The Timken Silent Automatic Co.

National Labor Relations Board - Board Decisions

Mar 17, 1936

1 N.L.R.B. 335 (N.L.R.B. 1936)

In the Matter of THE TIMKEN SILENT AUTOMATIC COMPANY, A COR-
PORATION and EARL P. ORMSBEE , CHAIRMAN, EXECUTIVE BOARD, OIL
BURNER MECHANICS ASSOCIATION
Case No. C-10-Decided March 17, 1936
Stove and Furnace Industry-Unit Appropriate for Collective Bargaining:
eligibility for membership in only organization making bona fide effort at col-
lective bargaining; functional coherence-Representatives: proof of choice:
membership in union-Collective Bargaining : assent to particular demands dif-
ferentiated from ; refusal to negotiate with representatives ; refusal to recog-
nize representatives as bargaining agency representing employees ; bargaining
with individual employees-Strike--Interference, Restraint or Coercion: ex-
pressed opposition to labor organization; denial of right of employees to be
represented by non -employees ; persuasion of employees to resign from union ;
soliciting individual strikers to cease striking-Disc?imtinat ion : non-reinstate-
ment following strike-Reinstatement Ordered, Strikers : discrimination in rein-
statement ; strike provoked by employer's law violation ; displacement of em-
ployees hired during strike-Back Pay: awarded.
Mr. David A . Moscovitz for the Board.
Alexander d Green, by Mr. James H. McIntosh and Mr. H. S.
Ogden, for respondent.
Mr. Frank Schemer for the Union.
Mr. Louis L . Jaffe of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 1, 1935 the Oil Burner Mechanics Association, herein-
after referred to as the Union, filed with the Regional Director for
the Second Region a charge that the Timken Silent Automatic Com-
pany, Long Island City, New York, had engaged in and was engag-
ing in unfair labor practices prohibited by the National Labor Rela-
tions Act, approved July 5, 1935. The charge was amended on Octo-
ber 17, 1935 and again on December 3, 1935. On November 13, 1935
the Board issued a complaint against the Timken Silent Automatic
Company, hereinafter referred to as the respondent, said complaint
being signed by the Regional Director for the Second Region and
alleging that the respondent had committed unfair labor practices
affecting commerce within the meaning of Section 8, subdivisions
(1), (3), and (5) and Section 2, subdivisions (6) and (7) of the
National Labor Relations Act. In respect to the unfair labor prac-
tices, the complaint alleged in substance :
335
336 NATIONAL LABOR RELATIONS BOARD
1. The installation, inspection, and service departments at t he
Long Island City plant of the respondent constitute a unit appropri-
ate for the purposes of collective bargaining, within the meaning of
Section 9(b) of the Act; on or about September 18, 1935, the Union,
representing the majority of employees in said unit, requested the
respondent to bargain collectively with it, and on said date, and at all
times thereafter, the respondent did refuse and has refused to bargain
collectively with the Union and did state and has stated that it will
bargain only with its employees individually.
2. As a result of this refusal by the respondent to bargain collec-
tively with the Union, the Union called a strike on September 25,
1935, which was settled on October 8, 1935, by agreement reached
between representatives of the respondent and representatives of the
Union, which agreement provided that the respondent would take
back all striking employees without discrimination or question; the
respondent has since refused to comply with the terms of this agree-
ment and has denied employment to J. Mills, J. Kohut, E. Korn,
W. Lamm, Louis Licht, J. McVicar, W. Moran, B. Mulcahy, H.
Schultheis, J. Schwartz, P. Theiss, L. Thompson, P. Brady, A. Bero,
E. Coogan, P. Creciluis , J. Derwechter, H. Mandel , E. Ormsbee,
O'Rourke, E. Ryan, I. Riker, John Roman, R. Schumacher, Dan
Gardner, K. Holbert, J. Kavanaugh, George Schultz, T. O'Reilly,
P. Burns, Walter Doyle, G. Smith, D. Lennon, I. Zwicker, and Fish,
and has at all times since that date refused to employ the said
employees for the reason that the said employees joined and assisted
the Union and engaged in concerted activities with other employees
in the Long Island City plant for the purpose of collective bargaining
and other mutual aid and protection.
