The Englander Co., Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1957

118 N.L.R.B. 707 (N.L.R.B. 1957)

THE ENGLANDER COMPANY, INC. 707
to send members of this Brotherhood to your Company to erect this
work. This International Brotherhood has had signed agreements
with your Company for several years to erect their work in the field
and you men know that some, of the members of Lodge #13 have
worked in the shop from time to time during the slack period in the
field and now this same Company has the audacity to state that they do
not want you to affiliate with this Brotherhood and on the other hand
will shout to the high heavens as to the good relations they have with
this Brotherhood in erecting their field work.
Mr. Robert Benwell who wrote the letter date February 20,1957, to
you, is the same man who sat in on the negotiations between the C. H.
Wheeler Company and this Brotherhood in July 1956 and agreed to
give the members of Local 13-a thirty-five cent an hour increase ef-
fective with the new agreement-August 1, 1956.
Now you men should stop and think of the conditions and wage rates
Mr. Benwell has offered to you and then decide if your company is being
fair with you. Now you can realize why the C. H. Wheeler Company
does not want you organized by this International Brotherhood.
After all the years that you men have been fighting trying to get
good working conditions and good wage rates-take this opportunity
to improve your wage rates and working conditions and vote "YES"
on Monday, March 4,1957-YOUR VOTE IS SECRET-NO ONE
BUT YOU YOURSELF KNOWS HOW YOU VOTED, BE-
CAUSE THIS REPRESENTATION ELECTION IS CON-
DUCTED BY A REPRESENTATIVE OF THE UNITED
STATES GOVERNMENT.
Very truly yours, (Signed) John A. Kennedy,
JonN A. KENNEDY,
Representative.
The Englander Company, Inc. and Upholsterers International
Union of North America, AFL-CIO, and Local 5 of Upholster-
ers International Union of North America, AFL-CIO and
Washington-Oregon District Council of Furniture Workers,
AFL-CIO
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and ' Helpers of America , Warehousemen's Local
Union No. 117, AFL-CIO and Washington-Oregon District
Council of Furniture Workers, AFL-CIO. Cases Nos. 19-CA-
1306,19-CA1307, and 19-CB-416. July 17,1957
DECISION AND ORDER
On October 16, 1956, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
118 NLRB No. 84.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents had engaged in and were engaging in,certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
Sled exceptions to the Intermediate Report and briefs in support of
their exceptions.
The Board 1 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 .2 The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions :
1. We agree with the Trial Examiner that the Respondent Em-
ployer violated Section 8 (a) (2) and (1) of the Act.by:
(a) Vice President Sparrowk's referring of job applicants to the
Respondent Union on January 11, 1956, for the purpose of discussing
membership in that organization and, as part of such referral, furnish-
ing some applicants with the address of the Respondent Union.
(b) Foreman Moore's statement to Griffin on February 14, 1956,
that the latter would "first have to get it straightened out with the
Teamsters" (Respondent Union) as a condition of employment and
that she would have a job if she joined the Respondent Union.
(c) Foreman Henry's remark to McDonald on February 21 that the
latter would have to clear through the Respondent Union as a pre-
condition to receiving a job.
(d) Foreman Moore's statement to McDonald on February 23 that
the latter would have to join the Respondent Union if he wanted a
job with the Respondent Employer and when McDonald refused,
Moore's saying, "Well, I guess we can't do any business."
2. We also agree with the Trial Examiner that the Respondent
Employer and the Respondent Union entered into a collective-
bargaining contract at a time when the number of employees at work
was not representative of the Respondent Employer's. anticipated
work force. By such conduct, the Respondent Employer rendered
further unlawful assistance to the Respondent Union in violation of
Section 8 (a) (2) and (1) of the Act.
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Boardhas delegated its powers in connection with this case to a three -member panel [Chair-
man Leedom and Members Rodgers and Bean].
2 The Respondent Employer contends that it was prejudiced by the Trial Examiner's rul-
ing permitting the General Counsel to amend the complaint to include an allegation respect-
ing the discriminatory refusal to employ Robert A. McDonald.
The Trial Examiner gave the Employer an opportunity to apply for additional time to
prepare its case against the McDonald allegation . The Employer did not do so. All of the
issues were fully litigated at the hearing . In these circumstances we find no error in the
Trial Examiner' s ruling . Premier. Worsted Hills, 85 NLRB 985, enfd. 183 F. 2d 256
(C. A. 4).
THE ENGLANDER COMPANY, INC. 709
The.eontract also contained a union -security clause which was op-
erative. By agreeing to and maintaining such a clause with an un-
lawfully assisted union, the Respondent Employer violated Section
8 (a) (3) and (1) and the Respondent Union violated Section 8 (b)
(2) and (1) (A) of the Act.
Our finding that the Respondents entered into a collective- bargain-
ing contract prior to February 14, 1956, which was before a representa-
tive number of employees had been employed, rests on the following
evidence:
(a) In the autumn of 1955 and again on January 9, 1956, Dillon,
a representative of the Western Conference of Teamsters, told the
Respondent Employer's Vice President Sparrowk that the Teamsters
expected to have the Seattle operation under contract, the same as
elsewhere in the country.
(b) At a plant meeting on February 13, 1956, that included
representatives of the Charging Union, the Respondent Employer
and the Respondent Union, Evans, a representative of the Furniture
Workers, remarked that Teamsters ' Representative Williams was
apparently acting as the Respondent Employer's "personnel man-
ager." Factory Manager Hunt replied that Williams had the right to
ask job applicants to come to the plant inasmuch as the Teamsters held
an agreement with the Respondent Employer.
(c) Vice President Sparrowk testified that, on February 6, 1956,
Vice President Pink telephoned him from the Employer's Chicago,
Illinois, headquarters to say that a ,contract signed by representatives
of the Respondent Union was in the office.
(d) On January 26, 1956, Sparrowk told Truman, a representative
of the Brotherhood of Carpenters, that the Respondent Employer had
a "master agreement" of nationwide scope with the Teamsters Inter-
national, that he did not want to jeopardize good working relations
with the Teamsters by signing a contract for the Seattle plant with
another union, and that he feared reprisals if he did so. Also, on
February 3, Sparrowk refused Truman's request for a consent repre-
sentation election to be conducted by the Board because of a "master
agreement" with the Teamsters.
(e) On February 10, 1956, Bombadier, a representative of the
Respondent Union, telephoned applicant Testerman to ask her if she
wished to go to work. Bombadier told Testerman that "they had a
contract at the plant."
(f) As early as February 13, 1956, applicants for employment
appeared at the Respondent Union's office and were asked to sign a
document which recited that the signatory agreed to accept "all work-
ing conditions contained in the contract in effect between the
International Brotherhood of Teamsters and the Englander Com-
pany...."
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) The absence of any evidence of contract negotiations between
the Respondent Employer and the Respondent Union together with
the fact that the contract in evidence is little more than a duplicate
of the one covering the Respondent Employer's Los Angeles plant,
even to the extent of bearing execution date, October 1, 1955, and
effective date, December 1, 1955-dates prior to the acquisition of the
Seattle factory.
3. Finally, we agree with the Trial Examiner, for the reasons
stated in the Intermediate Report, that the Respondent discrimina-
torily refused employment to Robert A. McDonald in violation of
Section 8 (a) (3) and (1) 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 :
1. The Respondent, The Englander Company, Inc., Seattle, Wash-
ington, its officers, agents, successors, and assigns, shall :
(a) Cease and desist from:
(1) Contributing support to International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Ware-
housemen's Local Union No. 117, AFL-CIO, or to any other labor
organization.
(2) Giving effect to its contract with the Respondent Union (which
agreement refers to that labor organization as the General Teamsters,.
Chauffeurs and Helpers Union, Local 117) or to any modification,
extension or renewal of the said agreement, unless and until the
Respondent Union shall have been certified by the National Labor
Relations Board as the exclusive bargaining representative of its
employees at the Seattle, Washington, plant, and then only if the
agreement otherwise conforms to the provisions of the National Labor
Relations Act.
(3) Recognizing International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Warehousemen's
Local Union No. 117, AFL-CIO, as the exclusive representative of
a bargaining unit of its employees at its Seattle, Washington, plant,
for the purposes of collective bargaining, unless and until the said
Respondent Union shall have been certified by the National Labor
Relations Board as the exclusive bargaining representative of the
employees in such unit.
(4) Encouraging or discouraging membership in any labor organi-
zation by discriminating in any manner in regard to the hire or tenure
of employment, or any term or condition of employment of employees.
(5) Entering into, maintaining, renewing, applying, or enforcing
any agreement which requires employees or applicants for employ-
THE ENGLANDER COMPANY, INC. 711
ment to be members of, to join, or to maintain membership in, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Warehousemen's Local Union No. 117,
AFL-CIO, or any other labor organization, unless such agreement
conforms with the requirements of Section 8 (a) (3) of the Act.
(6) Making any statement to, or otherwise informing, any em-
ployee or applicant for employment that employment by it is condi-
tioned upon approval or clearance by the said Respondent Union, or
any other labor organization.
(7) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed by Section 7
of the Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Withdraw and withhold all recognition from the Respondent
Union, whether known by the name of International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Warehousemen's Local Union No. 117, AFL-CIO, or by the name of
General Teamsters, Chauffeurs and Helpers Union, Local 117, or by
any other name, as the exclusive bargaining representative of its em-
ployees at the Seattle, Washington, plant, unless and until the said
labor organization shall have been certified as such representative by
the National Labor Relations Board.
(2) Offer to Robert A. McDonald, as set forth in the section of the
Intermediate Report entitled "The Remedy," immediate employment
in the position he would have held, but for the discrimination against
him, or in a substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and make him whole
in the manner prescribed in the said section.
(3) Post at its plant in Seattle, Washington, copies of the notice
attached hereto and marked "Appendix A." 3 Copies of such notice
to be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by the Respondent Employer' s repre-
sentative, be posted by the said Respondent Employer immediately
upon receipt thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the said Respondent Employer to insure that said notices are not
altered, defaced, or covered by any other material.
3 In the event that this Order is enforced by a decree by a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words;
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
712 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
(4) Notify the said Regional Director in writing, within ten (10):
days from the date of this Order, what steps it has taken to comply
herewith.
2. The Respondent, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Warehousemen's
Local Union No. 117, AFL-CIO, its officers, agents, successors, and
assigns, shall:
(a) Cease and desist from:
(1) Giving effect to its contract with The Englander Company,
Inc. (which contract refers to it as the General Teamsters, Chauffeurs
and Helpers Union, Local 117) or to any modification, extension or
renewal of the said agreement, unless and until the Respondent Union
shall have been certified by the National Labor Relations Board as
the exclusive bargaining agent of Englander's Seattle, Washington,
employees in an appropriate unit, and then only if the agreement to
be given effect conforms to the provisions of the National Labor
Relations Act.
(2) Entering into, maintaining, renewing, applying, or enforcing
any agreement which requires employees or applicants for employ-
ment to be members of, to join, or to maintain their membership in,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Warehousemen's Local Union No. 117,
AFL-CIO, or any other labor organization, unless such agreement
conforms with the requirements of Section 8 (a) (3) of the Act.
