The National Plastic Products Co.

National Labor Relations Board - Board Decisions

Jul 30, 1948

78 N.L.R.B. 699 (N.L.R.B. 1948)

In the Matter of THE NATIONAL PLASTIC PRODUCTS COMPANY and
INTERNATIONAL CHEMICAL WORKERS UNION, A. F. OF L.
Case No. 5-C-2194.-Decided July 30, 1948
Mr. Sidney J. Barban, for the Board.
Messrs. Jacob Blum and Jacob S. New, of Baltimore, Md., for the
Respondent.
DECISION
AND
ORDER
On August 21, 1947, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto.' Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief 2
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions,3 and brief of the Respondent, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exception 4 that in finding that
the Respondent violated Section 8 (1) of the Act, we do not rely upon
the Trial Examiner's finding that the "captive audience" aspect of
1 Those provisions of Section 8 (1) and ( 5) of the National Labor Relations Act, which
the Trial Examiner found were violated herein, are continued in Section 8 (a) (1) and
Section 8 (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-man panel consisting
of the undersigned Board Members [Houston , Reynolds, and Gray].
2 The Respondent 's request for oral argument , made in its exceptions , is denied , inasmuch
as the record , the Intermediate Report, and the Respondent's exceptions and brief, in our
opinion, adequately present the issues and the positions of the parties
8 The Trial Examiner 's finding with respect to the appropriate unit is hereby amended to
delete the words "all supervisory employees with authority to hire, promote , discharge,
discipline , or otherwise effect changes in the status of employees , or effectively recommend
such action ," and to substitute therefor the words " all supervisors as defined in the Act."
As so amended , the Trial Examiner ' s unit finding is hereby approved.
78'N. L. R. B., No. 84.
699
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the preelection speech made by the Respondent's president on April
17, 1946, constituted a violation of the Act.5
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The National
Plastic Products Company, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Chemical
Workers Union, A. F. of L., as the exclusive representative of all
production and maintenance employees of the Respondent at its
Odenton, Maryland, plant, excluding office clericals and all super-
visors as defined in the Act;
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Chemical Workers
Union, A. F. of L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Chemi-
cal Workers Union, A. F. of L., as the exclusive representative of all
production and maintenance employees of the Respondent at its Oden-
ton, Maryland, plant, excluding office clericals and all supervisors as
defined in the Act, with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed written
agreement;
(b) Post at its plant at Odenton, Maryland, copies of the notice
attached hereto marked "Appendix A." 6 Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent's representative, be posted by it
immediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
Matter of The Babcock & Wilcox Company, 77 N L. R B. 577.
In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice, before the words "A Decision and Order," the words : "A
Decree of the United States Circuit Court of Appeals Enforcing"
THE NATIONAL PLASTIC PRODUCTS COMPANY 701
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from date of the receipt of this Order, what steps
the respondent 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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist INTERNATIONAL CHEM-
ICAL WORKERS UNION, A. F. OF L., or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection. All our
employees are free to become or remain members of this union,
or any other labor organization.
WE WILL bargain collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
hours of employment or other conditions of employment, and if
an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is :
All production and maintenance employees of the Respondent
at its Odenton, Maryland, plant, excluding office clericals and all
supervisors as defined in the Act.
THE NATIONAL PLASTIC PRODUCTS COMPANY,
Employer.
By----------------------------------------------
(Representative) (Title)
Dated---------------------------
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
Mr. Sidney J. Barban, for the Board.
