any interest in this case The transcript ( page 234) quotes the
Trial Examiner as stating this to be "a very tricky or low-bred question ." This is erroneous
for the Trial Examiner did not use the characterization "low-bred," but simply commented
it was a very tricky or very broad question
SPIELBERG MANUFACTURING COMPANY 1089
Trial Examiner therefore, concludes and finds that Henthorne did not utter any
insulting remarks to Saul Spielberg and that she did not engage in any improper,
obnoxious, or questionable acts or conduct while on the picket line.
Further, although Dalton did not specifically deny Eli Spielberg's assertion that
she addressed remarks to him personally, the Trial Examiner has considered her
general denial adequate and having found Spielberg to be an unacceptable witness
concerning similar accusations, the Trial Examiner finds that Dalton did not make
the statement claimed by him.
Having closely observed all the witnesses herein and having listened to company
witnesses willingly and eagerly unfold a stream of profanity and vile names allegedly
directed against them by Burzinsky, Dalton, and Hocher, the Trial Examiner is
convinced that they grossly exaggerated the degree and intensity of the discrimi-
natees' conduct on the picket line. Manifestly, it is hard to believe they ran up and
down the streets of St. Louis yelling and cursing and insulting the nonstrikers, even
apart from the constant presence of police at the building. In considering the entire
record the Trial Examiner entertains no doubt that Burzinsky, Dalton, and Hocher,
as well as the nonstrikers and some of the company witnesses, exchanged profane
and strong terms with each other during the strike, but that the discriminatees
did not go to the extremes as contended by the Company. Indeed, Eli Spielberg
admitted that pickets other than those in question resorted to vile language and it
is undisputed they were reinstated.
Equally without substance is the contention that the four discriminatees engaged
in "common action" and were "particeps criminis" in regard to the truck incident
and verbal and physical assaults upon nonstrikers. Apart from general accusations
against all of the group there is no credible evidence to show that the discriminatees
agreed to act in concert In fact Eli Spielberg said the individuals usually walked in
pairs, two being at each entrance. Favier's testimony is to the same effect.
The General Counsel does not contend that the strike was caused or prolonged
by any unfair labor practices by the Company. The strikers therefore were, upon
application, entitled to reinstatement unless they had been permanently replaced
by new employees. With the possible exception of Henthorne, the discriminatees
admitted they had not made individual application for reinstatement. Since Kavner
and Packman conducted the bargaining negotiations and as the reinstatement of
these persons was one of the principal issues it is reasonable to conclude that the
Union made adequate request for reinstatement on behalf of the discriminatees.
There is no contention that the Company refused to reemploy these individuals
because they had been replaced by new employees.
The question to be determined therefore, is whether Burzinsky, Dalton, and
Hocher by indulging in some profanity and name-calling thereby afforded the
Company sufficient grounds for its refusal to reinstate them.
The Board and the courts have frequently held that the use of profane and
disparaging language by a striker on the picket line does not affect his right to rein-
statement. (See e. g., N. L. R. B. v. Deena Artware, Inc., 198 F. 2d 645, 652
(C. A. 6), cert. denied 345 U. S. 906, enforcing as modified 86 NLRB 732 and 95
NLRB 9, Kansas Milling Co. v N L. R. B., 185 F 2d 413, 420 (C A 10), enforc-
ing as modified, 86 NLRB 925, 928.) Again, the Board in Efco Manufacturing
Company, 108 NLRB 245, ordered the reinstatement of a striker despite the fact
that he had called a nonstriker a "wop-bastard," challenged a company official to a
fist fight as a means of settling the strike, and called him "yellow" when he failed to
accept the challenge. In holding this conduct insufficient to warrant the employer's
denial of reinstatement, the Board said:
While the Board has repeatedly stated it does not condone the use of profane
epithets in the heat of picket-line animosity, it has nonetheless uniformly said
that it does not ignore the realities of speech in the industrial world and has
refused to hold that their use renders strikers unsuitable for further employment
and justifies denial of reinstatement.