(3) Causing or attempting to cause The Englander Company, Inc.,
to discriminate against any employees or applicants for employment
in violation of Section 8 (a) (3) of the Act.
(4) In any other manner restraining or coercing employees or
applicants for employment in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
(b) Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(1) Post in conspicuous places, including places where notices to
members are customarily posted, at its usual membership meeting
place, copies of the notice attached hereto and marked "Appendix
B." 4 Copies of said notice, to be furnished by the Regional Director
for the Nineteenth Region, shall, after being duly signed by an of-
ficial representative of the Respondent Union, be posted by it immedi-.
at.ely upon receipt thereof and maintained by it for a period of 60
consecutive days thereafter. Reasonable steps shall be taken by the
4 See footnote 3, supra.
THE ENGLANDER COMPANY, INC. 713
Respondent Union to insure that said notices are not altered, defaced,
or covered by any other material.
(2) Forthwith mail signed copies of the said notice marked "Ap-
pendix B" to the Regional Director for the Nineteenth Region for
posting by The Englander Company, Inc., if it so agrees, at the places
where it is required to post copies of the notice marked "Appendix A."
(3) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of this Order, of the steps
it has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT contribute support to International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Warehousemen's Local Union. No. 117, AFL-CIO, or
any other labor organization.
WE WILL NOT give effect to our contract with the said Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Warehousemen's Local Union No. 117,
AFL-CIO, or to any modification, extension, or renewal of the
said agreement, unless and until said labor organization shall
have been certified by the National Labor Relations Board as the
exclusive bargaining representative of our employees.
WE WILL withdraw and withhold recognition from Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Warehousemen's Local Union No. 117,
AFL-CIO, as the representative of employees in our Seattle,
Washington, plant for the purposes of collective bargaining un-
less and until said labor organization shall have been certified
by the National Labor Relations Board as the exclusive bargain-
ing representative of our employees.
WE WILL NOT discourage or encourage membership by any of
our employees or applicants for employment in any labor or-
ganization by discriminating in any manner in regard to the hire
or tenure of employment, or any term or condition of employ-
ment of employees.
WE WILL NOT enter into, maintain, renew, apply, or enforce any
agreement which requires employees or applicants for employ-
ment to be members of, to join, or to maintain membership in
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Warehousemen's Local Union
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 117, AFL-CIO, or any other labor organization , unless such
agreement conforms with the requirements of Section 8 (a) (3) of
the National Labor Relations Act.
WE WILL NOT make any statement to, or otherwise inform, any
employee or applicant for employment that employment by us
is conditioned upon approval of or clearance by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Warehousemen's Local Union No. 117, AFL-
CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed by
Section 7 of the National Labor Relations Act, except to the ex-
tent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Robert A. McDonald immediate employment in
the position in which he would have been employed but for our
discrimination against him, or in a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and priv-
ileges, and make him whole for any loss of pay he has suffered
as a result of our discrimination against him.
THE ENGLANDER COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREI-IOUSEMEN AND HELPERS OF AMERICA,
WAREHOUSEMEN'S LOCAL UNION No. 117, AFL-CIO, AND TO
EMPLOYEES OF THE ENGLANDER COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that:
WE WILL cease giving effect to our contract with The Englander
Company, Inc., or to any modification, extension, or renewal of
said agreement unless and until we shall have been certified by
the National Labor Relations Board as the exclusive represent-
ative of the employees of The Englander Company, Inc.
WE WILL NOT enter into, maintain, renew, apply, or enforce
any agreement which requires employees or applicants for em-
THE ENGLANDER COMPANY, INC. 715
ployment to be members of, to join, or to maintain their member-
ship in International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Warehousemen's Local
Union No. 117, AFL-CIO, unless such agreement conforms with
the requirements of Section 8 (a) (3) of the National Labor
Relations Act.
WE WILL NOT cause or attempt to cause The Englander Com-
pany, Inc., or any other employer, to discriminate against any
employees or applicants for employment in violation of Section
8 (a) (3) of the National Labor Relations Act.
WE WILL NOT in any other manner restrain or coerce employees
or applicants for employment in the exercise of the rights guaran-
teed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA, WAREHOUSEMEN'S LOCAL
UNION No. 117, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On January 12, 1956 , Upholsterers International Union of North America,
AFL-CIO ( also referred to herein as the Upholsterers International ), and Local 5
(also described herein as the Upholsterers Local ) of the Upholsterers International
filed a charge with the National Labor Relations Board (designated below as the
Board ) in Case No. 19-CA-1306 against The Englander Company, Inc. (also
referred to herein as Englander or the Respondent Company). On the same date,
Washington-Oregon District Council of Furniture Workers, AFL-CIO (also desig-
nated herein as the Furniture Workers District Council ) filed a charge with the
Board against Englander in Case No . 19-CA-1307. An amendment to that charge
was filed on February 20, 1956 . The Furniture Workers District Council also
filed a charge with the Board on March 27, 1956, in Case No. 19-CB-416 against
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America , Warehousemen 's Local Union No. 117, AFL-CIO (also referred to
herein as the Teamsters Local or the Respondent Union). On April 25, 1956, the
General Counsel of the Board duly entered an order consolidating the cases in
which the several charges had been filed. Based upon the charges , and the
amendment mentioned above, the General Counsel of the Board issued a complaint
on April 25, 1956, alleging that the Respondent Company and the Teamsters Local
had engaged in and were engaging in unfair labor practices within the meaning of
the National Labor Relations Act, as amended ( 61 Stat. 136-163), also referred to
below as the Act. The Respondent Company and the Teamsters Local have been
duly served with copies of the charges , including the amendment , respectively
applicable to them, and with copies of the complaint and order of consolidation.
With respect to the claimed unfair labor practices , the complaint , as amended at
the hearing in this proceeding , alleges, in substance , that: Shortly before January 16,
716 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
1956, Englander acquired a plant .located in Seattle, Washington, from another
company; Englander took possession of the plant on or about January 16, 1956, but
"did not acquire the normal complement of its employees until on or about February
15, 1956"; beginning on or about January 11, 1956, and before the acquisition of
its "normal complement" of employees, Englander informed applicants for employ-
ment that it had a "national agreement" with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (also referred to
below as the Teamsters International), which required all persons selected for hire
by Englander to become members of a union affiliated with the Teamsters Interna-
tional, or to pledge allegiance to, or support of, such union as a condition of hire;
Englander instructed each such applicant to go to the office of the Teamsters Local
to comply with such conditions precedent to hire as the Teamsters Local imposed; on
or about January 16, 1956, Englander and the Teamsters Local entered into a
collective-bargaining agreement which accords the Teamsters Local exclusive recog-
nition by Englander as the bargaining agent for all the production and maintenance
employees of Englander's Seattle plant, and contains a provision that all such
employees shall become and remain members of the Teamsters Local not later than
31 days following the beginning of their employment; since on or about January 16,
1956, Englander has assisted the Teamsters Local "in arranging the occasions" when
the latter has informed applicants for employment at the Seattle plant that "alle-
giance to, support of, and membership in," the Teamsters Local was required as a
condition precedent to such employment by Englander; on February 23, 1956,
Englander offered employment to one Robert A. McDonald upon the condition
that he become a member of the Teamsters Local, and denied McDonald employ-
ment upon his refusal to acquire such membership; by reason of the terms and
conditions of the said collective -bargaining agreement with the Teamsters Local,
and of its conduct toward applicants for employment, described above, Englander
has violated Section 8 (a) (1), (2), and (3) of the Act; and by force of the terms
and conditions of the agreement, and of its conduct toward applicants for employ-
ment, described above, the Teamsters Local has violated Section 8 (b) (1) (A) and
8 (b) (2) of the said Act.
Englander and the Teamsters Local have filed separate answers. In its answer,
each of the Respondents denies the commission of any of the unfair labor practices
imputed to it in the complaint.
Pursuant to notice duly served upon all parties, a hearing was held before me,
as duly designated Trial Examiner, on May 22, 23, and 24, 1956, at Seattle,
Washington. Each of the parties, with the exception of the Upholsterers Interna-
tional and the Upholsterers Local, appeared and was represented by counsel at the
hearing and participated therein. The parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, adduce evidence, file briefs, and
submit oral argument. After the close of the evidence, I reserved decision on a
motion by each Respondent to dismiss so much of the complaint as is applicable to
it. The motions are hereby denied for reasons reflected in the findings of fact and
conclusions of law set forth below. Englander has filed a brief which has been
read and considered. The other parties have not filed briefs.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE RESPONDENT COMPANY'S BUSINESS; JURISDICTION
Englander is a Delaware corporation, has its principal office in Chicago, Illinois,
engages in the manufacture of upholstered furniture and bedding, and maintains
and operates manufacturing facilities in a number of States, including a plant in
Seattle, Washington. Products manufactured by Englander at its various plants are
shipped by it "throughout the United States." The gross sales value of such ship-
ments annually exceeds the sum of $3,500,000. Between the middle of February
1956 and the hearing in this proceeding, the aggregate sales value of products
shipped by the Respondent Company from its Seattle plant to points in other States
has exceeded the sum of $50,000.
The Respondent Company is, and has been at all times material to this proceeding,
engaged in interstate commerce within the meaning of the Act. The Board has
jurisdiction of this proceeding.
IT. THE LABOR ORGANIZATIONS INVOLVED
The Upholsterers International , the Upholsterers Local, the Teamsters Local, the
Furniture Workers District Council, and Local Union 3197, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (also referred to below as Local
THE ENGLANDER COMPANY, INC. 717
3197), an affiliate of the Furniture Workers District Council,' respectively represent
employees for the purposes of collective bargaining , and are labor organizations
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Englander divides its operations into geographical divisions. One of these is
known as the Western Division and includes the Pacific Coast tier of States. The
plants in that area are supervised by John Sparrowk who bears the title of vice
president of the Western Division and is Englander's chief executive in the area.
The responsibility for negotiating collective-bargaining agreements for Englander
in the Western Division is vested jointly in Sparrowk and another official of Eng-
lander named Sidney R. Korshak who has his headquarters in Chicago and holds the
title of general labor counsel.
Prior to January 1956, Englander operated two manufacturing plants in the
Western Division, one located in Los Angeles, California, and the other in Oakland,
California, where Sparrowk has his headquarters. At each of these plants a col-
lective-bargaining agreement between Englander and one or another local or affiliate
of the Teamsters International has been in effect for some time. Each of the two
agreements covers terms and conditions of employment of production and mainte-
nance personnel employed in the plant to which the agreement applies.
During the latter part of 1955, Sparrowk made efforts to locate a factory site
for Englander in Seattle , Washington. In the course of his search, he learned of the
availability of a plant then operated by a firm named Craftmaster, Inc. of Wash-
ington (also designated below as Craftmaster) which had been engaging at the
factory site for a substantial period of years in the manufacture of furniture and
bedding. In the early part of January 1956 Sparrowk and other representatives
of Englander entered into negotiations for a lease of the plant and the purchase by
it of some of Craftmaster's inventory and equipment.
