The Cleveland Container Co.

National Labor Relations Board - Board Decisions

Sep 25, 1945

63 N.L.R.B. 1144 (N.L.R.B. 1945)

In the Matter of THE CLEVELAND CONTAINER COMPANY and WILLIAM
E. BARRETT
Case No. 13-C-2332.Decided September 05, 1945
DECISION
AND
ORDER
On February 27, 1945, the Trial Examiner 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
.annexed hereto. The respondent filed exceptions to the Intermediate
Report and a supporting brief. Oral argument before the Board at
Washington, D. C., was not requested, and none was held.
The Board has reviewed the rulings made by the Trial Examiner
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 brief filed by the respondent, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except as here-
inafter modified.
Employee William E. Barrett testified, among other things, that
early in 1942 at a time when a C. I. O. affiliate was engaged in or-
ganizing activity at a nearby plant, Superintendent William Con-
stable told a group of employees, including Barrett, that he, Constable,
did not want the C. I. O. to organize the (respondent's) plant and
that, if C. I. O. organizers did, "they would toss the guys out the
window on their heads." Constable denied that he made such state-
ments. The Trial Examiner credited Barrett's testimony and found
that Constable in substance made such statements. In resolving 'this
conflict in testimony, the Trial Examiner stated that employees Roy
Blanshain and Irwin Schuth, who were present at the time Constable
talked to the employees on the occasion in question, according to
Barrett's testimony, gave no testimony concerning the incident. On
the contrary, Blanshain testified that he did not hear Constable make
63 N. L R. B., No. 176.
1144
THE CLEVELAND CONTAINER COMPANY 1145
such statements and Schuth testified that he never heard Constable
say anything against the C. I. O. We have considered the testimony
of Blanshain and Schuth. Like the Trial Examiner, we credit Bar-
rett's testimony and find that Constable made the statements attributed
to him by Barrett as found by the Trial Examiner.
Employee Stanley Kaczmarek testified that, in August 1943, Assist-
ant Superintendent Irvin Olson asked Kaczmarek to request employee
Catherine Mehegan to question Laura Sward, a union representative,
"concerning the activities of Local 208 in the plant." In his Inter-
mediate Report the Trial Examiner credited Kaczmarek's testimony
and stated that his testimony was uncontradicted and corroborated in
part by Olson. Olson admitted in his testimony that he asked Kacz-
marek to request Mehegan to ascertain what Sward was doing in front
of the plant but Olson denied that he requested any information con-
cerning the Union. We have considered the testimony of Olson. Like
the Trial Examiner, we credit Kaczmarek's testimony and we agree
with the Trial Examiner's findings based thereon.
Employee Barrett testified that on January 15, 1944, Superintend-
ent Constable questioned him concerning the Union and asserted that,
if the plant were organized, he, Constable, "would make it hard for
Barrett." The Trial Examiner credited Barrett and stated that his
testimony was uncontradicted. The record shows that Constable ad-
mitted making a remark to Barrett concerning the, formation of a
labor organization, but Constable denied that he criticized anyone for
it. We have considered this testimony of Constable and the entire
record, and, like the Trial Examiner, credit Barrett's version.
Having found that the respondent has violated Section 8 (1) and
(3) of the Act, we must order the respondent, pursuant to the man-
date of Section 10 (c), to cease and desist therefrom. The respond-
ent's illegal conduct discloses a purpose to defeat self-organization
among its employees. For example, in the course of union organiza-
tion, the respondent sought to dissuade them from exercising the
rights guaranteed under the Act by threatening bodily harm to union
,organizers and by offering inducements to forestall union organiza-
tion, as more fully set forth in the Intermediate Report. Finally, the
respondent actually penalized employees Barrett and Martinsen for
their organizational and concerted activities by discriminatorily dis-
charging and thereafter refusing to reinstate them. Such discrimina-
tion "goes to the very heart of the Act." 1 Because of the respondent's
unlawful conduct and its underlying purpose, we are convinced that
'N L. R. B. V. Entwistle Mfg. Co., 120 F. (2d) 532, 536 (C C. A. 4). See also, N. L.
R B. V. Automotive Maintenance Machinery Co , 116 F. (2d) 350, 353 (C. C A 7 ), where
the Court observed : "No more effective form of intimidation nor one more violative of the
National Labor Relations Act can be conceived than discharge of an employee because he
joined a union... .
