The Van Iderstine Co.

National Labor Relations Board - Board Decisions

Nov 17, 1939

17 N.L.R.B. 771 (N.L.R.B. 1939)

In the Matter of THE VAN IDERSTINE COMPANY and DISTRICT # 50
OF THE UNITED MINE WORKERS OF AMERICA
Case No. C-7f?7.Decided November 17, 1939
Poultry feed, Tallow, Soap Materials and Related Products Manufacturing
Industry-Interference, Restraint, and Coercion: antiunion statements, threat-
ening bodily harm to union organizers ; permitting notice to be posted on
bulletin board berating union and urging employees not to join it ; interrogating
employees concerning their union activities ; seeking to induce employee to
spy on union members ; attending union's meeting and heckling its speaker ;
searching union member for membership cards ; engaging in surveillance of
union meeting-Company-Dominated Union : domination of and interference with
formation and administration ; assistance and support in formation of ; utilized
to counteract and negate organizational activities of outside organization;
soliciting membership in and collecting dues for, by supervisory employees ;
permitting initiation fees and dues to be collected and membership cards dis-
tributed by employees in plant during working hours, while at same time dis-
couraging membership in outside organization ; permitting the posting of mem-
bership petitions on bulletin board, coercing the employees to sign the. petitions ;
participation in selection of shop stewards, permitting their selection by em-
ployees in plant during working hours, allowing their first meeting to be held
on company time and property ; granting a wage increase and posting notices
giving credit therefor to ; disestablished as agency for collective bargaining-
Settlement Agreement: events occurring prior to, considered where there has
been further conduct exhibiting a continuity with its conduct and attitude prior
to such agreement-Discrimination: as to tenure of employment : discharge for
union membership and activity to discourage membership in the Union ; dis-
charge for union membership and reluctance in joining company-dominated
union ; to discourage membership in union and encourage membership in com-
pany-dominated union ; charges of, dismissed as to one person for want of
proof ; presence of proper causes at time of discharge not conclusive in deter-
mining, since issue is whether such causes in fact induced the discharge or
whether they are a justification in retrospect-Reinstatement Ordered: dis-
charged employees-Back Pay: awarded.
Mr. Will Maslow, for the Board,
Breed, Abbott & Morgan by Mr.. Thomas E.. Kerwin and Mr.
Charles H. Tuttle, of New York City, for the respondent.
Mr. William P. Ryan, of New York City, and Mr. Sam Horn, of
Maspeth, N. Y., for the Association.
Mr. Herman Edelsberg, of New York City, for the United.
Mr. Vincent A. Burns and Mr. Edwin L. Swope, of counsel to the
Board.
17 N. L. R. B., No. 69.
771
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed in behalf of United
Mine Workers of America, District 50, herein called the United,
the National Labor Relations Board, herein called the Board, by
Elinore M. Herrick, Regional Director for the Second Region (New
York City), issued its complaint dated February 16, 1938, against
The Van Iderstine Company, Long Island City, New York, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (2), and (3) and Section 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, were duly served upon the respondent, The Van Iderstine
Employees' Association, herein called the Association, and upon the
United.
With respect to the unfair labor practices, the complaint, as
amended at the hearing,' alleged in substance, that the respondent
interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act; that the re-
spondent dominated and interfered with the formation and admin-
istration of a labor organization of its employees, known as The
Van Iderstine Employees' Association, and contributed support to
it; and that the respondent discharged Edward Crum on or about
November 15, 1937, Zigmund Cenderoski,2 on or about December 1,
1937, and Philip Jackson, on or about December 29, 1937, because
they joined and assisted the United. On February 25, 1938, the
respondent filed an answer traversing all the material allegations
of the complaint except the allegation that the respondent was en-
gaged in interstate commerce. On March 1, 1938, the Association
filed a motion to intervene and participate in the hearing. The Asso-
ciation also filed an answer denying all the allegations in the com-
plaint concerning it, and denying knowledge or information sufficient
to form a belief as to the other allegations. A motion to inter-
3 On March 30, 1938, the United filed a supplemental charge alleging that the respondent
had discharged Edward Crum, on or about November 15, 1937, because of his membership
in and activity in behalf of the United. On the same day counsel for the Board served
notice on counsel for the respondent that he intended to move at the beginning of the
hearing that the complaint be amended to include this allegation . At the beginning of the
hearing counsel for the Board made such a motion which was granted by the Trial Exam-
finer without objection.
2 Name incorrectly spelled Sigmund Sindowski in the complaint.
THE VAN IDERSTINE COMPANY 773
vene was granted by the Regional Director, but participation was,
limited to the issues raised by the allegations in the complaint that
the respondent dominated, interfered with, and contributed support
to the Association. On March 30, 1938, pursuant to the respondent's
request filed with the Regional Director on March 3, counsel for the
Board furnished the respondent with a bill of particulars.