At the same time, the Board plainly stated that another striker who had addressed a
foul and unmentionable remark to a nonstriker exceeded the bounds of permissible,
and predictable, picket-line conduct abuse and warranted the company's refusal to
reinstate him. There is no evidence in the present case that the discriminatees re-
sorted to any such language while on the picket line
Accordingly, the Trial Examiner finds that the conduct alleged to have been en-
gaged in by Burzinsky, Dalton, and Hocher is insufficient to justify the Company's
denial of reinstatement The Trial Examiner further finds that by refusing to rein-
state Burzinsky, Dalton, Hocher, and Henthorne following the termination of the
strike, the Company discriminated against them in regard to their hire or tenure of
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment and interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed under Section 7 of the Act and engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
The final issue to be resolved is what effect, if any, does the arbitration award have
upon these proceedings. It is, of course, undisputed that on September 22, the Union
and the Company signed the memorandum agreement to arbitrate the cases of the
four individuals, that a board of arbitrators was selected and that a hearing of some
sort was held on October 5. However, the Trial Examiner entertains serious doubt
that the discriminatees agreed to be bound by the decision of the board. Indeed,
Dalton testified that when Gruenberg asked, "if we wanted to be bound by any
decision and we told him no, we didn't." Henthorne could not recall talking to
Gruenberg and was not even present on October 5, because of illness. Whether their
continued presence at Packman's office constituted an implied acceptance of the agree-
ment to arbitrate seems rather thin, for it strikes the Trial Examiner that they had
little or no choice under the circumstances. However, the Trial Examiner will assume
that by taking part in the hearing, Burzinsky, Dalton, and Hocher gave their implied
assent to the arbitration agreement. The same cannot be said of Henthorne since she
did not attend, although the Union and Gruenberg acted on her behalf. In any event
the result would be the same.
It is quite clear that as a matter of law the Board is not bound by the arbitration
award and the implied agreement of the discriminatees to comply therewith.
In N. L. R. B. v. Walt Disney Productions (146 F. 2d 44, 48, (C. A. 9) ), the court
stated that Section 10 (a) of the Act provides that the Board's power to prevent unfair
labor practices affecting commerce shall not be affected by any other means of ad-
justment or prevention that has been or may be established by agreement, law, or
otherwise and
Clearly, agreements between private parties cannot restrict the jurisdiction of
the Board. Therefore, we believe the Board may exercise jurisdiction in any
case of an unfair labor practice when in its discretion its interference is neces-
sary to protect the public rights defined in the Act.
The Board, in Monsanto Chemical Company (97 NLRB 517, 520), in disregard-
ing an arbitration award stated it has in the past exercised the "discretion" alluded
to in the Walt Disney case and has remedied an unfair labor practice even though
arbitration had been used by the parties to dispose of an issue arising under an agree-
ment. The Board held there can "be no justification for deeming ourselves bound,
as a policy matter, by an arbitration award which is at odds with the statute." The
Board therefore ordered reinstatement of an employee whom the arbitrators had
decided should be dismissed The order was enforced in N. L. R. B. v. Monsanto
Chemical Company, 205 F 2d 763 (C A. 8).
Again, in Wertheimer Stores Corp., (107 NLRB 1434) the Board restated the
principle that as a matter of law it is not bound by an arbitration award.
In International Union, United Automobile, Airciaft and Agricultural Implement
Workers (Wisconsin Axle Division) (92 NLRB 968, 971), the Board found the dis-
charge of one employee and threatened discharge of other employees to be discrimina-
tory. Speaking of the effect of arbitration and State Board proceedings upon the unfair
labor practices the Board said: "Nor do the arbitration awards directing the discharge
of Luebke, or the State Board, whatever its eventual outcome may be, compel a dif-
ferent result." The Court of Appeals for the Seventh Circuit enforced the order of
the Board. (194 F. 2d 698.) In rejecting the contention that an order of the Wis-
consin Board, as well as the arbitration award, precluded the Board from finding a
violation of the Act, the court, after quoting Section 10 (a) of the Act, declared
(p. 702) :
Thus the Act confers upon the Board exclusive jurisdiction to prevent unfair
labor practices within the meaning of the statute. The Board's exclusive func-
tion in this field may not be displaced by action before State agencies or by
arbitration. (Cases cited.)
The cases relied upon by company counsel in their brief touch upon the conclusive-
ness and finality of a valid arbitration award as between private parties, hence, are
easily distinguishable from the foregoing authorities and the principles established
thereby.
Having concluded, as set forth above, that the conduct of the discriminatees on
the picket line was insufficient to justify the Company's refusal to reinstate them, the
adverse award is plainly contrary to the policy and decisions of the Board and the
courts, and the Board is by no means bound to accept the same. The Trial Examiner
SPIELBERG MANUFACTURING COMPANY 1091
therefore finds as a matter of law, as well as for the reasons stated above, that the
arbitration award does not preclude the Board from exercising its exclusive power to
prevent the commission of unfair labor practices on the part of the Company.
