The Pickwick Co.

National Labor Relations Board - Board Decisions

Jul 10, 1946

69 N.L.R.B. 314 (N.L.R.B. 1946)

In the Matter of JERRY SRP, ROSE SRP, MILO PECINA, EMMA PECINA,
F. E. COREY, PAULINE COREY, FRED C. COREY, SUSAN COREY,
TRUSTEE FOR WALTER COREY, JOHN J. ZACHAR, OLGA ZACHAR, REV.
A. L. ZACHAR, TRUSTEE FOR ROSEMARY ZACHAR, AND JOHN ZACHAR,
JR., CO-PARTNERS, D. B. A. THE PICKWICK COMPANY and UNITED
FARM EQUIPMENT AND METAL WORKERS OF AMERICA, C. I. O.
Case No. 18-C-1163.-Decided July 10, 1946
Mr. Stanley D. Kane, for the Board.
Elliott, Shuttleworth, & Ingersoll, by Messrs. Owen J. Elliott and
Charles A. Hastings, of Cedar Rapids, Iowa, for the respondents.
Meyers & Meyers, by Mr. Irving Meyers, of Chicago, Ill., for tha
Union.
Mr. Julius Topol, of counsel to the Board.
DECISION
AND
ORDER
On March 27, 1945, Trial Examiner, Howard Meyers, issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that 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 respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error has been committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, as amended, the respondents' exceptions and brief,
and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
corrections 2 and additions hereinafter set forth.
' By an Order dated April 2, 1945 , the Trial Examiner amended and corrected the recom-
mendations made in his Intermediate Report
'In reporting Gardner's testimony as to the conversation that took place on the day he
was discharged , in paragraph 5 of Section III, B , of the Intermediate Report , the Trial
Examiner inadvertently omitted the word "I" before the words, "said, 'Are you going to
put a new man in my place ?' " The sentence in question is hereby corrected to read "And
fig N. L. R. B., No. 40.
314
THE PICKWICK COMPANY 315
The Trial Examiner found, and we agree, that the proposed trans-
fer of Gardner to the machine shop was motivated by anti-union con-
siderations and that, therefore, Gardner's termination of employment
for refusal to accept such transfer constituted a discriminatory dis-
charge, within the meaning of Section 8 (3) of the Act. In excepting
to this finding, the respondents, for the most part, attack the credi-
bility of employees Melsha and Gardner, whose testimony is relied
upon by the Trial Examiner to support his finding of discrimination.
As set forth in the Intermediate Report, the Trial Examiner
credits the disputed testimony of employee Melsha that during July
and August 1945, Plant Superintendent Demory made certain anti-
union statements, some of which were directed against Gardner's
union activity in particular. The respondents contend that Melsha's
testimony as to his conversations with Demory contains matter so
implausible as to make him unworthy of belief in any respect. They
assert that Melsha was a known militant union advocate and therefore
it is inconceivable that, if Demory was in fact opposed to the Union
and Gardner's activity in its behalf, he would make a confident of
Melsha. They further argue that it is unlikely that Demory would
ask Melsha if he "belonged to the Union," because both of them had
previously been members of a CIO union when they worked for
another employer,' and because Demory knew of Melsha's prior or-
ganizational activities on behalf of the Union at the respondents'
plant. While it is true that some 9 months earlier Melsha had un-
successfully sought to organize the employees, no showing was made
that Melsha was active in the Union at the time the conversations took
place. In any event, it is a. fair inference that Demory had cause to
believe that Melsha was a subdued and far from militant friend of
the Union. Thus, according to Gardner's undenied testimony, in May
1945, Demory told him that Melsha "pretty nearly lost his job" be-
cause he "started organizing the Union" in the plant. Demory ad-
mitted at the hearing that on one occasion, Melsha, after reporting to
Demory that a supervisor had wrongly accused Melsha of organizing
the CIO, repudiated the Union in these words : "I've got nothing to
do with it. The CIO gave me a dirty deal down at the packing
house, and I am all through with them." Finally, there is the testi-
mony of Melsha that in the first of the anti-union conversations with
Demory, Melsha said, "You can't blame that [union organizing] on
to me; I was 125 miles away," and that Demory replied, "No I guess
Earl , I forgot his last name , he said he was going to put a new man in there and I said,
'Are you going to put a new man in there?"'
In Paragraph 9 of Section III, B , the Trial Examiner inadventently stated that Jerry
Srp was present at the meeting between Gardner and Harold Fisher, and F. E. Corey. The
record shows that Demory, and not Srp , was present at the meeting, and the Intermedi-
ate Report is hereby corrected in this respect.
8 The record shows that the union at their previous place of employment was affiliated
with a different International of the C. I. 0. than the one here involved.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nobody can." In the light of this record, it is entirely reasonable
to believe that Demory would interrogate Melsha as to his current
union affiliations and would direct anti-union statements to him in
order to prevent any renewal of militant union activity.
As further indication that Melsha was an unreliable witness, the
respondents point out that on direct examination Melsha testified
that Demory had said to him that "He was going to fire Mr. Gardner,
that he was no good and was just causing a lot of agitation and trouble
around here, and he was going to put Ernie Buelow in his place" ;
but that on cross-examination 4 he stated that he did not remember
whether Demory had used the characterization, "he was no good," but
that possibly he did. The respondents argue that his inability to re-
peat the alleged conversation verbatim and his uncertainty as to
whether Demory had said "he was no good" indicate that this con-
versation never took place. In our opinion, the point raised by the
respondents is not the type of variance or uncertainty which impairs
a witness' credibility. It seems clear from Melsha's testimony that
Demory's derogatory remarks concerned only Gardner's union ac-
tivity and not the performance of his work. In this setting, the
characterization "he was no good" has no independent significance
and cannot be regarded as a material part of Melsha's testimony or
of his conversation with Demory.
