The Reardon Co.

National Labor Relations Board - Board Decisions

Oct 8, 1945

63 N.L.R.B. 1461 (N.L.R.B. 1945)

In the Matter of THE REARDON COMPANY and UNITED GAS, COKE AND
CHEMICAL WORKERS OF AMERICA, CIO
Case No. 14-C--X1.Decided October 8, 1945
DECISION
AND
ORDER
On March 13, 1945, the Trial Examiner issued his Intermediate Re-
port 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 out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent -filed exceptions to the
Intermediate Report and a supporting brief. On August 17, 1945,
the Board heard oral argument at Washington, D. C. The respond-
ent participated in the argument; the Union did not appear.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent's exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dation of the Trial Examiner with the exceptions and qualifications
hereinafter set forth.
1. The Trial Examiner found that the respondent, in refusing to
offer reinstatement to 11 of the 14 employees laid off on January 25,
February 2, and February 9, 1944, discriminated against these em-
ployees in regard to hire and tenure of their employment, because of
their union membership in violation of Section 8 (3) of the Act. We
do not agree.
The record discloses knowledge by the respondent of the union status
of the 17 employees from whom the Union had authorization cards on
January 19, 1944, the date of the card check against the respondent's
records, and does not disclose discriminatory treatment as to these
employees. Of the 14 employees laid off, 9 were known union mem-
bers. The respondent sent post cards offering reinstatement to 3
employees, 2 of whom were union members who, upon presenting
themselves, were rehired. Two union employees, not recalled, applied
63 N. L R. B., No. 223. '
1461
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for work; 1 was rehired and 1 was not. Two non-union employees 1
applied for work and both were rejected. Four union and 2 non-
union employees did not apply and were not recalled.
We find that the employees laid off on January 25, February 2,
and February 9, 1944, were not discriminatorily refused reinstate-
ment within the meaning of Section 8 (3) of the Act, when normal
production was resumed on and after March 8, 1944.
2. The Trial Examiner found- that, by statements of President
Reardon, Forelady Blomberg, and Assistant Forelady Sumpter to
the respondent's employees, the respondent had interfered with, re-
strained, and coerced its employees within the meaning of Section 8
(1) of the Act. We do not agree. While in another context, coupled
with other anti-union activity, we would scrutinize such conduct
more critically, we believe that the instant statements, viewed in
the light of the lack of other discriminatory conduct by the respondent
in this case, are not violative of the Act.
3. The Trial Examiner found that on January 19, 1944, the Union
represented a majority of the employees in an appropriate unit, that
the majority status of the Union remained unimpaired by the lay-
offs occurring prior to February 9, 1944, and that the respondent's
refusal to bargain with the Union on and after February 9, 1944,
violated Section 8 (5) and (1) of the Act. We agree with these find-
ings but, unlike the Trial Examiner, base our conclusion that the
Union still represented a majority of the employees in an appropriate
unit at the time of the refusal to bargain on February 9, 1944, upon
the following grounds : Pursuant to an agreement between the Union
and the respondent as to the method of determining the Union's
majority status, the parties on January 19, 1944, compared the Union's
authorization cards against the respondent's records. In this check,
the Union's representative presented union authorization cards con-
taining the names of 17 employees appearing in the respondent's
records out of a total of 28 in the appropriate unit. Thereafter, by
the reductions. in force of January 25, February 2, and February 9,
1944, the respondent laid off 14 employees in the appropriate unit.
The 14 employees laid off included 9 of the 17 known union mem-
bers checked on January 19, thus leaving 8 known union members in
the group of 14 remaining employees in the appropriate unit. This
constituted a clear majority?
1 By non-union employees we mean those whose union affiliation , if any, was not known
to the respondent at the time in question.
2 The record also discloses that in the period between the card check of January 19 and
February 9, the Union had secured 4 additional members, 3 of whom were included in the
lay offs, so that as of the time of the refusal to bargain on February 9, the Union actually
represented 9 of the 14 employees in the appropriate unit
THE REARDON COMPANY
ORDER
1463
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Reardon Company,
St. Louis, Missouri, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in respect to rates of pay,
wages, hours of work, and other conditions of employment with
United Gas, Coke and Chemical Workers of America, CIO, as the
exclusive representative of all production and maintenance employees
at its St. Louis plant, including shipping and receiving employees,.
but excluding executives, superintendents, assistant superintendents,
foremen, laboratory employees, main office employees, shipping and
receiving clerk, and supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action;
(b) Engaging in any like or related act or conduct, interfering
with, restraining, or coercing its employees in the exercise of the
right to self-organization, to form labor organizations, to join or
assist United Gas, Coke and Chemical 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 guar-
anteed 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 United Gas, Coke and
Chemical Workers of America, CIO, as the exclusive bargaining
representative of all of its employees in the aforesaid appropriate
unit;
(b) Post in its plant at St. Louis, Missouri, copies of the' notice
attached hereto, marked "Appendix A." Copies of said notice, to' be
furnished by the Regional Director for the Fourteenth Region, shall,
after ,being duly signed by the respondent's representative, be posted
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. Reason-
able 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 Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT IS FURTI-IER ORDERED , that the complaint, insofar as it alleges
that the respondent violated Section 8 (1) of the Act by certain
statements to its employees and discriminated against Creola Prince,
Irene Tinch, Jessie Thompson, Robert Wilson, Member Pearson,
Leonard Oliver, Melvin Yarbrough, Edna Aufderheide, Delila
Childress, and Hazel Hackey, within the meaning of Section 8 (3) of
the Act, be, and it hereby is, dismissed.
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 refuse to bargain with United Gas, Coke and
Chemical Workers of America, affiliated with the Congress of
Industrial Organizations, as the exclusive representative of our
employees in the bargaining unit described herein;
We will not engage in any like or related act or conduct
interfering with, restraining, or coercing our employees in the
exercise of their right to self-organization, to form labor organi-
zations, to join or assist the above-named 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 protec-
tion. 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 the production and maintenance employees of the
Reardon Company, St. Louis, Missouri, including shipping
and receiving employees, but excluding executives, super-
intendents, assistant superintendents, foremen, laboratory
employees, main office employees, shipping and receiving
clerk, and supervisory employees with authority to hire, pro-
mote, discharge,, discipline, or otherwise effect changes in the
status of employees or effectively recommend such action.
THE REARDON COMPANY,
By -------------------- --------------------
(Representative ) ( Title)
Dated ------------------------
THE REARDON COMPANY 1465
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
Messrs. Joseph Lepie and Harry G. Carlson and Miss Helen F. Humphrey,
for the Board.
Fordyce, White, Mayne, Williams & Hartman, of St. Louis, Mo., by Mr. Frank
E. Williams, for the respondent.
Mr. Joseph Appelbaum, of St. Louis, Mo., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on August 22, 1944, by United Gas, Coke
and Chemical Workers of America, CIO,' affiliated with the Congress of Indus-
trial Organizations, herein called the,Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Fourteenth Region
(St. Louis,' Missouri ), issued its complaint on August 28, 1944, against The
Reardon Company, St. Louis, Missouri, herein called the respondent, alleging
that the respondent had engaged and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and (5) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, accompanied by notice of hearing
thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent: (1) questioned its employees concerning their union affilia-
tion; urged them to refrain from assisting , becoming , or remaining members of
the Union ; threatened them with economic repri$als if they joined or assisted
the Union ; and granted some of them wage increases for the purpose of discourag-
ing membership in or assistance to the Union; (2) on or about certain specified
dates discharged or laid off 14 named employees, and thereafter refused to rein-
state 11 of them,' because of their union membership or concerted activities ; and
(3) on or about January 12, 1944, and thereafter, refused to bargain with the
Union as the representative of its employees in an appropriate unit; all of which
acts are alleged to constitute interference, restraint, and coercion of its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On September 26, 1944, the respondent filed an answer admitting the allega-
tions of the complaint concerning the nature of its business, but denying the
alleged unfair labor practices ; it admitted the refusal to reinstate Hackey and
Childress but asserted as reason therefor that they were "quarrelsome, trouble-
' The correct name of the Union as amended during the course of the hearing.
2 The body of the complaint uses the word "discharged" ; the schedule attached to the
complaint uses the term "laid off". According to this schedule , the 14 employees together
with the dates of lay -off (the severances were lay-offs rather than discharges) are as
follows (all dates are in 1944) :
January 21-Leonard Oliver.
January 25-Elijah Brown , Creola Prince ( erroneously termed Princh ) ; Irene Tinch ;
Jessie Thompson ; Robert Wilson.
February 2-Clarence Murphy ; Member Pearson ; Lingo Potts ; Robert 4 Wright
(erroneously termed Brown) , Melvin Yarbrough.
February 9-Edna Aufderheide , Delila Childress ; Hazel Hackey ( erroneously termed
Stackey).
The 11 who were claimed to have been refused reinstatement are the above except Potts,
Wright, and Brown, who were rehired on March 3, March 7, and April 7, respectively.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some and refused to cooperate with the management in the performance of their
duties."
Pursuant to notice, a hearing was held at St. Louis, Missouri, on September 28,
29, 30, and October 2, 3, and 4, 1944, before Irving Rogosin, the Trial Examiner,
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel, and the Union by its representative. All parties
participated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues. On September 26, 1044, the respondent had filed with the Regional
Director (1) a motion to dismiss, (2) a motion to make more definite and certain,
(3) a motion to strike certain paragraphs in the complaint, and (4) a motion for
a postponement, all of which were renewed at the commencement of the hear-
ing. The motion to make more definite and certain was granted in part, and
the Board furnished certain particulars pursuant to the ruling. Motion for post-
ponement of the hearing was orally waived by counsel for the respondent. Ruling
was reserved on the motion to dismiss and the motion to strike; these motions
were renewed at the close of the evidence, at which time ruling was again reserved.