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unfair labor practices found are persuasively related to the other
unfair labor practices proscribed and that danger of their commis-
sion in the future is to be anticipated from the respondent's conduct in
the past.2 The preventive purposes of the Act will be thwarted un-
less our order is coextensive with the threat. In order therefore to
make effective the interdependent guarantee of Section 7, to prevent
a recurrence of unfair labor practices, and thereby minimize indus-
trial strife which burdens and obstructs commerce, and thus effectu-
ate the policies of the Act, we shall order the respondent to cease and
desist from in any manner infringing upon the rights guaranteed
in Section 7 of the Act. We shall also order the respondent to take
certain affirmative action designed to effectuate the policies of the
Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Cleveland Container
Company, Chicago, Illinois, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the Cleveland Container Em-
ployees Union, an unaffiliated labor organization, or in any other
labor organization of its employees, by discharging or refusing to rein-
state any of its employees, or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join
or assist"Warehouse & Distribution Workers Union, Local 208, of the
International Longshoremen's and Warehousemen's Union, affiliated
with the Congress of Industrial Organizations, or the Cleveland Con-
tainer Employees Union, an unaffiliated labor organization, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities, for
the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William E. Barrett and Arthur Martinsen immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges ;
2 See N. L. R. B. V. Express Publishing Company, 312 U. S. 426.
THE CLEVELAND CONTAINER COMPANY 1147
(b) Make whole William E. Barrett and Arthur Martinsen for any
loss of pay that they may have suffered by reason of the discrimina-
tion against them, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages during
the period from the date of the respondent's discrimination against
him to the date of such offer of reinstatement, less his net earnings
during said period;
(c) Post at the respondent's plant at Chicago, Illinois, copies of
the notice attached to the Intermediate Report herein and marked
"Appendix A." 3 Copies of said notice, to be furnished by the Re-
gional Director for the Thirteenth Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent
immediately upon the receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the respondent 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
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Robert T. Drake, for the Board.
Mr. Albert J. Williams, of Cleveland, Ohio, for the respondent.
STATEMENT OF THE CASE
Upon an amended charge filed on September 28, 1944, by William E. Barrett,
herein called Barrett, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its complaint dated November 17, 1944, against The Cleveland Container
Company, herein called the respondent, alleging that the respondent has engaged
in and is engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, herein called the Act. Copies of the complaint and notice of
hearing thereon were duly served upon the respondent and Barrett
With respect to the unfair labor practices the complaint alleged in substance;
(1) that from about January 1942 and thereafter the respondent urged, warned
and threatened employees against joining or assisting Warehouse & Distribution
Workers Union, Local 208, of the International Longshoremen's and Warehouse-
men's Union, affiliated with the Congress of Industrial Organizations, herein
called Local 208, and labor organizations generally, and (2) that on or about
9 Said notice , however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations Of A Trial Examiner" and substituting
in lieu thereof the words "A Decision And Order."
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 15, 1944, the respondent discharged employees Barrett and Arthur
Martinsen, herein called Martinsen, and has since refused to reinstate them
because they joined and assisted Cleveland Container Employees Union, herein
called the Union.
In its answer, the respondent admitted certain allegations in the complaint
in respect to the nature of the respondent's business but deified the allegations
respecting unfair labor practices
Pursuant to notice, a hearing was held at Chicago, Illinois, on November 28,
through December 2, 1944, before Henry J. Kent, the Trial Examiner duly desig-
nated by the Chief Trial Examiner The Board and the respondent were repre-
sented by counsel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. At the close of the Board's presentation,
counsel for the respondent moved that the allegations of the complaint be dis-
missed, which motion was denied without prejudice to later renewal. At the
close of the hearing, this motion was renewed and is hereby- denied. Also at
the close of the hearing, a motion of counsel for the Board to conform the coin-
plaint to the proof insofar as formal matters were concerned, was granted with-
out objection.' Neither counsel for the Board nor counsel for the respondent
availed themselves of the opportunity to present oral argument before the under-
signed, but both counsel have filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FAGT
I. THE BUSINESS OF THE RESPONDENT
The Cleveland Container Company, an Ohio corporation, operates a plant
in Chicago, Illinois, where it engages in the manufacture, production, sale and
distribution of paper tubes and cores, thread protectors, shipping drums and
waste baskets? In connection with the operations of this plant it purchases large
quantities of materials including ship-board, Kraft, container board and glue.