The respondents finally contend that prior to the conversation in
question Demory knew that both the Union and the A. F. of L. had
made representation claims to the respondents and that therefore it is
unlikely that he would say to Melsha (as Melsha testified), "Gee
whiz, I can't understand why the A. F. of L. don't come in here."
While there is testimony by other witnesses for the respondents that
by letter dated August 27,1945, not offered in evidence, the A. F. of L.
apprised the respondents of its majority representation claim,
Demory's testimony fails to establish that at the time of his conver-
sation with Melsha during the first week of September 1945, lie had
any definite information as to the A. F. of L.'s claim or the extent, if
any, of its organizational activity in the plant. In this connection, it
is observed that all A. F. of L. membership cards among the respond-
ents' employees were dated in October 1945, about a month after
Demory's conversation with Melsha.
In balancing the various factors bearing upon the credibility issue
raised by the respondents, we deem it highly significant that the
statements attributed to Demory by Melsha are somewhat in character
with Demory's statements to other employees concerning union mat-
ters. For example, as mentioned above, Demory told Gardner that
Melsha almost lost his job because of his earlier union activity. Also,
' This cross-examination took place about 2 hours after the direct examination.
THE PICKWICK COMPANY 317
according to Gardner's uncontradicted testimony, when he told
Demory that the "boys are joining the Union," Demory replied that
"They're very foolish for doing it," and later asked Gardner "Who is
the head of this organizing, Beason?" Finally, there is undenied
testimony by Chauncey Zabodsky, that on the day he was hired,
Demory asked him "what he thought of the Union." 5
On the basis of the foregoing and the entire record, we find, as did
the Trial Examiner, that Melsha was a credible witness and that
Demory made the several statements attributed to him by Melsha.
With respect to Gardner, the respondents contend that his dis-
puted testimony as to his conversation with Demory at the time the
latter proposed the transfer in question is not worthy of belief because
of an alleged inconsistency between his testimony that at the time of
the proposed transfer Demory had told him that he was unable to give
him a reason, and the fact that Demory later handed him his "Notice
of Separation" specifically stating that he was being separated because
"he was not able to handle this type of work and refused transfer to
another department." 6 However, the record shows that the "Notice
of Separation" was handed to Gardner some 2 hours after his conver-
sation with Demory and, in our opinion, this incident is not probative
of whether Demory had previously known, or had told Gardner, the
reason for his transfer. Moreover, even if Demory had known the
alleged reason for Gardner's transfer, his refusal to disclose it in his
conversation with Gardner can reasonably be attributed to a reluc-
tance on Demory's part to make a statement to Gardner's face which
both he and Gardner knew to be completely unfounded and to be
merely a pretext for effecting the discriminatory transfer.
Under all the circumstances, we find, like the Trial Examiner, that
Gardner is a credible witness. Moreover, even if we were to disre-
gard the disputed portion of Gardner's testimony as to the conversa-
tion in question, including his statement that he was not offered a
transfer to his former work in the assembly department, we are con-
vinced by the other circumstances relied on by the Trial Examiner,
and by the record as a whole, that the respondents sought to transfer
Gardner to a less desirable position because of his union activity and
not for the reasons assigned by the respondents at the hearing. We
also agree with and adopt the Trial Examiner's recommendation that
Gardner be reinstated with back pay from the date of his separation.T
' Melsha testified that on the day Zabodsky was hired , Demory asked Melsha ( who knew
Zabodsky) " if he was an agitator."
9 The "Notice of Separation" was made out in accordance with instructions given by
Demory.
7 See Matter of United Aircraft Corporation, Pratt & Whitney Aircraft Division, 67
N. L. R. B. 594; Matter of Theodore R. Schmidt, 58 N. L. R. B. 1342; Matter of Kopman-
Woracek Shoe Mfg. Co., 66 N. L. it. B 789.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 orders that the respondents , Jerry Srp , Rose Srp, Milo Pecina,
Emma Pecina, F. E. Corey, Pauline Corey, Fred C. Corey, Susan
Corey, Trustee for Walter Corey, John J. Zachar, Olga Zachar, Rev.
A. L. Zachar, Trustee for Rosemary Zachar, John Zachar, Jr., Co-
Partners , doing business as The Pickwick Company, Cedar Rapids,
Iowa, and their agents , successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Farm Equipment & Metal
Workers of America, affiliated with the Congress of Industrial Organ-
izations , or any other labor organization , by transfering or discharg-
ing any of their employees , or by discriminating in any other manner
in regard to their hire or tenure of employment, or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining , or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the United Farm Equip-
ment & Metal Workers of America, affiliated with the Congress of
Industrial Organizations , 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 bargain-
ing, or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ralph Gardner immediate and full reinstatement to
his former or a substantially equivalent position , without prejudice
to his seniority and other rights and privileges;
(b) Make whole Ralph Gardner for any loss of pay he has suffered
as a result of the respondents ' discrimination against him , by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages during the period from the date of his
discharge to the date of the respondent 's offer of reinstatement, less
his net earnings during such period;
(c) Post at its plant at Cedar Rapids , Iowa, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A." 8
Copies of said notice , to be furnished by the Regional Director for
the Eighteenth Region, shall , after being duly signed by the respond-
ents ' representative , be posted by the respondents immediately upon
8 This notice , however , shall be, and it hereby is, amended by striking from the fist para-
graph thereof the words "THE RECOMMENDATIONS OF A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER."
THE PICKWICK COMPANY 319
the receipt thereof, and maintained by them for sixty (60) consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondents to insure that said notices are not altered,
defaced, or covered by any other material; and
(d) Notify the Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondents have taken to comply herewith.
MR. GERARD D. REILLY, concurring in part, dissenting in part :
I concur with the findings and Order in this case except that portion
of the remedy which awards back pay to Ralph Gardner who elected
to refuse a transfer to other work which was not shown to have been
intolerable, and thereby forced his termination. Gardner's proper
course of action in the circumstances would have been to accept the
tranfer s and then to file charges invoking his administrative remedies
under the Act. I am of the opinion, therefore, that Gardner is en-
titled to no more than reinstatement to his former position. 10
INTERMEDIATE REPORT
Mr. Stanley D. Kane, for the Board.