Messrs. Jacob Blum and Jacob S. New, of Baltimore , Md., for the respondent.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a second amended charge filed on June 4, 1947,' by International Chemical
Workers Union, A. F. of L., herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Fifth Region
(Baltimore, Maryland), issued its complaint dated June 5, 1947, against The
National Plastic Products Company, Odenton, Maryland, herein called the re-
spondent. The complaint alleged that the respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint, the second
amended charge, a notice of hearing, and a notice of postponement of hearing
were served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that on and since approximately August 29, 1946, the respondent has violated
Section 8 (1) and (5) of the Act by refusing to bargain collectively with the
Union as the exclusive bargaining representative, certified by the Board on
July 26, 1946, of an appropriate bargaining unit of the respondent's employees,
a majority of whom had selected the Union as their bargaining representative in
an election conducted by the Regional Director for the Fifth Region as agent
for the Board on April 18, 1946; and (2) that on and since January 2, 1946, the
respondent has violated Section 8 (1) of the Act (a) by urging, persuading,
'threatening and warning its employees to refrain from assisting, becoming, or
remaining members of the Union, or designating the Union as their collective
bargaining representative, or engaging in concerted activities for the purpose
of collective bargaining or other mutual aid or protection; (b) questioning its
employees concerning their membership in and activities on behalf of the Union,
or other labor organizations ; (c) compelling its employees, on the day prior to
the election in the representation proceeding, to listen to a speech delivered by
the respondent's president, at its plant during working hours, for the purpose
of interfering with said employees' free choice of representatives for collective
bargaining, and urging, warning, coercing and persuading said employees to
refrain from assisting, becoming, or remaining members of the Union, or voting
for the Union in the election; (d) informing its employees of its refusal to
bargain collectively with the Union for the purpose of persuading, inducing, and
coercing its employees to refrain from assisting, remaining, or becoming members
of the Union ;"and (e ) dealing directly and individually with its employees in the
unit appropriate for collective bargaining, concerning rates of pay, wages, hours
of employment or other conditions of employment.
In its answer, the respondent admitted that the Board had certified the Union
as the representative of an appropriate unit of the respondent's employees on
July 26, 1946, and that the respondent had refused to bargain with the Union
as such representative on August 29, 1946. The respondent denied, however, (1)
that it had committed any unfair labor practice; (2) that a majority of the em-
ployees in the unit designated the Union as their representative on April 18,
1946, or that such designations were made by secret ballot in an election conducted
by the Regional Director for the Fifth Region as agent for the Board; (3) that
the Union has been at all times since July 26, 1946, or is now, the exclusive
representative of the employees in the unit, or (4) that the respondent refused
to bargain with the Union at any time after August 29, 1946.
I The original charge was filed on September 19, 1946, and the first amended charge on
March 24, 1947.
THE NATIONAL PLASTIC PRODUCTS COMPANY - 703
Pursuant to notice, a hearing was held on June 25, 1947, at Baltimore, Maryland,
before the undersigned, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board and the respondent were represented by counsel, par-
ticipated in the hearing, and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing upon the
issues. At the beginning of the hearing, the undersigned granted a motion made
by counsel for the Board, and opposed by counsel for the respondent, to amend
the complaint to state that the respondent questioned its employees concerning
their membership in and activities on behalf of the Union or another labor organi-
zation since approximately October 1, 1945, instead of merely since approximately
January 1, 1946, as stated in the original complaint. Thereafter, the undersigned
granted a motion by counsel for the respondent to amend the answer by including
a denial of the amendment of the complaint. Counsel for the respondent moved
at the end of the Board's case-in-chief to dismiss various portions of the complaint,
and at the close of the hearing, to strike the complaint in its entirety. The under-
signed denied the first of these motions and reserved decision upon the second.
The latter is hereby disposed of in conformity with the findings hereinafter set
forth. At the end of the hearing, the undersigned granted unopposed motions
to conform the pleadings in such minor matters as the spelling of names and
dates. Before the close of the hearing counsel for the Board and counsel for
the respondent argued orally upon the record before the undersigned. Since the
hearing the respondent has filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, The National Plastic Products Company, a Maryland corpora-
tion with its principal office and plant located at Odenton, Maryland, is engaged
in the manufacture of plastic products. The respondent annually uses at its
Odenton plant raw materials exceeding $100,000 in value, of which approximately
35 percent is received from points outside the State of Maryland. The respondent
annually produces at its Odenton plant finished products exceeding $100,000 in
value, of which approximately 35 percent is shipped to points outside the State
of Maryland.