During the calendar year of 1943, approximately 90 percent of such materials
were purchased in states of the United States other than the State of Illinois
and transported in interstate commerce to its Chicago plant. During the same
calendar year, the total receipts from sales of manufactured products exceeded
$500,000 00 of which over 25 percent in value was derived from sales of products
delivered to points outside the State of Illinois.
It was stipulated in the record that the respondent is engaged in commerce
within the meaning of the Act.
I At this time, Counsel for the Board also moved that the undersigned reconsider his
earlier ruling denying admission in evidence of Board's exhibits marked for identification
as 15, 15-n and 15-o The said exhibits contained various memoranda written by
Barrett on various occasions about a year prior to the hearing and concerned events respect-
ing the issues on which Barrett gave testimony Barrett's present recollection was clear
concerning the events except as to dates and names and no objections were interposed to
his use of the statements to refresh his recollection on these matters. No proof was
adduced to authenticate the accuracy of the writings at the time they were made The
ruling is hereby confirmed.
2 It also operates plants at Cleveland, Ohio ; Detroit, Michigan; Long Island City and
New York, N Y. ; Philadelphia, Pennsylvania ; Plymouth, Wisconsin , Milltown, New
Jersey, and Three Rivers, Massachusetts, which plants, however, are not involved in this
proceeding
THE CLEVELAND CONTAINER COMPANY 1149
1I. THE ORGANIZATIONS INVOLVED
Warehouse & Distribution Workers Union, Local 208, of-the International Long-
shoremen's and Warehousemen's Union, affiliated with the Congress of Industrial
Organizations, and Cleveland Container Employees Union, unaffiliated, are labor
organizations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In 1942, during an organizational campaign by a C. I O. union at the Shell
Division plant of Consolidated Bakeries, which was located a short distance
from the respondent's plant, some of the C I. O. organizers approached employees
of the respondent to solicit them to join that organization. At the time there
was much discussion concerning the C. I. O. among the respondent's employees
and the respondent's superintendent, William Constable, engaged in a conversa-
tion concerning the C. I. O. in the plant machine shop with employees Barrett,
Roy Blankshain,i Irwin Schuth and James Ackerman. During the conversation
Constable stated that he did not want the C I O. to organize the plant and
threatened to toss out any organizer who entered the plant.4
During August and September 1943, Local 208, of the Warehouse & Distribution
Workers Union engaged in an organizational drive among the respondent's
employees and Laura Sward, a union representative, solicited them to joint it,
at the plant entrance while they were entering or leaving the plant. In August,
of that year, when Stanley Kaezmarek, the respondent's shipping clerk, was in
the office of Assistant Superintendent Irvin Olson, Olson, in the presence of
Superintendent Constable, requested Kaczmarek to ask employee Catherine
Mehegan to interrogate Sward concerning the activities of Local 208 in the
plant. Thereafter, on the same day Kaczmarek transmitted Olson's request to
Mehegan and on her way home that night Mehegan stopped to talk with Sward
about Local 208 Sward gave her a union pamphlet and an application card
which Mehegan later that night gave to Kaczmarek. On the following morning
Kaczinarek handed the pamphlet and card to Constable and also told him that
Mehegan refused to pry further into the affairs of Local 208.`
Thereafter in September, during the height of the organizing drive of Local
208, the respondent called a meeting in the plant to announce that it was going
'In Barrett's testimony he named P.lankshain as "Fred" Blankshain, but since Roy
Blankshain, the foreman of the machine shop, is the only Blanksham employed in the
machine shop apparently Barrett was referring to Roy Biankshain
4 This finding is based on Barrett's testimony. Constable denied making the statement,
but Blankshain and Schuth, who were called as witnesses by the respondent, gave no testi-
mony concerning the incident. As found below, Constable engaged in other similar acts of
interference respecting union activities among the employees. Basing his conclusion on all
of the evidence in the record and from his observation of the witnesses the undersigned
accepts Barrett's version of the incident as credible and true.
5 This finding is based upon the uncontradicted testimony of Kaczmarek and Mehegan,
which was corroborated in part by Olson. Kaczmarek further testified that Olson had also
requested that Mehegan try to obtain from Sward the names of employees who had joined
Local 208 but Mehegan in her testimony did not indicate that Kaczmarek had asked her
to secure such information and Olson denied he had ever made such a request Basing
his conclusion upon all the evidence and from his observation of the witnesses the under-
signed credits Olson's denial that he asked for this information
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to finance a picnic for them.° Superintendent Constable presided at it and toward
the close of the meeting some one asked Constable to give them his opinion of
Local 208. Constable, in substance, then stated that Local 208 could do nothing
for the employees that the respondent was not already doing and said an ap-
plication had been filed with the National War Labor Board requesting wage
increases for all of them.' Shortly after this meeting, Local 208 discontinued
its membership drive.