In accordance with Article V of National Labor Relations Board
Rules and Regulations-Series 1, the complaint and accompanying
notice of hearing were served on the respondent and the Union on
November 13, 1935. On November 22, 1935, the time to answer
having been extended to that date by the Regional Director, the
respondent filed a paper objecting to the jurisdiction of the Board
in the premises, and, without waiving the aforesaid objections,
answering the complaint. The substance of its objections to the
jurisdiction was first: that the business of the respondent is an intra-
state business, that the regulation of the labor relations between the
respondent and its employees is solely within the jurisdiction of the
State of New York; and that in consequence the Act as attempted
to be applied violated the Tenth Amendment of the Constitution of
the United States; second : that the Act as attempted to be applied
to the respondent and its employees deprives each and all of them of
their liberty of contract and is in violation of the Fifth Amendment
of the Constitution of the United States.
DECISIONS AND ORDERS 337
In its answer the respondent denied that its business constituted
a flow of commerce among the several states, denied the alleged unfair
labor practices or that the alleged practices burdened or obstructed
commerce; with respect to the allegations of refusal to employ certain
named striking employees, the respondent alleged that the following
were not in its employ on September 25, 1935, the day of the strike :
J. Kohut and Fish; that the following had not at any time since
September 25, 1935 applied for employment with the respondent :
G. Mills, W. Lamm, P. Brady, K. Holbert, G. Schultz; that the
following have been employed by the respondent since September 25,
1935 and are still so employed : Louis Licht, L. Thompson, P.
,Creciluis, O'Rourke, G. Smith ; that the following have obtained
employment elsewhere or are engaged -in business for themselves :
J. McVicar, W. Moran, B. Mulcahy, H. Schultheis, A. Bero, E.
Coogan, J. Derwechter, E. Ormsbee, E. Ryan, John Roman, Dan
Gardner, I. Zwicker; that the following were students employed
temporarily and on the basis of probation only for the purpose' of
learning the business of oil burner mechanics : T. O'Reilly, P. Burns,
W. Doyle; that H. Mandel was offered employment by the respondent
and declined to accept such employment.
By order of the Board, William J. Mack was designated as Trial
Examiner. By amendments to the notice of hearing, the hearing was
postponed to December 4, 1935, at which time the hearing was
opened, with the Board and the respondent being represented by
counsel. Full opportunity to be heard, to examine and cross-examine
witnesses and to introduce evidence bearing upon the issues was
afforded to both parties.
At the hearing the Board moved to amend its complaint. The
motion to amend the complaint was granted. The amendments were
two. First : The allegation that the respondent had refused to em-
ploy certain persons was stricken as to certain of those persons and
retained as to the following only : W. Moran, J. Kohut, B. Mulcahy,
H. Schultheis, A. Bero, J. Derwechter, E. Ormsbee, E. Ryan, John
Roman, Dan Gardner, C. Lennon, I. Zwicker, J. Kavanaugh, E.
Korn, J. Schwartz, P. Theiss, T. O'Reilly, P. Burns and W. Doyle.
Second: to the appropriate bargaining unit were added two depart-
ments, the storeroom and the garage departments. The respondent
moved to amend its answer to deny the allegations added to the com-
plaint by amendment. The motion was granted.
At the hearing on December 4th testimony was taken. The re-
spondent moved to dismiss the complaint on the constitutional
grounds previously stated in its objections to the jurisdiction and on
the further ground that the complaint does not state sufficient facts
to make a cause of action. The Trial Examiner took the motion
under advisement. Upon the understanding that all rights asserted
338 NATIONAL LABOR RELATIONS BOARD
by the motion were reserved, the respondent participated in the hear-
ing. The motion was renewed on the ground that a stipulation sub-
mitted by the Board relating to the character of the respondent's
business and of its employees established that the industrial activities
of respondent are "local" and that the Act by its own terms is in-
applicable. The Trial Examiner again reserved decision on the
motion. Upon the basis of the findings hereinafter made below, the
motion to dismiss is hereby denied.
On December 16, 1935, the Board directed that the proceedings
be transferred to and continued before it, thereupon assuming juris-
diction of the proceeding pursuant to section 35, Article II of said
Rules and Regulations-Series 1.
Upon the record in the case, the stenographic report of the hear-
ing and all the evidence, including oral testimony, documentary and
other evidence offered and received at the hearing, the Board makes
the following :
FINDINGS OF FACT
1. The Respondent. The Timken Silent Automatic Company is a
Michigan corporation engaged in the manufacture, sale, installation,
and servicing of automatic oil boilers, oil-furnaces, water heaters and
heating accessories and parts, and is one of the largest manufacturers
and sellers of its kind in the United States.