The respondent admits, and the undersigned finds, that the respondent is en-
gaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Chemical Workers Union is a labor organization affiliated with
the American Federation of Labor, admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The facts
Upon a petition for certification of representatives filed by the Union on
March 29, 1946, the Board's Regional Director held an election by secret ballot
at the respondent's plant on April 18, 1946, among the employees of the respond-
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,ent in a unit which the Union asserted was appropriate for the purposes of
'collective bargaining, to determine whether the employees desired to be repre-
-sented by the Union , the only organization claiming to represent them. Of
approximately 227 eligible voters, 206 actually voted , casting 90 votes for repre-
sentation by the Union , 78 against representation by the Union, and 38 ballots
which were challenged.
On or about April 24, 1946, the respondent notified the Regional Director of
Its objections to the conduct of the election on the grounds that ( 1) the election
was at variance with the Act inasmuch as it was held prior to the hearing over
the respondent 's objection ; ( 2) the selection of the pay roll of April 2, 1946,
to determine eligibility to vote was improper ; and (3 ) by allowing the Union's
organizer to drive them to the plant in his automobile , the Board ' s representa-
tives who conducted the election may have influenced the employees to vote
for the Union.
A hearing , in which the respondent and the Union fully participated, was
-thereafter held on May 9, 1946 , before a Trial Examiner for the Board. Evi-
dence was taken upon the questions raised by the Union 's petition , the challenged
ballots, and the respondent 's objections to the conduct of the election. By
stipulation entered into by the parties at the hearing , 21 of the 38 challenged
ballots were opened and counted by the Trial Examiner . As a result , an amended
or revised tally of ballots , attested by the Union, the respondent , and the Trial
Examiner , thereupon showed 95 valid votes to have been cast for representa-
tion by the Union and 94 valid votes to have been cast against representation
by the Union . Consequently , at the close of this hearing , only 17 ballots still
remained challenged and uncounted.
On July 3, 1946, the Board issued a Decision and Direction: in which it found
that all production and maintenance employees at the respondent 's Odenton,
Maryland , plant, excluding office clericals and all supervisory employees with
authority to hire, promote , discharge , discipline , or otherwise effect changes in
the status of employees , or effectively recommend such action , constituted a
unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act . The Board also found, upon the basis of the evi-
dence taken at the hearing , that the 17 employees whose ballots still remained
challenged were eligible voters and that their ballots were to be opened and
counted by the Regional Director . The Board further rejected the objections
of the respondent to the conduct of the election . In doing so , the Board stated
"that there is no evidence to show that any eligible employees observed at any
time that the Board representatives drove to the plant with the Union's or-
ganizer" and , therefore, although it found the Board's representatives ' conduct
to be "undesirable," it rejected the respondent 's particular objection.
On July 12 , 1946, the Regional Director , having opened and counted the re-
maining 17 challenged ballots, pursuant to the Board's direction , certified that
108 votes had been cast for, and 98 votes had been cast against, representation
by the Union . No further objections being thereafter filed to the election or its
results, the Board on July 26, 1946, issued and served upon the respondent and
the Union its certification of the Union as the exclusive bargaining representa-
tive of the employees in the appropriate unit.
On August 29, 1946, John Lewis , the Union's business representative, asked
Jacob Blum , the respondent's attorney, to begin bargaining on a contract. Blum
said that he had a meeting scheduled with the respondent 's officials for Septem-
2 Matter of The National Plastic Products Company, 69"N. L. R. B. 288.
THE NATIONAL PLASTIC PRODUCTS COMPANY 705
her 5 to discuss whether or not the respondent would negotiate with , or recognize,
the Union, whereupon Lewis informed Blum that Henry McFarland, the Union's
Regional Director, would communicate with Blum for the respondent's answer.
McFarland telephoned Blum on September 13, 1946, and was told by Blum that
the respondent had decided it would not bargain with the Union and that "it
was up to [the Union] to take whatever course [it] wanted." Since that time,
the Union has not communicated with the respondent in any attempt to initiate
bargaining discussions; but on September 19, 1946, it filed its original charge
that the respondent had refused to bargain.
2. The respondent 's contentions ; conclusions
It is undisputed that on or about September 13, 1946, the respondent refused
to bargain collectively with the Union although on July 26, 1946, the Union
had been certified by the Board in the representation proceeding as the exclusive
bargaining representative of an appropriate unit of the respondent's employees.