Pursuant to notice duly served upon the respondent, the Associa-
tion, and the United, a hearing was held at New York City, on
March 31, and April 4, 5, and 6, 1938, before Elliott L. Biskind, the
Trial Examiner duly designated by the Board. The Board, the
respondent, the United, and the Association were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties, subject, in the
case of the Association, to the reservation previously noted. During
the course of the hearing the Trial Examiner made several rulings
on motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. Except for one ruling,
discussed below in Section III-C, denying the admission in evidence
of certain of Zigmund Cenderoski's time cards, the rulings are hereby
affirmed.
On June 18, 1938, the Trial Examiner filed his Intermediate
Report, a copy of which was duly served on all parties, finding that
the respondent had engaged in and was engaging in, unfair labor
employees in that department. The Association, operating under a
Section 2 (6) and (7) of the Act. He found that the respondent had
formed and sponsored the Association and that it was dominating
and interfering with its administration and contributing support
to it. He also found that the respondent had discharged Philip
Jackson and Zigmund Cenderoski because of their affiliation with
and activities in behalf of the United; and that Edward Crum had
not. been discharged for union activity or membership, but had been
discharged for cause. The Trial Examiner recommended that the
respondent cease and desist from its unfair labor practices and take
certain affirmative action to remedy the' situation brought about by
the unfair labor practices.
Thereafter the respondent and the Association filed exceptions to
the Intermediate Report. Pursuant to notice duly served on all the
parties, a hearing for the purpose of oral argument was had before
the Board in Washington, D. C., on December 22, 1938. The re-
spondent, the United, and the Association were represented by coun-
sel and participated in the argument. Thereafter, a brief in support
of its case was submitted by the respondent. The Board has con-
sidered the exceptions to the Intermediate Report, and in so far as
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are, inconsistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:,
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a. Maine corporation, has its principal office and
place of business in Long Island City, New York. It is engaged in
the manufacture, sale, and distribution of poultry feed, tallow, soap
materials, meats , fats, and related products. The respondent obtains
about 15 per cent, amounting to about 300,000 pounds, of its raw
materials , consisting of fats, bones, and offal, outside the State of
York, and sells and ships approximately 30 per cent of its finished
products to points outside the State of New York.
The respondent admits that its operations affect interstate com-
merce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District No. 50, is a labor
organization affiliated with the Committee for Industrial Organiza-
tion" admitting to membership production employees of the respond-
ent excluding employees in the collection department.
The Van Iderstine Employees' Association is an unaffiliated labor
organization admitting to membership all production employees of
the respondent including employees in the collection department, but
excluding executives.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, aiul coercion
In June 1937 the United commenced an organizing campaign
among the respondent's employees. and, on June 28, held its first
organization meeting. The respondent met this campaign with ac-
tive opposition. On June 25, 1937, Joseph Mark, an employee, while
talking. to three United organizers outside the respondent's plant
during his lunch hour, turned and discovered the respondent's super-
intendent, Walsh, standing. behind him. Walsh then ordered Mac-
Donald ,4 the respondent's timekeeper, to summon the police and, as
Walsh walked away, he instructed MacDonald and another employee
to kick the organizers "in the pants." At about the same time there
a Now the Congress of Industrial ' Organizations.
MacDonald is referred to as O'Donuel in the respondent ' s brief.
THE VAN IDERSTINE COMPANY 775
appeared on the respondent's bulletin board; where it posted notices
to its employees, such as, safety signs and working schedules for the
employees, a typewritten notice 6 warning the employees not to join
the United because it was "a racket," and stating that labor or-
ganizations "take a man's money" and cause him to be discharged.
During the day of June 28, Theodore Holmes, foreman of the poul-
try-feed department, asked several employees who were unloading a
barge if they planned to attend the United's meeting that evening.
Upon receiving affirmative answers, Holmes stated that they were
"mighty foolish": and Warned, "If you fellows go to this meeting
make sure you don't sign anything." At the hearing Holmes first
denied talking to these employees on June 28, but later said that he
could'not relriember speaking to the men "unless it was to give them
orders." In view of the positive evidence that he had so stated, and
the record as a whole, we are satisfied that Holmes made the state-
ment.
After work that evening a number of the respondent's employees,
including Holmes, admitted by the respondent to be a supervisory
employee, and Koch and Harrison, whom we hereinafter find to be
supervisory employees, attended the United's meeting held in a hall
near the plant. During the meeting Foreman Holmes asked the
speaker, a United organizer, what the United proposed to do with
the money it collected from the employees and what benefit they
would derive from joining it. He also asked if the United "was
like the rest of the rackets." Holmes and the organizer then en-
gaged in an argument. At the hearing Holmes denied that he had_
attended the meeting to interfere with the organizational activity
of the respondent's employees but admitted that he had no intention
of joining the United, and explained that he had attended "for
curiosity's sake." Hohnes could not remember the nature of the
questions which he had asked, but. denied criticizing the United. We
are satisfied that Holmes made the statements at the meeting as
recorded above and that his motive in questioning the organizer was
to arouse distrust of the United in the employees' minds.
The next day, Holmes approached Kimkowski, an employee, who.
had attended the United's meeting on the previous evening, jerked
his coat aside and searched his pockets. Kimkowski asked Holmes
what'he Was looking for and Holmes replied that he was looking for
' This bulletin board , also referred to as a black board in the record , was located in the-
timekeeper 's office near the time clock where the employees punch in and out before and-
after work.