The product is manufactured in Detroit, Michigan. Approxi-
mately 60 per cent of the materials used by the respondent at its De-
troit plant is shipped to it from states other than Michigan. The
larger percentage of the sales of its products is made in states other
than Michigan.
The respondent is authorized to do business and does engage in
business in Michigan, New York, Massachusetts, New Jersey, Penn-
sylvania and other states. It has branches for the purpose of receiv-
ing, selling, installing and servicing its product in Long Island City,
New York, where the present dispute occurred, and in New Rochelle,
New York; in Boston, Massachusetts, in Philadelphia, Pennsylvania,
and in Detroit, Michigan. It has sales outlets through approxi-
mately 350 dealers. The respondent advertises nationally by mail,
magazine, bill board and radio. In all its operations it employs
approximately 700 persons exclusive of executives and supervisory
employees.
The operations of the respondent constitute a continuous flow of
trade, traffic, and commerce among the several States.
2. The Long Island Branch,. The present controversy is con-
cerned with the relations between the respondent and certain of its
employees who are employed at the respondent's Long Island City
Branch, hereinafter called the Branch, a place of business devoted
DECISIONS AND ORDERS 339
to receiving , selling, installing and servicing the respondent 's prod-
ucts. All of the sales made by the Branch are made in New York for
installation there. The Branch sends a monthly inventory of its
stock to the Detroit factory office . From that office it receives sup-
plies of stock so that it will always have sufficient on hand to fill
orders. In the fall it receives a particularly large amount of stock
to meet the peak business of early winter . The burner is shipped
from Detroit in a carton which is not usually opened until it is to be
installed . Additional materials and parts used in the installation
are purchased locally and are stocked in bulk. Of a total number
of 11,500 units manufactured and sold by the respondent in 19341
approximately 1,900 were sold by the Long Island Branch. This
Branch employs about 151 of the 700 employees ; its payroll is $19,0001
of the monthly $100,000 payroll of the respondent. Each monthly
payroll of the Branch is audited in the Detroit office , and covered by
a check to the local branch for the total sum involved.
3. Refusal to bargain. The employees in the Branch are divided
into five groups : installation , inspection ( of installations ), service
(subsequent to installation ), garage, and stockroom . Though it is
not the regular practice to shift men from one divis oh to another, it
is not unusual for installation men to go on service nor for either of
these groups to lend a hand in the stockroom or the garage . This is
borne out by the fact that a number of the men here concerned have
been at one time or another used in installation , inspection and
service work.
The Union was first organized in February , 1935 by a group of
employees in the Branch, and is a labor organization . Employees
in the installation , inspection , service, garage , and storeroom depart-
ments were eligible. The employees in these departments comprised
all employees with the exception of the clerical staff , and constitute,
with the exception of the supervisory and clerical staff , a unit appro-
priate for the purposes of collective bargaining.
At first the Union was not affiliated with any other organization.
On July 7, 1935 the Union affiliated with the Federation of Metal
and Allied Unions. By the middle of July, 1935 the Union had
about 135 members, only four or five of whom were not respondent's
employees. There were at this time about 100 persons on respond-
ent's regular payroll at the Branch. The rest of the Union members
N.Tere reserve or extra men . The Union membership and the number
of employees continued more or less constant until September 24,
1935, at which time it is claimed that the respondent refused to bar-
gain collectively. There is, therefore, no question that the Union
represented a majority of the Branch employees in the appropriate
unit at the time in which it sought to bargain on their behalf.
340 NATIONAL LABOR RELATIONS BOARD
In early July, 1935 the Union sent a committee to Harry P. Denni-
son, service manager of the Branch, to demand clean toilets, a suit-
able place to change clothes, lockers, and certain other things. The
committee was composed of Ormsbee, Derwechter, Gardner and
Yager. (The first three of these are among those not reemployed..
Mr. Yager returned to the plant while the strike was on.) Mr.
Dennison first told them that if they did not like the place they
could leave. He then told them that he would answer officially at a
later date. Subsequently he admitted the justice of certain of these
demands. He agreed to grant them but in fact did so only to a very
limited extent, as appears below.
In August, O'Malley, an assistant to Dennison, told Ormsbee that
he had been instructed to "pull" Ormsbee's time card; he said that
Ormsbee was to see Reis, the general branch manager. O'Malley told
Ormsbee, referring to his union activity, "You should not jeopardize
J our position for any of these dumb monkeys out here. What I
think you ought to do is resign from the organization, resign any
position you have with them . . . if you will do that, I will go to
Mr. Reis and tell him I think he has got you figured out all wrong.