Elliott, Shuttle worth & Ingersoll, by Messrs. Owen N. Elliott and Charles A.
Hastings, of Cedar Rapids, Iowa, for the respondents.
Meyers & Meyers, by Mr. Irving Meyers, of Chicago, 111, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on February 13, 1946, by United Farm
Equipment and Metal Workers of America, affiliated with the Congress of Indus-
trial Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, on February 13, 1946, by the Regional Director
for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint
against Jerry Srp, Rose Srp, Milo Pecina, Emma Pecina, F. E. Corey, Pauline
Corey, Fred C. Corey, Susan Corey, Trustee for Walter Corey, John J. Zachar,
Olga Zachar, Rev. A. L Zachar, Trustee for Rosemary Zachar, and John Zachar,
Jr., Co-Partners, doing business as The Pickwick Company, Cedar Rapids, Iowa,
herein collectively called the respondents, alleging that the respondents had
engaged in and are engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National
9 This conclusion is buttressed by the decision of an Appeal Tribunal of the U S Employ-
ment Service at Cedar Rapids, Iowa, which, in denying Gardner's application for unem-
plo^ ment compensation, stated that Gardner "had failed without good cause to accept
suitable work when offered by the Pickwick Company "
10 See my dissenting opinion in Matter of 1Vaples -Platter Company, 49 N L R. B 1156 at
1159-60, and the subsequent reversal of the majority by the Fifth Circuit in 140 F. (2d)
228. See also my dissenting opinions in Matter of United Aircraft Corporation, Pratt &
Whitney -tireiaft Division, 67 N L R. B 594, and Matter of Kopnean-Woracek Shoe
Mfg. Co., 66 N. L. R. B 789
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint and the amended charge, accompanied by notice of hearing thereon, were
duly served upon each respondent and upon the Union.
With respect to unfair labor practices the complaint alleged in substance that
the respondents : (1) from on or about August 1, 1945, advised, urged, and warned
their employees from affiliating with the Union or from engaging in concerted
activities for the purpose of collective bargaining and other mutual aid and
protection; (2) threatened to close the plant if the Union became the collective
bargaining representative of their employees or if the employees joined or
assisted the Union; (3) offered special privileges to those employees who re-
frained from engaging in concerted activities for the purpose of collective
bargaining and other mutual aid and protection ; (4) questioned their employees
regarding their union activities; (5) discharged Ralph Gardner on or about
August 27, 1945, and thereafter refused to reinstate him to his former position
or to employ him in any capacity whatsoever, because he had joined and assisted
the Union and had engaged in concerted activities with his fellow employees for
the purpose of collective bargaining and other mutual aid and protection ; and
(6) by such acts and conduct interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The answer duly filed by the respondents on February 23, 1946, admits all the
allegations of the complaint pertaining to the nature and extent of the business
transacted by them, but denies the commission of the alleged unfair labor prac-
tices. The answer affirmatively avers that Gardner was not discharged, as
alleged in the complaint, but voluntarily quit his job on August 27, 1945. The
answer also avers: (1) the Union, the International Association of Machinists,
and the respondents entered into a consent election agreement on October 2, 1945,
for the purpose of ascertaining the collective bargaining representative of the
respondents' employees; (2) an election was duly held on October 12, 1945, under
the auspices of the Regional Director for the Eighteenth Region; (3) the objec-
tions to the elections filed by the Union were overruled by the said Regional
Director on December 21, 1945; (4) the International Association of Machinists
was duly certified by the said Regional Director on January 24, 1946, as the col-
lective bargaining representative of the respondents' employees; and (5) because
of the foregoing all the allegations of the complaint with respect to the commis-
sions of any unfair labor practice antedating October 2, 1945, should be dismissed
for the reason that the Union waived its right to press its charge by entering into
the said consent election agreement, the ruling of the Regional Director with
respect to the objections to the election is res judicata with respect to the events
occurring prior to the date of the said consent election agreement, and the Board
is foreclosed and estopped from passing upon the merits regarding the incidents
alleged to have occurred prior to the date of the said consent election agreement.
Pursuant to notice, a hearing on the complaint was held in Cedar Rapids, Iowa,
on February 27, 1946, before the undersigned, Howard Myers, a Trial Examiner,
duly designated by the Chief Trial Examiner. The Board, the respondents, and
the Union were represented by counsel and participated in the hearing. The
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. At the conclusion
of the hearing, Board's counsel moved to conform the pleadings to the proof.
The motion was granted without objection. Respondents' counsel then moved
to strike all evidence with respect to any incident alleged to have taken place
prior to October 2, 1945, the date of the consent election agreement. Decision
thereon was reserved. The motion, for the reasons set forth in Section III, below,
is hereby denied At the conclusion of the taking of the evidence, oral argument,
THE PICKWICK COMPANY 321
in which counsel for the Board and the respondents participated, was heard and
is part of the record. The parties were granted leave to file briefs with the under-
signed on or before March 8, 1946. A brief has been received from the respond-
ents' counsel.
Upon the entire record in the case and upon his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Jerry Srp, Rose Srp, Milo Pecina, Emma Peciria, F E. Corey, Pauline Corey,
Fred C. Corey, Susan Corey, Trustee for Walter Corey, John J. Zachar, Olga
Zachar, Rev. A. L. Zachar, Trustee for Rosemary Zachar, and John Zachar, Jr.,
are co-partners doing business as The Pickwick Company, with their principal
office and place of business in Cedar Rapids, Iowa' At Cedar Rapids the respond-
ents are engaged in the manufacture, sale, and distribution of chicken pickers
and of hoists for farm equipment. The annual purchases of the Cedar Rapids
plant aggregate approximately $100,000, about 50 percent of which is delivered
to that plant from points outside the State of Iowa. The annual sales of the
Cedar Rapids plant aggregate approximately $400,000, about 90 percent of which
is shipped to customers and users located outside the State of Iowa.