On January 10, 1956, Craftmaster terminated the employment of all but a few
of its employees and substantially ceased its manufacturing operations (presumably
in anticipation of the occupancy of the plant by Englander, although the record does
not concretely establish that that was the reason for the termination of the em-
ployees and the cessation of production). The few employees retained on the
Craftmaster payroll consisted of several supervisors and a number of individuals
who variously performed shipping or maintenance duties or worked on an inventory
related to the contemplated sale of some of Craftmaster 's assets to Englander.
During the period of Craftmaster's manufacturing activities, and at the time the
firm discontinued production , there were three bargaining units at the plant, each
apparently consisting of different occupational categories. One unit was represented
by the Upholsterers Local, another by Local 3197, and the third by the Teamsters
Local. Each of the three unions had collective-bargaining and contractual relations
with Craftmaster at the time the latter ceased its manufacturing activities, and had
had such relations for some unspecified period prior thereto. As of the date produc-
tion was discontinued , approximately 35 of the employees were members of Local
3197, which is affiliated with the Furniture Workers District Council and had been
represented by the latter organization in bargaining negotiations and contractual
relations with Craftmaster, and some 71 held membership in the Upholsterers Local.
The record does not establish the precise number represented by the Teamsters
Local, but as the evidence indicates that Craftmaster had little more than 100 per-
sons in its employ in January 1956, it is a fair inference that the Teamsters Local
represented only a few of the individuals employed by Craftmaster during that
period, or, in any event, a substantially smaller number than those represented by
the other unions in the plant.
On January 9, 1956, William F. Evans, executive secretary of the Furniture
Workers District Council, received information, as Evans put it in his testimony,
that Craftmaster was "planning on selling the plant" to Englander. On January
11, 1956, on behalf of his organization, Evans wrote a letter to Englander, trans-
mitting therewith a copy of the agreement between the Furniture Workers District
Council and Craftmaster; expressing the view that the contract was binding on
"successors" of Craftmaster; stating that termination notices had been given to
employees by Craftmaster on January 10, 1956, "without any notice or discussion
I It may be that the full name of Local 3197 has been stated imprecisely above because
the exact name cannot be determined from the record. I have based an estimate of the
full name on General Counsel's Exhibit No. 6.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the proper Union officials"; and requesting an early meeting with representa-
tives of Englander "to discuss this matter." Englander received the letter but made
no reply to it . Evans discussed the subject of picketing the plant with a business
representative of Local 3197 on January 12, 1956, and that organization posted
a picket line at the premises the following day. The Upholsterers Local also picketed
the plant, posting its pickets on January 12, 1956, the day after Sparrowk inter-
viewed a number of former Craftmaster employees with respect to their future
employment by Englander. (These interviews will be discussed in greater detail at
a subsequent point.) The plant was picketed for approximately a month by each
of the two unions.
The negotiations between Craftmaster and Englander culminated in a lease of
the plant to Englander on January 16, 1956, and the purchase by it on that date of
a portion of Craftmaster's inventory and equipment. Englander did not assume any
contractual obligations of Craftmaster.
As will appear in great detail later, Englander thereafter hired a substantial num-
ber of the individuals, 'including several supervisors, who had formerly been em-
ployed by Craftmaster. One of the supervisors is named "Red" Henry. Englander
hired him as shipping department foreman on January 18 or 19, 1956. Another
former Craftmaster supervisor named William Moore was hired by Englander as
factory foreman on January 23, 1956. Since the date of his employment by
Englander, each of the two foremen has made recommendations to Sparrowk for
the hiring of employees, and the latter has attached considerable weight to such
recommendations. At one point or another (on a date not specified in the record)
the Company vested all authority to hire employees in Moore. On February 1,
1956, Englander hired J. E. Hunt, another former Craftmaster supervisor, as factory
manager. At all times material to this proceeding since the dates they were re-
spectively hired by Englander, Henry, Hunt, and Moore have been vested by the
Company with authority responsibly to direct the work of employees at the Seattle
plant; have exercised such authority; and have been, and are, supervisors within
the meaning of the Act.
B. The alleged assistance by Englander to the Teamsters Local
Sparrowk testified that in the autumn of 1955 , upon his return to his Oakland
office from a trip to Seattle where he had been searching for a plant site, he told
Joseph Dillon , a representative of the Western Conference of Teamsters , a regional
affiliate of the Teamsters International , of the purpose of his trip to Seattle; and
that Dillon thereupon said, "We expect to have your Seattle operation under contract
on the same basis that we have it elsewhere ." What reply , if any, Sparrowk made
does not appear. According to Sparrowk , also, on January 9 , 1956, while he was
in Seattle in connection with the negotiations for the Craftmaster plant, he met
Dillon by appointment at the latter 's request , and on that occasion , Sparrowk testified,
Dillon introduced him to W. L. Williams, secretary-treasurer of the Teamsters Local,
and substantially reiterated what he had told Sparrowk on the previous occasion.
Sparrowk testified that he replied that Englander was merely searching for a plant,
had not as yet found one, and did not know then whether it would have a plant in
Seattle.
Sparrowk spent some time in the plant preceding the execution of the lease,
occupying himself with such matters as an inventory which Craftmaster was taking
in contemplation of the sale of a portion of its property to Englander . While at the
plant on January 11, 1956, Sparrowk interviewed between 15 and 20 individuals
who came to the plant in search of employment . A substantial number of these,
if not indeed all, had formerly worked for Craftmaster . Among them were indi-
viduals whose employment had been terminated by Craftmaster the day before.
Some came for their interviews at the invitation or suggestion of Foreman Moore,
who then was still on Craftmaster 's payroll , while others came upon their own
initiative.
One of those interviewed was Jeanette Testerman who was called as a witness by
the General Counsel . She had worked for Craftmaster for approximately 4 years,
had served in its plant as a shop steward for Local 3197, and came to the plant for
her interview at Moore's suggestion . According to Testerman , during the interview,
after some discussion of her duties for Craftmaster , and a prediction by Sparrowk
that "there probably would be work" after completion of the inventory , Sparrowk
told her that she would have to see Williams and "clear through" the Teamsters
Local . Testerman stated that she did not ask Sparrowk to explain what he meant,
and that she "just walked out."
Another former Craftmaster employee , Marvin Bale , who was called by the
General Counsel , testified that during the course of his interview on January 11,
THE ENGLANDER COMPANY, INC. 719
after he had told Sparrowk of the type of work he had performed for Craftmaster,
Sparrowk asked him whether he had "joined the Teamsters Union"; and that upon
receiving a negative reply, Sparrowk said that he should join that organization if
he "wanted to work" at the plant. According to Bale, he replied that he was a
member of "the Wood Workers" (meaning, apparently , Local 3197), and that he
would rather retain his membership in that union . Then , Bale testified , Sparrowk
referred again to the requirement for joining the "Teamsters Union," and gave Bale
the address of the Teamsters Local , writing it on a slip of paper at Bale's request,
because, as Bale put it , he is "short on . . . education."
A third former Craftmaster employee, Donald Granger , also called by the General
Counsel , testified that: He came to the plant for his interview on January 11 at
Moore's suggestion ; following a discussion on that date with Sparrowk concerning
such matters as pay and working conditions , Sparrowk told him to see Williams
and that he would "have to go down and clear through the Teamsters before [he]
could go to work"; and Sparrowk gave him the address of the Teamsters Local,
stating that Englander "had some kind of agreement with the Teamsters ." According
to Granger , Sparrowk also told him that the Teamsters Local would not require
him to pay any initiation fees.
Sparrowk gave testimony to the effect that he made substantially the same state-
ments to each employee he interviewed on January 11. Summarizing what he claims
he said on that occasion , Sparrowk testified : "I explained to them that we were in
a position where we were talking to the Craftmaster principals with regard to acquir-
ing some of the facilities here, that we would probably be in the business of manu-
facturing items comparable to what Craftmaster had been making . I also informed
them that we were told by the Teamsters Union that inasmuch as they had contracts
with us in other plants in the country that they would expect to be recognized in
this plant . I indicated to them, told them , rather, that I was not in a position
to tell them what they could or could not do from a union standpoint , that they
were familiar with the contracts in the unions that they had been members of, and
I suggested that they see Mr. Williams of the Teamsters Union and that he would
be glad to tell them what they had to offer ." Sparrowk also gave testimony to the
effect that after he had made these statements "to a couple of people," he was asked
for Williams ' address ( by whom or whether by one or more interviewees does not
appear in Sparrowk 's account ), and that thereafter , during the course of the inter-
views, he ascertained the address from the telephone book for the purpose of supply-
ing it to interviewees . In all, Sparrowk testified , he referred between 15 and 18
jobseekers to Williams on January 11. Sparrowk denied that he told them to
"clear through the Teamsters Union" or to "sign up with the Teamsters."
From what has been stated above, it is evident that there are material conflicts in
the testimony on the subject of Sparrowk 's remarks on January 11, notably on the
question whether Sparrowk in substance told former Craftmaster employees when
he interviewed them that clearance by, or membership in, the Teamsters Local
would be a condition of their empolyment by Englander . A resolution of the
material issues raised by the testimony of Sparrowk , Testerman , Granger, and
Bale will be made at a subsequent point in this report following a recital of other
pertinent features of the record.
On January 26, 1956, John W. Truman, a representative of the United Brother-
hood of Carpenters and Joiners of America , AFL-CIO , with which the Furniture
Workers District Council and Local 3197 are affiliated , visited Sparrowk at the plant,
and told the latter that the Furniture Workers District Council still represented the
individuals who had been employed in various departments of Craftmaster 's plant,
and inquired whether Englander had "taken over" the contract between the Furni-
ture Workers District Council and Craftmaster. Sparrowk replied in the negative.
During the discussion that followed, Sparrowk told Truman that "nation-wide"
Englander "was under agreement to the Teamsters through a master agreement"
which had been negotiated by Korshak and "a Mr. Pink," on behalf of Englander,
with a representative of the Teamsters International . Truman stated that the
organization he represented has "jurisdiction in these types of plants all through
the West Coast," that he knew of none in which "the Teamsters have jurisdiction,"
and that "we were in a position to furnish him [Sparrowk ] qualified men for the
type of work that he needed." Sparrowk replied that he "appreciated that very
much ," but that "he was bound by the master agreement with the Teamsters Inter-
national." Sparrowk also stated that Englander had "good working relations" in
the "plants covered by the Teamsters ' agreements ," that he did not "want to jeopard-
ize them [such relations] by signing this plant to another organization," and that
he felt that if he did so , Englander "would be subject to reprisals by Teamsters in
other locations."
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truman met with Sparrowk again on February 3, 1956, and on that occasion
reiterated the claim of representation of former Craftmaster employees; offered to
discontinue the picketing by Local 3197, provided Englander hired individuals
formerly employed in the plant's millroom by Craftmaster; and proposed that
Englander consent to a representation election to be conducted by the Board.
Sparrowk rejected the election proposal, advancing the reason that Englander had
a "master agreement" with the Teamsters International. However, at one point
or another during the discussion, Sparrowk expressed the view that an arrangement
could be made whereby the Furniture Workers District Council could represent
millroom employees, and the Teamsters Local all other employees. Truman then
offered to remove the pickets provided Englander "would go to an NLRB election
or sit down and come to some agreement with us and negotiate a contract."