' This notice was not available at the hearing, and the record is not clear as to who.
signed it . Two witnesses testified that it was signed by Superintendent Walsh . However,
a third witness testified that the president of the Association signed it. Since the author-
ship of the notice is doubtful we make no finding in that respect but we do find that the_
respondent permitted its posting upon the plant bulletin board.
247384-40-vol. 17-50
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the United membership application cards Kimkowski was distribut-
ing. Holmes did not find any cards.7 Later, during the same day,
Holmes again approached Kimkowski and complained, "It is a fine
thing for you to do, joining the Union, the C. I. 0., after me giving
you a good position," and then demoted Kimkowski to his former
job. The next day Kimkowski, and several other United members,
were discharged. Thereafter, the United filed charges with the
Board, alleging that the respondent had committed unfair labor
practices within the meaning of the Act. Subsequently, conferences
were held between the Board and the parties as a result of which
the respondent agreed to reinstate seven United members and the
United withdrew the charges.8
The second meeting of the United was scheduled to be held on
July 9. On that evening several of the United's members standing
in front of its meeting hall, before the meeting was to commence, ob-
served that a number of the respondent's supervisory employees,
namely, Walsh, Holmes, Harrison, and the foreman of the "extrac-
tion plant" were near the hall where they could observe the members
entering it. No explanation was offered for their presence in the
vicinity of the United's meeting place.sa We find that these super-
visory employees were keeping the meeting place under surveillance.
We find that the respondent, acting through its supervisory em-
ployees, by ordering its timekeeper and another employee to inflict
bodily harm on the United organizers, by permitting a notice to be
posted on its bulletin board berating the United and urging the em-
ployees not to join it, by interrogating its employees concerliing their
United activities, by attending the United's meeting and heckling its
speaker, by searching a United member for United membership cards,
and by surveillance of United meetings, has interfered with, re-
strained, and coerced its employees in the exercise of rights guar-
anteed them in Section 7 of the Act.
B. Domination of the Association, and interference, restraint, and
coercion
In 1933 the Association was organized among the respondent's
collection-department employees.9 Its membership was limited to
employees in that department. The Association, operating under a
7 At the hearing Holmes could not remember asking Kimkowski whether he has any
application cards but denied that he had "searched" him.
8 These charges and the settlement are discussed more fully in Section III C in connec-
tion with the discharges in issue in this proceeding.
°" Holmes denied that he was in the vicinity of the meeting hall on July 9, but we do not
credit his denial.
° The function of the collection department is to collect raw materials from various
sources and convey them to the respondent's plant in trucks. The employees in this
department consist mainly of chauffeurs and their helpers, the garagemen and the
mechanics.
THE VAN IDERSTINE COMPANY 777
constitution drafted by its members, 'served mainly as a social and
athletic organization for these employees until July 1937.10
On June 28, 1937, the same date that the United's first meeting was
held,11 a meeting of all the respondent's employees for that night was
called by the Association. Two employees, Miller, a painter, and
Bill Shea, the head electrician, whose duties permitted them to cir-
culate through the plant, orally informed the employees, during
working hours, that the meeting was to be held. About 100 collec-
tion-department employees and 35 or 40 factory workers attended
the meeting and voted in favor of expanding the activities of the
Association and also of extending its membership to include the
factory workers. Prior to this meeting, Horn retained an attorney.
On July 2 another meeting of the Association was held with about
the same attendance as the June 28 meeting. The attorney retained
by Horn opened the meeting by reading a proposed constitution for
the Association, which, among other things, extended its activities
to include those of a labor organization and provided that all em-
ployees of the respondent, excluding executives, should be eligible
for membership. After some discussion the constitution was adopted
with a minor amendment.12 During the meeting several officers and
a board of directors were elected. It had been agreed during the
meeting that the board of directors should be composed of an equal
number of factory workers and collection-department employees, but
all those elected were collection-department employees.
At the July 2 meeting the employees were asked to sign petitions
with the following heading: 13
I hereby request and accept membership in the above named As-
sociation, and of my own free will, authorize it, The Van Ider-
stine Employees Association, their agents or representatives to
act for me as a. Collective Bargaining Agency in all matters per-
taining to pay rates, wages, hours of employment and other
conditions of employment.
Thereafter, some of these petitions were circulated by Shea and
Miller in the respondent's plant, but most of them were posted on the
respondent's bulletin board located in the timekeeper's office near the
10 The respondent' s president testified that the Association had made some requests for
wage adjustments and improvements in working conditions for its members ; however, Sam
Horn, who had been employed by the respondent for a number of years and was chairman
of the Association 's board of directors, testified that the Association was only a social
organization and had not undertaken "any labor work," or collected any dues from its
members.
u This meeting was called by a circular which was issued by the United on June 26,
1937.
32 The factory workers voted at both meetings despite the fact that they were not mem-
bers of the Association.