In the present proceeding, the respondent in effect makes the broad contention
that, contrary to the Board's certification, the Union was not the majority-
chosen exclusive bargaining representative of the employees in the appropriate
unit either at the time of the election, the time of the certification, the time
of the refusal to bargain , nor at the time of the hearing in the present case.
In partial support of this general position, the respondent reasserts the sub-
stance of the objections to the conduct of the election which it originally urged
upon the Board in the representation case and which the Board after hearing
decided to be without merit. In the present proceeding, the respondent has
presented no additional evidence or argument to be considered by the Board
concerning the alleged impropriety of the pay-roll date used to determine voting
eligibility in the election or of the conduct of the election before, rather than
after, the representation hearing. With respect to its third and remaining ob-
jection to the conduct of the election , counsel for the respondent offered to
prove at the present hearing, through the testimony of John Wassmer, a super-
visory employee, merely that it was customary for employees in the appropriate
unit to lounge outside the plant at the time of day when the Board's representa-
tive drove up with the Union's organizer to conduct the election. In the opinion
of the undersigned, the testimony thus offered was immaterial, since no reason-
able inference could possibly be drawn therefrom that any of the employees
in the unit had actually seen the Board's representative arrive with the Union's
organizer. Furthermore, the offer of proof constituted an attempt by the re-
spondent to relitigate an issue already tried and decided by the Board in the
representation case, without any showing of justification or excuse for not having
then presented the evidence in question a The respondent's offer of proof through
the witness Wassmer was therefore rejected.
The respondent advances one further argument in defense of its refusal to
8 Pittsburgh Plate Glass Co v. N L. R. B , 313 U. S 146, 161, 162 ; N. L. R. B. v. West
Kentucky Coal Company, 152 F (2d) 198, 202-201 (C C. A 6) ; Allis-Chalmers Manufactur-
ing Company v. N. L R. B., 162 F (2d) 435 (C C. A 7), decided June 6, 1947. In making
his offer of proof, counsel for the respondent stated that, due to a substantial turnover of
employees since the election , employees in the unit who could have testified that they saw
the Board 's representatives arrive with the Union 's organizer were no longer available. No
satisfactory explanation has been suggested , however, for the respondent' s failure to pro-
duce these witnesses at the hearing in the representation case or to petition for a rehearing
immediately after the deficiency of the respondent 's proof was pointed out by the Board's
decision and before the Board 's certification of the Union , so that the testimony could then
have been taken.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain. It asserts that an "abnormal turnover in employment" since the
election demonstrates a loss by the Union of its majority, which cannot be
attributed to any unfair labor practices on the part of the respondent and which
therefore bars the issuance of any order requiring the respondent to bargain with
the Union. As the basis for this argument, counsel for the respondent offered
in evidence the following lists of employees, prepared by the respondent's per-
sonnel director : (1) All employees on the respondent's pay roll of June 17, 1947;
(2) those employees on the respondent's pay roll of June 17, 1947, who were
hired after April 30, 1946; and (3) those employees on the respondent's pay
roll of April 18, 1946, the date of the election, whose employment has since
terminated. According to the statement of counsel for the respondent and the
testimony of the personnel director in explanation of the proffered exhibits, the
appropriate unit consisted of 227 employees at the time of the election and, by
the time of the hearing in the present case, had increased to 305 employees, of
which latter number only 103 has been hired by the respondent before the
election while the remaining 202 had been hired since the election. Assert-
ing that it was not necessary, nor was it his intention, to attempt to prove
how many employees in the unit have been members of the Union since the
election, counsel for the respondent argued at the hearing that the mere fact
that only 103 of the original employee-members have been retained in the unit
which increased from 227 to 305, shows that the Union has lost its majority.