Sparrowk replied that the picket line should not be removed; that he was leaving
for California to meet someone (whom, he stated, he was unable to identify); that
he believed that "the whole matter could be cleared up" upon his meeting with this
individual; and that he would call Truman from Oakland in that connection, but
that if he did not do so, Truman should call him at his hotel upon his return
to Seattle a few days later.
Truman called Sparrowk in Seattle on February 6, and Sparrowk told him that
he was about to leave for a meeting with Williams, and inquired of Truman whether
he had heard from Williams. Truman replied that he had, and that Williams had
asked him to come to the office of the Teamsters Local that afternoon. Truman
asked Sparrowk whether the latter knew the purpose of that meeting, and Sparrowk
replied that he "thought it better" that Truman secure the information from
Williams. Truman and a representative of Local 3197 kept the appointment with
Williams. In the course of the meeting, Williams described an accord he asserted
had been reached between the Upholsterers International and his organization
concerning the representation of upholsterers at Englander's Seattle plant, and he
offered "to let" Local 3197 retain its "jurisdiction in the millroom" if he, in turn,
were permitted to select the other job categories in the plant to be subject to the
jurisdiction of the Teamsters Local. In substance, Truman declined to accept the
offer .2
As of February 10, 1956, Englander had only eight nonsupervisory employees on
its payroll at the Seattle plant, and had not as yet begun production at the factory
on any substantial scale. On February 10, a representative of the Teamsters Local
named Bombardier (also spelled Bombadier in the record) telephoned Testerman
at her home and asked her if she wished to go to work at the plant on the
following Monday, February 13. She inquired "if the labor dispute was straightened
out," and Bombardier replied that "they had a contract" at the plant and that the
picket line "wasn't legal." Testerman reported the telephone conversation to
Evans and Carl Kissick, the financial secretary of Local 3197.
Early on the morning of February 13, shortly before Englander's plant opened,
about 60 former Craftmaster employees came to the plant in search of employment.
Approximately half of these were members of Local 3197, and about an equal number
were members of the Upholsterers Local. The members of Local 3197 were present
at the instance of representatives of their union who had "notified" them to come
to the plant after the receipt of reports such as Testerman's. Truman, Evans, and
Kissick were at the plant on the occasion in question, as were Ralph Royer, business
agent of the Upholsterers Local, and Williams and some 7 or 8 companions
(described by Truman in his testimony as "seven or eight Teamsters").
When the doors to the plant opened, the jobseekers and the union representatives
entered, Truman leading the members of Local 3197. After Truman and Williams
entered the plant, they went to Sparrowk's office at the latter's request. Hunt, the
factory manager, was also present. In the office, Sparrowk imputed responsibility to
Truman for the entry of jobseekers into the plant that morning, rebuking Truman
for it, and stating, in effect, that the hiring of employees was Englander's function
and prerogative. At about this point, Evans, who was stationed outside the office
and had heard the "loud talking" (as he termed it), entered the office and, addressing
himself to Sparrowk and Hunt, stated that "there was a misunderstanding because,
if anybody was responsible for the members of Local 3197 being down there to go
to work that morning, it was the Teamsters, and specifically Mr. Williams and others
of his staff whom I don't know." Evans also expressed the view that "apparently
Mr. Williams is acting as your personnel manager." Hunt replied that Williams
had a right to ask job applicants to come to the plant because his organization had
2 Findings made above with respect to Truman's conversations with Sparrowk on January
26 and February 3 and 6, and his meeting with Williams on February 6, are based on
Truman's uncontradicted testimony.
THE ENGLANDER COMPANY, INC. 721
a contract with Englander . That appears to have ended the discussion in the
office .3 .. . ,
At one point or another after his conversation with Truman , Sparrowk left the
office and addressed the jobseekers briefly, telling them in effect that the plant was
ready to open for production . Englander hired 6 employees on February 13, bringing
its roster of nonsupervisory employees to 14.
Shortly after the discussion in the office , the Upholsterers Local held a meeting of
its members who had formerly been in Craftmaster's employ. Williams attended
and spoke to the group , describing his organization 's pension and insurance pro-
grams. An official of another local of the Upholsterers International , who was at
the meeting , reported to those present the contents of a telegram that had been
received from the president of the parent body to the effect that members of. the
Upholsterers Local were to "go to work under the Teamsters' agreement , . . . but
still remain members" of the Upholsterers Local. Williams left the meeting at some
point thereafter , and the membership voted to work at the plant "under the Team-
sters' agreement ." Local 3197 also held a meeting either on the same or the next
day of members who had worked for Craftmaster. (There are variances in the
record as to the date of the meeting .) Truman advised the former Craftmaster
employees present to seek employment at the plant and to apply for membership
in the Teamsters Local if that were necessary to secure employment at the factory.
S The respective versions of Evans, Truman , and Sparrowk are in substantial accord on the
subject of Sparrowk 's rebuke to Truman , but there is conflict in the testimony with respect to
Hunt's remarks . Neither Hunt nor Williams testified . Evans quotes himself in his ac-
count as addressing. his remarks to Hunt and Sparrowk , and imputes a statement to Hunt
to the effect described above. Evans ' testimony suggests the possibility that Sparrowk
left the office before Hunt 's remarks to talk to the jobseekers . Truman's testimony is to!
the effect that a statement such as Evans imputes to Hunt was made, but he expresses some
uncertainty whether Hunt or Sparrowk made it, stating that "at or about that time" Spar-
rowk left the office to address the jobseekers . Sparrowk 's testimony makes no reference
to Evans ' presence . Sparrowk , however, denied that Hunt said anything in his "presence"
about Williams "doing the hiring in the plant." Sparrowk testified that he has since
"substantiated the fact" that he did not leave the office until "after the union officials left
the room." Upon observation of Sparrowk , I gathered the impression that he has no cer-
tain independent recollection that he was in fact in the office at the time of the remarks
imputed to Hunt by Evans. The Respondent Company offered no explanation of its
failure to call Hunt who is, after all, the one to whom Evans attributes the remarks in
question . Moreover , there is good reason to believe from the undisputed evidence of what
Sparrowk told Truman on January 26 and February 3 that there had been in effect-for.
some time prior to the office discussion an understanding ( not fully articulated in the record,
although termed a "master agreement" by Sparrowk ) between Englander and the Teamsters
International governing the representation of employees in the Company 's plants on a;
"nation-wide" basis . It is also noteworthy that, according to Sparrowk 's own testimony,
the Teamsters Local sometime prior to February 13 signed and submitted a proposed agree -
ment to Englander 's Chicago office . Although Sparrowk claims that he signed the docu-
ment on February 15 or 16, after reaching the conclusion that the Teamsters Local rep-
resented a majority of employees in the plant upon "proof" submitted to him by Williams,
it may be noted that Sparrowk neither negotiated the agreement nor even read it in full,
and that it is little more than a duplicate in form and substance of the contract in
,effect at Englander ' s Los Angeles plant . In any event, bearing in mind the unexplained
failure to produce Hunt as a witness, and in the light of Sparrowk 's statements to Truman
on January 26 and February 3 concerning the "master agreement " between Englander and
the Teamsters International, and of Sparrowk's somewhat pro fovina approach to the execu-
tion of the contract with the Teamsters Local , notwithstanding Sparrowk 's claim (which
will be evaluated at a later point ) that he did not sign the contract until February 15 or
16, I am persuaded that Evans ' testimony concerning Hunt's remarks is credible, and
have made corresponding findings.
4 The description of both meetings is based on evidence received without objection.
What was said on both occasions is obviously not binding upon the Respondent Company,
and I base no finding that the firm has engaged in unfair labor practices upon what was
said at either meeting . Similarly, the events at the meeting of Local 3197 , as well as the
discussion at the meeting of the Upholsterers Local after Williams left, is not binding upon
the Teamsters Local . The events at both meetings are actually immaterial to the issue
whether Englander has abridged the rights guaranteed employees by Section 7 of the Act,
and has rendered unlawful assistance to Englander . I have described the meetings as
part of the chain of events depicted in the evidence , although it may be noted that, as
450553-58-vol . 118--47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A substantial number of former Craftmaster employees who were present at the
meeting of Local 3197 then went to the office of the Teamsters Local, made applica-
tion there for. membership in that organization , and signed a document (General
Counsel 's Exhibit No. 9) which provided , among other matters, that the signatories
agreed to "accept ... all working conditions contained in the contract in effect
between the International Brotherhood of Teamsters and the Englander Company"
and to become members of the Teamsters Local "immediately upon going to work
for the Englander Company."
Englander began production on a substantial scale on February 14, hiring' 60
employees on that date , an additional 18 on February 15, and 4 more on the follow-
ing day, bringing the total number of nonsupervisory employees on the payroll as
of February 16 to 96.
The General Counsel contends that not only Sparrowk but Foremen . Henry and
Moore made unlawful statements to individuals who applied for employment at
the plant , and called several witnesses in support of the claim. One such witness,
Fred Rober, who had been `employed by Craftmaster and had served as "picket
captain" during the picketing of the plant by Local 3197, testified that: He spoke
to Henry and Moore together on February 13 and asked them for employment;
they told him that a job was available for him but that he would "have to clear
through the Teamsters"; on the following day, after attending a meeting of Local
3197,5 he and 10 others who had been at the meeting went to the Teamsters Local
where they signed a document (General Counsel 's Exhibit No. 9, which has been
described above ); and he then proceeded to the plant where he resumed the same
type of work he had performed for Craftmaster.
Another witness , Josephine Griffin , who had not previously been employed by
Craftmaster, but was a member of Local 3197, testified that: She spoke to Moore
on February 14 concerning her application for employment; he told her that a job
was available for her, "but first you have to get it straightened out with the Team-
sters"; upon her inquiry whether "it isn't settled yet, it is not going to be Furniture
Workers," he replied that "it isn't settled yet one way or the other"; she asked Moore
whether she would be employed if "I join the Teamsters "; Moore replied in the
affirmative ; she reported the incident to Kissick later that morning, and upon his
advice proceeded to the office of the Teamsters Local the same day and signed an
application for membership in that organization ; and she entered Englander's em-
ploy on February 16.
Robert A. McDonald , a former Craftmaster employee, testified that: He applied
to Henry for employment on February 20; Henry told him that no job was available
for him; Henry telephoned him the following evening and said that a position was
available and that he "would have to clear through the Teamsters"; he replied that
he "would like to think it over" and made an appointment with Henry for February
23; when he came to the plant on that date he did not speak to Henry but talked
to Moore; after an explanation by Moore of the duties he would be required to per-
form, Moore told him that he "would have to join the Teamsters"; he (McDonald)
refused, stating, "Why join the Teamsters when the Carpenters & Joiners have the
furniture plants"; Moore then asked him why he should be "the only one not to
join the Teamsters when everybody else has"; he (McDonald) repeated his refusal
"to join the Teamsters"; Moore then said, "Well, I guess we can't do any business,
that will be about it"; and with that the interview ended. McDonald did not enter
Englander's employ.
Henry did not testify, but the Respondent Company called Moore as a witness.
The latter denied that he told "any employee or prospective employee that he had to
join the Teamsters Union," or that he made any suggestion that any such individual
do so. The credibility issues raised by the testimony of Moore, McDonald, Rober,
and Griffin will be resolved at a subsequent point in this report.