The respondents concede that they are engaged in commerce within the mean-
ing of the Act.
II. THE ORGANIZATION INVOLVED
United Farm Equipment and Metal Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the respondents.
W. THE UNFAIR LABOR PRACTICES
A. Background
In November 1944, the Union commenced to organize the respondents' employ-
ees. The record does not disclose exactly when the campaign ceased, but there
are indications that it was short-lived. The respondents' disapproval of the
Union's attempts to organize their employees is evidenced by the remark made
by Plant Superintendent Demory to Employee Ralph Gardner in May 1945, that
Lester Melsha, who had been the Union's most active campaigner, "pretty near
lost his job" because he "started organizing the Union" in the plant.
B. Interference, restraint, and coercion; the discriminatory discharge of Ralph
Gardner -
Gardner was first hired by the respondents on December 6, 1944, as an assem-
bler at the rate of 75 cents per hour. On March 16, 1945,2 his hourly pay was
raised to 771/2 cents and on May 11, it was raised to 781/2 cents. According to
Gardner's testimony, Demory told him sometime in May or June that William
Myers, the shipping clerk, was lazy and was not getting enough production
shipped ; that Myers would either be discharged or transferred. On about July
12, Myers was transferred to the position left vacant by the resignation of the
stock room clerk, and on that day Gardner was made shipping clerk. Demory
I The respondents also own and operate a plant in Indianola, Iowa. This proceeding,
however, involves only the employees of the Cedar Rapids plant.
2 Unless otherwise indicated all the events hereinafter set out took place in 1945.
701592-47-vol 69-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied making derogatory statements about Myers He admitted, however, that
he had a conversation with Gardner about Myers prior to Myers' transfer.
Regarding this conversation and the reasons for transferring Gardner to the
shipping department, Demory testified, in response to questions propounded to
him by respondents' counsel, as follows :
Well, Mr Gardner and Mr. Myers, Mr Myers was such a good inspector there
that he was severe on every little fault, you know, that he would find ; and
Mr. Gardner didn't seem to like that ; he thought Mr Myers was a little bit
too fussy, and he resented that quite a lot, and so Mr. Gardner said he could
handle that shipping job easily, and he said Mr Myers is down on his lard
all the time on a stool; and he said, "I could be doing that work in half the
,time and be helping in assembly," and he said, "Mr. Myers don't help on
assembly at all " Do you want me to tell this?
Q Yes, go ahead.
A. And I says, "How much or do you knew how much work there is there?'
And he says, "Sure," and I says, "Maybe some day you will have a chance to
get that fob," and I don't know how it happened or I didn't know when it
would be, and I just sort of laughed it off, and then the time came an I
asked Ralph if he wanted that job, and he said, "Sure "
Gardner was a forthright and honest witness. Demory did not so impress the
undersigned ; he appeared to be an evasive and shifty witness. His entire testi-
mony evidences a lack of candor. The undersigned credits Gardner's version
regarding his conversation with Demory about Myers. The finding is buttressed
by the fact that the respondents' records show that a greater amount of mer-
chandise was shipped during Gardner's tenure as shipping clerk than when
Myers was in that capacity.
On or about July 12, Gardner assumed his duties as shipping clerk and his
hourly wage was raised to 80 cents. In the early part of August several of the
employees asked Gardner to unionize the plant. He agreed and before his
discharge on August 27, he had signed up about 16 of the then 34 employees in
the Union. Gardner was the most active organizer of the Union's 1945 campaign.
According to Gardner's credible and undenied testimony, about 4 or 5 days
after Gardner started to solicit members for the Union, he and Demory had a
conversation wherein Gardner told Demory "the boys are joining the Union, I
guess you know that" and that Demory replied, "Yes, I do . . . . They're very
foolish for doing it"; that Demory then walked away, but returned in a few
minutes and asked him "Who is the head of this organizing, Beason?"; that he
answered, "No, sir, he wasn't"; that Demory then asked "Who is?"; and that
he replied, "Well I don't know . . . . He isn't."
According to the testimony of former employee Lester Melsha, Demory told
him sometime in the latter part of July or in the early part of August, that
"The God-damned C. I. 0 is organizing again" ; that he replied "You can't blame
that on to me; I was 125 miles away";' and that Demory said "No, I guess
nobody can." Melsha further testified that sometime around the period just
mentioned, he was talking to Gardner in the plant and Demory called him aside
and said that "I had better stay away from him (Gardner) for my own good,
that he (Gardner) is nothing but a damn Union agitator and I had better stay
away from him (Gardner) if I don't want to cut my own throat" Melsha also
testified that one evening around the middle of August, he and Demory were
i At the time of this conversation, Melsha had just returned from the annual 2-weeks
training trip of the Iowa State Guard.
THE PICKWICK COMPANY 323
riding home from work in the latter's car and Demory told him that "he was
going to fire Mr. Gardner , that he was no good and was just causing a lot of
agitation and trouble around there , and he was going to put Ernie Buelow in
his place." Melsha also testified that shortly before or shortly after the con-
versation he had with Demory in the automobile, Demory told him "if the guys
didn't quit messing around, that the Company was going to move the plant
to Indianola and I would have to move down there, too." Regarding a con-
versation he had with Demory in the latter part of August or in the early
part of September , Melsha tes :ified that Demory said , "Gee whiz, I can't under-
stand why the A. F. of L don't co-ie in here, what do you think?" and that he
replied, "I think they are . . . , and I would fight them if they ever did come
in here." Demory denied making the statements attributed to him by Melsha,
but admitted that he and Melsha were good friends , and that he drove Melsha
home from work on a good many occasions . He also denied making any
derogatory statement about the Union to any employee. The undersigned was
impressed with the sincerity with which Melsha testified and with his demeanor
while on the witness stand. His testimony, moreover, was not materially shaken
on cross-examination. The respondents contended at the hearing that little or
no credence should be given to Melsha's testimony because of his membership
in the Union and his admitted fondness and loyalty to it and therefore he was
antagonistic to, and biased against, the respondents. Melsha's antagonism or
bias against his former employer on the grounds advanced cannot be assumed
in the absence of some clear evidence to support it The record contains
no such evidence The undersigned rejects Demory's denials and finds that he
made the statements attributed to him by Melsha.