The pending motions are hereby denied. A motion of the Board to conform the
pleadings to the evidence adduced, with respect to formal matters, was granted
over the objection of counsel for the respondent. Counsel for the Board and
for the respondent argued orally upon the record. Although afforded an oppor-
tunity to do so, none of the parties filed a brief.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
ti
FINDINGS OF FACT
1. TIIE BUSINESS OF THE RESPONDENT
The Reardon Company is a Missouri corporation operating a plant and having
offices in St. Louis, Missouri, where it is engaged in the manufacture, sale and
distribution of water paint and related products. During the year 1943, the
respondent purchased, in the conduct of its business at its St. Louis plant, raw
materials valued in excess of $150,000, of which approximately 60 percent was
shipped to the plant from points outside the State of Missouri. During the
same period, the respondent manufactured and shipped, from its St. Louis
plant, finished products valued in excess of $250,000, of which approximately
80 percent was shipped to points outside of the State of Missouri. There has
been no substantial change in the respondent's business during the year 1944
to the date of the hearing. The respondent concedes that it is engaged in com-
merce within the meaning of the Act.
II. THE ORGANI ZATION INVOLVED
United Gas, Coke and Chemical Workers of America, is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to member-
ship employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
The details related hereinafter arose within the framework of these more
general facts: In November 1943, the Union instituted an organizational cam-
paign at the respondent's plant. On January 12, 1944, it wrote respondent that
THE REARDON COMPANY 1467
it claimed a majority, and it requested a conference to negotiate a contract.
A meeting was held at the respondent's plant on January 18, at, which the
union representative informed the respondent's president that he was prepared
to negotiate . The respondent 's president replied that he was willing to do so
if the Union could prove its majority. A conference was held. the following
day and, upon the conclusion of a union membership card check against the
respondent's records, the respondent conceded that the Union had a majority.
Several conferences were held subsequently , the last on February 2, during
which proposals and counterproposals were submitted by the parties. On ,ianu-
ary 21, according to the respondent, it laid off one of its male employees. This
was followed , on January 25, by the lay -offs of another male, and 3 female
employees ; on February 2, of 6 male employees ; and on February 9, of 3 female
employees. At no time, during any of these conferences, was any mention made
by the respondent of the prospect of any lay-offs. On February 9, after having
conferred with its counsel, the respondent notified the Union that, in its opinion,
the "elimination" of the employees resulting from the lay -offs affected the
Union's majority, and that it could not recognize it in view of that fact. No
further conferences were held thereafter and the Union thereupon filed charges.
B. Interference, restraint, and coercion
Early in October, 1943, employee Edward Lias, accompanied by Jasper Valen-
tine and Homer Turnage , fellow-employees , called on J. V. Reardon , president
,of the respondent,3 and informed him that the men were dissatisfied with their
wages and desired an increase. Reardon replied that it would be necessary to file
a petition with the War Labor Board. During this interview, Reardon
remarked that "some of the men were satisfied and not to go around bothering"
them.
In the latter part of November, 1943, in a further conversation with Lias,
Reardon informed him that he could increase his salary and that of Turnage 71/2
cents per hour by changing their job classifications to "junior foreman" and "senior
foreman" respectively. Reardon asked him if this would satisfy him, and Lias
replied, "partially" Thereupon Reardon said, `Well, if this doesn't satisfy you
I wish you would find a job some place else . . .' When Lias agreed that he was
satisfied, Reardon remarked, "All this running around with [union application]
cards will have to cease." Lias agreed that it would 4
Sometime in November or December, 1943, Reardon engaged in a discussion with
several "old employees," in which mention was made to him of union activity in
the plant . Reardon asked Gus Murphy , the respondent 's oldest employee , whether
he had joined the Union . Murphy replied that he had not.
The only other discussion by Reardon with employees regarding their union
activity in the plant occurred at about Christmas when, Reardon testified,
. . there may have something been said about the Union activity," and he
may have remarked, "'Well, fellows, hope you get your raise,' or something like
3 Unless otherwise indicated , all references to "Reardon" hereinafter are intended to refer
to the president of the respondent , there being another Reardon who is General Foreman.
* The above findings 'are based upon the credible testimony of Lias , who was no longer
in the employ of the respondent at the time of the hearing Although Reardon denied
making the statement attributed to him by Lias , and testified that the only conversation
he had with him was during the interview with him on the occasion when "either
Valentine or Gillespie" was present at which the matter of the wage increase was dis-
cussed, the undersigned finds that Reardon did meet with Lias as testified by the latter,
and that he made the statements attributed to him. It was not denied that Lias and
rurnage were granted wage increases at that time.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that ; . . . I never had a serious conversation, it was always in a wisecracking
way. If anybody mentioned it to me and I would comment back to them."'
Reardon further testified that while he was distributing bonus checks to the
employees at the Christmas party at the plant, "knowing that they were consid-
ering this Union activity at that meeting," lie may have remarked, "Well, I hope
your activity gets you some more money." These remarks, he continued, were
"facetious."
In the latter part of January, 1944, Forelady Elsie Blomberg entered the rest
room while several employees were present during the lunch period. Blomberg
remarked to Delila Childress, an employee, "I wouldn't join the damn thing [the
Union] because they aren't any good." Other employees who were present testified
variously that Blomberg stated, in substance, that a person was foolish to join
the Union, that she would quit her job before she would do so,e and that "she
wouldn't join the Union because Mr. Reardon had always been good to her,
and that she wouldn't stab him in the back " Remarks of a similar import were
also attributed by these employees to Assistant Forelady Sumpter,' who was
also present at the time, and who reiterated those remarks shortly thereafter
on another occasion.'
Upon the basis of the foregoing, the undersigned finds that, by the statements
of Reardon to Lias in the latter part of November, 1943, and to Murphy, in Novem-
ber or December 1943, by the statements of Forelady Blomberg and Assistant
Forelady Sumpter, to the respondent's employees related above, the respondent
has interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed under the Act.
C. The alleged discriminatory lay-offs
-1. The respondent's method of operation
i
The respondent's operations involve the milling, mixing and packaging of
paints, and its plant is divided into substantially corresponding departments.
Men are employed in all departments except the small packaging department,
in which women are utilized exclusively. The nature of the business is sea-
5 Reardon admitted that he had learned "before Christmas" from Production Manager
Skiver, General Foreman Reardon and Gus Murphy that the Union was attempting to
organize the employees, but denied that he ever "saw a union card" or knew that "any
cards [ were] being issued." The denial is not credited '
' Member Pearson testified that he heard Blomberg make a similar statement sometime
between January 25 and January 31 The undersigned was favorably impressed with
this witness' testimony and credits the same
7 Sumpter, who had been employed by the respondent since January , 1928, in addition
to her duties which consisted of printing cartons, acted as assistant to, and substituted
for, Forelady Blomberg during the latter's absence Although Sumpter had no authority
to hire and discharge , she was authorized to report infractions of the rules and to recom-
ment that employees be disciplined . She received a weekly salary of $28 as compared
with an average of $23 per week for ordinary employees in the small packaging depart-
ment over which her duties as assistant forelady extended She succeeded Forelady
Blomberg when the latter left the respondent's employ in April, 1944. The undersigned
finds that Sumpter was a supervisory employee whose conduct is attributable to the
respondent.
8 The above findings are based upon the credible testimony of Hackey, Childress and
Aufderheide whose testimony was in substantial agreement regarding this episode.
Although Bloomberg denied the statements attributed to her, her denials were unim-
pressive and unconvincing Moreover, her testimony was successfully impeached by
her signed statement given to a Field Examiner on March 9, 1944 The undersigned
does not credit her denials despite the fact that she was supported in them by Dowd
and Sumpter, both of whom admitted that they were not present when the statements
were alleged to have been made. With respect to Sumpter, the undersigned finds that
she was discredited in material respects.
THE REARDON COMPANY 1469
sonal and, according to Reardon, business normally "tapers off" in about No-
vember, and resumes about March. It declines again toward the end of July
and starts up late in August or early in September. During the past two and
a half years, however, these seasonal declines have been affected somewhat
by "war orders" resulting in activity for a week or two at a time. The num-
ber of employees fluctuates, depending upon orders, as much as 50 percent,
between the active and slack seasons. Production, according to the respond-
ent, is geared to "sales activity," and is limited by available storage space to
the extent, as contended by the respondent, that it is necessary to curtail pro-
duction when storage space is exhausted unless the flow of merchandise out
of the plant is maintained.
During the year 1943, the respondent began to be confronted with a short-
age of fiber shipping containers required for packing and shipping its prod-
ucts.' This shortage became increasingly acute toward the end of the year
and continued into the early part of 1944. Orders and priority ratings by the
War Production Board vitally affected the availability of these containers.30
This was discussed between Reardon and Production Manager Skiver, and it
was decided that unless the situation improved it would become necessary to
lay off some employees." The number of persons to be laid off was never dis-
cussed by Reardon with Skiver, this being left entirely with the latter. About
the middle of January, quantities of the respondent's packaged products had
accumulated to such an extent, by reason of its inability to obtain containers
in which to ship them, that they were stored on the floor of the packaging
department and overflowed throughout the plant.