13 The record does not disclose the number of employees who signed the petition at the
July 2 meeting.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time clock.14 There they were signed by a large number of em-
ployees. One petition was posted on the board at a time and re-
placed with another when it became filled with signatures. They
were posted for a period of about 5 weeks ; in fact, it was not until
after July 29, when the Association had furnished the respondent
proof that it represented a majority of the employees, as hereinafter
discussed, that the respondent's vice president, Charles Hausserman,
instructed Horn to remove the petitions from the bulletin board. At
the hearing Foreman Holmes testified that although he went through
the timekeeper's office and punched the time clock every morning, he
"never saw any" of the petitions. Upon further examination, Holmes
admitted, however, that he had seen some of the petitions "hanging
up on a board in the timekeeper's office." Holmes also stated that he
would not permit any employee to solicit membership in a labor or-
ganization during working hours but explained that he had not taken
steps to remove the Association's membership petitions from the re-
spondent's bulletin board, because he "just took it for granted that
was all right." The fact that these petitions were being posted on
its bulletin board was, therefore, known to and sanctioned by the
respondent. This is further evidenced by an incident which occurred
in July, when Foreman Dietz escorted two or three employees from
his department, including Cenderoski, to the timekeeper' s, office,
shortly after quitting time, and urged them to sign the petition,
adding, "Look. [at] all the benefits you are going to have." - Cende4
roski replied that be did not "want your benefits," saying, "I want a
raise now." Dietz had nothing more to say. About a month later,
however, Dietz again urged Cenderoski to sign the petition and Cen-
deroski finally capitulated and signed. MacDonald, the timekeeper,
filled in his address.15 MacDonald further assisted Horn by furnish-
ing him with the respondent's identification numbers for many of
the petitioners' signers and Horn marked them opposite their signa-
tures. Some of the employees who were unable to write placed their
identification marks on the petition. These marks were witnessed by
MacDonald as well -as Koch and Harrison. The respondent dis-
claims responsibility for the assistance furnished the Association by
1^ See footnote 5.
]G Cenderoski's name does not appear on Board Exhibit No. 3, 3A, and 3B, which is com-
posed of a number of separate pages of the petition. The respondent points to this fact
among others as discrediting Cenderoski's testimony. We do not think that it does. All
the pages of the petition had not been signed prior to July 29 when the Association claimed
247 signers as members ; moreover, there are only 242 signatures on the pages which were
submitted in evidence. Since Cenderoski claimed that he was the last man to sign the
petition and since there is no showing that Board Exhibit No. 3, 3A, and 3B contains all
the pages of the petition and since the respondent failed to call Dietz or MacDonald to
refute Cenderoski's testimony, we do not disbelieve his testimony that he signed the peti-
tion. While certain other portions of Cenderoski's testimony are conflicting and confused,
its the respondent asserts, we are of the opinion that Cenderoski is a credible witness and
that his difficulties were attributable primarily to his limited knowledge of the language.
THE VAN IDERSTINE COMPANY 779
its timekeeper. While there is no showing that the respondent ex-
pressly authorized MacDonald's action, or that MacDonald is a super-
visory employee, we are not persuaded by the contention. The cir-
cumstances under which this assistance was rendered negatives the
assertion that it was given without the respondent's knowledge.
After some of the pages of the petitions were removed from the bul-
letin board by Horn, he and MacDonald searched through the re-
spondent's time cards, which were arranged numerically, for the
cards of the signers, and then placed the respondent's identification
numbers for some of the signers opposite their names on the petition.
This operation was performed openly in the timekeeper's office dur-
ing working hours on several occasions and consumed about 15 or 20
minutes. Moreover, the Association's petitions had been posted on
the bulletin board in MacDonald's office with the respondent's knowl-
edge and tacit consent, and MacDonald was not called as a witness
to explain his action. Under all the circumstances, we find that
MacDonald rendered this assistance with the respondent's knowledge
and approval.
After the July 2 meeting, the Association commenced an intensive
organizing campaign in the respondent's plant among the factory
employees. The record establishes that several of the respondent's
supervisory employees were active in soliciting employees to join the
Association. The testimony of a_ number of the employees to this
effect was not refuted by the respondent at the hearing. Frank
Olech testified, and we find, that Leo Novak, his foreman, and Bill
Shea, the head electrician'16 solicited him to join the Association.
Shea told Olech that he had to join the Association and pay the $2
initiation fee, whereupon Olech pleaded poverty. Later, Shea urged
Olech to pay the initiation fee, but Olech refused to do so. The next
day, in the presence of Novak, Shea accused Olech of having prom-
ised to pay the fee on the previous day and called him "a big liar"
because he had not paid it. Novak then warned Olech that he must
join the Association and pay the fee or a "very bad condition" would
result for him. Olech then reconsidered and told Novak that since
he desired to retain his job, he would bring the money within the
next few days. Later, Olech offered to pay the $2 to Novak, but was
instructed by Novak to give it to Shea, who took the money. John
Petekiewicz testified and we find that his foreman asked him if he
belonged to the Association and, upon receiving a negative answer,
the foreman advised him that "everybody must" join it. Stephen
Shivak testified and we find that his "boss," the chief engineer over
eight or nine employees in the engine room, and Shea asked him to
"Although Olech in his testimony did not refer to Shea by name, but referred to him
as the "electrician man," It is evident from the record that he was referring to Shea.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join the Association. Shivak first refused but later reconsidered and
joined. He gave his initiation fee to the chief engineer. Robinson,
an employee, also stated at the hearing and we find. that he was
informed by his foreman, Harry Burns, that the respondent was
organizing "an Association of their own."