Gardner testified that shortly after he reported for work on August 27, 1945,
Mr. Demory came out and asked me to come in the shipping clerk's office,
and I went in there with him, and he said, "I am sorry, but I am going to
have to let you go" I said, "Is that right?" And he said, "Yes" And I said,
"For what reason?" And he said "Well, I can't give you that," and he said,
"I don't know." And he said, "I can't give you that." And I said, "There
must be a reason ." And he said, "Well, Mr. Corey (Flournoy E. Corey,
one of the partners and general manager of the Cedar Rapids plant) is
the only man can tell you ;" and I said, "Who is going to be put in my
place?" And Earl, I forgot his last naive, he said he was going to put
him in there, and said, "Are iou going to put a new man in my place? He
has only been there two weeks" I said, "Why don't you put an old man
in there?" And he said "Well, that's my orders, and that is all I know about
it " I said, "I am going to stick around and wait for Mr. Corey". . . .
And I stopped around there for about ten minutes, and Mr Demory came
back and he said "I can put you in the machine shop if you want," and I
said, "No, I want to find out why I am put out of this job," and he said, "I
can't tell you ;" and so I said, "I will wait for Mr. Corey." So I waited
around there for about two hours, and Mr Corey never showed up, and so then
I went back to the C. I. O. office to see what I should do, . . . .
Demory testified that during the weekend which immediately preceded Gardner's
discharge, which took place on Monday, August 27, lie had decided to transfer
Gardner to another department because too many complaints were being re-
ceived from customers and from the respondents' Indianola plant regarding
the faulty condition in which the merchandise was being received by them ;
that upon arrival at the plant on August 27, he informed Ernest Buelow, who
began his employment with the respondents on August 6, 1945, that he was to
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replace Gardner as shipping clerk ; and that when Gardner arrived at the plant
that morning the following transpired :
I told him (Gardner) that morning I would have to change him and take
him out of this job because we had been having too many complaints and
"you don't seem to get any better," and he said, "Is that the only reason?"
And I said, "Yes " I said, "You can go into either the machine shop or
sheet metal or any other place in the plant, Ralph, and work for the same
money," and he said, "No, if I can't hold this job, I don't want nothing else,
I'll quit." And I said, "No, I think you're making a mistake on that," and
he said, "Can I see Mr. Corey?" And I said, "Well, Mr. Corey will be down
at 10 o'clock ; you have the privilege of seeing Mr. Corey ;" and in the mean-
time I started to walk out towards the machine shop, and Ralph was walking
along with me, and so he decided that he would see Mr. Corey and wait for
him.
The undersigned is convinced, and finds, that Gardner's version of what took
place on August 27, is substantially in accord with the facts. It is significant to
note, at this point, that at no time did Demory specifically offer Gardner the
job which he had in the assembly department immediately prior to becoming
shipping clerk, which position, the credible evidence shows, Gardner fulfilled
with commendation.
The contention of the respondents that Gardner was unable to properly per-
form the work of shipping clerk and for that sole reason Demory decided to
transfer him to another department, the choice of which was left to Gardner,
is not supported by the record. The credible evidence reveals that Demory did
not leave the matter of the transfer to Gardner, but, on the contrary, Demory
ordered Gardner to be transferred to the machine shop. Gardner correctly
understood he was being demoted by the transfer because the credible evidence
shows that newly hired unskilled employees were placed in that department,
and that the work in that department was far less pleasant than the task of
shipping clerk. Demory admitted that the work in the machine shop is "dirtier"
than that in the shipping department.
The respondents' other contention that complaints from customers and from
the Indianola plant increased during Gardner's tenure as shipping clerk and
that these were attributable to Gardner's incompetency is likewise not sup-
ported by the record. Gardner testified, and the undersigned finds, that at no
time did Demory or any other official criticize his work as shipping clerk ;
that on several occasions he called Demory's attention to the faulty condition
of certain machines which he had refused to approve for shipping, although
they had been crated and prepared for shipment ; that Demory himself ap-
proved these machines for shipment, although admitting that Gardner's objections
were justified ; that Demory placed his own approval upon the machines and
they were then shipped Demory admitted that on several occasions Gardner
refused to approve certain machines because they were not up to standard and
that he approved the machines for shipment, although Gardner's criticisms of
them were correct. Demory and Assistant Manager Dean Hilborn testified at
great length to the numerous written complaints they had received from cus-
tomers and from the other plant of the respondents. They further testified that
in some instances Gardner negligently allowed faulty machines to be shipped
and on other occasions machines were shipped although not properly crated.