At one point or another (as will appear, the date is uncertain), Englander and
the Teamsters Local entered into a contract affecting employees of the Seattle
far as the Teamsters Local (although not Englander) is concerned, the references to the
"Teamsters' agreement" in Williams' presence at the meeting of the Upholsterers Local may
be taken as evidence, in the context of the whole record, that a contract was in effect on
February 13 between the Teamsters Local and Englander. I shall advert to this matter
again at another point below.
6 This was apparently the meeting, described above, at which members of Local 3197
were advised to join the Teamsters Local if that were necessary to secure employment at the
plant. As indicated earlier,,I base no findings of unfair labor practices on the testimony
of Reber and others describing the meeting.
THE ENGLANDER COMPANY, INC. 723
plants Korshak, Sparrowk, Williams, and Dillon signed the agreement on behalf
of their respective principals. (It may be noted in passing that Dillon signed on be-
half of the Western Conference of Teamsters, although the agreement states that it
is "entered into" between the Teamsters Local and Englander.) The contract and
the one applicable to Englander's Los Angeles plant are identical except for a few
insertions in each and appear to follow a common form, as is evidenced not only
by the language common to both contracts but by identically situated blank spaces
provided for insertions such as, for example, the location of the Englander plant
affected and the number of the local of the Teamsters International involved.
By the terms of the agreement applicable to the Seattle plant, Englander recog-
nizes the Teamsters Local "as the exclusive bargaining agent for all production and
maintenance employees" (with some exceptions not relevant here). The contract
provides, among other things, that it is to remain in effect until December 1, 1958,
and to continue in effect thereafter unless either party serves a specified written no-
tice of cancellation or termination upon the other; and that "as a condition of con-
tinued employment, all employees employed by the Employer in the unit which is
the subject of this Agreement shall become and remain members of the Union not
later than the thirty-first (31st) day following the beginning of their employment or
the effective date of this clause, whichever is the later." (For convenience of refer-
ence the clause relating to union membership will be referred to below as the union-
shop provision.)
There is no evidence that the contract was the product of bargaining negotiations.
Sparrowk, who is the only Englander representative stationed in the Western Divi-
sion who has authority to negotiate collective-bargaining agreements for the Com-
pany, testified that he did not negotiate the agreement, and that he "doesn't know
of any negotiation." Dillon, Korshak, and Williams (who was present at the hear-
ing) did not testify, and there is no information in the record as to the respective
dates upon which they signed the contract. The only evidence pertaining to the
execution of the agreement appears in Sparrowk's testimony.
In that connection, he testified that he received a telephone call at his Oakland
office from Chicago, on or about February 6, 1956, from his superior, Chester
Pink, vice president in charge of Englander's manufacturing operations, who told him
that "there was in the Chicago office a contract that had been signed by Joseph Di1=
Ion and W. L. Williams and sent or given to some one in Chicago applying to the
Seattle plant." According to Sparrowk, Pink also said that he wished to send the
contract to Sparrowk but that he did not want the latter to sign the agreement or
any other collective-bargaining contract until Sparrowk was convinced that the union
involved represented a majority of the employees. Sparrowk also testified that:
Late in the afternoon of February 13, while he was in Seattle, Williams called him
and told him that a "majority of the labor pool that we [Englander] were interested
in" had signed applications for membership in the Teamsters Local; he replied that
he would "like to have proof of that"; Williams requested him to come to the
office of the Teamsters Local to examine the proof; that evening he (Sparrowk) ex-
amined the applications for dates and names and counted in excess of 60; upon his
examination , he was "convinced" that the Teamsters Local represented a majority
of the production and maintenance employees hired by Englander up to that point
for the Seattle plant; and on the morning of February 15, Williams came to the
plant, showed him a document (General Counsel's Exhibit No. 9) containing signa-
tures (some 87 at that time, according to the sense of Sparrowk's testimony), and told
him that these "represented the signatures that he had of the people who had made
application [for membership in the Teamsters Local] to that date." According to
Sparrowk's account, after his conversation with Williams on February 15, he re-
turned to Oakland by plane and found upon his arrival at his office there that the
contract he had discussed with Pink on the telephone some 10 days earlier had
arrived from Chicago. Sparrowk also testified that: He read only the first 2 or 3
paragraphs of the document and a few handwritten insertions because of informa-
tion from Pink that the contract was similar to that in effect at the Los Angeles plant;
he signed the contract on February 15 or 16 and then sent it to the Chicago office;
Korshak's signature was not on the document at that time; he does not know when
Korshak signed it; and Englander gave effect on February 15, 1956, to a provision in
'The name of the contracting labor organization is set forth in the agreement as
"General Teamsters, Chauffeurs and Helpers Union, Local 117." There can be no doubt
that this is the Respondent Union, although it is elsewhere identified in the record as "In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Warehousemen's Local Union No. 117, AFL-CIO."
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreement dealing with contributions by the Company , for employees of the
Seattle plant, to a pension fund of the Western Conference of Teamsters.
C. Discussion of the issues and concluding findings
Turning first to the question whether Sparrowk made statements to job applicants
on January 11 to the effect that clearance by, or membership in, the Teamsters Local
was to be a condition of employment at the plant , the credibility issue is not easily
resolved because the testimony on both sides of the question is not wholly reliable.
Sparrowk left me with the impression at a number of points that he was not a
forthright witness. One example may be found in his disclaimer of any knowledge of
the circumstances that brought job applicants to the plant on January 11. In that
regard, he testified that he "would say" that those whom he interviewed came to the
plant "voluntarily seeking employment," and that he had no knowledge prior to the
interviews •"of how it happened" that the job applicants came to the plant. Yet
this is contradicted by Moore who stated that he asked a number of former Craft-
master employees to come to the plant for interviews with Sparrowk, that before
he did so he informed Sparrowk of his intention, and that Sparrowk "suggested that
it might be a good idea that some of them come in and talk to him ." I do not be-
lieve Sparrowk's disclaimer of any prior knowledge of Moore's request to former
Craftmaster employees to come in for interviews , and upon my observation of
Sparrowk's demeanor , I am of the opinion that his disclaimer was rooted in a dis-
position to avoid or hedge on facts which , in his judgment , might compromise him.
A more important example of a lack of forthrightness in Sparrowk 's testimony is
to be found in the justification he advances for referring between 15 to 20 job
applicants to the Teamsters Local on January 11. His explanation for his action
is that he had been "advised by representatives of the Teamsters that they expected
to have the Seattle operation as they have it elsewhere in the country," and that he
therefore "invited the people [ those interviewed ] to ascertain what they [ the Team-
sters Local ] had to offer so when the decision was made they would know the entire
content of what all three of the unions could offer." The interviewees , it may be
noted , had not asked to be "invited " to the Teamsters Local; there is no evidence that
any of them were dissatisfied with their own unions or expressed any dissatisfaction
with them to Sparrowk; and it is evident even from Sparrowk's own testimony that
it was he who injected the name of the Teamsters Local into the interviews, with
knowledge that those he interviewed were members either of Local 3.197 or the
Upholsterers Local.
Be that as it may, Sparrowk 's explanation strikes an implausible note, and I am
persuaded that it is no more than an afterthought calculated to conceal the real
.reason for the referral of the job applicants to the Teamsters Local . The real moti-
vation may be found in the undisputed evidence of what Sparrowk said to Truman
on January 26. On that occasion , it will be recalled , Sparrowk told Truman that:
Englander had entered into a "master agreement " of "nation-wide" scope with a
representative of the Teamsters International ; he "was bound by the master agree-
ment" ; Englander had "good working relations " in its "other plants covered by the
Teamsters ' agreements"; he did not want to jeopardize such relations "by signing this
plant to another organization"; and he felt that if he did so, Englander "would be
subject to reprisals in other locations ." Significantly, also, during their conversation
on February 3, Sparrowk rejected Truman's reasonable proposal for a Board-
conducted election to determine the representation wishes of the employees, basing
his refusal on the existence of the "master agreement ." 7 I think it plain that Eng-
lander was predisposed at the time of the interviews , if not indeed under some sort
of obligation to the Teamsters International , to recognize the Teamsters Local as
the representative of its production and maintenance employees at its then con-
templated manufacturing facility in Seattle, and that , in furtherance of that pre-
disposition , Sparrowk referred substantially all those interviewed on January 11 to
the office of the Teamsters Local as a means of assisting that organization in securing
the adherence of former Craftmaster employees to the Teamsters Local instead of
to the other unions to which they then belonged . The sum of the matter is that I
7 At one point Sparrowk testified that he does not know where the term "master agree-
ment" originated and that he knows that Englander does "not have such a thing." Yet
Sparrowk's own version of what he told a large group of jobseekers at the plant on January
16 includes testimony that he "referred to" the agreement in talking to the group. More-
over, as pointed out above , Truman's account of his conversations with Sparrowk on
January 26 and February 3 is uncontradicted.
THE ENGLANDER COMPANY, INC. 725
am unable to place any credence in Sparrowk 's self-serving description of his motive
in referring the interviewees to the Teamsters Local.
Sparrowk admittedly referred practically all those he interviewed to the office
of the Teamsters Local. Bearing in mind the setting in which the interviews occurred,,
and the fact that the referrals were unsolicited and made upon his initiative, I do
not think it unnatural that job applicants should interpret his statements as meaning
that clearance by, or membership in, the Teamsters Local was to be a condition of
employment at the plant . Yet, notwithstanding the appraisal of Sparrowk's testimony
given above, I entertain a substantial doubt that Sparrowk expressly voiced such a
condition . In that connection , it should be borne in mind that the burden of
establishing that Sparrowk made statements in the terms imputed to him by Granger,
Testerman , and Bale is upon the General Counsel.
Although Granger in his testimony quotes Sparrowk as telling him that he would
"have to go down and clear through the Teamsters " as a condition of employment at
the plant, an affidavit purportedly describing the interview , given by Granger to a
representative of the General Counsel only a few days after the interview , does not
quote Sparrowk as prescribing clearance by the Teamsters as a condition of employ-
ment .8 Because of the discrepancy , I am unable to place any reliance on Granger's
claim that Sparrowk voiced such a condition , although I have no doubt that
Sparrowk told Granger to see Williams at the office of the Teamsters Local. It may
be, as Granger claims , that Sparrowk told him that he would not be required to
pay any initiation fees to the Teamsters Local , but in view of the discrepancy noted
above, and the absence of any evidence that Sparrowk expressed himself to a similar
effect to any other interviewee , the weight of the evidence will not support a finding
that Sparrowk made the statement on the subject of initiation fees imputed to him
by Granger.
Testerman, it may be noted, unlike Granger and Bale, does not quote Sparrowk,
in terms, as prescribing membership in, or clearance by, the Teamsters Local as a
condition of employment . I have no doubt that Sparrowk told her to see Williams,
as she asserts , but I have some reservation that he told her, in terms , that she would
have to "clear through" the Teamsters Local . There is some indication in Tester-:
man's testimony of a tendency by her to place an interpretation on things she
heard Sparrowk say which differs somewhat from the actual content of what was,
said . She imputes a statement to Sparrowk at the plant on January 16 to a large,
group of jobseekers ( some 75 or 80, according to the evidence ) that as far as he
knew "this master agreement . . . with the Teamsters . would cover the Seattle
plant , too." This is not quite in accord with the version given by Granger, the only
other employee called by the General Counsel on the subject of Sparrowk 's remarks.
on that occasion. On the subject of the "master agreement ," Granger quotes.