During January and February 1944, employees Barrett and Martinsen, who
were discharged on February 15, as discussed below, organized the Cleveland
Container Employees Union in the plant. According to the uncontradicted
testimony of employee Catherine Mehegan, which the undersigned accepts as
credible and true, Assistant Superintendent Olson in February 1944, asked her,
"did they [Barrett and Martinsen] suck you in" to join the Union?-
B. The discharges and other alts of interference, restraint and coercion
It is alleged that the respondent discharged Barrett and Martinsen on or
about February 15, 1944, because of their union affiliation and membership.
The respondent admits that they were discharged on the date alleged, but denies
that the discharges were discriminatory.
Barrett began his employment with the respondent on May 6, 1939, as an
electrician at the former 37th St. plant of the respondent in Chicago, and con-
tinued in his employment after the plant operations were moved during June
and July 1943, to respondent's Halstead Street plant, also in Chicago, until
he was discharged He began working for 85 cents an hour and thereafter
during his term of employment received several wage increases, the last one
having been given him shortly prior to his discharge at which time he was
receiving $1.30 per hour 8
Martinsen began his employment as an electrician and maintenance man
at the respondent's 37th Street plant in May 1943, and continued to work at
°It is noted that in.May 1943, Constable had told the employees that the respondent
would give them a party after the plant which was then located at 1428 West 37th St.,
Chicago was move to 4925 South Halstead St , Chicago . It is significant that although
the plant moving was completed by July 1, the employees were not given the picnic until
late in September after Local 208 had commenced its membership campaign and that the
meeting to arrange for the picnic was also selected to announce to the employees that the
respondent had petitioned the War Labor Board for wage increases.
Y General Manager Pearse testified that the application for wage increases was not filed
until the first week in October 1943 , which testimony the undersigned credits and accepts
as true, for the reason that Pearse impressed him as being a more reliable witness than
Constable.
8 Also in May 1943, Barrett was made the working foreman of the maintenance crew
consisting of 7 men in addition to Barrett Thereafter , Barrett continued to spend sub-
stantially all of his time on manual labor While Barrett and Martinsen did all of the
electrical work in the plant, they were also required to spend much of their time at the
new plant on steam boiler , steam pipe and elevator repair jobs as well as millwright work,
setting up machinery. On the boiler and steam pipe work Martinsen acted as a journey-
man while Barrett served as his helper . Although Barrett and Martinsen testified, by
merely stating general conclusions , that Barrett hired Martinsen , the respondent ' s general
manager, Stephen Pearse denied it and said that only he, Superintendent Constable and
Assistant Superintendent Olson had authority to hire and discharge and further stated that
at the time Martinsen was hired , Barrett merely interviewed some of the applicants for
the job to assist Constable and that Constable hired Martinsen The evidence fails to
show that the respondent ever reprimanded Barrett for engaging in Union activities
because he was associated with management . In view of the fact that the record shows
Barrett spent substantially all of his time at manual labor and was paid on an hourly basis,
the undersigned finds that Barrett was not a supervisory employee in the sense that he
would be regarded by other employees as a representative of management.
THE CLEVELAND CONTAINER COMPANY 1151
the respondent's Halstead Street plant until his discharge. He was paid
$1.15 per hour.
According to the testimony of General Manager Pearse and Superintendent
Constable both Barrett and Martinsen were competent workmen.
In December 1943, or early in January 1944, the American Decalcomania Com-
pany at Chicago offered Martinsen an electrician's job at its plant. He asked
Constable for a release, but the latter refused to give it to him, stating at the
time that the respondent needed his services. Martinsen, then appealed to
the War Manpower Commission for a statement of availability, which appeal
was denied.