Consequently, in the early part of January when it became apparent that
lay-offs would be unavoidable, Skiver prepared a seniority list of all produc-
tion and maintenance employees.12 He subsequently issued instructions to Gen-
eral Foreman Reardon to "lay off a certain number of people and quoted the
names."
2. The lay-offs
Leonard Oliver, Jr., employed as a general laborer on January 11, 1944, was
the- most recent employee in point of seniority. At the time of his lay-off,
he was employed in the shipping and receiving department. He joined the Union
0In the normal course of the respondent's business, its products are packaged in 1-, 21/z-,
and 5-pound packages which, in turn, are packed in fiber shipping cartons. Some of its
"war orders," however, are packed and shipped in drums and bags
10 By virtue of WPB Order L-317, dated December 28, 1943, the respondent's quota of
shipping containers was reduced to SO percent, and the respondent was unable to obtain
even that quota because its priority rating was not sufficiently high.
11 Although there were also shortages of critical raw materials, according to the respond-
ent, subsequent lay-offs were "mainly due" to inability to obtain fiber shipping containers.
12 This was the first time the lay-offs had become necessary since Skiver was first em-
ployed by the respondent on November 1, 1943. Although he had discussed the matter of
previous lay-offs with General Foreman Reardon and "some of the older members," he did
not know the basis for selection, in connection with previous lay-offs, or the respondent's
policy with respect to recalling employees who had been laid off in the past. He had never
been informed, or given instructions as to the respondent's policy in recalling employees
after lay-offs, and he did not issue any instructions in this respect to his subordinates.
When the lay-offs under consideration were determined upon, he was "cautioned" by
President Reardon to be "extremely careful about following seniority rules." These find-
ings are based upon Skiver's testimony.
11 Although it is not altogether clear from Skiver's testimony, the record indicates that
Skiver furnished Reardon with the names of the employees to be laid off as occasion re-
quired Asked how he determined the number of persons to be laid off on each occasion,
Skiver testified, "I think that the only answer I can give to that is at the moment it
looked like the logical thing to do."
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometime after his employment. He was laid off on January 25. At the close of
work that day, as the employees were leaving the plant, General Foreman Reardon
called the names of various employees, including Oliver's, from a list and an-
nounced that there would. be a lay-off of from 4 or 5 days a week. General
Foreman Reardon told Oliver that he would be notified within a week when work
would be resumed. At the end of a week, not having heard from the respondent,
Oliver returned to the plant. While waiting to speak to Skiver, he had a conver-
sation with President Reardon, in which Oliver told him that he had been in-
formed at the office of the United States Employment Service that he required a
release from the respondent in order to obtain another position. While he was
waiting for the release, Skiver appeared and told him that he was "sorry that
[he] was going because [he] could use.'[him]." He then remarked, "Further-
more, you wouldn't want the job anyhow because after this week we are not
going to work but 40 hours a week," adding, "you are too qualified and have too
high an education to even be here." Oliver desired to continue in the employ of
the respondent because he liked his job and his foreman and because if he had
continued in the respondent's employ for two more weeks, he would have become
entitled to an increase of 10 cents per hour.14 Oliver was never offered reemploy-
ment at any time thereafter.
The lay-offs of January 25. Creola Prince, Irene Tinch, Jessie Thompson and
Robert Wilson, in addition to Oliver, as found above, were laid off on January 25.
As has already been indicated, all the female employees were engaged in the
small packaging department.16 All of these employees were laid off in substantial
accordance with their seniority1e All applied to the respondent for certificates of
availability, Prince receiving hers on February 18; Tinch and Thompson on
January 25 the day of their lay-offs and Wilson on February 7. None of these
employees was subsequently rehired or offered employment except for Prince, with
respect to whom Skiver testified that, although he notified her by postal card that
there was a position available, he was unable to recall whether he mailed the card
before or after she received her release. However, she made no reply?
The lay-offs of February 2. Elijah Brown, Clarence Murphy, Member Pearson,
Lingo Potts, Robert Wright and Melvin Yarbrough were laid off on February 2.
All were among those who were members of the Union at the time of the card
check on January 19. With the exception of Potts, Wright, and Brown none, of
these employees was rehired or subsequently, offered reinstatement.
14 According to Oliver's testimony, Skiver told him at the time of his employment that
the job "would be permanent" and that he would start at 57% cents per hour and would
receive 671/2 cents, at the end of 30 days. Skiver made no specific denial of the statements
ascribed to him by Oliver , although he testified that he gave no employees any assurance
that jobs would be permanent.
11 Neither Prince nor Tinch testified. While their names did not appear among the mem-
bership cards which were used as a basis for the determination of majority on January 19,
1944, nor was any evidence introduced of their membership in the Union, the respondent
apparently does not dispute the union membership of any employees herein involved.
Although Thompson and Wilson did not testify, their names appeared among the mem-
bership cards used in the card check . There was no evidence of their union activity
beyond this fact.
11 The dates of their original employment are : Prince , January 5 , 1944; Tinch , December
29, 1943; Thompson, December 20, 1943; Wilson, December 30, 1943.
11 Skiver testified that Prince had "dropped in two or three times and I never had any-
thing available , and she mentioned to drop her a card." The record does not indicate when
this card was mailed . Asked by counsel for the Board "whether or not she procured a
release . . . at the time her employment was terminated," he replied , "Yes, she secured
one." The exhibit to which the witness' attention was directed in connection with this
question. however, discloses that she received her release on February 18.
THE REARDON- COMPANY 1471
The lay-offs of February 9. Edna Aufderheide, Delila Childress, and Hazel
Hackey, all members of the Union, were laid off on February 918
The respondent's contentions with respect to the lay-offs
As has already been indicated, all lay-offs between January 21 and February
9, were necessitated, according to the respondent, by the acute shortage of
containers which commenced in the latter part of 1943 and became increasingly
worse in the early part of 1944. That such a shortage actually existed was not
seriously disputed by the Board. It was conceded by the Board that the
respondent exerted every reasonable effort to obtain supplies of containers.
According to Reardon, all these efforts proved unavailing up to the time of the
lay-offs here involved. After consultation with Reardon, Skiver finally pre-
pared a seniority list of all production and maintenance employees and later
proceeded to put the lay-offs into effect, as indicated above.
With possibly one exception, all the lay-offs were effected in accordance with
seniority.19 Seven male employees,20 all of whom were members of the Union,
including Turnage and Gillespie, two of the three members of the shop commit-
tee, were not laid off and, according to Organizer Appelbaum, he "believed"
that "one or two" employees who were laid off were not members of the Union.
During November and December 1943, and January 1944, a normally slack
season, when employees might ordinarily have been laid off, the respondent
received some orders from the U S Engineers and another branch of the armed
services, which necessitated hiring of additional employees. These orders were
packed and shipped in bags and drums and did pot require the customary type
of container. Reardon testified that this "war business," for the period from
November 1943 to February 1944, ranged from 5 percent to 45 percent of its total
volume of business, and averaged 10 to 15 percent. Reardon was unable to state,
even approximately, the number of additional employees hired during this period,
18 According to a schedule , entitled "List of Employees as of January 19 , 1944," pre-
pared by the respondent and introduced in evidence by the Board , the dates of their em-
ployment , lay-off and other pertinent data, as corrected on respondent's motion, are as
follows
Dateem-
Date left-
Name ployed Released Rehired Quit
Employ Reason
Elijah Brown______________________ 4/26/43 2/2/44 Laid off_______ 2/2/44 4/7/44 - __--_
Clarence Murphy__________________ 6/15/43 2/2/44 ___do___________ 2/4/44 _
--
Member Pearson__________________ 11/3/43 2/2/44 ---do ---------- 2/3/44 _
Lingo Potts________________________ 1/10/44 2/2/44 __-do----------- --------- 3/3/44 3/31/44
Robert Wright_____________________ 3/23/43 2/2144 ___do__________ No 37/44
--------
Melvin Yarbrough_________________ 11/3/43 2/2/44 ___do---------- 2/9/44 _________ _______ _
Edna Aufderheide_________________ 11/29/43 2/9/44 do__________ 2/9/44 _________ ________
Delila Childress___________________ 12/27/43 2/9/44 ---do ----------
_
2/28/44 _________
_
--------
Hazel Hackey--------------------- 12/27/43 2/9/44 ---do----------
_
2/9/44 ---------
_
--------
(The job classifications of Potts, Wright and Yarbrough, as indicated by this exhibit, were
"General," "Mixing,"' and "Bulk Packaging," respectively. None was listed for Brown,
Murphy or Pearson )
19 The possible exception involved Edna Aufderheide. She and Edna Dowd were employed
on November 29, 1943 in the small packaging department, and performed substantially the
same duties Nothing in the record indicated any disparity in the quality of their work,
and no reason was advanced by the respondent for the selection of Aufderheide for lay-off.
Dowd was not a member of the Union and her testimony, which included denials of state-
ments attributed by other employees to Forelady Blumberg, as well as by other representa-
tives of the respondent, which were derogatory to the Union or discouraged membership
therein, was generally favorable to the respondent.
20 The record indicates that, of the seven named employees, six were among those whose
membership was used as the basis for determining the Union's majority on January 19.