Sparrowk as saying that Englander has "a master agreement . with the Teamsters
throughout the country in the rest of their plants." Sparrowk did allude to a "master
agreement" on the occasion in question , but I believe that he did so in terms of a
statement , as Sparrowk described it, that Englander had been "told by the Ware-
housemen 's Union that they would have this plant [in Seattle] inasmuch as they
have Englander factories elsewhere in the country . .. It is not improbable
that Testerman drew the inference from Sparrowk 's allusion to the "master agreement"'
that what he was saying was that the "master agreement " would "cover the Seattle
plant , too." Similarly , I am of the opinion that Testerman interpreted Sparrowk'si
proposal that she see Williams to mean that she would have to "clear through" the
Teamsters Local . In sum , I am unconvinced that Sparrowk told her, in terms, to
"clear through" the Teamsters Local in the course of his proposal that she see
Williams.
Bale describes Sparrowk as asking him whether he had "joined the Teamsters-
Union," and as stating that he should join that organization if he "wanted to work"
at the plant . No other interviewee quotes Sparrowk as inquiring into his union
affiliation , nor as stating expressly that he should join the Teamsters Local as a
condition of employment . ( Granger quotes Sparrowk as telling him to "clear
through the Teamsters " as a condition of working at the plant, and not as stating
that employment was conditioned upon membership in that organization .) Bearing
in mind that Sparrowk interviewed some 15 to 20 persons on January 11, one must
take into account the fact that Bale was the only interviewee produced by the
General Counsel who attributes an inquiry by Sparrowk into union affiliation, and
s The relevant portion of the affidavit reads as follows : "He [ Sparrowk] said that I
should go to the Teamsters Union Hall at 522 Dennyway and see Bill Williams who would
take care of me . I asked him about initiation fees . Mr. Sparrowk said that initiation,
fees had been taken care of and that I wouldn't have to pay any ; then I left."
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressly imputes a statement to Sparrowk to the effect that membership in the
Teamsters Local was to be a condition of employment. In that posture of the record,
notwithstanding my conviction that Sparrowk was not a forthright witness and also,
as will appear, did not accurately describe what he told at least some of the persons
he interviewed, I do not believe that the evidence preponderantly establishes that
Sparrowk expressed the employment condition Bale imputes to him.9
Although the weight of the evidence will not support a finding that Sparrowk
told any job applicant on January 11 that he or she would have to "clear through"
the Teamsters Local or that clearance by, or membership in, that organization was to
be a condition of employment, I am convinced, on the other hand, that Sparrowk's
version of what he said to those he interviewed goes substantially beyond what he
actually told them. In effect, he imputes to himself the expression of a position of
neutrality toward the question of representation of the employees. The substance
of his testimony in that regard is that after he told the job applicants that the
"Teamsters Union" expected "to be recognized in this plant," he informed them
that he "was not in a position to tell them what they could or could not do from
a union standpoint." No other witness who testified on the subject of the interviews
quotes Sparrowk to that effect, and this applies to two job applicants called by
the Respondent Company. One of these, George Mertel, was asked on his direct
examination whether Sparrowk made any "reference at all to the Teamsters Union,"
and he replied "not that I know of." This, it may be noted, is not quite in accord
with Sparrowk's testimony, for the sense of Sparrowk's version is that he did refer to
the "Teamsters Union" in all the interviews.10 Be that as it may, Daniel A. Walters,
another witness called by the Respondent Company, denied during his direct ex-
amination that Sparrowk ever told him that he "had to become a member of the
Teamsters Union." At a subsequent point in his testimony, describing what
Sparrowk told him "about the Teamsters" on January 11, Walters stated: "He
[Sparrowk] just gave me the address of the place and said to go up there and talk
it over with the Teamsters about application for membership in the union." The
witness also testified that he did not ask Sparrowk for the address of the Teamsters
Local, and that Sparrowk "just wrote the address on a slip of paper." Walters, who
is 74 years of age and was among those terminated by Craftmaster on the day
preceding the interview, went directly from the interview to the office of the Team-
sters Local and there signed an application for membership in that organization.ii
Perhaps Sparrowk did tell some of those he interviewed that he "was not in a
position to tell them what to. do from a union standpoint," but I am persuaded that
at least in the cases of those job applicants who testified concerning their interviews
he made no such statement.12 Moreover, the expression of neutrality which Sparrowk
attributes to himself is open to substantial doubt, to say the least, in the light of his
statements to Truman on January 26 and February 3, and of the fact, as will appear,
that Englander and the Teamsters Local entered into their contract at a time when
they had no lawful right to do so, all warranting an inference that Englander had
a preference for the Teamsters Local at the time of the interviews, and that Sparrowk
referred the job applicants to that organization in furtherance of that preference.
0 Even if Sparrowk did ask Bale whether he had joined the "Teamsters Union," it is un-
necessary to pass on the question whether this isolated inquiry violated the Act. It may be
noted that the complaint does not allege any unlawful interrogation of employees.
11 Mertel described a conversation with Sparrowk concerning the Teamsters which, ac-
cording to Mertel, took place shortly before the interview while both he and Sparrowk
were "out on the shipping room floor." Mertel quotes Sparrowk as telling him on that oc-
casion that "everything is Teamsters," that "I don't know which way it is going to go,"
and that "you may have to and you may not" (presumably meaning that Sparrowk did
not know whether Mertel would be required to join the Teamsters Local).
11 In his direct examination, Walters gave no details of any interview on January 11,
and he stated that he was not at the plant on that date. During his cross-examination, he
was shown a copy of his application for membership in the Teamsters Local, which is in
evidence and is dated January 11, 1956, and his recollection was thereafter refreshed as to
the circumstances in which he signed the application. He then proceeded to describe his
interview with Sparrowk, stating, in substance, that it took place on January 11, shortly
before he signed the application on that date.
12 According to Kissick, he was stationed, among a group of jobseekers, outside the open
door of the office in which the interviews took place and overheard portions of what Spar-
rowk said. In his testimony, Kissick denied that he heard Sparrowk tell the interviewees
to "make their own decisions" regarding their union affiliation, and describes Sparrowk
as giving them the address of the Teamsters Local and teling them to go there for their
"affiliation."
THE ENGLANDER COMPANY, INC. 727
In. sum, putting together those portions of the testimony which I regard as reliable,
including testimony given by Sparrowk and the witnesses called by the General
Counsel, what credibly emerges from the record on the subject of what Sparrowk
said in connection with union affiliation during the interviews is that he proposed
to a substantial number of job applicants on January 11 that they go to the office
of the Teamsters Local to discuss the subject of applying for membership in that
organization; and that he supplied the address of the Teamsters Local to interviewees,
in one case at least (that of Bale) writing the address on a slip of paper at the job
applicant's request, and in other instances furnishing the address without any
request for it.
The question is presented whether Sparrowk's conduct in referring the job appli-
cants to the Teamsters Local, as found above, constituted unlawful support of that
organization in violation of Section 8 (a) (2) of the Act. I am unable to view
Sparrowk's conduct as privileged by the terms of Section 8 (c) which provides, in
part, that the "expressing of any views, argument or opinion . shall not constitute
or be evidence of an unfair labor practice ., if such expression contains no threat
of reprisal or force or promise of benefit." What Sparrowk told Walters, for example,
did not constitute the expression of "any views, argument or opinion." It was a
verbal act, namely, that of telling Walters "to go up there and talk it over with the
Teamsters about application for membership in the union," and was implemented by
another act, that of furnishing Walters with the address of the Teamsters Local on
a slip of paper.13
"It has repeatedly been held that an employer may not intrude in matters
concerning the self-organization of employees. He must refrain from all inter-
ference. He must maintain a neutral attitude. Especially is this so where the
adherence of the employees is being sought by rival labor organizations" (Harrison
Sheet Steel Co. v. N. L. R. B., 194 F. 2d 407). This language of the Court of
Appeals for the Seventh Circuit in the cited case is particularly applicable to the
question under consideration. Sparrowk admittedly was aware that those he inter-
viewed were at the time members either of the Upholsterers Local or Local 3197.
It is evident that none of the job applicants had expressed any dissatisfaction with
those unions or sought the "advice" which Sparrowk gave them; and that he
gratuitously referred them to the Teamsters Local for a discussion of their affiliation
with that organization, injecting a subject into the interviews which had no relevancy
to the purpose for which the job applicants had come to see him. The setting in
which Sparrowk did this was one in which these individuals were seeking work
from him and were dependent upon his approval for an opportunity to resume their
employment at the plant in the event that Englander undertook its operation, as
it actually did only a few days later.14 In that setting, it would be only natural
for the job applicants, as it is evident some of them, at least, did, to construe
Sparrowk's ungermane and unsolicited proposal that they go to the Teamsters Local
to discuss applications for membership in that organization as meaning that
Englander preferred the Teamsters Local over the other unions, and that clearance
by, or membership in, the Teamsters Local was to be a condition of employment'
at the plant. Although various job applicants did not take Sparrowk's advice, but
instead reported it to their own unions, a revealing glimpse of the impact that
conduct such as Sparrowk's can have upon a job applicant is afforded by the fact
that Walters,. an elderly man in search of work, who at the time of the interview
was a member of Local 3197, plainly lost no time in going to the office of the
Teamsters Local to sign an application for membership in that union. The sum
of the matter is that Sparrowk's conduct was anything but neutral, particularly if
one takes its setting into account, and that it was an intrusion by him "in matters
concerning the self-organization of employees." In the light of the whole record,
including the fact, as will appear, that Englander entered into the contract with
the Teamsters Local when it had no lawful right to do so, I find that Sparrowk's
13 Cf. Minnesota Mining & Manufacturing Company, 81 NLRB 557 ( and cases cited),
enfd. 179 F. 2d 323 (C. A. 8).