Early in January 1944, after Martinsen had been denied a release, he and
Barrett decided to organize an unaffiliated labor organization among the re-
spondent's employees. Between January 10 and February 14, 1944, they inter-
viewed many of the employees in respect to it and 107 employees signed blank
slips of paper to indicate their willingness to join the proposed organization a
According to Barrett's uncontradicted testimony, which the undersigned credits
and accepts as true, on January 15, 1944, while talking with Constable, the
latter asked him what he knew about the proposed union in the plant, and
when Barrett denied having any knowledge respecting it, Constable in substance,
told Barrett to stop evading the issue, and stated that if a union was organized
in the plant Constable would make it hard for Barrett.1°
Despite the above threat to penalize Barrett for union activities, he and Martin-
sen continued to organize. Thereafter about noon on January 13, Constable
handed both of them statements of availability although they had not asked
for them. When Martinsen was handed his lie told Constable he did not want
it, because the job he previously had been offered had been filled after the
respondent refused to release him. Barrett also stated he did not want a
release and said he would continue on the job. Admittedly the respondent did
not discharge them, because General Manager Pearse testified that he told
Constable at the time that "so long as Martinsen has been asking for a release,
and I presume Barrett feels the same way, let us hand it [Statement of avail-
ability] to them and if they want to go they can leave" (Italics supplied.)
On or about February 9, 1944, the respondent posted a notice on its Bulletin
Board ," and on the following day Barrett and Martinsen handed out circulars
9 Between January 10 and January 29, 1944 , 25 of the subscribers paid to Martinsen 25
cents as initiation fees and 25 cents to apply on the first month's dues
11 Constable testified that on or about the same clay he tentatively arranged with an
electrical contractor to send electricians to the plant to complete the electrical installation
when notified that the respondent needed them.
11 Constable testified that the reason for handing the men the statements was because he
had searched the plant from about 8 to 10 o'clock that morning and had been unable to
find them until he located them in the third floor washroom during a rest period at which
time he reprimanded them for loafing . Both men denied that they had been loafing amid at
the time told Constable where they had been working that morning The undersigned is
convinced that.had the respondent honestly believed these men had been loafing for 2
hours on this morning, it would have discharged them , rather than by pretext seek to
induce them to quit, since as appears above [footnote 10] Constable had previously made
arrangements to obtain the services of other electricians when he requested their employer
to send them to the plant On all of the above , the undersigned credits the denial of
Barrett and Martinsen that they were loafing on the job on this occasion.
la The notice stated
We have checked over our records the first of the month and starting Feb 7th we have
increased every employee in our organization who is entitled to an increase as
Stabilized by the National War Labor Board. If anybody feels that they were for-
gotten, or who feel that they are not getting what they are entitled to, come in and
see me and I will be more than glad to straighten any matter that may confront them.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inviting all hourly paid employees to attend an organizational meeting of the
Union at Soeldner Hall in Chicago, at 4:30 p. in. on February 14. Through
Constable, they also extended an invitation to Pearse to attend the meeting, but
Pearse delegated another employee to state at the meeting that it would be im-
proper for him to attend it. The meeting was held as scheduled, and about
150 of the 170 hourly paid employees attended. Martinsen presided 13 Several
of the employees including Roy Blankshain, the foreman of the machine shop,
questioned Martinsen respecting the benefits they might receive by organizing
and some of them stated that a union could do no more for them concerning wage
increases than the respondent was then doing. The meeting became so dis-
orderly that Martinsen requested all present not in favor of organizing to leave
the hall, whereupon all but about 40 or 50 left. The meeting was then called
to order and the following named hourly paid employees were elected as officers
of the organization :
Arthur Hay President
(one) McGar.ey Vice President
Wanda Maycherek Recording Secretary
Alice Thomas Treasurer
Bill Crider Sergeant-at-Arms
William Barrett, Joseph McMahon Board of Trustees
and Margaret Barry
Arthur Martinsen Business Agent
On the same night, following the election, the 3 trustees and Hay were appointed
as a committee to draft by-laws, but this committee never acted because on the
following day Barrett and Martinsen were discharged and thereafter the Union
failed to function as an effective labor organization."
Roy Blanksbain, foreman in the machine shop, testified without contradiction
that on the next morning some of the machine shop employees accused Barrett
and Martinsen of putting something over on the employees and threatened to
walk out of the plant ; and that after talking with the group he drew up a
petition which was then signed by him and the machine shop employees and
thereafter circulated throughout the plant by employees Chester Bluck and one
Sikoski.15 Sixty-five of the employees signed the petition which was then returned
to Blankshain. The same afternoon Blankshain, accompanied by employees
Ervin Schuth, James Ackerman and an employee whose first name is Elmer,
took the petition to the plant office and handed it to Pearse and Constable.