Admittedly none of these alleged written complaints was ever called to Gard-
ner's attention nor was any produced at the hearing. The undersigned can-
not credit this testimony that the respondents received written complaints which
reflected upon Gardner's ability, for if they had, it is safe to assume that such
THE PICKWICK COMPANY 325
writings would have been produced at the hearing to support this vital conten-
tion of the respondents. Demory testified, moreover, that the only complaint
he called to Gardner's attention was one allegedly made by a customer in New
York, but if that complaint was in, writing, the writing was never shown to
Gardner. Demory admitted that he was not certain whether this machine was
shipped by Gardner or by someone else or whether Gardner or someone else
had approved the machine before it was shipped .4
The undersigned is convinced, and finds, that the respondents' contention that
Gardner's membership and activities in behalf of the Union played no part in
Demory's determination to transfer Gardner to the machine shop is unsupported
by the credible evidence. That Gardner did not resign his job of his own free
will and accord but was, in effect, forced to do so on account of his union
membership and activities is evidenced by the combination of the following:
(a) he became a volunteer organizer for the Union at the solicitation of his
co-workers and was the most active member of the Union in the plant, and had,
within a short time secured 16 members for the Union, out of 34 potential candi-
dates ; (b) Demory knew of Gardner's union membership and activities and
openly expressed his disapproval thereof; (c) no complaints were made re-
garding Gardner's work prior to his union affiliation; (d) there was a complete
absence of any credible and convincing evidence that Gardner did not properly
perform his duties as shipping clerk; (e) none of the alleged written complaints
regarding his alleged neglect in handling his job were ever submitted to Gardner
or produced at the hearing ; (f) Demory's statement to Melsha that he "had
better stay away from (Gardner) if (he) don't want to cut (his) own throat,"
and Demory's statement to Melsha made two weeks before the proffered transfer
that "he was going to fire Mr. Gardner, that he (Gardner) was no good and was
just causing a lot of agitation and trouble around there . . ." (g) Gardner
had worked himself up from a less desirable job to one of the most desirable
jobs in the plant, with pleasant working conditions and considerable independ-
ence of action, the transfer to the machine shop, the place where beginners were
started, even though at the same rate of pay, was such a radical change in
working conditions as to constitute an obvious demotion, which the respondents
had every reason to believe Gardner would not accept; and the respondents'
general hostility toward the unionization of their employees as demonstrated by
their other unfair labor practices. Under the circumstances of this case, the
undersigned is convinced, and finds, that Gardner's proffered transfer was tan-
tamount to a discharge, inspired by his membership and activities in behalf of
the Union,'
4 Hilborn and Demory testified that on occasions they shipped machines in the absence
of Gardner.
See Matter of East Texas Motor Freight Lines, 47 N. L. R. B. 1023 , enf'd 140 F. (2d)
404 (C. C. A 5), where the Board said on page 1029 "Although each of the employees
resigned , an employee who resigns because he is given to understand that his employer's
hostility towards his union membership will adversely affect his future conditions of employ-
ment, has been discriminated against within the meaning of Section 8 (3) of the Act.
Such a resignation is tantamount to a discharge ." See also Matter of Federbush Co., Inc.,
34 N. L. R. B., 539; Matter of Chicago Apparatus Company, 12 N. L. R. B. 1002, enf'd 116
F. (2d) 753 (C. C. A. 7) ; and The Alexander Milburn Company , 62 N. L. R. B. 482. The
instant case is distinguishable from Matter of St Joseph Lead Company, 65 N. L. R B 439,
where the evidence did not disclose , and no contention was made, that the alleged discrim-
inate, Ratley, quit because he was under the apprehension that he would be discharged
anyway for union activities . On the contrary, the majority of the Board pointed out that
the respondent persistently endeavored to dissuade Ratley from resigning . The decision
in that case merely hinged on the majority 's (Mr. Houston dissenting in part ) determi-
nation , that the resignation was not caused 'by intolerable conditions discriminatorily
imposed.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to arrangements, Gardner and Harold Fischer, a District Representa-
tive of the Union, called upon F. E Corey and Jerry Srp on September 4, to
discuss with them the Union's demand for recognition and the reinstatement of
Gardner. Corey and Srp refused to discuss the mattier but suggested that they
go to the office of the respondent's counsel. Upon arriving there, Owen N.
Elliott, the respondents' counsel, told Gardner and Fischer that he had telephoned
to Charles W Hobbie, the District President of the Union, that morning, and
had told him that the appointment had to be cancelled because the International
Association of Machinists had notified the respondents that it represented the
employees and that he had also told Hobbie that the question of representation
would have to be resolved by the Board.
Board's counsel contended at the hearing that the respondents violated the
Act by refusing to re-employ Gardner because of his membership and activity in
behalf of the Union, despite the fact that Hobble, Fischer, and Gardner had
each asked Elliott to either reinstate Gardner as shipping clerk or to employ
him in some other capacity at the respondents' plant.
Elliott testified that Hobbie never discussed Gardner with him. He also testi-
fied that Gardner and Fischer had asked him to reinstate Gardner to the job as
shipping clerk and that he refused to do so. Elliott denied that any request was
ever made by either Gardner or Fischer to hire Gardner in some other capacity.
Fischer testified that he requested F. E. Corey to either reinstate Gardner to the
job of shipping clerk or to re-employ him in some other capacity and that Corey
refused to do so. Corey denied that Fischer asked him to hire Gardner in any
capacity other than shipping clerk. Hobbie testified that in a telephone con-
versation with Elliott he asked Elliott "if there could be some arrangements
made by which they would re-hire Mr. Gardner or re-instate him on any job in
the plant" and that Elliott replied "nothing could be done whatsoever so far as
Mr. Gardner was concerned." Gardner testified that Fischer at the September 4
meeting in Elliott's office asked Elliott "about giving me my job back." The
undersigned is convinced, contrary to the contention of Board's counsel, and
finds, that no demand was ever made by anyone to have the respondents employ
Gardner in any other position except that of shipping clerk.
C. Concluding findings
The respondents contend that the Board is "estopped" from considering events
antedating the consent election agreement of October 12, 1945, in making any
finding as to unfair labor practices. There is no merit to this contention. On
September 11, 1945, the Union filed a charge alleging the discriminatory discharge
of Ralph Gardner and the commission of certain other unfair labor practices.