17
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in November and December,' but "presumed" that these were the employees who
were subsequently laid off 22
With respect to past seasonal lay-offs, Reardon further testified that the
respondent had no established policy ; that "some years we had those seasonal
lay-offs and then some years when we didn't enlarge our crew, we just kept
them, we didn't lay them off even though there wasn't too much work for them
to do, if we had a good crew, we just kept them on. So, it would depend on how
many people we had as to who we would lay off or whether we would lay off
anybody or not." According to Reardon, "it was a matter of superintendent's
selection . . . depending upon the department that we had running, on bulk
goods if it was a little heavy there, the packages would slow down or if they
were trying to build up a package stock, it would depend on how orders were . . .
that they gave consideration to our older employees, because of their loyalty
and familiarity with their work . . . that the tenure of employment had quite
an influence on it."
It is evident on the whole from the foregoing that the shortage of shipping
containers, which may be said to have reached a crisis in January 1944, and the
diminishing amount of "war business," necessitated curtailment of production.
Although there is some intimation in the record that the respondent originally
may have intended to meet this situation by decreasing the number of hours in
the work week,", rather than laying off employees, it apparently rejected this
idea. In any event, it cannot be said that the lay-offs were unnecessary as a
matter of business expediency. Furthermore, in selecting the employees to be
laid off, the respondent did so substantially in accordance with seniority. As a
result, seven union members were retained, including two members of the shop
committee.
The outstanding factor which impugns the respondent's motive in making
the lay-offs, is the coincidence of timing. Apart from the effect of this conduct
in a consideration of the alleged refusal to bargain, discussed hereinafter, it will
be noted that, although the occurrence of the lay-offs was coextensive with the
period covered by the collective bargaining negotiations, at no time was any
intimation given by Reardon or anyone in behalf of the respondent, during these
negotiations, that lay-offs were imminent. On the other hand, it is also evident
that, when Appelbaum discovered that lay-offs of union members had in fact
occurred, he made no protest or contention that the lay-offs were discriminatory,
confining his demands to the request that employees laid off be reinstated in
accordance with their seniority. Although Appelbaum's conduct in this respect
could in no sense preclude the Board from ultimately determining that the
lay-offs were in fact discriminatory, his attitude, in view of his experience as
a labor organizer, in not raising the issue, is strong indication that the Union.
itself was impressed with the legitimacy of the respondent's motive in making
the lay-offs.
21 Skiver testified that "at various times," Including November and December 1943, the
respondent communicated with the United States Employment Service in an effort to obtain
employees.
22 According to the "List of Employees as of January 19, 1944," introduced in evidence,
8 out of 9 employees who were hired in November and December 1943, were involved in
the lay-offs under consideration. The remaining employee was Edna Dowd, heretofore
referred to.
2a According to employee Pearson, on the morning of February 2, Skiver distributed slips
to the employees notifying them that the work week would be reduced to 40 hours per
week. At the close of work that day, however, General Foreman Reardon notified Pearson
as well as the other employees affected that they were being laid off.
9
THE REARDON COMPANY 1473
Conclusions concerning the lay-offs
Although there is warrant in the record for the conclusion that, in connection
with past seasonal declines, the respondent frequently retained its entire per-
sonnel, to the extent previously indicated by Reardon's testimony, it should
be noted that with respect to these seasonal lay-offs, the respondent had some
basis upon which to determine when normal production would be resumed.
According to the respondent, it was in no position, however, to determine when
further quantities of shipping containers might become available, and it is un-
derstandable that it might not desire to retain its full complement of personnel
indefinitely in the face of this uncertainty. It is apparent from Skivers testi-
mony that, of the employees actually retained following the most recent lay-offs,
"some of these men [were] used for nothing on earth but cleaning up the place,"
that the respondent must have had some reasonable expectation that supplies
of shipping containers would become available within the predictable future, or
it would not have retained even a skeleton crew. The respondent must have
been aware of the situation at the time it conferred with the Union and recog-
nized its claim td majority. Nevertheless, neither at that time, nor.later, did
it undertake to apprise the Union of the fact that lay-offs might become necessary
in the near future, and that this factor might, in the respondent's view, mate-
rially affect the Union's majority. This suggests the possible inference that the
respondent may not have determined upon the ensuing lay-offs until after it had
recognized the Union. The respondent's conduct in making these lay-offs soon
after granting recognition to the Union, therefore, is not free from suspicion.
Upon an analysis of the entire record, however, especially in view of the ap-
parent economic necessity for the lay-offs, the fact that they were made in sub-
stantial accordance with seniority, that seven employees, all of whom were
members of the Union, and two of whom were also members of the shop com-
mittee, were riot laid off, the undersigned is unable to conclude that the Board
has established by substantial evidence that the respondent discriminated against
the named union members who were laid off, because of their union membership.
Accordingly, the undersigned will recommend that these allegations of the
complaint be dismissed.24
D. The refusals to reinstate
The respondent had no established policy regarding recalling employees fol-
lowing previous seasonal lay-offs. According to Reardon, ". . . some of them
would come back ; generally, they went out and got something else . . . some
of them came back and some of them didn't; I don't recall ever calling anybody
back ; the fellows that come around, if they were good men, they put them on,
if they weren't working . . . elsewhere." However, as to the employees involved
in the present lay-offs, he testified, ". . . I think that they were all told that
we'd start up again when shipping containers were received ; that was what
24 The undersigned has considered the statement , appearing in Blomberg ' s written state-
ment to the Field Examiner , attributed to Skiver , that he asked Blomberg at the time
of the lay-offs " if [her] girls belonged to the Union " The written statement was intro-
duced for the purpose of impeaching Blomberg's testimony , and neither she, nor Skiver
were questioned with regard to the statement attributed to Skiver . Testimony by Hackey
that she had a conversation with Blomberg about the 1st of June , 1944 , after Blomberg
had voluntarily left the respondent 's employ and was employed by another concern, in
which Blomberg replied , in response to a statement by Hackey that she believed she had
been laid off for joining the Union, "I don't doubt it one bit," has been considered, as
has the apparent disparity of treatment between Aufderheide and Dowd. However, the
undersigned is not convinced , upon the entire state of the record , that these considerations
establish that the respondent discriminatorily laid off the employees in question.
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all of them was told ; Mr. Skiver mentioned that specifically." Although the
respondent assumed the position that employees who were laid off and had
requested releases had terminated their employment , with respect to employees
who did not immediately request their releases, Reardon testified, "I would say
if he hadn't gotten another position meanwhile . . . he probably was told to
come back and we'd give them a job when we needed to increase our force
again."
Following the lay-offs of, February 9, which left the respondent with 18
employees, including supervisory employees exclusive of Skiver, the respondent
curtailed its "total production ... by at least 60% and out of what was left
. . . maybe 20% . . ., actually went into . . . small packaging of whatever type
was being made." Skiver explained, ". . . it was towards that time that we got
a few cases dribbling in and I had carefully husbanded what little I had avail-
able and we ran a half of one line part of the time. Some of these men I used
for nothing on earth but cleaning up the place." During this period, the respond-
ent continued with production to the extent that it "ran materiaf into 100 pound
drums that [it] needed and could ship . . . up to [its] requirements of storage
capacity .. .
The respondent was, however, able to obtain approximately 30,000 second
hand wooden cases which it was able to utilize as a substitute for the fiber
containers . These cases , Reardon testified, "starting coming in " in March 1944.2"
On March 3, 1944, the respondent commenced to rehire employees for the first
time following February 9. Skiver testified, as to the reason for these rehirings,
that "temporarily things, the container situation looked better, as well as the
other materials . . . starting to get containers and orders to go with them, the
spring season was starting there." 28 Lingo Potts was rehired on March 3.27
According to the respondent, Potts had not requested his release. Skiver testi-
fied, in the first instance, that he was unable to recollect whether Potts was
recalled or whether he "came in." Later, however, he admitted that he had sent
Potts a card. According to Skiver, he had no recollection of having recalled any
of the employees who had been laid off.2S However, upon being shown a postal
card, dated and postmarked March 3, 1944, addressed to Robert Wright, requesting
that he report for work the following Monday morning if he was "still available,"
he acknowledged that he had sent it. Wright, who, according to the respondent,
had not requested his release , was rehired on March 7. Elijah Brown, who,
together with Potts and Wright, comprised the only employees involved in the
-lay-offs under consideration who were subsequently reinstated, was rehired on
April 7, 1944. The respondent contended, however, that, although Brown had
2" According to General Foreman Reardon 's testimony , it was his recollection that these
wooden cases started to arrive "around July sometime ," although he testified that he was
unable to recall the date. He added , "I know we had the fiber containers when we got
the wooden cases " He further testified that the respondent, in a normal seasonal month
would consume "better than 4000" shipping containers ; that during the months of Jan-
uary and February 1944, it consumed approximately 2000; that even during normal
seasonal production , some of the respondent ' s products were shipped in bags and drums.
Although he testified that the respondent was unable to fill orders became of the lack of
shipping containers , he was unable to estimate , nor was any evidence adduced by the
respbndent as to the proportion of orders which were unfilled due to lack of shipping con-
tainers in January and February 1944
28 There was no contention that any of the lay-offs here involved were due to seasonal
decline
27 According to Skiver , Potts should have been laid off , in accordance with his seniority,
on January 25 Due to his absence on account of illness, he was not laid off until his
return on February 2.
28 It will be recalled that Skiver testified that he had also mailed a card to Creola Prince,
who, according to the respondent ' s records, had been hired on January 5, laid off on
January 25 and obtained her release on February 18.
THE REARDON COMPANY 1475
asked for his release on the day he was laid off, he had not used it and subse-
quently returned and informed the respondent that he was available for work.