In July 1937 Foreman Larry Dietz assembled the employees in his
department about 5 minutes before their lunch period and spoke to
them. Dietz instructed the employees to "join the company union"
and warned them not to "join the C. I. 0." because it was "a racket."
Dietz also stated, "Let us make our own union, then we [will] get
good benefits . . . If you get sick, you get $5 . . . and if you die .. .
then you get $200.00 or $150.00-for benefits." 17 Wojcik, an em-
ployee who received Association fees and dues in his department,
testified and we find that Dietz later questioned him as to which
employees had not "paid up," and Wojcik told him "how things
were." 18
In its brief the respondent claims that Superintendent Walsh and
Foreman Holmes are its only supervisory employees, and that they
alone have the authority to hire and discharge employees. It is clear,
however, that Dietz is. also a supervisory employee,, possessing au-
thority to discharge employees. The record shows that Dietz not only
issues orders to the employees in his department, but that he dis-
charged one of the complainants involved in this case.1° As to Koch,
Harrison , Burns, Novak, Shea, Mike, the foreman of the extraction
department, and Joe, the chief engineer,20 the record does not show
whether they have the power to hire or discharge employees ; how-
ever, the record does establish that they are considered by the other
employees to be supervisory employees. Koch and the chief engineer
issue orders to employees; Harrison, Burns, Novak, and Mike are.
17 The Association ' s constitution provided certain insurance and sick benefits for its
members.
Is Wojcik testified for the Board at the hearing in response to a subpena . He stated
that he did not desire to testify . On the day before the hearing the Board ' s attorney
had interviewed Wojcik at length concerning the issues in this case ; however, at the
hearing , although he was able to remember many things which occurred some time prior
to the hearing , he claimed that he was unable to remember what he had said during the
interview . Upon being asked to explain his lack of memory , Wojcik stated that " maybe"
it was because he "did not have enough sleep " the night before the bearing or because he
"wasn ' t paying any attention" and "might have been in a daze " during the interview.
The Trial Examiner finally warned Wojcik that unless he showed a disposition to tell the
truth , proper measures would be taken to compel it. Thereafter , Wojcik testified at some
length.
Although the respondent in its brief states that the Trial Examiner excluded Wojcik's
testimony and contends that this action was not justified , we are unable to find any such
ruling in the record . We assume that the respondent in referring to the exclusion of the
testimony may have reference to the fact that the Trial Examiner did not base any find-
ings on it in his Intermediate Report. We see no reason for excluding Wojcik ' s testimony
and will consider it with the rest of the record.
10 See Section C, infra.
10 The full names of the foreman of the extraction department and the chief engineer
do not appear in the record.
THE VAN IDERSTINE COMPANY 781
described as foremen by employees; 21 and Shea is referred to as the
head electrician with 1 or 2 assistants. The respondent did not call
as witnesses Dietz, Koch, Harrison, Burns, Novak, Shea, Mike, the
foreman of the extraction department, or Joe, the chief engineer, to
refute any of the testimony concerning their status or activities in
the respondent's plant. Aside from the direct evidence of these per-
sons' supervisory status, it does not seem reasonable to us that the
respondent's plant, with its approximately 325 employees, functions
without any supervisory employees other than its superintendent and
one foreman. We find that all these individuals are supervisory
employees.22
On July 3, 1937, the Association sent a letter to the respondent,
claiming that the Association represented a majority of its employees
and requesting it to bargain. Actually, of the respondent's 325 em-
ployees, the Association could claim only the 135 or 140 who attended
the meetings. The respondent replied on July 10, requesting proof
that the Association represented a majority. On July 29, Davidson,
a law clerk in the Association attorney's office, presented to Arthur
Hayes, the respondent's president, a typewritten list which purported
to contain the names of 247 of its employees who had signed the
petition, and made available for his inspection the original signed
membership petitions. Hayes readily accepted the list, as proof, with-
out comparing the names appearing thereon with those on the pe-
titions and without checking the authenticity of the signatures on
the petitions.
The first bargaining conference engaged in by the Association and
the respondent was not held until October 1937. Shortly before the
October bargaining conference, elections for the purpose of selecting
delegates or shop stewards for each department in the plant were
conducted by direction of the Association's board of directors. As
noted above, all the directors were collection-department employees.
Some of the respondent's foremen took a part in these elections.
Assistant Foreman Koch was elected his department's delegate.
Wojcik, upon being selected the delegate for his department, handed
his name and address to his foreman because as he stated at the
hearing he understood that the foreman "was suppose to have" the
name of the employee chosen.
In October a meeting of the elected delegates was called by Horn.
The meeting was held in Superintendent Walsh's office with his per-
mission. It lasted about an hour and was held during working hours.