The respondent's argument is unsound. Mere substantial turnover of employees
in the appropriate unit can certainly not be regarded as an indication that the
Union's previously established majority was thereby impaired ; 4 on the contrary,
the reasonable presumption is that, throughout the changes of personnel in the
unit, the Union maintained the same proportion of adherents.' Furthermore,
even assuming arguendo that the Union in the present case lost its majority
within the year following its certification by the Board, it would still have re-
tained its statutory status as exclusive bargaining representative. For well
recognized, practical considerations require an employer to bargain with a cer-
tified union for a reasonable period after certification, normally a year,6 and
4 N. L R B. v Calumet Steel Division of Borg-Warner Corporation, 121 F (2d) 366, 370
(C. C. A. 7) ; N. L. R. B. v Whittier Mills Co., 111 F. (2d) 474, 477-478 (C. C. A 5) ;
N L. R B. v Hill Stores, 140 F (2d) 924, 927 (C C A 5) ; Motor Valve & Manufacturing
Co. v. N. L. R. B., 149 F. (2d) 247, 249-250 (C C. A. 6) ; N. L R. B. v. Central Dispensary
and Emergency Hospital, 145 F. (2d) 852, 854-855 (App D C ), cert den 324 U S 847.
5 See Great Southern Trucking Co. v. N. L. R. B., 139 F. (2d) 984, 985-986 (C. C. A. 4),
cert. den. 322 U. S. 729 ; N. I. R. B. v. Pranks Bros. Co., 137 F. (2d) 989, 994 (C. C. A. 1),
aff'd 321 U. S. 702 ; Matter of Tishomingo County Electric Power Association, 74
N. L. R. B. 864.
0 Franks Bros. Co v. N. L. R B , 321 U S 702 ; N. L. R. B. v. Appalachian Electric
Power Co., 140 F. (2d) 217, 221 (C C A 4) ; N L. R B. v. Century Oxford Mfg. Corp.,
140 F. (2d) 541, 542 (C. C. A. 2), cert. den. 324 U. S. 714; N L. R. B. v. Botany Worsted
Mills, 133 F (2d) 876, 881-882 (C C. A. 3), cert. den. 319 U S 751. In N. L. R. B. v.
Inter-City Advertising Co , 154 F. (2d) 244 (C. C A 4), cited by the respondent, the Court
specifically reaffirmed its adherence to the general rule of its Appalachian decision but
found it inapplicable to the exceptional case it then had before it-one in which two union
employees in an appropriate unit of three employees had been replaced by non-union
employees after the Board's certification The Courts stated
* * * there was no ground for applying the rule that a certification of bar-
gaining representatives must be maintained for a reasonable time on the ground
that it would be impracticable to hold frequent elections upon every shift of senti-
ment of the employees as in National Labor Relations Board v. Appalachian Electric
Power Co., 4 Cir., 140 F. 2d 217 and National Labor Relations Board v Century
Oxford Mfg. Corp , 2 Cir, 140 F. 2d 541 On the contrary, the evidence in the pending
case demonstrated as clearly as if an election had been held that only one Union
THE NATIONAL PLASTIC PRODUCTS COMPANY 707
upon his refusal to do so, his obligation continues until, by ultimately bargaining
with the certified representative, he has remedied the effects of his, earlier,
illegal refusal Therefore, upon the objection made by counsel for the Board
to the admission of the respondent's exhibits and in accordance with the con-
siderations just outlined, all of which were discussed at the hearing, the under-
signed rejected the exhibits and struck the testimony of the personnel director
in connection therewith.
It thus appears to the undersigned that the respondent has failed to sustain
its attack upon the Board's certification of the Union and the Union's continuing
status as the exclusive bargaining representative of the respondent's employees
in the unit found appropriate by the Board. The undersigned accordingly finds
(1) that at all times material herein, all production and maintenance employees
at the respondent's Odenton, Maryland, plant, excluding office clericals and all
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend such
action, have constituted, and now constitute, an appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act; (2) that
on or about July 26, 1946, and at all times since then, the Union has been the
exclusive representative of all employees in the above unit for the purpose of
collective bargaining within the meaning of Section 9 (a) of the Act; and (3)
that on and since September 13, 1946, the respondent, in violation of Section 8
(1) and (5) of the Act, has refused to bargain collectively with the Union as
the exclusive representative of the employees in the appropriate unit.
B. Interference, restraint and coercion
1. By supervisors
On or about October 1, 1945, Kandy Lanko and George Leancu were hired by
the respondent's chief engineer, George Whitesel, as the result of an interview
at which respondent's Manager Jerry Salkin and Maintenance Boss Wesley
Frederick were present. According to the uncontradicted testimony of Lanko,
Whitesel asked him, "Lanko, are you in the Union?" and Lanko answered, "No."