. . . The proposed action by the company is to fire the active
members of the Union."
Ormsbee saw Reis. Reis received him well, and agreed to meet
a committee. On August 9th a committee of eight, led by Ormsbee,
met with Reis. A number of demands were made : for a 40-hour
week, first-aid kits on trucks, preference for employees in filling
certain jobs, clean toilets, towels and soap, lockers, and dressing
space. An oral understanding was reached on a 45-hour week.
Certain of these demands were admitted to be reasonable; a very
few-clean toilets, soap and towels-were acted upon, but even in
those instances the respondent did not commit itself by agreement to
the fulfillment of them ; it treated them as suggestions and acted
upon them to the extent that it saw fit.
On September 18th a Union committee of about nine men with
Ormsbee as spokesman presented Reis with a proposed contract in
writing. The demands were for recognition, closed shop, hiring
through the Union, wage and hour scales, and certain preferences
in filling the better jobs. Reis informed the committee that it would
be necessary for him to communicate with the main office of the
respondent in Detroit.
On September 24th, Dennison called all of the employees together
before work began, and addressed them. Standing with him were
Jordan, general service manager of the respondent for its service
operations everywhere, and Louis Klaus, an assistant of Dennison
who was supervisor of installation. Though a great many of the
DECISIONS AND ORDERS 341
Board's witnesses stated that Dennison's speech to them was profane
and abusive, he denied it in his testimony. According to his own
testimony his speech was as follows :
"Fellows, I am here to answer this paper which was given to
Mr. Reis, and our answer is that we are not going to sign this
agreement or any other agreement, today, tomorrow, this week,
next week, this month, this year, or next year, and if any of you
people are not satisfied with conditions under which you are
working and have worked in the past, you can go upstairs and
get your money. Those of you who care to work under the pres-
ent and past conditions will have a job. We will take care of
you the best we can as circumstances permit.
Dennison then gave them one-half hour to decide whether they
would work. After some indecision they went to work. That night,
however, at a Union meeting a strike was voted. On September
25th, 110 employees struck. The respondent shut down the plant
for one week.
On October 4th, certain men having heard that the respondent
was willing to negotiate, a Union committee of which Ormsbee was
the spokesman met Reis. Reis said that the position of the respond-
ent was the same at that time as it was in the beginning and always
would be that way. They would have nothing to do with any
organization of the kind. However, they would always be willing
to confer with any committees of the employees, or any employee
individually; that, he said, was what the law required and in that
they were willing to obey the law. He then said that all the strikers
could come back but would have to sacrifice seniority and sign on
as new employees.
Between October 5th and 7th, Dennison negotiated privately with
Mandel, one of the strikers, for a return of the men. These nego-
tiations were not known to the Union at large. The respondent
sought, thus, to ignore completely the chosen representatives and
dealing in this way to isolate and break down the Union leadership.
At first Dennison said he had authority to take the men back only
as strike-breakers without their regular privileges. When Denni-
son receded from this position, Mandel suggested a meeting with a
Union committee to confirm the arrangement. At this meeting it
was understood that the men would be taken back at their old jobs
as needed. The men understood that there was to be no discrimina-
tion in rehiring. Dennison admits that the men asked in his presence
that there be no discrimination and that he said nothing.
From these facts it is clear that the respondent categorically re-
fused to bargain with the Union as the representative of its employees
342 NATIONAL LABOR RELATIONS BOARD
and made it clear that it was undisposed to explore with an open mind
the possibilities of making an agreement with its employees. It is
true that officers of the respondent did meet Union committees from
time to time ; after being surprised into a display of downright hos-
tility at the initial approach of the Union, the officers were courteous
and discreet and ready to discuss casual grievances and demands.
The demands, however, were treated as suggestions upon which the
respondent, if it acted, acted, not on the basis of a collective bargain
or agreement, but of grace. When asked to consider an agreement'
regulating prospectively relations between it and its employees in a
comprehensive manner, the respondent refused to discuss the idea or
any detail of it and made it clear that it had a fixed policy preclud-
ing such discussion. It thus refused in its dealings with its employees
to accede even to the forms and the procedure of collective bargaining.
We find, therefore, that respondent has refused to bargain collec-
tively with the representatives of its employees.