The purpose of the meeting was to prepare demands to be made at
the conference which was scheduled to be held with the respondent a
21 Holmes in his testimony described Koch and Harrison as being "straw bosses."
zx See National Labor Relations Board V . American Manufacturing Company et. al.,
106 F. ( 2d) 61 (C. C. A. 2d).
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week later. At the bargaining conference which was held the follow-
ing week the delegates asked for an increase in wages for the factory
employees. No request for an increase was made for the collection-
department employees. The respondent had voluntarily granted
them an increase in wages around August or September 1937. The
respondent's representatives agreed to grant a 5 cents an hour in-
crease. They instructed the delegates to ascertain and advise them
if this met with the employees' approval. No other conferences were
held, but the increase was made effective at once.
The day after the conference, at which the wage increase was
given '23 the power in .the poultry-feed department was shut off and
the employees were instructed by Assistant Foreman Koch to "go
upstairs." When the employees had assembled, Foreman Holmes
addressed them, stating in effect that the respondent was granting
them a 5-cent increase in wages and if they did not think it was
enough they could "get out." After making this statement, Holmes
overheard Crum, a United member, remark to a fellow employee,
"Do you see that? What we need is the C. I. O. [the United]," to
which Holmes retorted, "Especially you guys, if you think you are
going to get any raise . . . there is a ten foot gate -out there, and if
anybody don't like it, it is open." Holmes denied at the hearing that
the "C. I. 0." was mentioned during this meeting, but we do not
believe his denial.
After the raise was agreed upon, the following notice, dated Oc-
tober 21, 1937, was posted by the respondent on the bulletin board :
Negotiations of the factory committee of the Van Iderstine Em-
ployees Association have resulted in the Company granting an
increase of 5 cents per hour to all factory workers. New rate to
be effective Monday, October 18th."'
Several employees, at frequent intervals between June and De-
cember 1937, observed notices with regard to the activities of the
Association, such as announcements of meetings, posted both on the
respondent's bulletin board and under the glass on the time clock.
Sometime after July 3, 1937, the Association's board of directors
petitioned the New York Board of Standards and Appeals for per-
mission to incorporate the Association." On August 10, 1937, after
a hearing had been held, the New York Board of Standards and
Appeals recommended that a certificate of incorporation for the
23 The record does not disclose the precise date.
21 The wage increase was retroactive.
25 The applicable laws of the State of New York in effect provide that no certificate of
Incorporation shall be issued to a labor organization without the approval of the New York
Board of Standards and Appeals.
THE VAN IDERSTINE COMPANY 783
Association be not approved "as it would not be in the interest of
good public policy." 26
Conclusions as to the Association
Prior to July 2 the Association had served mainly as a social or-
ganization for the collection-department employees, but in June 1937,
at the same time that the United began to organize the factory em-
ployees, the activities of the Association were expanded to include
those of a labor organization and its membership was extended to
include the factory workers. The factory workers, but not the col-
lection-department employees, were eligible for membership in the
United. The transformation of the Association from a social to a
labor organization and the extension of its membership to include
the factory employees was accomplished with the assistance and sup-
port of the respondent at a time when, as we have found, the re-
spondent was bringing the full force of its coercive pressure to bear
upon its employees who affiliated with the United. The record
establishes that the respondent utilized the Association to counteract
and negate the organizational activities of the United. The re-
spondent accomplished this objective by (1) soliciting membership
and collecting fees or dues for the Association through its super-
visory employees, Dietz, Koch, Novak, Burns, Shea, and the Chief
Engineer; 27 (2) permitting Association initiation fees and dues to
be collected and membership cards distributed by employees in the
plant during working hours while at the same time discouraging
membership in the United through its supervisory employees as de-
scribed herein in Sections A and D; (3) permitting the Association
to post its membership petitions on the respondent's bulletin board,
and furnishing the identification numbers of the signers of the
petitions to the Association; through Dietz coercing Cenderoski and
other employees in the former's department into signing the petition,
and through Koch and Harrison witnessing the signatures of other
employees who were unable to write; (4) permitting Association shop
stewards to be selected by the factory workers in the plant during
working hours and through Koch and Dietz participating in the selec-
2 Under the New York General Corporation Law, the Membership Corporation Law, and
the New York Labor Relations Act, and other provisions of the Labor Law , upon a proper
showing that an employer has exercised coercion in the formation of a labor organization,
the New York Board of Standards and Appeals has power to disapprove a certificate of
incorporation of such an organization . See Campbell v. Picard, 300 N. Y. S. 515, 165
Misc . 148. Also see New York General Corporation law § 9-a, as amended by Laws 1937,