F. The alleged unlawful discharge of Mae Biondolillo
Biondolillo was employed in May, worked continuously during the strike and was
discharged October 23. About 1 week before her dismissal Biondolillo signed a
union card. A few days later she was removed from her regular job and then ter-
minated by Walters because her work was unsatisfactory. Biondolillo engaged in no
activities on behalf of the Union and there is no evidence that Walters, or any other
supervisory employee or company official, was aware of her having signed the mem-
bership card. The General Counsel sought to establish knowledge on the part of
the Company by means of the dues checkoff list which the Union submitted to the
Company once a month. In this respect, Arthur M. Rueter, business manager for the
Union, testified that on October 15, Biondolillo signed a membership card and a card
authorizing the Company to make certain deductions from her wages to be turned
over to the Union. Rueter prepared the checkoff list and sent the same to the Com-
pany. Under the present circumstances the list would have been sent to the Company
during the third week in November and, ordinarily, Biondolillo's name would have
been included. However, she was discharged before Rueter made up the list, conse-
quently her name was omitted therefrom
Since the evidence failed to establish company knowledge of Biondolillo's union
membership and there are no circumstances which would warrant imputing knowl-
edge on the part of the Company, the Trial Examiner granted the Respondents' motion
to dismiss her case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company 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 commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it is recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Ordinarily, striking employees
are required to make application for reinstatement and here the discriminatees, with
the possible exception of Henthorne, conceded they made no formal application for
their jobs. However, in view of Packman's letter of August 24 to Kavner, in which
he stated the Company would reinstate all the strikers within 1 week, which letter
was read to the striking employees on the same date, the Trial Examiner finds that
no individual application for reinstatement was necessary under the circumstances.
It is therefore, recommended that the Company offer to Rita Burzinsky, Lillian
Dalton, Mary Hocher, and Vida Henthorne immediate and full reinstatement to
their former or substantially equivalent positions,5 without prejudice to their seniority
and other rights and privileges. It is also recommended that the Company make
whole Rita Burzinsky, Lillian Dalton, Mary Hocher, and Vida Henthorne for any
loss of pay they may have suffered because of the discrimination against them, by
payment to each of them of a sum of money equal to the amount each would have
earned as wages from August 31, 1953, to the date of offer of reinstatement, less
their net earnings during such period. Back pay shall be computed in accordance
with the Board's Woolworth formula 6 on the basis of each separate calendar quarter
or portion thereof during the period from the date of the discriminatory refusal to
reinstate to the date of proper offer of reinstatement. Loss of pay shall be deter-
mined by deducting from a sum equal to that which each employee would normally
have earned for each quarter or portion thereof, less her net earnings 7 if any, in
other employment during that period. Earnings in a particular quarter shall have
no effect upon the back-pay liability for any other quarter.
6The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB, 827
6 F W. 1Voolwos th Co . 90 NLRB, 289
7Ciossett Lumber Company 8 NLRB 440
369028-56-v of 112-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also recommended that the Company make available to the Board or its
agents, upon request, payroll and other records to facilitate the checking of the
amount of back pay due.
Since it has been found that the Company did not unlawully discharge Mae
Biondolillo , it is recommended that the complaint be dismissed insofar as it alleges
her discriminatory discharge.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
Conclusions of Law
1. The operations of Spielberg Manufacturing Company occur in commerce as
defined in Section 2 (6) and (7) of the Act.
2. International Handbag, Belt and Novelty Workers' Union, AFL, and Leather
and Luggage Workers' Union, Local No. 160, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. By discriminatorily failing and refusing to reinstate Rita Burzinsky, Lillian
Dalton, Mary Hocher, and Vida Henthorne because they engaged in concerted
activities, the Company thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5 The Respondent did not unlawfully discharge Mae Biondohllo.
[Recommendations omitted from publication.]
The Gummed Products Company and United Paper Workers of
America, CIO, Petitioner . Case No. 8-RC-2358. Jennie 8, 1955
DECISION AND ORDER
Pursuant to a stipulation for certification upon consent election
dated November 15, 1954, an election by secret ballot was conducted on
November 23, 1954, among certain of the Employer's employees under
the direction and supervision of the Regional Director for the Eighth
Region. Thereafter, a tally of ballots was furnished the parties,
showing that 118 ballots were cast : 61 for the Petitioner, 56 against the
Petitioner, and 1 challenged.
Timely objections were filed by the Employer asserting that the
Petitioner interfered with the free choice of a bargaining representa-
tive by its handbills. After an investigation, the Regional Director on
February 10, 1955, issued his report on objections with a reconunenda-
tion that a hearing be held because of the novel issue involved herein.
Thereafter, both the Petitioner and the Employer filed exceptions to
the report on objections which is summarized herein.
On Tuesday, November 16, 1954, the clay after the approval of the
consent agreement and 1 week before the scheduled election, the Peti-
tioner distributed a handbill in which it published the hourly wage
rates allegedly paid for about 15 classifications by 3 other companies
where it was the bargaining agent, namely, Shellmar Products Com-
pany, Mt. Vernon, Ohio; Sefton Fiber Can Company, Piqua, Ohio;
and Atlantic Gummed Paper Company, Brooklyn, New York. The
Sefton Company has a collective-bargaining contract with the Peti-
112 NLRB No. 141.