According to the sinliilarly uncontradicted testimony of Leancu, Whitesel asked,
"Do you both belong to the Union?" and Leancu answered, "No, sir." Lanko
further testified without contradiction that, after he had told Whitesel he was
not "in the Union," Whitesel said, "that kind of man we need over here," that
he did not want "the union man," and that, "if you are not in the Union, go ahead
inside, start to work today." Neither Whitesel, Salkin, nor Frederick testified;
the respondent attacks the tesimony of Lanko and Leancu solely upon the ground
that it is incredible on its face. It points out that both witnesses several times
quoted Whitesel as questioning them concerning their possible membership in
"the Union," which the respondent insists was a clear reference to the charging
Union, whereas at other points in their testimony, they stated that the charging
Union had not begun organizing the plant until the following March or April.
member remained at the transmitter station, and all the facts were so fully shown
that no room was left for inference or speculation
The instant case obviously presents no such unusual situation and the general rule in the
Appalachian case therefore applies.
The Franks Bros. case, supra; N. L R B. v. P. Lorillard Company, 314 U. S. 512; Great
Southern Trucking Co. v. N. L R. B., 139 F. (2d) 984 (C. C. A 4), cert, den. 322 U S. 729;
N. L. R. B. v. Highland Park Mfg. Co., 110 F. (2d) 632, 640 (C. C A. 4) ; N. L. ft. B. v. Swift
and Company, 162 F. (2d) 575 (C. C. A. 3), decided June 11, 1947.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But the witnesses ' apparent difficulty in expressing themselves ,' and portions of
their testimony in which they stated that Whitesel 's questions were whether
either of them was "a union man" or a member of "any union ," demonstrate
quite clearly that, according to a fair interpretation of Lanko's and Leancu's
testimony, Whitesel's questions and his remark to Lanko dealt with membership
in any union and not with membership in the charging Union . The undersigned
accordingly finds that Whitesel questioned Lanko and Leancu as to whether they
were members of a union and that Whitesel informed Lanko he would not hire
union members.
Employee Blanche Case testified without contradiction that, within a short
time before the election of April 18, 1946, Night Superintendent George Gleeks-
man on one occasion asked her whether her brother, one of the respondent's
foremen, was a member of the Union, and on another occasion, when she was
riding to work with Gleeksman, whether she had attended a union, meeting.
Gleeksman did not testify as a witness nor was any explanation given for his
failure to do so. The undersigned credits Case's testimony.
Employee Mary Odenbeck testified that a couple of days after the election,
Foreman George Dicus, during a conversation with Odenbeck and employee
Louise Harris, told Harris "to find out all the girls that had union cards and
that he would make it so damned hot for them, they would either have to quit
or would not be able to do the work." Dicus, in his testimony, denied ever
having-made any such statement to any employee and denied generally having
discussed union matters with employees, having threatened any employees be-,
cause they joined a union, or having attempted to induce any employee to
withdraw from the Union. The undersigned credits Dicus' denials.
Upon the foregoing, the undersigned finds that the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act (1) through Chief Engineer Whitesel's question-
ing Lanko and Leancu as to whether they were members of a union, (2)
through Whitesel's informing Lanko that he would not hire union members,
and (3) through Night Superintendent Gleeksnian's questioning employee Case
as to whether she had attended a union meeting and whether her brother was
a member of the Union.
2. The pre-election speech made by President Winer to the employees
The respondent's day shift ended at 4:30 p. in. According to the uncon-•
tradicted testimony of employees Lanko, Leancu, and Danza, which the
undersigned credits, they were told by their respective foremen on April 17,
1946, the day before the representation election, that they were to quit work
that day at 4 p. in. but that, instead of going home, they were to go to the
shipping department where the respondent's president, Ephraim Winer, would,
make a speech. Accordingly, at 4 p. in, the clay shift employees gathered in
the shipping department and listened to President Winer's speech, a copy of
which was thereafter delivered by the respondent to each employee.