4. The return to work: discriminatory reinstatement. On Octo-
ber 8th about 60 of the strikers signed applications for reinstate-
ment. All of the men named in the amended complaint, except
Doyle, signed these applications. The men were told that they would
be called for when needed. Practically all of the men signing appli-
cations, except those here in question, have been called back for work.
The latter, despite their applications and though some of them
solicited work at the office of the Branch a number of times, have
never been called for work.
It is true that the respondent does not employ so many men as
it did before the strike. Dennison estimated that during the strike
the business of the Branch had fallen off 70 per cent; at the time of the
hearing it was 50 per cent of what it had been before the strike.
Before the strike 95 to 100 men were employed. Now about 65 or 70
are employed.
However, among the men now employed are a number of new men
taken on during the strike, how many does not appear, and 20 or
more new men taken since the strike was settled. Respondent's wit-
nesses (explaining and justifying the employment of new men) testi-
fied that it is customary to take new men in September or October
for the rush season in early winter, and that these new men had
been "contacted" prior to the strike. But by the time the strike was
settled respondent was aware that increased business had not de-
veloped, and that, as a consequence, no one in addition to the old
men who had applied for reinstatement would be needed. Neverthe-
less, respondent employed 20 new men in place of and in preference
to that number of the old men. There is some claim that these new
men were inexperienced and not hired for.the jobs at which the men
DECISIONS AND ORDERS 343
in question would have been employed. But the testimony of Louis
J. Klaus, one of Dennison's assistants, is to the effect that about 2Q
new men were taken on (how many of these before, how many after
the settlement of the strike, is not clear) to do the work that the old
employees could have done ; that a number were thereafter laid off
and that, at present, there are six to ten new men in such jobs. It is
evident, therefore, that in a number of instances since October 8th
when a job was to be filled and one of the old employees here in
question was available and had applied, the respondent filled the
vacancy with a new man.
Klaus testified that 16 of the men named in the complaint as
amended (these were all that were known personally to him) were
inefficient and that in two.weeks' time new and inexperienced men
hired to take their places had been found superior. He said this
though certain of these men had been employed by respondent any-
where from three to eight years, a number in supervisory capacities.
There is much evidence both as to the method of hiring and
statements made by officials of respondent which shows that Union
activity and not merit was the criterion of reinstatement. Normally
the head of a department hired his men, subject to the approval of
Dennison. This was the procedure used in hiring the new men, men-
tioned above, but the applications of the strikers were sent directly to
Dennison's office. Dennison on one occasion told Mandel (one of the
strikers) that the orders to hire had to come from New York. Klaus
told O'Reilly, one of the strikers, "We are not hiring here. It is in
the hands of the company's lawyers in New York." Siebrick, one
of Klaus' assistants, told Moran the New York lawyers were going to
look him up.
O'Reilly, having heard that he was not being hired because his
work was poor, asked Siebrick if this was true. "No", was the
answer, "it is something that happened at one of the Union meetings".
Moran, while on the picket line, remarked to Strickland, the chief
inspector, that the strike would soon be over. "Well, you'll never get
back anyhow," replied Strickland.
It seems clear from the evidence that the men in question were
discriminated against in favor of new men and that the reason for
the discrimination was union activity. Dennison's own explanation
of why they were not rehired in effect supports the view that there
was discrimination. Dennison insists that he never agreed that he
would take back the men without discrimination. When asked on
cross-examination why he took new men rather than the strikers, he
replied, "I did not tell them I would employ them exclusively (i. e.
the strikers) before anyone else". That they were discriminated
97571-36-vol. i- 23
344 NATIONAL LABOR RELATIONS BOARD
against for union activity is the only explanation consistent with
the facts. For example, Ormsbee, the Union spokesman, had been
employed for eight years by the respondent. He had done service,
installation; and inspection work, sometimes in the capacity of fore-
man. No claim that he was inefficient was made prior to or at the
hearing. Derwechter, a member of the Union's executive committee,
had a similar record of employment. When these men applied for
reinstatement their applications were not handled in due course by
the department heads directly familiar with the men's merits and
with their own employment needs. The applications were sent to
the office of Dennison and possibly from there to a lawyer's office, to
persons who would be in no position to pass on the applicant's merit.
After September 18th when the Union ,presented its contract, the
respondent showed itself in its formal dealings with the men and by
the random remarks of its officers and foremen to be strongly and
uncompromisingly opposed to the Union.