On March 3, 1944, the respondent also rehired Mary Wilson, an employee
who had originally been employed on June 2'2, 1943, and had left voluntarily on
December 31, 1943. From March 8 to and including April 26, the respondent
hired a total of 12 male employees, two of whom had been originally employed in
1924 and 1939, respectively, and had left voluntarily, long prior to the lay-offs,
and 18 female employees.
On Sunday, March 26, 1944, the respondent caused to be inserted in the St. Louis
Dispatch, a Help Wanted advertisement, soliciting female help. A similar
advertisement appeared in the same newspaper on the following day.2D On April
25, 1944, the respondent also posted outside its plant a Help Wanted sign for both
male and female employees, which remained posted up to the time of the hearing.
Between March 3, and September 12, 19444the respondent hired a total of 37
male and 42 female employees. That the duration of employment of most of
these was relatively short, lasting in many instances days or weeks, is further
indicative of the critical manpower situation, and adds further significance to the
respondent's failure to attempt to recall the employees whom it laid off.
Member Pearson, originally employed as a "common laborer" on November 3,
1943. was engaged in the packing department at the time he was laid off on
January 25.3° Pearson testified that he was recalled to work on January 31,$1 and
that he continued working until February 2 During the morning of February 2,
according to Pearson, Skiver distributed slips to the employees, notifying them
that the work week would be reduced to 40 hours thereafter. At the close of
working hours that night, Foreman Reardon notified the employees who were
affected that they were laid off. Pearson asked him how long, they would be laid
off, to which Reardon replied, "It is not in my hand, [sic] it is in Skiver's hands.
I got orders from the office to lay you all off."
Qn February 4 or 5, Pearson returned to the plant for his pay check and,
after requesting his release from Foreman Reardon, asked Skiver how long the
lay-off would continue, but was informed by Skiver that he did not know. About
April 1, according to Pearson, he telephoned Skiver and "asked him . . . about
getting [his] job back." Pearson testified that Skiver inquired who it was, and
when Pearson identified himself, Skiver said, "Oh, no, you are too late, I just
hired some men." Pearson stated to Skiver, "Well, it seemed to me like my sen-
iority is going to be older than the men you hired, I want to know can't I get my
job back." Skiver replied, "No, I am sorry, you are too late."
Pearson further testified that, following a telephone conversation with Homer
Turnage, a member of the union shop committee '12 he returned to the plant on May
29 Succeeding advertisements appeared in the same newspaper on April 20, May 19, 21,
soliciting male help, and on September 11, for female help
10 Pearson testified that he was absent from the plant on account of illness on January 25
and that Melvin Yarbrough notified him of the lay-off at his home that night.
61 Skiver testified that the respondent's supply of shipping cases was exhausted on
January 25. On January 27 or 28, however, the respondent unexpectedly obtained approxi-
mately 800 shipping containers, and on January 31, "placed" Clarence Murphy, Melvin
Yarbrough and Member Pearson. On the same day, according to Skiver, the respondent
also received and started production on a government order for camouflage paint, totalling
2,157 9-pound bags. Skiver denied that he recalled any of these employees, testifying,
11. . . most of them kept-just came in ; I didn't recall any of them, I didn't have to,
they were there "
32 According to Pearson, Turnage called at his home and advised him to apply for his
job Pearson told him what had transpired in the telephone conversation and added, "I
don't see no need of me going back any more " Pearson then quoted Turnage as saying,
"Well, I would say go back and ask for your job because they got a sign out there, 'Help-
Wanted' "
662514-46-vol. 63--94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.3 and reiterated his request for his job. According to Pearson, Shiver told him
that he was sorry and that Pearson was "still too late." He was never rehired or
offered reinstatement thereafter.
Melvin Yarbrough, an employee in the bulk packaging department, was engaged
,by the respondent on November 3, 1943. He became a member of the Union and
was elected to the shop committee. On January 25, he was laid off by Foreman
Reardon, who told him the lay-off was occasioned by "a shortage,of cases."-- He
was recalled to work by Skiver on January 31, and continued working until Feb-
ruary 2, on which date Foreman Reardon again laid him off. Yarbrough credibly
testified that he asked Reardon how long he thought the lay-off would last and
was informed that "he didn't know, 4 or 5 days, . . . he would let me know, . . .
he would call me back." n He was not recalled and returned to the plant about
February 10 or 11 and spoke to Foreman Reardon about returning to work. Rear-
don referred him to Skiver, who informed him he was unable to tell him when he
would be able to call him back. Yarbrough thereupon told him that he required
work and concluded, "If you don't know when you can call me back, I see nothing
else to do but you to give me my release." Skiver had his release prepared and
,delivered it to Yarbrough, remarking, "Well, I am sorry, but this is the best we
can do. I can't tell you nothing else that I can depend on now because I don't
know when I can get the stuff." Yarbrough left and was not recalled thereafter
by the respondent.
Edna 4ufderheide was employed on November 29, 1943,34 in the small packaging
department, and was laid off on February 9, 1944 She joined the Union on
January 20, 1944. She turned her membership card over to Turnage and sub-
sequently received a union button from him in the presence of Forelady Blom-
berg as she was leaving work. On February 9, Foreman Reardon approached
her and told her that she was one of the gn Is who were to be laid off. She
thereupon went to Skiver and obtained her release on the same day ; she under-
stood that she would require a' release or certificate of availability under the
regulations of the War Manpower Commission in order to obtain another job.
She was never recalled to work thereafter. She asked for her certificate of
availability because she intended to obtain another job, inasmuch as she had
been laid off and "thought that [job] wasn't there any more" She obtainedi
another position the following day.
Hazel Hackey and Delmla Childress were employed on December 27, 1943,
Hackey joined the Union on February 1, Childress the following day. Both
were laid off the first time on January 25.R5 On January 25, Forelady Blomberg
83 Foreman Reardon, whose testimony in general was vague, indefinite and characterized
by a lack of recollection, testified, "... I think I did tell several of [the employees] there
it may be a week, or week to ten days, I don't even recall ; I did mention some remark to
that effect to them, but I couldn't recall what I did say." He did not deny telling
Yarbrough that he would let him know or call him back.
34 She was interviewed for the position and hired the preceding Saturday but started
work the following Monday Edna Dowd who, according to the respondent's records, was
also employed on November 29, and was not laid off, was put to work a half hour after
her
35 According to the schedule prepared by the respondent and introduced in evidence, the
only date of any lay-off affecting these two employees is February 9. Skiver, in his testi-
mony, admitted that he was "puzzled and confused" with respect to the dates of the
lay-offs of these two employees He teStified, however, that, according to the respondent's
payroll records neither of them worked between January 25, and February 2, but was
unwilling to concede that they were laid off on January 25, although he was unable to
reconcile the apparent inconsistency between the payroll records and time sheets and the
date of the lay-off appearing on the respondents schedule He testified, however, that
these employees should ordinarily have been laid off on January 25, according to their
seniority. The undersigned therefore credits the testimony of Hackey and Childress with
regard to the date of their original lay-off and the date they were recalled. Moreover,
THE REARDON COMPANY 1477
notified Childress, among others, that she was being laid off and told her to
inform Hackey to the same effect Childress inquired of Blomberg as to the
duration of the lay-off and was informed by her that she did not know. Sub-
sequently, when Childress returned to the plant for her pay check, Foreman
Reardon told her to report for work on February 2 Childress apparently
notified Hackey and on February 2, both employees returned to work. On
February 9, Hackey and Childress were again laid off by Foreman Reardon.
Hackey remonstrated with Reardon because he had assured her at the time
she was hired that work would be "steady." Reardon replied that he knew
nothing about it and that he had been given orders to lay them off. She finally
told him that she "believed" she would ask for her release, and he referred
her to Skiver. She asked Skiver the reason for the lay-off and he informed
her that there was no work. Atter reiterating the statement she had made to
Reardon concerning assurances that had been given her that work would be
steady, she told Skiver : "I believe I will have to ask for my release and in the
meantime if I should be working at something else and you recall us, why I
will come back to the plant." She asked Skiver to call her back to work, even
though she might be working elsewhere; Skiver agreed that he would do so38
Neither Hackey nor Childress were ever recalled.
In the latter part of March, on the morning following the appearance of the
newspaper advertisement of March 26, Hackey, accompanied by Childress,
returned to the plant and spoke to Skiver. She asked him why she had not
been recalled to work and he replied that she had asked for her release and
that he thought perhaps she would be working She reminded him that she
had told him that she would come back even if she were working elsewhere,
and he replied, "Well, I am awfully sorry but I just hired four girls this morn-
ing, and if they don't come in by tomorrow morning at 10:00 o'clock, I will call
you."" Skiver took her telephone number, but lie never telephoned her thereafter.
Following her conversation with Skiver when she called at the plant for her
check, Childress telephoned him in accordance with his suggestion. She asked
him if "the work had picked up any and if he could call her back to work." He
replied in the negative, suggesting that she telephone him the following week.
When she called him on that occasion and asked if he knew when he would be
able to call her back, he told her that he did not know. She reiterated her
desire to return to work. On February 28, she requested her release and received
it the following day. On this occasion she talked to Skiver and asked about
going back to work, and when she received the same answer that he had given
her on previous occasions, she requested her release so that she might seek
employment elsewhere. On March 27, she returned to the plant in the com-
an accident report in the respondent ' s possession relating to Hackev indicates that she
went to the doctor on January 25 , and the payroll record discloses that she left at noon
of that day . Hackey testified that she was not at the plant at the time of the lay-off
and was informed of it by Childress . Skiver admitted the "possibility " of his having
told Childress to notify Hackey of the lay -off on January 25.