13 Barrett testified, in substance, that just before he left the plant to attend the meeting,
'Constable came to the electrical shop and told him that irrespective of the outcome of the
meeting that night, that he, Constable, would "beat us" [Barrett and Martinsen] and that
if a union came into the plant Constable would not continue to work there, Constable
denied having made the statement. A consideration of the above and all other evidence
in conjunction with his observation of the witnesses leads the undersigned to accept
Barrett's testimony as credible and lie finds that the statement was made.
14 Hay, who was promoted to a foreman's job in June 1944, testified that the organiza-
tion had never chosen a name, but Barrett testified, without contradiction, that on the
circular calling the meeting the name of the proposed organization was stated as Cleveland
-Container Employees Union and for purposes of identification this name will be used to
,designate the organization.
15 This petition was headed : February 15 1944
We the undersigned as employees of the Cleveland Container Co. refuse to come to
work Feb. 16, 1944, unless Wm. Barrett and A. Martinsen are evacuated from this
company as we will not tolerate any interference with our present working conditions.
[Italics supplied I
THE CLEVELAND CONTAINER COMPANY 1153
Barrett and Martinsen were called to the office and in the presence of the
above named persons Constable handed them the petition to read. According to
Constable's testimony, which is in substantial agreement with that of the other
witnesses who gave testimony respecting the incident, the two men asked Con-
stable what he was going to do about it. He replied, "Well, that is self explan-
atory, is it not?" Barrett and Martinsen then asked Constable if they could
report to work on February 16, subject to their agreement to quit if any employee
in the plant refused to work, but Constable refused to accept their proposal1e
On the same afternoon, following the discharges, McMahon, one of the Union
trustees, informed Hay, the Union's president, that some of the employees on
the night shift who were affiliated with the Union were refusing to report for
work because Barrett and Martinsen had been discharged. Hay accompanied
by union officers McGarvey, McMahon and Crider went to the office to notify
Constable about the threatened strike of union members and to learn the reason
for the discharges. Constable told the committee that Barrett and Martinsen
were not discharged for union activities but for other reasons, and the union
committee without further consideration or investigation of the circumstances
accepted Constable's statement 1' Barrett and Martinsen before leaving the
plant, talked with the union employees who were threatening to strike, and
succeeded in getting the group to report for work after telling them that charges
would be filed with the Board concerning their discharges.
C. Concluding findings
An examination of the events above show: that Barrett and Martinsen were
responsible for the formation of the Union in the plant ; that the respondent
had full knowledge of their activities in respect to the Union ; and that on two
occasions prior to its formation Superintendent Constable warned Barrett that
reprisals would follow if he and 1liartinsen persisted in organizing the employees.
Moreover , the record also shows that no steps were taken by the rival anti-union
faction in the plant in respect to petitioning for the discharges of Barrett and
Martinsen , until February 15, 1944, the day following the formation of the
Union. It is significant to the undersigned that the protest stated in the petition
as a basis for the threat to strike , was • "we will not tolerate any interference
with our. present working conditions " In view of all of the evidence herein,
"interference with our present working conditions" could only refer to the
activities of Barrett and Martinsen in connection with the organization of the
Union.
With all the above in mind , the respondent summarily discharged Barrett and
Martinsen , and refused to entertain the proposal made at the time by Barrett,
namely, that if they were allowed to report for work on the following day
both of them would voluntarily quit, if any employee refused to work with them.
The respondent contends that since it was faced with a threat of strike if
it refused to discharge the above named employees , no unfair labor practice
10 Pearce testified that "when the petition was brought into the office, that left us no
alternative," and the decision to discharge Barrett and Martinsen was then made.
[Italics supplied l
"No union meetings were called after Barrett and Martinsen were discharged and all
activities in connection with the organization ceased, excepting for a letter sent to the
Board dated February 18, 1944, signed by Hay and 11IeGarvey denying that the organiza-
tion had attained full status as a labor organization and objection to charges filed on
behalf of Barrett and Martinsen in the name of the Union. Thereafter, Barrett filed an
amended charge on behalf of Martinsen and himself and it is on this charge that the
complaint is based. It is also noted that no steps have been taken to dissolve the
organization.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been committed. The evidence convincingly shows that both discharges
were based upon the union activities of the two employees and consequently they
constituted a clear violation of the Act. Difficult as an employer's position may
be under such circumstances, its duty is plain The statute prohibits discrimi-
nation against employees on account of their membership in, or activities on
behalf of unions. It specifically prohibits the discharge of employees for the
purpose and with the effect of discouraging membership in a union On the
facts herein, the respondent cannot escape responsibility for the discharges of
Barrett and Martinsen.18
As additional defenses, the respondent also contended : (1) that Barrett and
Martinsen were untrustworthy employees; and (2) that it was necessary to
replace them by other electricians who were members of an affiliated labor
organization.