In his speech, Winer disclaimed any intention to influence the employees'
votes in the election and stated that the respondent had never discriminated,
and would never discriminate, against any employee because of membership or
non-membership in a Union. Intimating that the Union had urged employees
to join the Union before the election to avoid high initiation fees under a
union or closed-shop contract, Winer informed the employees that the Union
s As Lanko put it, "one thing I do not speak right English and you know I take care of . ,
my job."
THE NATIONAL PLASTIC PRODUCTS COMPANY 709
could not gain control of hiring and firing unless the respondent agreed, and
that, while the respondent was not committing itself to a rejection of a closed-
shop demand, "it certainly will have to be convinced beyond any reasonable
doubt that such a concession is for the best interest of the employees and the
company before it will be granted." Outlining the election procedure, Winer
stressed the importance of the employees' voting, as he put it, upon the question
of "whether or ,not you employees, wish to entrust to strangers the task, of de-
termining who is to deal with the management in connection with your everyday
working affairs." In the same vein, Winer spoke briefly of the possible in-
trusion upon the happy, cooperative, harmonious relationship between the re-
spondent and the employees "by people who are strangers to you and to the
company, by people who have no knowledge of your problems, who have no
understanding of the problem of the company." In the latter part of the
speech, Winer stated that as a result of time studies made in the course of the
preceding few months, its representative's "recommendations for general wage
increases in substantial amounts was ready to be put into effect when in order
to conform to the law, the Company had to refrain from doing so under the
advice (sic) of its counsel when the Company learned of the Union's organizing
drive." 9
Considering. the speech, as a whole, it appears that one of its intended effects
was to indicate to the employees that the respondent preferred not to deal with
the Union as the representative of its employees. To this extent, President
Winer was exercising his constitutionally protected right of free speech.'o
However, his announcement of the respondent's intention to grant "general wage
increases in substantial amounts," obviously timed for the purpose of discour-
aging votes for the Union in the election the following day, was clearly a use by
the respondent of its economic power to interfere with, restrain, and coerce the
employees in the exercise by them of their right to choose a bargaining repre-
sentative as guaranteed by Section 7 of the Act, and extended beyond the areas
protected by the constitutional guaranty of freedom of speech.11 The speech
being in this respect violative of the Act and constitutionally unprotected, it
follows, and the undersigned also finds, that the respondent's compulsion of the
employees to attend the meeting and to listen to the speech constituted interfer-
ence with, restraint and coercion of the exercise by the employees of their
rights guaranteed by Section 7 of the Act i2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
0It was stipulated by counsel at the hearing that the respondent thereafter did in fact
grant general wage increases on May 7 and June 11, 1946, and that the respondent informed
the employees that the increase on May 7 was granted partially to offset a loss in take-
home pay due to reduction in working hours from 48 to 40 hours per week. This explana-
tion was not given in the speech of April 17 nor was it given to the employees, so far as
the record discloses, until May 7, 1947, and thus after the election.
10 See e g , N. L R. B. V Virginia Electric & Power Company, 314 U. S. 469; N L R. B. v.
American Tube Bending Co., 134 F. (2d) 993 (C C. A. 2), cert. den. 320 U. S. 768;
N. L R. B. v. Citizen-News Company, 134 F. (2d) 970 (C. C A 2).
11, Matter of Hudson Hosiery, 72 N. L. R B. 1434, and cases therein cited.
12 See N L R B v Clark Bros. Inc., 163 F. (2d) 373 (C. C A. 2) decided July 29, 1947,
enfg . 70 N L R B 802.