On October 2, 1945, the Union, the respondents, and the International Associa-
tion of Machinists entered into an agreement for the purpose of ascertaining by
secret ballot the collective bargaining representative of the employees in a
certain appropriate unit. On the same day, the Union executed a waiver in the
usual form . By the execution of the waiver the Union agreed, in effect, that
in the event the results of the election were adverse to it, it would not make
use of the alleged unfair labor acts and conduct of the respondents which ante-
dated the date of the consent election agreement, and which were the basis of
the charge filed on September 11, as evidence that the respondents interfered
with the conduct of the election. The election was conducted by the Regional
Director on October 12, and was won by the International Association of Machin-
ists By letter dated October 18, the Union advised the Regional Director as
follows :
THE PICKWICK COMPANY 327
Following the verbal agreement for a consent election on October 1st, 1945
and signing of the waiver by our representative, Harold Fischer, on Octo-
ber 2, 1945, the Company did interfere with the employees' right to free
choice of their bargaining agent; the Company through its supervisors and
agents did intimidate and coerce employees into joining the A. F. of L and
thereby affected their free choice.
The Company did in effect, through threats and statements by its agents
and supervisors, coerce the employees into voting for the A. F. of L.
On October 3, 1945 agents of the Company, on Company time, compelled
employees to sign for the A. F. of L.
Company agents and supervisors told employees that if they had signed
with the A F. of L. they had to vote that way in the election.
By the above acts the Company did interfere with the election and the
rights of the employees and it is hereby alleged that aforesaid acts are
cause for setting the election in the above case aside.
It is to be noted that the complained of conduct set forth in the Union's letter of
October 18, specifically refers to events which occurred subsequent to the date
of the election agreement. Therefore, the only issues which the Regional Di-
rector passed on were those raised by the objections contained in the Union's
letter of October 18, and pertained only to conduct of the respondents subsequent
to the consent election agreement and the waiver. No appeal was taken from
the Regional Director's report dismissing the objections. Accordingly, the under-
signed in making the findings herein, has not considered the alleged coercive
conduct of the respondents, passed on by the Regional Director, which occurred
subsequent to the election agreement. However, all the findings and conclu-
sions herein contained and set forth pertain to and are based upon those previous
matters which were contemplated in the original charge and the amended charge
and which, by reason of the waiver, were not available to the Union as the basis
for setting aside the election But the effect of the waiver may not extend beyond
the election. By it, those original issues may not be barred fiom being made
the subject of litigation by the Board in carrying out its duties to prevent the
commission of unfair labor practices By failing to proceed in a case such as
this, where discriminatory conduct has been engaged in and accompanied by
clear efforts of the respondents to restrain and coerce their employees, the Board
would be performing less than its duty if it (lid not go forward on the charge of
the Union, regardless of the results of the election. The waiver is purely an
administrative process of the Board By the execution of the waiver and the
consent election agreement the Union did not forfeit its right to press its charge
with respect to the alleged unfair labor practices which antedated October 12,
1945. The unfair labor practice charges have no relation to the question of
representation involved in the consent election Nor is the Board estopped or
foreclosed from proceeding on the charge because the Regional Director had
approved and conducted the consent election and had passed upon the Union's
objections It is well settled that the Board's duty with respect to the repre-
sentation cases is wholly different and distinct from the duty imposed upon it
with respect to unfair labor practice cases The election agreement merely em-
bodied an understanding that an election should be held under the auspices of
the Regional Director to determine which of the two labor organizations repre-
sents a majority of the respondents' employees. It (lid not in any way purport to
condone, nor did it constitute a compromise, of the respondents' interference,
restraint, or coercion of the rights guaranteed in Section 7 of the Act Nor does
the record disclose that the Union agreed, as consideration for the consent elec-
tion, that it would not press charges based on events which happened prior to
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of the consent election agreement. It did no more than agree with the
Board that it would participate in the election and take its chances that the
previous conduct of the respondents would not so seriously influence the em-
ployees as to affect their votes
In the Matter of Hope Webbing, 14 N. L R B 55, and Matter of Wickwire
Brothers,' 16 N. L R. B. 316, the Board established the principle that where, with
knowledge of the facts before them, its representatives have approved a consent
election agreement in which an admittedly legitimate labor organization con-
tests with an independent or unaffiliated union, it will not subsequently proceed
with a charge filed by the defeated legitimate union that the employer, absent
subsequent unfair labor practices, had previously engaged in unfair labor prac-
tices under Section 8 (2) of the Act with reference to the successful unaffiliated
union. While the Board holds that it is not estopped from proceeding with the
charges, it does do so, however, through a sense of fair play and an unwillingness
to allow the employees to be misled, since, by placing the unaffiliated union on
the ballot the Board in effect, has held it out as being capable of acting as a
representative of the employees. There are, however, no cases where the Board
or the Courts have held that the Board is estopped or foreclosed from proceeding
with charges of discrimination or acts of general interference, restraint, and
coercion which antedated the execution of the consent election agreement. For
these reasons the undersigned finds that the Board is not "estopped" from
considering events antedating the consent election agreement in making any
findings as to unfair labor practices.
As found above, efforts to unionize the employees of the respondents were
made by the Union in 1944. This campaign, however, was short-lived. In the
summer of 1945, the Union again commenced a drive for members. This activity
brought from the respondents efforts to prevent unionization, The respondents
displayed its antipathy and hostility for the unionization of their employees
by: (1) the discharge of Gardner; and (2) the acts and conduct of Demory, in-
cluding his statement that the respondents would move the plant to Indianola
if the Union succeeded in its efforts to organize the plant Upon the basis of
the above findings and upon the entire record, the undersigned finds that the
respondents interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act The undersigned
further finds that by the discharge of Gardner the respondents discriminated in
regard to his hire and tenure of employment thereby interfering with, restrain-
ing, and coercing their employees in the exercise of the rights guaranteed in
Section 7 of the Act. The undersigned further finds that the evidence is in-
sufficient to support the allegation of the complaint that the respondents offered
special privileges to those employees who refrained from engaging in concerted
activities. Accordingly, the undersigned will recommend that this allegation
of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
See also , The Wallace Corporation v. N. L R B, 323 U. S. 248, N L. R B v Gilfilan
Bros , Inc., 148 F. (2d) 990 (C C. A. 9) ; Utah Copper Co. v. N. L. R B, 139 F. (2d) 788
(C C. A. 10), cert. denied 322 U. S 731; American Federation of Labor v N. L. R B, 308
U. S. 401 ; Warehousemen 's Union V N. L. R B., 121 F (2d) 84 (App D C ), cert. denied
314 U. S. 674; Magnolia Petroleum Co. v. N. L. R. B, 115 F. (2d) 1007 (C. C. A. 10)
and N. L. It. B. v Sun Shipbuilding & Dry Dock Co., 135 F. (2d) 15 (C. C. A. 3).