C. 820, § 11 , subd . 1-a, as amended by Laws 1937 , C. 820, § 2; Labor Law § 1 et $eq.
n " with i èspect to the acts of the supervisory foreman , the doctrine of respondeat
superior applies, and petitioner is responsible for the actions of its supervisory foreman,
even though it had no actual participation therein ." See National Labor Relations Board
v. Swift & Company, 106 F . ( 2d) 87 , 1939 ( C. C. A. 10th ). Also see National Labor
Relations Board v. The A. S. Abell Company , 97 F. (2d ) 951 (C. C. A. 4th,.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lions, 28 and thereafter permitting the stewards to hold their first
meeting in Superintendent Walsh's office during working hours ; (5)
granting the factory employees whom the United was attempting to
organize a wage increase at the first bargaining conference,29 imme-
diately putting it into effect, and then posting a notice on its bulletin
board giving the Association credit for it.80
The respondent contends in its brief, in effect, that the United
preempted the same privileges that the Association enjoyed without
interference on its part.31 This contention is not supported by the
record. While it is true that the United members engaged in organ-
izational activity on the respondent's premises during working hours,
such activity was not as extensive as the Association's and, more
important, in none of it did the United have the respondent's assist-
ance and support as did the Association. On the contrary, the
respondent actively resisted the United's efforts at organization, as we
have heretofore found.32
We find that the respondent has dominated and interfered with
the formation 33 and administration of the Association and has con-
tributed support to it, and has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
C. The discharges
On June 29, 1937, the day after the United's first meeting, which
Foreman Holmes attended, the respondent discharged a number of
21 Koch was elected a shop steward and the name of the shop steward selected in Dietz's
department was handed to Dietz for transmittal to the Association.
20 Although proof of the Association ' s majority was readily accepted by the respondent
on July 29, no machinery was set up by the Association for the purpose of collective
bargaining until shortly after the 7 discharged employees , who were active United mem-
bers , were reinstated by the respondent in the latter part of September 1937 ( see Section
C, infra ), at which time there was the threat that the United would intensify its organi-
zational activities among the factory workers.
30 Although the wage increase was less than the stewards had been instructed to demand
by the employees they represented, it was not submitted to the employees for their
consideration.
31 The respondent 's brief states : "There is only one true picture that can be drawn from
the record about this general condition . It is certain that C. I. O. leaflets, bulletins and
notices were distributed on and off the premises , in the locker rooms and during working
hours , in the dressing rooms , during time off and that speeches appealing for membership
in the C . I. O. were daily and hourly occurrences."
32 The difference in the respondent ' s attitude and policy with respect to the two labor
organizations is aptly illustrated by that portion of Foreman Holmes ' testimony at the
hearing to which we have hereiuabove adverted , in which he stated that he would not
permit any employee to solicit membership in any labor organization during working hours
and that if be had observed any employee soliciting membership in the United he would
have reported him to Walsh , but that the membership petition of the Association was
permitted to remain on the respondent ' s bulletin board , because he "took it for granted
that was all right."
33 While the Association had a formal existence prior to the respondent ' s unfair labor
practices , we find that the respondent dominated and interfered with its conversion from
a social organization to a labor organization with membership eligibility coextensive with
the respondent ' s plant and , hence , with its formation within the meaning of the Act.
THE VAN IDERSTINE COMPANY 785
employees including most of those who had attended the meeting.
Thereafter the, United filed charges with the Board alleging that these
employees had been discharged because of their affiliation with the
United. Later, as a result of conferences participated in by the
respondent, the United, and a Board representative, the respondent
offered to reinstate seven of the discharged employees, namely, Joe
Mark, Joe Hila, Edward Crum, Jerome Brown, Philip Jackson, Otto
Molzon, and Anthony Kimkowski, on a 1 month's good behavior
basis. The United accepted the respondent's offer and withdrew
the charges. Thereafter all of the employees, except Joe Hila, re-
turned to work, two returning on September 24 and four on Septem-
ber 27, 1937. Of the six employees reinstated, Kimkowski was the
only one still employed at the time of the hearing. Three had
resigned and two, Philip Jackson and Edward Crum, were discharged
.and are complainants in this case.
The respondent contends that because of the settlement and be-
cause of the Trial Examiner's finding in his Intermediate Report
that it had not been established by a preponderance of the evidence
that Jackson and Crum, two of the complainants in this case, were
discriminatorily discharged on June 30, 1937,34 the Board is pre-
cluded from considering any matters occurring prior to June 30. We
find this contention to be without merit. The complaint alleges that
Jackson and Crum were discriminatorily discharged on or about
December 29 and on or about November 15, 1937, respectively, and
the Trial Examiner's findings in no way bar us from considering all
the relevant evidence in the record which tends to prove or disprove
the allegations in the complaint. With regard to the settlement, we
will not refrain from considering events occurring prior to an agree-
ment or settlement where the respondent has engaged in further
conduct exhibiting a continuity with its conduct and attitude prior to
such agreement or settlement.35 Inasmuch as the record in this case
establishes that the events which occurred subsequent to the settle-
ment were but further manifestations of the respondent's continued
hostility toward the United, we must, therefore, regard the events
preceding the settlement as a part of the respondent's course of con-
duct continuing thereafter.
Philip Jackson first entered the respondent's employ in May 1937.
Jackson was among those employees whom Holmes, his foreman,
attempted to dissuade from attending the United's June 28 meeting
and warned that if they did attend, not to sign anything. However,
84 We make no findings with respect to the reasons for these discharges since they are
not in issue under the pleadings.