In respect to the first contention, it appears that on 2 occasions in November
1943, Martinsen punched in Barrett's time card to indicate that Barrett had
reported for work on time, whereas on both occasions he had been a few minutes
late At or about the same time many other employees engaged in similar prac-
tices. Shortly thereafter the respondent learned of the matter and posted notices
warning that these practices must cease, and absolving all of those guilty of
similar past derelictions Both men complied with the warning; hence, since
the matter was previously closed, these incidents may not presently be urged
as ground for discharge or a refusal to reinstate. Testimony was also offered
for the purpose of attempting to show that they habitually loafed on the job,
which was denied or otherwise refuted It is noted that Martinsen was refused
a release in December 1943, or early January 1944, that Barrett received a wage
increase shortly before he was discharged in February 1944, and that the re-
spondent did not state loafing as a ground for the discharges at the time of terilli-
nation. The denial of Barrett and Martinsen in respect to loafing would appear
to be the more credible version and the undersigned accordingly accepts it as
being true.
In respect to the second contention, it appears that Barrett and Martinsen
were the only electricians on the respondent's payroll before they. were dis-
charged on February 15, 1944. In December 1943, Moore, an electrical inspector
for the city of Chicago told Constable that he would have to hire additional elec-
tricians to complete the change over of the electrical installation from a tem-
porary to a permanent status However, it was not until January 15, 1944, or
about 5 days after Barrett and Martinsen started to organize the Union, that
Constable entered into a tentative arrangement with an electrical contractor to
send electricians to the plant when Constable asked for them. Those electricians
whom he contemplated hiring were members of an affiliated labor organization
and according to 'Constable they would refuse to work in the plant if Barrett
and Martinsen continued as electricians. The record fails to show that Con-
stable attempted to hire other electricians willing to work with Barrett and
Martinsen, both of whom admittedly were competent electricians.
It is significant that none of the reasons advanced by the above contentions
were stated to Barrett and Martinsen as grounds for discharge at the time of
their terminations. When the entire record is considered it becomes clear that
18 Cf Matter of Isthmian Steamship Company, 22 N I. R B 1004, enf'g as mod.
N. L R B v Isthmian Steamship Company, 126 F (2d) 598 (C. C A 2) : N. L R B.
v, Hudson Motor Car Co., 128 F. (2d) 588 (C C. A 6), enf'g 34 N L R B 815 , Matter of
Greer Steel Company and Tuscarora Lodge No. 173, et at, 38 N L R B 65. Also see
Medo Photo Supply Corporation v. N. L R B, 321 U. S 67S, 789, aff'g 135 F. (2d)
279 (C C. A. 2). The Supreme Court stated that the employer was not relieved from
his obligation [under the Act] because the employees asked that they be disregarded
THE CLEVELAND CONTAINER COMPANY 1155,
the respondent deemed it advisable to give additional reasons as a pretext to rid
itself of the organizers of the Union in the plant. The undersigned concludes
that these defenses lack merit.
On all the above and upon the entire record, the undersigned concludes and
finds that the respondent by discharging William F. Barrett and Arthur Martin-
sen on February 15, 1944, discriminated against them in regard to their hire
and tenure of employment, and thereby discouraged membership in the Union
and interfered with, restrained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act. He further finds that by the state-
ments and conduct of Superintendent Constable in threatening Barrett and
Martinsen with reprisals if they failed to cease their activities on behalf of the-
Union, and by the further statements and conduct of Constable and Assistant
Superintendent Olson in promising to press for wages increases before the Na-
tional War Labor Board during the height of an organizing drive by Local 208,
in requesting employees' to pry into and report to them respecting the Union.
activities of Local 208 among its employees, and in interrogating employees in
respect to their membership in the Union, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in.
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Sec-
tion III, above, occurring in connection with the operations of the respondent
described in Section I, above, have a close, intimate, and substantial relation to^
trade, traffic, and commerce among the several States and tend to lead to labor-
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent by its anti-Union statements and conduct
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the undersigned will recommend that:
the respondent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The undersigned has further found that the respondent discriminatorily
discharged and subsequently refused to reinstate William E . Barrett and'.