These deviations from normal employment procedure and these
scattered remarks gain point and consistency when it is noted how
large a proportion of the active Union leadership has been refused
work. In the period between early July and October 8th, the day
of the strike settlement, the Union sent five committees to deal with
the respondent. The size and personnel of the committees varied.
In all, 15 men served. They were : Ormsbee, Derwechter; `Hoolbert,
Gardner, Yager, Mandel, Aparadisso, Zuzziana, Alexander, Schul-
theis, Zwicker, Myers, Moran, Lennon and Roman. Yager deserted
the Union cause returning to work during the strike. Holbert did
not apply for employment. Of the remaining 13, eight have not
been employed. These eight include the three most prominent Union
members, Ormsbee, Gardner and Derwechter. These three, together
with Yager, composed the first Union committee ever to meet the
management. Either Ormsbee or Gardner was the spokesman for
all subsequent committees. Ormsbee and Derwechter were members
,of the regular Union executive committee, Ormsbee being the Chair-
man of that committee and also of the strike committee. Moran,
another Union member not reemployed, was the sergeant-at-arms for
the Union. Out of about 60 men applying for reemployment on Oc-
tober 8th, about 40, or 662/3%, have been successful. Out of 13 Union
committee members eight (including the three most prominent), or
about 60%, have failed of reemployment. Furthermore, a number
of these had been employed by the respondent for many years, Orms-
bee and Derwechter each for eight years, and Gardner for three
years. Employees of their experience would normally have been re-
instated before others. In this fact: the disproportionate number
of committee men and prominent Union leaders who were not rein-
DECISIONS AND ORDERS 345
stated, we perceive more than the operation of mere chance; we find
a studied plan by respondent to eliminate the Union leaders from its
staff.
We find that respondent has discriminated with respect to hire and
tenure of employment against the persons named in the complaint as
amended, except Walter Doyle (there is no proof that Doyle applied
for reemployment), for the purpose of discouraging membership in
the Union, and that by such acts, respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights of
self-organization guaranteed in Section 7 of the Act.
5. Effect of unfair labor practices upon commerce. We find that
these acts of the respondent have led and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow thereof.
In support of our conclusion that these acts do affect commerce, we
cite the following authorities : Duplex v. Deering, 254 U. S. 443;
Aeolian Co. v. Fisher, 35 F. (2d) 34; 40 F. (2d) 189. The sale and
installation of the products are intimately related to and connected
with their manufacture and transportation. The respondent is en-
gaged in every operation necessary to the placing of these boilers in
the houses of the consumer from the manufacture in Detroit, Michi-
gan, to the installation in Long Island, New York. Sale and installa-
tion ,are just as essential in the conduct of its far-flung business as is
manufacturing and transportation. A stoppage in any one of these
operations affects the others. Under like circumstances the courts
have held, in the cases above cited, that a labor boycott arising in
connection with installation is a restraint of interstate commerce and
so, a violation of the Sherman Anti-Trust Act. We believe that those
cases support our finding that the unfair labor practices as found
affect interstate commerce.
THE REMEDY
There are 18 men who have suffered discrimination. These men
are not at work now because of two reasons. First, the respondent's
wrongful refusal to bargain caused them to strike. During that strike
men were employed in their place. Second, after the settlement of
the strike, the respondent' has further filled with new men jobs for
which the men in question were available. These men or some part
of them are thus out of work as a consequence of the respondent's
wrongful act in refusing to bargain and as a result, further, of its
discrimination in reinstating the strikers. If the damage occasioned
by respondent's failure to bargain is to be repaired, if the discrimina-
tion is to cease, and if the resulting interference with the organiza-
tional activity of the employees is to be removed, the men who have
thus been illegally supplanted must be returned to work, even though
346 NATIONAL LABOR RELATIONS BOARD
men hired since September 24th (apart from strikers) should have
to be displaced. A number of the men to be reinstated have performed
more than one type of work for the respondent. Ormsbee, for exam-
ple, has done installation, service work, and inspection. Ormsbee's
availability is, apparently, not limited to the last job lie held. Insofar,
therefore, as it was customary to regard a man as available for more
than one job that fact shall be taken into consideration in determining
whether a new man is now filling a job for which an old man is avail-
able. Assuming that on this basis there are fewer jobs than there are
available men, the men will receive preference according to their
seniority, except that a man who was actually employed at the time
of the strike in the job to be filled shall be preferred to one who was
not so employed. It is possible that the respondent does not observe
seniority rules in its business. We believe, however, that the form of
the relief is necessary to accomplish the policies of the Act. Certain
of the 18 men in question were more prominent in union activity than
others. If we permit the respondent to choose among them, discrim-
ination, though within a narrower range, may be continued. Senior-
ity is prima facie a relevant criterion of fitness so that, as at present
advised, we believe the application of that rule would operate fairly.