798767-49-vol. 78-46
710, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (1) and (5) of the Act, the undersigned
will therefore recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
The undersigned has found that the respondent questioned employees and appli-
cants for employment concerning their union membership and activities ; that
the respondent informed au applicant for employment that union members would
not be hired ; that the respondent notified its employees on the day prior to the
representation election of its intention to grant a general, substantial, wage
increase, announcement of which had been withheld on counsel's advice that
such a grant during the Union's organizational drive would have been violative
of the Act ; and that the respondent refused to bargain collectively with the
Union approximately a month and a half after the Board's certification of the
Union as exclusive bargaining representative. The respondent's attempts in the
present proceeding to justify this bargaining refusal are so clearly without sub-
stance or validity under the facts of the case and well settled authority, that the
undersigned is convinced that the respondent's refusal to bargain, like its other
unfair labor practices, can be explained only by the respondent's broad and basic
"attitude of opposition to the purposes of the Act to protect the rights of em-
ployees generally." 13 The undersigned is, therefore, convinced that the unfair
labor practices found are persuasively related to the other unfair labor practices
proscribed by the Act and that danger of their commission in the future is to be
anticipated from the respondent's conduct in the M, St. Unless the order is co-
extensive with the threat, the preventive purpose of the Act will be thwarted. In
order, therefore, to make more effective the interdependent guarantees of Section
7, to prevent a recurrence of unfair labor practices, and thereby minimize indus-
trial strife which burdens and obstructs commerce, and thus effectuate the policies
of the Act, the undersigned will recommend that the respondent cease and desist
from in any manner infringing upon the rights guaranteed in Section 7 of the Act.
Having found that the respondent refused to bargain collectively with the
Union although the Union was the exclusive representative of the employees of
the respondent in a unit appropriate for the purposes of collective bargaining,
the undersigned will recommend that the respondent, upon request, bargain
collectively with the Union as the representative of its employees in the
appropriate unit.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. International Chemical Workers Union, A. F. of L., is a labor organization
within the meaning of Section 2 (5) of the Act.
2. At all times material herein, all production and maintenance employees at
the respondent's Odenton, Maryland, plant, excluding office clericals and all
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend such
action, have constituted and now constitute an appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
13 May Department Stores Company v. N. L R B., 66 S . Ct. 203, 213 , 326 U. S. 376.
THE NATIONAL PLASTIC PRODUCTS COMPANY 711
3. On or about July 26, 1946, and at all times thereafter, International Chemi-
cal Workers Union, A. F. of L., has been the exclusive representative of all
employees in the above unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
4. By refusing on or about September 13, 1946, and at all times thereafter, to
bargain collectively with International Chemical Workers Union, A. F. of L.,
as the exclusive representative of the employees in the appropriate unit, the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) and (5) of the Act. 1
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent, The National Plastics Products
Company, a Maryland corporation, Odenton, Maryland, its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Chemical Workers
Union, A. F. of L., as the exclusive representative of all production and main-
tenance employees of the respondent at its Odenton, Maryland, plant, excluding
office clericals and all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, in respect to rates of pay, wages, hours, and
other conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Chemical Workers Union, A. F. of L,
or any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Chemical Workers
Union, A. F. of L., as the exclusive representative of all production and mainte-
nance employees of the respondent at its Odenton, Maryland, plant, excluding
office clericals and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employees, or ef-
fectively recommend such action, in respect to rates of pay, wages, hours, and
other conditions of employment; and
(b) Post at its plant at Odenton, Maryland, copies of the notice attached hereto
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Fifth Region, shall, after being duly signed by the respondent,
be posted by it immediately upon receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent to insure that said notices are not altered, defaced, or covered by
any other material ; and
(c) Notify the Regional Director for the Fifth Region in writing, within ten
(10) days from date of the receipt of this Intermediate Report, what steps the
respondent has taken to comply with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent has notified the
Regional Director for the Fifth Region in writing that it will comply with the
foregoing recommendations, the National Labor Relations Board issue an order
requiring the respondent to take the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203.39,
should any party desire permission to argue orally before the Board, request
therefore must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
WILLIAM F. SCHARNIKOW,
Trial Examiner.
Dated August 21, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of'the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist INTERNATIONAL CHEMICAL WORKERS UNION,
A. F. of L., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities'
for the purpose of collective bargaining or other mutual aid or protection.
All our employees are free to become or remain members of this union, or
any other labor organization.
WE WILL bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment , or other
THE NATIONAL PLASTIC PRODUCTS COMPANY 713
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees of the Respondent at its Oden-
ton, Maryland , plant, excluding office clericals and all supervisory employees
with authority to hire, promote , discharge , discipline , or otherwise effect
changes in the ,status of employees , or effectively recommend such action.
THE NATIONAL PLASTIC PRODUCTS COMPANY,
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.