14 Although the transaction with Craftmaster was not concluded until January 16, the
evidence warrants the inference that at the time of the interviews, Englander anticipated
that it would soon occupy the plant. In that regard it may be noted that: (1) Craftmaster
ceased production and terminated its employees on January 10; (2) Sparrowk interviewed
job applicants on January 11 ; (3) he spent much of the week preceding the execution of
the lease in the plant in connection with the inventory ; and (4) lie admitted that he told
some of the applicants that he "hoped" that Englander would begin work at the plant on
January 16.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose in referring the job applicants to the Teamsters Local was to provide
that organization with an opportunity to wean the job applicants away from other
unions, in a climate of implied approval by Englander, with the ultimate end in
view, of recognition by Englander of the Teamsters Local; and that as a result
of Sparrowk's conduct, Englander contributed support to the Teamsters Local
in violation of Section 8 (a) (2), and interfered with the exercise by employees of
rights guaranteed them by Section 7 of the Act, thereby violating Section 8 (a) (1)
of the statute.15
Turning to the claim that Foremen Henry and Moore made unlawful statements
to job applicants, it may be noted that Henry, although still employed by Englander,
was not called as a witness, nor is there any explanation by the Respondent Company
of its failure to call him. Thus McDonald's testimony that Henry told him on the
telephone on the evening of February 21 that a position was available and that he
"would have to clear through the Teamsters" is uncontradicted. Another factor
to bear in mind is that both Griffin and McDonald gave circumstantially detailed
accounts of their respective. discussions with Moore, while the latter gave no
description of any conversation with either Griffin or McDonald. Substantially all
that appears in Moore's testimony in that connection is a blanket denial that he
told "any employee or prospective employee that he had to join the Teamsters
Union" or that he made any suggestion to that effect; and that he does not recall
McDonald "specifically." In view of Moore's position and the important role he
played, according to the sense of Sparrowk's testimony, in the recruitment of
employees for Englander's new plant, I think it wholly plausible that both Griffin
and McDonald had conversations with him concerning employment at the plant; yet
fog. 'all that appears in Moore's testimony, Griffin and McDonald did not even
discuss the subject of employment with him. I believe that they did, and Moore's
failure to give details of any conversation with either Griffin or McDonald detracts
from the force of his testimony. Moreover, as will subsequently appear, the
contract between Englander and the Teamsters Local was in effect on February
14, the date when Griffin asserts she spoke to Moore, notwithstanding Sparrowk's
claim that he did not sign it until February 15 or 16. Although the union-shop
provision contains a grace period before employees are required to become members
of the Teamsters Local, the existence of the provision contributes plausibility to the
testimony of Griffin and Moore concerning their respective conversations with
Moore. In the light of the factors outlined above, I credit their testimony, and
find. that Englander interfered with, restrained, and coerced employees in the
exercise of rights guaranteed them by Section 7, thus violating Section 8 (a) (1),
and contributed support to the Teamsters Local, in violation of Section 8 (a) (2),
as,a :result of Moore's statements to Griffin on February 14 that as a condition of
employment, she would "first have to get it straightened out with the Teamsters"
and that she would have a job at the plant if she joined that organization; as a
consequence of Henry's remark to McDonald on February 21 that he "would have
to clear through the Teamsters"; and as a result of Moore's statement to McDonald
on February 23 that the latter "would have to join the Teamsters," and the remark,
"Well, I guess we can't do any business, that will be about it," with which Moore
closed the interview with McDonald. The statement with which Moore ended the
discussion with McDonald amounted to a denial of employment to the latter,
although a job was available for him, because of his refusal to join the Teamsters
Local. In addition to the violations of Section 8 (a) (1) and (2), resulting from
Moore's statements to McDonald, as a consequence of the denial of employment to
the latter, Englander unlawfully discriminated against him in violation of Section 8
(a): (3) of the Act.
15 In one of his versions of his remarks to a large group of jobseekers on January 16, Spar-
rowk gave testimony to the effect that he told the group that if by suggesting "to some
of the people" (presumably meaning interviewees a few days earlier) that they "find out
the content of what could be offered to them" by the Teamsters Local, there was "some
misunderstanding as to union affiliation I wanted them to know that I definitely was not
in a position to tell them what to do." This testimony affords no basis for a holding that
Sparrowk dispelled the unfair labor practices found above. For one thing, another version
by Sparrowk of his remarks on January 16, given earlier in his testimony, does not contain
statements to the effect set out above. For another, it is not established that all the job
applicants referred to the Teamsters Local on January 11 were present at the plant on
January 16. Walters' testimony suggests that he was not there on that occasion. It
may also be borne in mind that Walters had visited the office of the Teamsters Local, upon
Sparrowk's advice, and had already applied for membership in that union, before Spar-
reek's remarks on January 16, whatever their content.
THE ENGLANDER COMPANY , INC . 729
Notwithstanding these findings, I am unconvinced by Rober 's account of his
alleged conversation with the two foremen . Early in his testimony , Rober imputed
a statement to Henry on February 13 , without any mention of Moore, that he
would "have to join with the Teamsters " before he could be employed. At a
subsequent point in his testimony , Rober quoted both Henry and Moore as telling
him that "there would be a job on the shipping floor but I 'd have to clear through
the Teamsters ." One is left in some doubt by Rober's testimony whether he
intended to quote two separate conversations , one with Henry alone , in which the
latter allegedly made the statement initially described above, and the other with
both foremen, or whether it was the intendment of Rober's testimony that the
statement he initially attributed to Henry was made during the alleged conversation
with both foremen . In any event , Rober's imputation of a joint statement to both
foremen has an artificial flavor, and upon my observation of Rober, I think it quite
possible that he coupled Moore's name with that of Henry, in a statement he
imputes to both, as an afterthought following the initial description by Rober of
what he claims Henry said to him . In short , Rober's testimony lacks sufficient
quality to warrant a finding that either Henry or Moore made the statements he
imputes to them.
The remaining question is whether Englander and the Teamsters Local had a
lawful right to enter into the agreement affecting the Seattle plant. In its brief,
the Respondent Company bases its position that the agreement is lawful upon a
claim , as the brief puts it, that "the agreement was not entered into until it was
signed by Mr. John Sparrowk on behalf of the employer , on or about February
15, 1956 , at which time the Teamsters had a majority of the then employees and
prospective employees." 16 One may assume that a majority of the 92 nonsuper-
visory employees on the payroll of the Seattle plant on February 15 had designated
the Teamsters Local as their bargaining representative by that date,17 but that does
not of itself establish the legality of the agreement , for there is good reason to
conclude that the contract came into existence at some point prior to February 13,
at a time when the parties thereto had no right to enter into it, notwithstanding
Sparrowk's claim that he signed the agreement on February 15 or 16. A number
of factors , set forth below, persuasively support that conclusion.
In that regard , one may first consider the document ( General Counsel 's Exhibit
No. 9) which Sparrowk asserts Williams submitted to him on February 15 in
connection with the Teamsters Local's claim that it represented a majority of the
employees at the plant . Each page of the instrument contains a typed paragraph
followed by signatures . The document was maintained at the office of the Teamsters.
Local and submitted by that organization for the signatures of individuals, mainly
former Craftmaster employees , who were seeking employment at the plant. The
typed paragraph consists of the following:
We the undersigned former employees of Craftmaster, Inc. do hereby agree
to revoke any other Union representation in which I formerly participated
as a member and do hereby accept as a new employee of the Englander Com-
pany, all working conditions contained in the contract in effect between the
International Brotherhood of Teamsters and the Englander Company and do
hereby agree to become a member of Warehousemen 's Union Local 117 im-
mediately upon going to work for the Englander Company.
"The assertion that the contract was "entered into " when Sparrowk signed it is not
quite in accord with Sparrowk ' s testimony that "normally " Englander does not regard
a collective -bargaining contract as "binding" until it is signed by Korshak, and that
Korshak 's signature was not on the agreement with the Teamsters Local at the time
Sparrowk signed it . As indicated earlier neither Englander nor the Teamsters Local
produced any evidence as to the date of execution of the contract by Korshak.
1a Actually , the evidence does not probatively establish that the Teamsters Local repre-
sented a majority of the 92 nonsupervisory employees as of February 15. At the hearing,
the Teamsters Local offered in evidence approximately GO signed applications for member-
ship " that resemble" those Sparrowk states he examined on February 13. No evidence as
to the authenticity of the signatures was offered , and they were excluded upon objection
of the General Counsel. There is in evidence a document (General Counsel's Exhibit No.
9) containing 90 signatures appended to a statement to the effect that the signatories agree
to become members of the Teamsters Local upon entering Englander's employ . This was
offered in evidence by the General Counsel and received without objection. Without ex-
ploring details of the number of signatures identified in the testimony , it may be noted
that only a small proportion of them , far less than half , are authenticated in the evidence.
The General Counsel, however, has advanced no claim that the signatures are not authentic.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There can be no doubt that the document , which is undated , was in existence
at least as early as February 13, for various individuals signed it on that date.
Significantly, it refers to "the contract in effect between the International Brother-
hood of Teamsters and the Englander Company" [emphasis supplied]. Thus it
appears from the document at least that as of February 13 Englander was a party
to an agreement affecting employees at the Seattle plant. To be sure, the quoted
language literally refers to the "International Brotherhood of Teamsters ," as being
the other party to "the contract in effect ," but the record , viewed as a whole,
points to the conclusion that the contract to which the instrument has reference is
the one between Englander and the Teamsters Local. On that score, in the first
place, it is well to bear in mind that individuals concerned with union matters
often loosely refer to local unions and their parent international organizations in
such interchangeable and abbreviated fashion that one must frequently look to
the full context of a given statement or situation to determine whether the reference
is to a local or its parent. There is ample evidence of this practice in the testimony
of some of the witnesses. One may note, incidentally, that the Respondent Union
refers to itself in its contract with Englander as the "General Teamsters, Chauffeurs
and Helpers Union, Local 117," whereas its name, as evidenced by other portions of
the record, including its answer, is actually "International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Warehousemen's Local Union
No. 117, AFL-CIO." There is no evidence that "International Brotherhood of
Teamsters" is the name of any labor organization, but the quoted name is a part of
the name of both the Respondent Union and its parent, the Teamsters International.
.If it be asserted that the relevant language of the document has reference to the
Teamsters International, it is well to bear in mind that no claim is advanced in
this proceeding either by the Respondent Union or the Respondent Company that
there is, or ever has been, a contract applicable to the Seattle plant between Eng-
lander and the Teamsters International or, for that matter, between the Company and
any organization named "International Brotherhood of Teamsters ." The only
agreement in evidence , affecting Englander 's factory in Seattle , is that between the
Company and the Teamsters Local, and that contract recognizes the Teamsters
Local, and not any organization named "International Brotherhood of Teamsters,"
as the "excusive bargaining agent" of the employees. Second, there is undisputed
evidence that Bombardier, a representative of the Teamsters Local, told Testerman
on February 10, when he asked her if she wished to come to work on February 13,
that "they had a contract" at the plant. I have no doubt that Bombardier's
meaning was that his organization , the Teamsters Local, had a contract with
Englander affecting the plant. Bombardier's statement supports the conclusion both
that the agreement between Englander and the Teamsters Local was in effect as
early as February 10, and that that is the contract to which the document signed
by former Craftmaster employees has reference. Third, it will be recalled that
Williams was present at the meeting of the Upholsterers Local on February 13
when members of that union were told that a telegram had been received from the
president of the Upholsterers International to the effect that the members were "to
go to . work under the Teamsters' agreement, . . but still remain members" of
the Upholsterers Local . From the context of the description of the meeting, one
may safely conclude that Williams said nothing there to negate the existence of
"the Teamsters' agreement." The reference to "the Teamsters' agreement" at the
meeting, standing alone, has, to be sure, a fragmentary character, but it takes on
meaning when viewed in the full context of the record, including the evidence of
the document signed by former Craftmaster employees and Bombardier's statement
to Testerman on February 10, and the absence of any claim either by Englander
or the Teamsters Local that the Company has ever had a contract applicable to the
Seattle plant other than the one with the Teamsters Local. In short, I am convinced
that the document signed by former Craftmaster employees for the Teamsters Local,
the statement made by Bombardier , and the summary of the telegram given in
Williams' presence at the meeting of the Upholsterers Local , all had reference to the
same contract; and that the agreement thus referred to is the one between Englander
and the Teamsters Local.