Those of the 18 men who cannot be offered jobs should be placed on a
preferred list to await vacancies as they arise, and to be employed
according to the seniority rule here laid down.
On September 24th, when the respondent refused to bargain with
the Union, almost all of the employees were members of the Union.
There is nothing in the record to indicate that that is not still the
case, unless it be that the tactics of respondent have dissuaded a
number from being active in Union affairs. Therefore, we order
the respondent to bargain with the Union, should the Union seek
to bargain with respondent.
CONCLUSIONS OF LAW
. Upon the basis of the foregoing findings of fact, the Board makes
the following conclusions of law :
1. The employees in the installation, inspection, service, store-
room, and garage departments at the Long Island City Branch
of the respondent, except the supervisory and clerical staff, consti-
tute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
2. The Union is a labor organization within the meaning of
Section 2, subdivision (5) of the Act.
3. By virtue of Section 9 (a) of the Act, the Union, having been
designated as their representative by a majority of the respondent's
employees in an appropriate unit, has been, at all times since early
DECISIONS AND ORDERS 347
July, 1935, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining.
4. By its refusal to bargain collectively with the Union as the
representative of its employees, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Sec-
tion 8, subdivision (5) of the Act.
5. By its refusal to employ W. Moran, J. Kohut, B. Mulcahy,
H. Schultheis, A. Bero, J. Derwechter, E. Ormsbee, E. Ryan, John
Roman, Dan Gardner, C. Lennon, I. Zwicker, J. Kavanaugh, E.
Korn, J. Schwartz, P. Theiss, T. O'Reilly, and P. Burns in order
to discourage membership in the Union, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning
of Section 8, subdivision (3) of the Act.
6. By interfering with and restraining its employees in the exer-
cise of their right to self-organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities, for the purpose of collective bargaining and
other mutual aid and protection as guaranteed in Section 7 of the
Act, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8, subdivision (1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Re-
lations Act, the National Labor Relations Board hereby orders that
the respondent, Timken Silent Automatic Company :
1. Cease and desist from in any manner interfering with, restrain-
ing or coercing their employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7
of the National Labor Relations Act.
2. Cease and desist from discouraging membership in the Oil
Burner Mechanics Association, or any other labor organization of
its employees, by discrimination in regard to hire or tenure of em-
ployment or any term or condition of employment.
3. Cease and desist from refusing to bargain collectively with Oil
Burner Mechanics Association as the exclusive representative of the
employees in the installation, inspection, service;. storeroom, and
garage departments at the Long Island City Branch of the respond-
348 NATIONAL LABOR RELATIONS BOARD
ent in respect to rates of pay, wages, hours of employment and other
conditions of employment.
4. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Oil Burner Mechanics
Association as the exclusive representative of the employees in the
installation, inspection, service, storeroom, and garage departments
at the Long Island City Branch of the respondent in respect to rates
of pay, wages, hours of employment and other conditions of employ-
ment.
(b) To the extent that work for which the following are avail-
able is now performed by persons employed since September 24,
1935, apart from strikers, offer employment to the following named
persons, on the basis of seniority as set forth in this decision : W.
Moran, J. Kohut, B. Mulcahy, H. Schultheis, A. Bero, J. Derwechter,
E. Ormsbee, E. Ryan, John Roman, Dan Gardner, C. Lennon, I.
Zwicker, J. Kavanaugh, E. Korn, J. Schwartz, P. Theiss, T. O'Reilly,
and P. Burns; place those for whom employment is not available on
a preferred list to be offered employment as it arises.
(c) Make whole such of those persons named in paragraph (b)
above who receive employment, for any loss of pay they have suf-
fered by reason of respondent's refusal to employ them, by payment
to each of them, respectively, of a sum of money equal to that which
each would have earned had he been employed in lieu of the person
who has worked in his place (except that he shall not receive any-
thing for the period between September 24, 1935 an'd, October 8, 1935),
less the amount which each has earned during such period.