80 Childress testified to substantially the same effect, though with more emphasis. Accord-
ing to her, on the occasion of her calling for her pay check following Februfry 9, she spoke
to Skiver and asked for her check . He told her that it would be mailed to her. She then
asked him when he thought she would be•called back , and he replied that he did not know.
She thereupon asked him , "When you get ready for me, will you call me back , Mr Skiver')"
He replied , according to her, "I sure will ." She continued, "Now, I can depend upon that
and not get out . . . and look for work9 " He replied , "You can depend upon my word;
I will call you back when the work picks up . . . you might call me the middle of next week "
$T The schedule prepared by the respondent entitled "Record of Employees hired after
January 19, 1944." introduced in evidence, discloses that 3 female employees were hired
on March 28, 1944. - .
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany of Hackey, where the episode related above occurred. Childress corro-
borated Hackey's testimony as to what occurred on this occasion ae
After their conversation with Skiver, Hackey and Childress left the plant.
Hackey continued out of the plant, and remained outside, while Childress .went
back into the office to obtain the address of Creola Prince from Skiver. While
she was outside the plant, a car drove up and Reardon, president' of the re-
spondent, alighted and asked her if she was looking for employment. She told
him that she was and he replied, "Well, go right in here." She responded
that she had already been there and the episode ended.
While Childless was in the office waiting for Skiver to procure the address
for her, President Reardon came in, greeted the girl seated at the desk, and
inquired, "Has there been anyone in answer to the ad?" The girl replied,
"Yes, there has been four girls," and then, according to Childress, the girl "kind
of frowned at him and nodded at the, and Mr. Reardon turned around and
looked at me and went right on back where Mr. Skiver was." This testimony
is credited:"
The respondent contends that the reason it did not recall the employees who
were laid off, with the exception of those already noted, is that it considered
that all employees who had obtained releases or obtained employment else-
where, had terminated their employment with the respondent. With regard to
Hackey and Childress, however, the respondent contends that they were not
rehired because they were "quarrelsome, troublesome and refused to cooperate
with the management " The record does not support this contention. Aside
from the denials by Hackey,and Childress of these charges, a number of Board
witnesses, some of whom worked with these employees, and whose testimony
the undersigned considers reliable, denied these charges. Furthermore, despite
Skiver's testimony that he informed these employees on March 27 that Forelady
Blomberg had reported to him the complaints referred to, Blomberg herself did
not testify either that they were quarrelsome or troublesome and refused to
cooperate, or that she ever so informed Skiver. Skiver admitted that he first
learned of these alleged complaints in March. In any event, there was no
evidence that the respondent had complained to either or both of these em-
ployees of their conduct, or reprimanded or disciplined them at any time prior
to their lay-off on January 25. The fact that they were both recalled on
February 2, appears to speak more eloquently than the testimony of any wit-
nesses. It is quite apparent that the first intimation of any complaint of this
nature was made to them by Skiver on Match 27, when they sought reinstate-
ment. The undersigned was 'wholly unimpressed by the evidence adduced by
the respondent respecting its reasons for refusing to reinstate Hackey and
Childress, and finds that it utilized the alleged reasons as a pretext for refusing
to reinstate them.
81 Skiver testified that Childress first returned to the plant after she was laid off
(apparently referring to the lay-off of February 9), on February 28 and requested her
release, and that Hackey requested her release on February 9. His denial that he told
Hackey and Childress, when they returned to the plant after they were laid off, that there
was no work seems singular in view of the respondent ' s position regarding the lay-offs.
He admitted, however, that they returned to the plant on March 27, following the insertion
of the advertisement, and that they asked for their jobs, but testified that he informed
them that they would not be considered for reemployment, because he had been informed
by Forelady Blomberg that they "were quarrelsome and troublesome " and "objected to
[the] rotation [of] jobs." The undersigned was not impressed with Skiver's testimony
which was equivocal, if not evasive, in many respects. The undersigned therefore credits
the testimony of Hackey and Childress with respect to what transpired.
10 Reardon ' s denial of these episodes is not borne out by the weight of the evidence.
THE REARDON COMPANY 1479
Although the respondent maintains that the employees who were laid off and
requested their certificates of availability terminated their employment and
that it was, therefore, under no obligation to recall these, employees when work
became available, Skiver testified :
Q. (By Trial Examiner RocosIN.)
Did you consider, Dir. Skiver, that all of these employees who obtained
certificates of availability or releases had permanently severed their
relationship with the Company?
A. Yes, sir.
Q. And was it your intention at that time not to recall these employees
to work?
A. If we could open up in a week or two I would have made an attempt,
but when it took over a month to get organized, straightened out again, I
figured that all had jobs-that is why they asked for releases ; there were
only two men left who didn't ask for releases and I made an attempt to
recall them and they both came in.
Ilowever, when Member Pearson telephoned Skiver in April, and presented
himself at the plant personally in May, he was refused reinstatement at a
time when the respondent was hiring new employees.
According to the respondent, it was confronted with necessity for lay-offs
,of an indefinite period. It could give employees no assurance as to when work
would be resumed, yet, according to Skiver, he "hoped that at least a good por-
tion of them would not ask for their releases and would be available" to him.
'There was not only the right, under the circumstances, but, indeed, an affirmative
obligation, on the part of the employees to make their services available in the
interest of the fullest utilization of manpower in the face of a critical shortage.
This necessitated the procurement by these employees of certificates of avail-
ability under the requirements of the War Manpower Commission. The record
justifies the conclusion, however, that the employees were resorting to this
measure as a temporary expedient until, as they were admittedly informed by
the respondent, work would be resumed when further shipping containers be-
came available. The undersigned is satisfied, upon the entire record, that the
employees who requested certificates of availability did so in order to obtain
temporary employment. Moreover, according to Appelbaum's credited testimony,
on the occasion of the meeting of January 26, after he "had been informed by
the members of our union that a number of the workers had been laid off the day
previous", he stated to Reardon that "if and when they recalled them we
expected them to adhere strictly to seniority. Mr. Reardon's answer was that
that was the policy of the company to rehire according to seniority and would
do so, when work was available." No mention was made at that time by Reardon
that employees had 'requested and obtained certificates of availability.' Never-
theless, when normal production was resumed by the respondent on or about
March 8, while it was faced with a critical manpower shortage, and was subse-
quently obliged to advertise for help on several occasions, it made no effort to
determine whether any of the employees who had been laid off and had obtained
certificates of availability had in fact utilized their releases or were actually
employed elsewhere, except as already indicated. Moreover, with respect to
90 Appelbaum further credibly testified that on February 4, at the conclusion of a hearing
before a Department of Labor Conciliator in connection with the discharge of employee
Willie Simms ( not alleged to have been discriminatorily discharged in the complaint herein)
he reinterated his position with respect to employees laid off on February 2, and was again
informed by Reardon that "it was the company's policy that they would rehire when the
work was available."
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees Hackey and Childress, as well as Pearson, who returned on several
occasions and asked to be returned to work even after the appearance of the
newspaper advertisements, it denied them reinstatement on the'pretext, in the
case of the former, that they were unsatisfactory employees, and in the case
of Pearson, that no work was available.
Upon the basis of the foregoing, and the entire record, the undersigned is con-
vinced, and finds, that, by refusing to offer reinstatement to the employees, except
for Wright, Potts and Brown, who were laid off on January 25, February 2 and
February 9, when normal production was resumed on and after March 8, 1944,
the respondent has discriminated against them in regard to the hire and tenure
of their employment, because of their union membership, and thereby discour-
aged membership in the Union. The respondent thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act."
E The refusal to bargain
The Union wrote to the respondent on January 12, 1944, stating that it repre-
sented a majority of the respondent's employees, asserting its, desire to negotiate
a contract, and suggesting a conference at the respondent's office on January
21. On January 13, 1944, the respondent replied, acceding to the request for
a conference, but suggesting that the date be advanced to January 18. The
parties met on the latter date at the office of J. V. Reardon, president of the
respondent. Reardon, Production Manager James R. Skiver, and Joseph Appel-
baum, the union representative, were in attendance. Appelbaum informed
Reardon that the Union was prepared to negotiate a contract. Reardon replied
that if the Union could prove its claim of majority, he would be willing to do,
so. Appelbaum stated that be had not understood from the respondent's let-
ter that the Union's majority status was in issue, but that he was prepared to
produce evidence thereof the following day.
At a conference held in Reardon's office on January 19, attended by Reardon
and Skiver, in behalf of the respondent, and by Appelbaum and one Durphy,
in behalf of the Union, various methods of determining the Union's majority
were considered and, in accordance with Reardon's suggestion, it was decided
to resolve this issue by a comparison of the union authorization cards with the
respondent's records 42 According to Appelbaum's testimony, which is credited,
he called off the names appearing on the cards, Reardon entered a check mark
against the corresponding names in the ledger.'"" It appeared as a result of this
41 The undersigned does not consider the evidence that the respondent mailed a postal
card to Creola Prince, recalling her to work , sufficient to constitute an offer of reinstate-
ment, in view of the fact that no evidence was offered to indicate when this card was sent.
In view of a stipulation entered at the hearing between the Board and the respondent that
reinstatement was not being sought in behalf of Clarence Murphy, the undersigned will
not recommend that he be reinstated.