Needless to say, the document maintained by the Teamsters Local , Bombardier's
statement to Testerman , and what was said at the meeting of the Upholsterers Local
are not binding upon Englander and cannot be taken as evidence against it. How-
ever, as found above, on February 13, during a discussion at the Seattle plant, in
reply to a remark by Evans to the effect that Williams was apparently acting as
Englander's "personnel manager," Hunt, the factory manager at the Seattle plant,
THE ENGLANDER COMPANY, INC . 731
made the statement that "Williams had the right to call these people inasmuch as
the Teamsters held an agreement with the Englander Company." This may not
be dismissed lightly, notwithstanding Sparrowk's testimony that Hunt has no authority
with respect "to matters involving negotiating with labor organizations," and irre-
spective of Sparrowk's assertion that Hunt's functions for Englander were still
limited at the time of the hearing because of his work in "winding up Craftmaster."
Whatever temporary limitations there may be on Hunt's work for Englander, one
may assume from the fact that he has the title of factory manager that he occupies
a position of substantial importance in the supervisory hierarchy at the plant. In
that regard, it is well to bear in mind , also, that he was the only supervisor, in addition
to Sparrowk, present during the discussion with the union representatives on
February 13.
Hunt's statement takes on substantial importance as a guide to decision when
viewed in the light of the whole record. A singular silence pervades the evidence
as to the origin of the agreement. One would assume that the signatories to a con-
tract would be the individuals who are best in a position to know the facts of its
origin . Yet Sparrowk, despite his position with Englander and the authority vested
in him by the Company, testified that he "doesn't know of any negotiation of the
contract"; and none of the other signatories were produced as witnesses either by
the Teamsters Local or Englander. Substantially all that appears in the record
on the subject of the origin of the agreement is hearsay testimony by Sparrowk, in
which the latter quotes Chester Pink as telling him on the telephone from Chicago
on February 6 that a contract signed by Dillon and Williams "applying to the Seattle
plant" was in Englander's Chicago office, and that it had been "sent or given to
someone" there. Pink, it may be noted, was also not produced as a witness. In
sum, there is no evidence that the contract was ever the subject of collective-
bargaining negotiations , at least in the accepted sense of participation in bargaining
meetings and a discussion of contract terms.
The absence of such evidence; the unexplained failure of either of the Respondents
to call Dillon, Korshak, Williams, or Pink; the fact that the contract is little more
than a duplicate of the one affecting the Los Angeles plant, even to the extent of
bearing a date, October 1, 1955, some months prior to Englander's lease of the
Seattle factory; Sparrowk's statements to Truman on January 26 that Englander
has a "master agreement" of "nation-wide" scope with the Teamsters International,
that he (Sparrowk) "was bound by the master agreement," that he did not wish to
jeopardize "good working relations" in other Englander "plants covered by the
Teamsters' agreements" by "signing this plant to another organization," and that he
felt that if he did so, Englander "would be subject to reprisals by Teamsters in other
locations"; and Sparrowk's refusal on February 3 to consent to an election because of
the "master agreement," all point to the conclusion that the execution of the con-
tract between the Teamsters Local and Englander was a mere formality, pursuant to
some prior understanding between the Company and the Teamsters International,
and without regard to the question whether the Teamsters Local actually represented
a majority of the employees at the Seattle plant. In the light of the factors enumer-
ated above, I attach more weight to Hunt's spontaneous statement, made in a setting
of dispute and controversy, than to Sparrowk's self-serving description of his alleged
telephone conversation with Pink, of the claimed examination of the membership
applications and the document signed by the employees, and of the date of his
execution of the contract.
In sum , viewing the evidence as a whole, I find that the agreement under
consideration was entered into at some point prior to Hunt's statement on February
13, and that it was in effect on that date.
As of February 13, Englander had only 14 nonsupervisory employees on its pay-
roll at the Seattle plant; there had as yet been little or no production at the factory;
the Company contemplated a substantial expansion of its complement of employees;
and the number then employed was but a small fraction of the anticipated work
force. Bearing these circumstances in mind, it is immaterial that Sparrowk was
"convinced" on February 13, as he claims, that the Teamsters Local represented a
"majority of the labor pool that we were interested in" (plainly, from the context
of the record, consisting for the greater part of individuals not yet in Englander's
employ on February 13), or that the Teamsters Local on that date actually represented
a majority of the relatively few individuals then employed. The decisive fact is that
the contract was entered into and was in effect at a time when the number of in-
dividuals employed by Englander was far less than the number it anticipated hiring
for its production needs. The Board has repeatedly held that a collective -bargaining
agreement between an employer and a union as the representative of the employees,
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a bargaining unit is ineffective if the agreement is made at a time when the number
of employees is not representative of the employer's anticipated work force.'B In
such circumstances, recognition of the union as the exclusive bargaining
representative of the employees in the unit constitutes unlawful assistance to the
union.I9
Applying these principles, and bearing in mind that the agreement was entered
into at some point prior to February 13, I find that the contract is ineffective; and
that by entering into and maintaining it Englander has contributed, and is contribut-
ing, support to the Teamsters Local in violation of Section 8 (a) (2) of the Act,
and has thereby interfered with, restrained, and coerced employees, and is inter-
fering with, restraining, and coercing them, in the exercise of rights guaranteed them
by Section 7 of the Act, thus violating Section 8 (a) (1) of the statute.
By the terms of Section 8 (a) (3) of the Act, a union-shop provision such as that
contained in the contract can be valid only if the labor organization involved was
not "established, maintained or assisted by any action defined in Section 8 (a) of
this Act as an unfair labor practice" and "if such labor organization is the repre-
sentative of the employees as provided in Section 9 (a) in the appropriate collective
bargaining unit covered by such agreement when made." For the reasons stated
above, the union-shop provision in the agreement under consideration here does not
meet the requirements of the statute and is invalid. Thus I find that by agreeing to
the provision and maintaining it, Englander has discriminated, and is discriminating,
in regard to the hire and tenure of employment of employees, in violation of Sec-
tion 8 (a) (3), has contributed, and is contributing, support to the Teamsters Local,
thereby violating Section 8 (a) (2), and has interfered with, restrained, and coerced
employees, and is interfering with, restraining , and coercing them, in the exercise of
rights guaranteed them by Section 7, thus violating Section 8 (a) (1); and that by
agreeing to the union-shop provision and maintaining it, the Teamsters Local has
attempted, and is attempting, to cause Englander to discriminate against employees
in violation of Section 8 (a) (3), thus violating Section 8 (b) (2) of the Act, and
has restrained and coerced employees, and is restraining and coercing them, in the
exercise of rights guaranteed them by Section 7, thereby violating Section 8 (b) (1)
(A) of the said Act 2°
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The respective activities of the Respondent Company and the Respondent Union
set forth in section III, above, occurring in connection with the operations of the
Respondent Company 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
It has been found that the Respondent Company has engaged in unfair labor
practices violative of Section 8 (a) (1), (2 ), and (3 ) of the Act, and that the
Respondent Union has engaged in unfair labor practices in violation of Section 8 (b)
(1) (A) and 8 ( b) (2) of the said statute. In view of the findings , I shall recom-
mend that each of the said Respondents cease and desist from its unfair labor prac-
tices and take certain affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent Company denied employment to Robert A.
McDonald on February 23, 1956 , and that its conduct in that regard violated Sec-
tion 8 ( a) (3) of the Act, I shall recommend that it offer the said Robert A.
McDonald immediate employment in the position in which he would have been em-
ployed , but for the discrimination against him , or in -a substantially equivalent posi-
tion , without prejudice to his seniority and other rights and privileges , and that the
m Daniel Hamm Drayage Company, Inc., 84 NLRB 458, enfd. 185 F. 2d 1020 (C. A.
5) ; Guy F. Atkinson, 90 NLRB 143, enforcement denied on other grounds, 195 F. 2d 141
(C. A. 9) (the court approved the principle set forth above) : and The Englander Company,
Inc., .1.14 NLRB 1034 (involving another plant of the Respondent Company).
19 The Englander Company, Inc., supra.
20 Among other cases, see The Englander Company, Inc., supra.; The Great Atlantic &
Pacific Tea Company, 81 NLRB 1052; and Acme Mattress Company, Inc., 91 NLRB 1010,
enfd. 192 F. 2d 524 (C. A. 7).
THE ENGLANDER COMPANY, INC. 733
Respondent Company make the said Robert A. McDonald whole for any loss of pay
he may have suffered by reason of the discrimination against him , by payment to
him of -a sum of money equal to the amount of wages he would have earned, but
for the said discrimination , between February 23, 1956, and the date of a proper
offer of employment to him as aforesaid . Loss of pay shall be computed on the
basis of each separate calendar quarter or portion thereof during the period from
the date of the denial of employment , as found above, to the date of a proper offer
of employment. The quarterly periods shall begin with the respect 1st days of
January , April, July, and October . Loss of pay shall be determined by deducting
from -a sum of money equal to that which Robert A. McDonald normally would have
earned , but for the discrimination , in each such quarter or portion thereof, his net
earnings ,21 if any, in any other employment during that period. Earnings in one
quarter shall have no effect upon the back-pay liability for any other quarter. The
Respondent Company will be required to preserve and make available to the Board
or its agents upon request , for examination and copying , all payroll records, social-
security payment records , timecards , personnel records and reports, and all other
records necessary to analyze and determine the amount of back pay due and his
right of employment under the terms of the order recommended below.
On the basis of the foregoing findings of fact, and of the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Englander Company, Inc., is an employer within the meaning of Section
2 (2) of the Act.
2. Upholsterers International Union of North America, AFL-CIO; Local 5 of
Upholsterers International Union of North America, AFL-CIO; Washington-Oregon
District Council of Furniture Workers, AFL-CIO; International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , Warehousemen's
Local Union No. 1,17, AFL-CIO; and Local Union 3197, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. By interfering with , restraining , and coercing employees, as found above, in
the exercise of rights guaranteed them by Section 7 of the Act, the Respondent
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. By contributing support to the Respondent Union, as found above , the Re-
spondent Company has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (2) of the Act.
5. By discriminating in regard to the hire of Robert A. McDonald , as found above,
thereby encouraging membership in the Respondent Union and discouraging mem-
bership in other labor organizations , the Respondent Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
6. By agreeing to and maintaining the terms of the union -shop provision of its
agreement with the Respondent Union, as found above, the Respondent Company
has discriminated and is discriminating in regard to the hire and tenure of employment
of employees , thereby encouraging membership in the Respondent Union and dis-
couraging membership in other labor organizations , and has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
7. By restraining and coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act, as found above, the Respondent Union has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of
the Act.
8. By. agreeing to and maintaining the terms of the said union -shop provision, as
found above, the . Respondent Union is attempting and has attempted to cause the
Respondent Company to discriminate against employees in violation of Section 8
(a) (3) of the Act,:and has thus engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 .(b) (2) of the Act.
9. The aforesaid unfair , labor practices are unfair labor practices affecting
'commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
See Crossett Lumber Company , 8 NLRB 440, for the applicable construction of "net
earnings."