Arthur Martinsen because of their membership in and activity on behalf of
the Union. He will, therefore, recommend that the respondent offer to each
of the above named employees immediate and full reinstatement to his former
or a substantially equivalent position without prejudice to his seniority and
other rights and privileges, and to make him whole for any loss of pay he may
have sufferered by reason of the respondent's discrimination against him by
payment to him of a sum of money equal to the amount which he would normally
have earned as wages from the date of the discrimination to the date of the
offer of reinstatement, less his net earnings 19 during that period.
10 By "net earnings" is meant earnings less expenses , such as for transportation, room, .
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 5590, 8 N . L. It. B. 440. Monies
received for work performed upon Federal , State , county, municipal, or other work -relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. It. B.,.
311 U. S. 7.
662514-46-vol. 63 74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings and upon the entire record in the case,
>the undersigned makes the following :
CONCLUSIONS of LAW
1. Warehouse & Distribution Workers Union, Local 208, of the International
-Longshoremen's and Warehousemen's Union, affiliated with the C I O. and
,Cleveland Container Employees Union, an unaffiliated organization, are labor
-organizations within the meaning of Section 2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of
William E. Barrett and Arthur Martinsen, thereby discouraging membership
in Cleveland Container Employees Union, an unaffiliated labor organization, the
respondent has engaged in and is engaging in unfair labor practices within the
-meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has en-
-gaged in and is engaging in unfair labor practices, within the meaning of Section
8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
tcommerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
-undersigned recommends that the respondent, The Cleveland Container Company,
,Chicago, Illinois, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the Cleveland Container Employees Union,
an unaffiliated labor organization, or any other labor organization of its em-
ployees, by discriminating in regard to their hire and tenure of employment
,or any terms or conditions of employment;
(b) In any manner interfering with, restraining or coercing its employees in
-the exercise of the right to self-organization, to form, join, or assist Warehouse
•& Distribution Workers Union, Local 208, of the International Longshoremen's
and Warehousemen's Union, affiliated with the C. I. 0, the Cleveland Container
Employees Union, an unaffiliated labor organization, or any other labor or-
ganization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
-fectuate the policies of the Act :
(a) Offer to William E. Barrett and Arthur Martinsen immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges ;
(b) Make whole William E Barrett and Arthur Martinsen for any loss of
-pay they have suffered by reason of the discrimination against them, by pay-
ment to each of them respectively of a sum of money equal to that which he
would normally have received as wages during the period from the date of the
respondent's discrimination against him to the date of such offer of reinstatement,
'less his net earnings40 during said period ;
(c) Post at its plant at Chicago, Illinois, copies of the notice,attached to the
-Intermediate Report herein, marked "Appendix A." Copies of the said notice,
20 See footnote 19, supra.
THE CLEVELAND CONTAINER COMPANY 1157
to be furnished by the Regional Director of the Thirteenth Region , shall, after
being duly signed by the respondent 's representative , be posted by the respondent
immediately upon the receipt thereof, and maintained by it for sixty ( 60) con-
secutive 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 Thirteenth Region within ten (10)
,days from the receipt of this Intermediate Report, in writing, setting forth in
-detail the manner in which the respondent has complied with the following
recommendations.
It is further recommended that, unless on or before ten (10 ) days from the
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
-the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective July 12, 1944,
any party or counsel for the Board may within fifteen ( 15) days from the date
of the entry of the order transferring the case to the Board , pursuant to Section
32 of Article II of said Rules and Regulations , file with the Board, Rochambeau
Building , Washington , D. C., an original and four copies of a statement in writ-
ing setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding ( including rulings upon all motions or objections)
as he relies upon together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file a copy with the Regional
Director . As further provided in said Section 33, should any party desire per-
mission to argue orally before the Board request therefor must be made in writ-
ing to the Board within ten (10 ) days from the date of the order transferring
the case to the Board.
HENRY J. KENT,
Trial Examiner.
Dated February 27, 1945.
NId4B 577
(9-1-44)
APPENDIX A
NoTIOE TO ALL EMPLOYEES
Pursuant to recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
0
We will not in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organiza-
+tions, to join or assist Warehouse & Distribution Workers Union, Local 208,
of the International Longshoremen 's & Warehousemen 's Union , affiliated
with the C . I. 0., Cleveland Container Employee 's Union, unaffiliated or
any other labor organization , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
We wUl offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
1158 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination.
William E. Barrett and Arthur Martinsen
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to.
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
THE CLEVELAND CONTAINERS COMPANY,
(Employer)
Dated --------------------- By -------------------------------------
(Representative) (Title)
NOTE : Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
0