42 Reardon testified , and it is found, that following the meeting of January 18, at 2 o'clock
of that afternoon , according to information furnished him by the Field Examiner of the
Board, he telephoned to the Regional Office to inquire "how to determine whether or not
the Union had a majority ." He was informed of the various methods which might be em-
ployed. He also testified that he recalled inquiring whether an employee was required
to have been employed "any certain length of time before he is considered a regular
employee ... do they all have the same standing , new employes or old employes."
43 Both Reaidon and Skiver substantially corroborated Appelbaum's testimony as to what
transpired at these conferences. Reardon testified, however, that it was his recollection,
contrary to that of Skiver, that he, Reardon , prepared a list of the union members while
the names were Being read off by Appelbaum , although he was unable to discover the list
when he searched for it in preparation for the hearing.
THE REARDON COMPANY 1481
tally that the Union had 17 members among the employees at this time. When,
Reardon conceded that the Union represented a majority, Appelbaum requested'
that the shop committee, consisting of Lawrence Gillespie, Melvin Yarbrough and
Homer Turnage, be permitted to participate in the conference. Accordingly,
the committee was summoned and the conference was adjourned to a larger
office. The representatives of the Union thereupon presented a proposed con-
tract to Reardon, suggesting that he consider it for several days. It was agreed'
that the parties would reconvene on January 26.
On that date a conference was held at the offices of the respondent at which
Reardon, Skiver, Charles H Moran, vice-president of the respondent in charge
of purchases, in behalf of the respondent, and the members of the shop com-
mittee and Appelbaum were present. The respondent presented counter pro-
posals, and negotiations' on the basis of both proposals were initiated. The
parties agreed to meet again on February 2.
A further meeting was held on that date, attended by Reardon, Moran, the-
members of the shop committee and Appelbaum Negotiations proceeded and
another conference was scheduled for February 10 Appelbaum testified, that
"recognition of the union, the unit, [and] various miscellaneous clauses dealing
with working conditions" were mutually agreed upon at the conference of Febru-
ary 2. At no time during any of these conferences did the respondent raise any
question of the Union's majority.
Between January 25 and February 9, while negotiations between the respondent
and the Union were in progress, the respondent effected the lay-offs which have-
already been discussed At no time during any of the conferences above referred
to was any mention made of any contemplated lay-offs.
On February 9, Appelbaum telephoned Reardon to confirm the meeting which,
according to him, had been scheduled for the following day. Reardon confirmed
the appointment and did not then question the Union's majority or mention the
lay-offs which occurred on that day.'16 On the morning of February 10, Appel-
baum received a letter from the respondent, dated the previous clay and signed
by Reardon as president of the respondent, as follows: -
Referring to our several meetings during which we, in a spirit of cooper-
ation, tacitly admitted that your organization had a majority in our manu-
facturing department, we feel obliged to inform J ou. that eight of our em-
ployees, whose names were included in your list, voluntarily and without
any interference or sugestions on our pact left our employ and asked for
releases, which we felt we could not refuse and accordingly, gave to them.
The elimination of these eight people, we believe, brings your Union below
" According to Reardon, the total number of employees in the plant at this time, exclusive-
of office personnel , but including supervisors , foremen , forelady , assistant forelady , and the
shipping clerk , hereinafter found to be a supervisory employee, was 32 Excluding Michael
Reardon , the general foreman or superintendent , Elsie Blomberg , the forelady , Lillie
Sumpter , assistant forelady , and Louis Kaiser, the shipping clerk , there were 28 production
and maintenance employees, among whom the Union had a membership of 17.
ae Reardon denied that a definite meeting had been agreed upon on February 2 for Feb-
ruary 10, as well as, that Appelbaum telephoned him on February 9 to confirm the appoint-
ment for the following day. Appelbaum testified in explanation of his telephone call that
he had been out of the city, and upon his return called to confirm the appointment. In
view of the plausibilty of Appelbaum ' s explanation of his call , and particularly in view of
the fact that the letter from the respondent, quoted above, was mailed on the eve of what,
according to Appelbaum ' s testimony , was the appointed day for the conference at which
negotiations were to have been resumed, and Appelbaum's further testimony as to what
transpired on the morning of the appointed date when he again telephoned Reardon, the
undersigned credits Appelbaum 's testimony with respect to this incident as well as the
incident occurring on the following day.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the majority status, and as we understand the Act, we are not permitted to
recognize a Union which does not have a majority status.
We shall be very glad to discuss this matter with you and to furnish you
with any information in our possession substantiating the above statements
if you entertain any doubt concerning the truth or accuracy thereof.
In consequence of this letter, Appelbaum telephoned Reardon on the morning
of February 10 and asked for an explanation Reardon replied that the letter
was self-explanatory and declined to discuss the matter further46 Appelbaum
went to, the Regional Office of the Board later that day. The following day he
filed charges against the respondent.
Reardon first consulted the respondent's attorney between January 24 and Janu-
ary 26, following'the second conference with the Union, and apparently after the
lay-offs of January 25 had been accomplished. During this period he had several
conversations with the attorney. It was not, however, until February 9, on the
eve of a proposed meeting, following the exchange of several draft agreements
between the respondent and the Union, and after the lay-offs,of January 25 and
February 2, at least, had occurred that the letter raising the question of the
Union's majority for the first time was sent.S7
It seems improbable that the possible effect of'the lay-offs upon the Union's
majority was not a subject of discussion between Reardon and his attorney, who
actually prepared and submitted a draft of a counter-proposal of an agreement,
prior to the date the letter was sent. If, as seems more probable, the matter was
discussed, Reardon's failure to mention the imminence of any lay-offs during
his negotiations with Appelbaum, gives rise to the suspicion that the respondent
may have utilized the lay-offs as a means of attempting to dissipate the Unions
majority. Reardon further testified that negotiations were not suspended because
of the failure of the parties to reach an agreement, but that he expected that if
the Union "questioned this majority issue, then they would come back and
continue negotiations, but just prove to us that they did have a majority." It was
Reardon's contention that the last paragraph of the letter left the door open to
further negotiations. It is apparent from the tenor of the letter, however, that it
was, in effect, merely an invitation to the Union to avail itself of an opportunity
to "substantiate" the respondent's claim that the Union no longer represented a
majority. It is also apparent from the attendant circumstances, that the re-
spondent, while protesting its good faith in its dealings with the Union, never-
theless, stated that the 8 employees who were laid off, had "voluntarily" left its
employ, a fact which it admitted subsequently was not true.
It is clear, in any event, that the Union had a majority on January 19, when the
respondent accorded it complete and unquestioned recognition and when negotia-
tions began. The fact that lay-offs occurred during the negotiations does not
legitimatize the refusal to bargain. This is so for two reasons. First, the
"bargaining relationship once rightfully established must be permitted to exist and
96 Although Reardon denied that he had a telephone conversation with Appelbaum on this
occasion , the undersigned does not credit his denial for reasons stated in the foregoing
footnote.
" The record does not indicate whether the lay-offs of February 9 occurred before or
after the mailing of this letter . The letter itself refers only to 8 employees who "volun-
tarily and without any interference or suggestions on our part left our employ and asked
for releases " A total of 11 employees had been laid off prior to February 9. Reardon,
however, testified that the figure 8 was merely an approximation , furnished to him by
Skiver. It is clear from the record , and the respondent admits, that the employees did
not "voluntarily " leave the respondent 's employ, but were laid off. The respondent con-
tends, however , that, by requesting certificates of availability or releases , these employees
terminated their status as employees . This contention has already been considered and
,rejected by the undersigned.
THE REARDON COMPANY 1483•
function for a reasonable period in which it can be given a fair chance to
succeed." There is, in other words, a presumption of the continuahce of the
established status in the Union, for a reasonable period.9e Second, and of greater
importance, perhaps, is a fact which the respondent seems to have overlooked.
The employees were laid off as has been found, rather than discharged, and they
had a reasonable expectation of being recalled when shipping containers became
available. They thus remained employees of the respondent during their lay-offs.
And they were, and are thus, properly included in determining the majority. And
with respect to the period following the unlawful refusals to reinstate, during
which the refusal to bargain still existed, the case is quite obviously, all the
stronger on the point.99 It is unnecessary, in view of what has been said, to,
consider additional reasons which would support the conclusions reached.
The appropriate unit
The complaint alleges that all employees of the respondent, excluding execu-
tives, superintendents, assistant superintendents, foremen, laboratory employees,
main office employees, shipping and receiving clerks, and supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees or effectively, recommend such action, constitute a unit
appropriate for the purposes of collective bargaining.
Although the evidence is conflicting as to whether agreement was actually
reached with respect to the inclusion or exclusion of the shipping and receiving
employees, as contended by Appelbaum, it is apparent, from Reardon's testimony,
that this issue did not become "a serious basis of argument" until the last collective
bargaining conference on February 2, two weeks after the respondent had unquali-
fiedly recognized the Union's majority. Reardon, at no time, up to and including
the date of the hearing, took a position with reference to whether the respondent
desired that these employees be included within or excluded from the unit. In any
event, it is clear that whether or not the shipping and receiving employees were-
included in the appropriate unit, the Union had a clear majority 60
Evidence adduced by counsel for the Board indicates that there is no valid
reason for excluding the shipping and receiving employees from the unit. The
duties of these shipping and receiving employees are substantially what the term
implies. They are hourly rated employees, working substantially the same
number of hours, and under the same conditions as the remaining production and
maintenance employees. Although their jobs are not interchangeable with other
jobs in the plant, according to Reardon, they are "frequently transferred to other
operations in the plant" in the sense that inexperienced employees are customarily
employed in the shipping and receiving department and advanced to other jobs,
in the plant as vacancies occur in the production departments.