THE PICKWICK COMPANY 329
among the several States, and such of them as have been found to be unfair
labor practices tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor practices,
the undersigned will recommend that the respondents cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Since it has been found that the respondents discriminated in regard to the
hire and tenure of employment of Ralph Gardner by discharging and refusing
to reinstate him because of his union membership and activities, the undersigned
will recommend, in order to effectuate the policies of the Act, that the respond-
ents offer to him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority and other rights and
privileges, and that the respondents make him whole for any loss of pay he
may have suffered by reason of the respondents' discrimination against him,
by payment to him of a sum of money equal to the amount which he would
normally have earned as wages from August 27, 1945, the date of his discharge,
to the date of the respondents' offer of reinstatement, less his net earnings'
during said period.
The scope of the respondents' illegal conduct discloses a purpose to defeat
self-organization among their employees. As soon as the respondents learned
of the union activities of their employees they sought to coerce them in the
exercise of the rights guaranteed them in the Act by warning them, in effect,
that their adherence to the Union would result in loss of employment ; by
making other derogatory statements with respect to the Union; by discrimina-
torily discharging Ralph Gardner; and by threatening to close their plant or
move it elsewhere if the Union were successful in organizing their employees.
Such conduct, which is specifically violative of Section 8 (1) and (3) of the
Act, reflects a determination generally to interfere with, restrain, and coerce
their employees in the exercise of the rights to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, and presents a ready
and effective means of destroying self-organization among their employees.
Because of the respondents' unlawful conduct and since there appears to be
an underlying attitude of opposition on the part of the respondents to the
purposes of the Act to protect the rights of employees generally,' the under-
signed is convinced that if the respondents are not restrained from committing
such act, the danger of their commission in the future is to be anticipated from
the respondents' conduct in the past, and the policies of the Act will be de-
feated. In order, therefore, to make effective the interdependent guarantees of
Section 7 of the Act, to prevent a recurrence of unfair labor practices, and
thereby minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, the undersigned will recommend that
4 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company , 8 N L It. B 440 . Monies received for work performed
upon Federal , State , county , municipal , or other work -relief projects shall be considered
as earnings. See Republic Steel Corporation v N. L. R. B., 311 U. S 7.
8 See May Department Stores Company , etc. v. N. L. R. B., 326 U S. 376.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondents cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.'
On the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS of LAW
1. United Farm Equipment & Metal Workers of America , affiliated with the
Congress of Industrial Organizations , is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of
Ralph Gardner , thereby discouraging membership in the United Farm Equip-
ment & Metal Workers of America , affiliated with the Congress of Industrial
Organizations , the respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 ( 3) of the Act
3. By interfering with, restraining , and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have en-
gaged in and are engaging in unfair labor practices within the meaning of
Section 8 ( 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
5. The respondents did not offer special privileges to those employees who
refrained from engaging in concerted activities , as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondents, Jerry Srp, Rose Srp, Milo Pe-
cina, Emma Pecina, F. E. Corey, Pauline Corey, Fred C. Corey, Susan Corey,
Trustee for Walter Corey, John J. Zachar, Olga Zachar, Rev. A. L. Zachar,
Trustee for Rosemary Zachar, John Zachar, Jr., Co-partners, doing business as
the Pickwick Company, of Cedar Rapids, Iowa, their agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Discouraging membership in the United Farm Equipment & Metal
Workers of America, affiliated with the Congress of Industrial Organizations, or
any other labor organization of their employees, by discriminating against them
in regard to the terms and conditions of employment of any of their employees,
or in any other manner discriminating in regard to their hire and tenure of
employment or any terms or conditions of employment;
(b) In any other manner interfering with, restraining, and coercing their
employees in the exercise of their rights to self-organization, to form labor organi-
zations, to join or assist the United Farm Equipment & Metal Workers of America,
affiliated with the Congress of Industrial Organizations, 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 Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Make Ralph Gardner whole in the manner set forth in "The remedy"
for any loss of earnings he may have suffered by reason of the respondents'
9 See N L R. B v . Cheney California Lumber Company , U S Supreme Court, decided
February 26, 1946.
THE PICKWICK COMPANY 331
discrimination against him from August 27, 1945, to the date of the respondents'
offer of reinstatement ;
(b) Post at its plant at Cedar Rapids, Iowa, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Eighteenth Region, after being duly signed by the
respondents' representative, shall be posted by the respondents immediately
upon the receipt thereof, and maintained by them for sixty (60) consecutive
days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the
respondents to insure that said notices are not altered, defaced, or covered by
any other material ;
(c) Notify the Regional Director for the Eighteenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondents have taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional Di-
rector in writing that they will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondents
to take action aforesaid.
It is further recommended that the allegation of the complaint that the
respondents offered special privileges to those employees who refrained from
engaging in concerted activities be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C, an original and four copies of
a statement in writing, setting forth such exceptions to the Intermediate Re-
port or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and
four copies of a brief in support thereof Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of the order transferring the case to the Board
HOWARD MYERS,
Trial Examiner.
Dated March 27, 1946.
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 UNITED FARM EQUIPMENT AND METAL
WORKERS OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL
ORGANIZATIONS, or any other labor organization, to bargain collectively
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Ralph Gardner
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
THE PICKWICK COMPANY
Employer.
Dated------------------------ By --------------------------------
(Representative) (Title)
NomE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the selective service act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.