These shipping and receiving employees work under the supervision of a ship-
ping clerk, Louis Kaiser. He has an office of his own,1jrepares all bills of lading
and dray tickets for outgoing shipments, prepares receiving reports at the end of'
each day of materials received, and also assists the crew working under him in
the performance of their duties whenever necessary. Approximately one-third
of his time is consumed in "paper work", the remainder of his time in directing
his men. As of January 19, he had 5 employees under his supervision. He is paid
a salary of $33 per week, or 821/•2 cents per hour on a weekly basis for a 40 hour
98 See Franks Bros Company v . N. L. R. B., 321 U . S. 702, and cases cited ; N. L R. B.
V. Whittier Mills Company , 111 F. ( 2d) 474 (C. C. A. 5).
99 See Marlin -Rockwell Corporation v. N. L. R. B., 116 F. (2d) 586 (C. C. A. 2).
60 The Union had a membership , on January ' 19, of 17 among a total of 28 nonsupervisory
employees , including shipping and receiving employees . The record discloses that there-
were 5 shipping and receiving employees , of whom 4 were members of the Union.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week, "broken down into hours, so he can get overtime", as compared with an
hourly rate of 571/2 to 67% cents for employees under him. According to Reardon,
Kaiser has complete charge of receiving and shipping and, although he has no
authority to hire and discharge, he has authority to recommend the hiring and
discharging of employees in his department. The undersigned finds that Kaiser,
by reason of his supervisory status, should be excluded from the unit.
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that at all times material herein all the production and
maintenance employees of the respondent, including, shipping and receiving em-
ployees, but excluding executives, superintendents, assistant superintendents,
foremen, laboratory employees, main office employees, shipping and receiving
clerk, and supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or effectively
recommend such action, constituted and now constitute a unit appropriate for
the purposes of collective bargaining with respect to rates of pay, hours of em-
ployment, and other conditions of employment, and that said unit will insure to
the employees of the respondent the full benefit of their right to self-organization
and collective bargaining and will otherwise effectuate the policies of the Act.
The undersigned further finds that on and at all times after January 19, 1944,
the Union was the duly designated representative of a majority of the employees
in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act,
the Union was at all times material herein and is the exclusive representative of
all the employees in such unit for the purpose of collective bargaining in respect
to rates of pay, wages, hours of employment, or other conditions of employment.
The undersigned finds, finally, that on February 9, 1944, and at all times there-
after, the respondent refused to bargain collectively with the Union as the
exclusive representative of its employees within the appropriate unit, and thereby
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The 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.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent has refused to bargain collectively with
the Union as the exclusive representative of the employees in an appropriate unit.
It will, therefore, be recommended that the respondent, on request, bargain
,collectively with the Union.
It has been found that the respondent has not discriminated in regard to the
hire or tenure of employment or any term or condition of employment of Leonard
Oliver, Creola Prince, Irene Tinch, Jessie Thompson, Robert Wilson, by their
lay-offs on January 25; Elijah Brown, Clarence Murphy, Member Pearson, Lingo
Potts, Robert Wright, and Melvin Yarbrough, on February 2; Edna Aufderheide,
Delila Childress, and Hazel Hackey, on February 9, 1944. The undbrsigned will
,.therefore, recommend that those allegations in the complaint be dismissed.
THE REARDON CODIPANY 1485
The undersigned has, however, found that the respondent has discriminated
in regard to the hire and tenure of employment, of Leonard Oliver, Creola Prince,
Irene Tinch, Jessie Thompson, Robert Wilson, Member Pearson, Melvin Yar-
brough, Edna Aufderheide, Delila Childress, and Hazel Hackey 61 because of their
membership in and activities in behalf of the Union by failing and refusing to
offer them reinstatement, from and after March 8, 1944, when normal production
was resumed, according to their respective seniority. It will, accordingly, be
recommended that the respondent offer each of them immediate and full rein-
statement to their respective former positions or to substantially equivalent
positions. It will also be recommended that the respondent make each of them
whole for any loss of pay such employees may have suffered, by reason of the
respondent's discrimination, by payment to each of them of a sum equal to the
amount which such employee normally. would have earned as wages from such
date, commencing March 8, 1944, as these employees would normally have been
recalled to work, in accordance with their seniority. to the date of the respondent's
offer of reinstatement, less th+e net earnings o2 of such employees respectively,
during such period.
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. United Gas, Coke and Chemical Workers of America, CIO, affiliated with
the Congress of Industrial Organizations, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All the production and maintenance employees of the respondent, includ-
ing shipping and receiving employees, but excluding executives, superintendents,
assistant superintendents, foremen, laboratory employees, main office employees,
shipping and receiving clerk, and supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of em-
ployees or effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section 9 (b) of the
Act. -
3. United Gas, Coke and Chemical Workers of America, CIO, was, on January
19, 1944, and has, at all times thereafter, been the exclusive representative of all
the employees in the unit found to be appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing, on February 9, 1944, and at all times thereafter, to bargain
collectively with United Gas, Coke and Chemical Workers of America, CIO, as
the exclusive representative of all its employees in the appropriate unit, the
respondent has engaged; and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
5. By refusing to offer reinstatement to Leonard Oliver, Creola Prince, Irene
Tinch, Jessie Thompson, Robert Wilson, Member Pearson, Melvin Yarbrough,
Edna Aufderheide, Delila Childress, and Hazel Hackey, on and after March 8,
1944, the respondent has discriminated in regard to the hire and tenure of em-
"In view of the stipulation between the parties, no reinstatement or back pay is being
recommended for Clarence Murphy.
52 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. R. 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.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment or terms of conditions of employment, thereby discouraging membership
in the Union, within the meaning of Section 8 (3) of the Act.
6. 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, and
is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
8. Thd respondent has not engaged in unfair labor practices by the lay-off of
the employees named in the complaint.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
the Reardon Company, its officers, agents, successors, and assigns, shall=:
1. Cease and desist from :
(a) Refusing to bargain collectively, in respect to rates of pay, wages, hours
of work, and other conditions of employment with United Gas, Coke and Chemical
Workers of America, CIO, as the exclusive representative of all its employees in
the above-described appropriate unit;
(b) Discouraging membership in United Gas, Coke and Chemical Workers of
America, CIO, or any other labor organization of its employees, by discriminating
in regard to the hire and tenure of employment or any other terms or conditions
of employment of its employees ;
(c) In any other 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 United Gas, Coke and Chemical Workers of America, CIO, or any
other labor organization, to bargain collectively through representatives of their
own choosing, ai d to engage in concerted activities for the purpose of collective
bargaining or ai,y other mutual aid and 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) Upon request, bargain collectively with United Gas, Coke and Chemical
Workers of America, CIO, as the exclusive bargaining representative of all its
employees in the above-described appropriate unit ;
(b) Offer Leonard Oliver, Creola Prince, Irene Tinch, Jessie Thompson, Rob-
ert Wilson, Member Pearson, Melvin Yarbrough, Edna Aufderheide, Delila
Childress, and Hazel Hackey full and immediate reinstatement to their former
or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges ;
(c) Make whole the said Leonard Oliver, Creola Prince, Irene Tinch, Jessie
Thompson, Robert Wilson, Member Pearson, Melvin Yarbrough, Edna Aufder-
heide, Delila Childress, and Hazel Hackey for any loss of pay they may have
suffered or may suffer by reason of the respondent's discrimination against them,
by payment to each of them of a sum of money equal to the amount each would
have normally earned as, wages from the date, on or after March 8, 1944,
according to the seniority of each of said employees, on which the respondent
discriminatorily refused to reinstate each of said employees, to the date of the
respondent's offer of reinstatement, less the net earnings of each of said em-
ployees during such period:
(d) Post at its plant at St. Louis, Missouri, copies of the notice attached
hereto, marked "Appendix A". Copies of said- notice, to be furnished by the
THE REARDON COMPANY 1487
Regional Director of the Fourteenth Region, shall, after being duly signed by
the respondent's representative, be posted by the respondent 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 the respondent to insure
that said notices are not altered, defaced, or covered by other material.
(e) Notify the Regional Director for the Fourteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act by the lay-offs of the employees therein
named.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
Lake the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Sec-
tion 32 of Article II of said Rules and Regulations, file with the Board, Rocham-
beau Building, Washington 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. Immediately upon the filing of such a statement of
exceptions and/or brief, the party or counsel for the Board-filing 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.
IRVING RGGOSIN,
Trial Examiner.
Dated March 13, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES i
Pursuant to recommendations of a trial examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Re-
lations 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 United Gas, Coke and Chemical Workers of America, CIO,
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.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to any senority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
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 con-
ditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All the production and maintenance employees of the respondent, includ-
ing shipping and receiving employees, but excluding executives, superintend-
ents, assistant superintendents, foremen, laboratory employees,' main office
employees, shipping and receiving clerk, and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status' of employees or effectively recommend such action.
Leonard Oliver Member Pearson
Creola Prince Melvin Yarbrough
Irene Tinch Edna Aufderheide
Jessie Thompson Delila Childress
Robert Wilson Hazel Hackey
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.
------------------------------------------
By -----------------Emplpyer)--------------------
(Representative ) ( Title)
Dated -----------------------
NOTE: Any of the above-named employees presently serving in the Armed Forces
of the United States will be offered full reinstatement upon application in ac-
cordance 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.