8' Matter of Hope Webbing Company and Textile Workers Organizing Committee of the
C. I. 0., Local No. 14, 14 N . L. R. B. 55; Matter of Allsteel Products Manufacturing
Company (Inc.) and International Association of. Machinists , Local 1308, 16 N. L . R. B. 72.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in spite of Holmes' warning, Jackson attended the meeting and
signed a United membership card. As previously stated, this was
the meeting attended by Holmes and two of the respondent's other
supervisory employees. The next day Jackson was assigned to the
task of loading sacks on one of the barges. While Jackson and the
other employees worked, they discussed various subjects including
the United. Presently Holmes approached the barge "in a rage" and
demanded in abusive and profane language that Jackson explain
what he was doing. Jackson explained that he had been assigned to
the barge, whereupon Holmes remarked to the other employees,
"Don't pay any attention to him [Jackson], he will get you fired."
Holmes then ordered Jackson transferred to another barge where
other United members were working. On June 30 Jackson and
Kimkowski were discharged, but, pursuant to the agreement men-
tioned above, they were reinstated by the respondent on September
24, 1937, subject to 1 month's good behavior. Jackson continued
active in the United and became an officer. Alonzo Hunter, an
employee, testified and we find that after Jackson's reinstatement,
Koch promised "an easy job" to Hunter, who had often engaged in
conversations with Jackson and Crum, if Hunter would report what
Jackson and Crum were discussing. Hunter replied that he "would
think it' over." Later, Koch asked Hunter if he had decided, but
Hunter continued to be evasive. Hunter's testimony was not denied.
Jackson had been warned by Shea, the head electrician, to join
the Association and "stop being so foolish." However, Jackson did
not take Shea's advice.
In November, while Jackson was singing through a "cone" during
a rest period, Holmes accused Jackson of "making the shop a broad-
casting station," escorted him to Superintendent Walsh, and at-
tempted to persuade Walsh that Jackson should be discharged.
Walsh, however, did not discharge Jackson.
On December 29 Jackson and Kimkowski were assigned to the task
of loading bags on hand trucks which other employees rolled to a
barge on which the bags were loaded. The barge captain exhorted
Dan Lyons, an assistant foreman, to speed up the loading as the
barge was late in leaving. The barge had been partially loaded on
the previous afternoon, at which time there were four employees
loading the bags on the hand trucks, but on the day in question only
two employees, Jackson and Kimkowski, were assigned to this task.
Lyons told Jackson and Kimkowski to "shake it up," to which Kim-
kowski replied, "we are no horses." Lyons then reported the situa-
tion to Holmes and asked him to see if he could expedite the loading.
Holmes timed them for an hour and then went and spoke to them.
According to Jackson, Holmes accused him of telling Lyons that
Jackson and Kimkowski were not "horses," to which Jackson replied
THE VAN IDERSTINE COMPANY 787
that he had not said a word to anyone that morning. Holmes then
ordered Jackson to "shut up." A heated argument ensued, after
which Holmes discharged Jackson. Holmes claims that he dis-
charged Jackson for using profane language. Jackson claims that
Holmes first used profane language and that he retaliated with simi-
lar language. Holmes claims that he reprimanded the men because
of their slowness, in a mild tone, and that Jackson replied with "a
torrent of profane language." After his discharge, Jackson went
to Hausserman, who had told the six United members when they
were reinstated that any time "they thought they were not getting a
fair deal to come to" see him, and related to Hausserman what had
happened. Jackson stated that Holmes had used vile language, re-
peating the words, and that he had lost his temper and answered in
similar language. Hausserman then summoned Kimkowski, who was
instructed by Holmes to go to Hausserman's office. When Kim-
kowski arrived at the office he told Hausserman that he had heard
Jackson but not Holmes use profane language. When Jackson could
not prove that Holmes had used profane language first, Hausserman
would not intercede in his behalf.
The respondent contends that Jackson was discharged for insub-
ordination in cursing his foreman, Holmes. There is no dispute
concerning the fact that Jackson did curse Holmes in the course of
the altercation between them on December 29, 193'7. The issue re-
mains, however, as to whether the respondent discharged Jackson for
that reason or because of his union membership and activity. There
is a sharp conflict in the evidence as to whether Jackson or Holmes
first applied epithets to the other. While we do not think that the
resolution of that conflict is determinative of the issue for reasons
hereinafter stated, we shall treat with it here, since it is a factor
entitled to weight in deciding upon the cause for Jackson's dis-
charge. At the hearing, Kimkowski testified that Holmes had first
used profanity. He explained that he had not made that statement
to Hausserman because he was excited when Holmes instructed him
to go to Hausserman's office, believing that he was being sent there
to be discharged. While Kimkowski's statement to Hausserman
casts doubt upon his subsequent retraction, his misrepresentation to
Hausserman is understandable when considered in the light of the
circumstances, and we do not think that his earlier statement to
Hausserman necessarily represented the true statement of the fact.
Other considerations persuade us that it did not. Neither Holmes'
prior relationship with his subordinates nor the tenor of his remarks
to them in other contexts, as revealed in the record, coupled with
the fact that he had timed Kimkowski and Jackson one hour before
reprimanding them lead, us to believe that his approach was con-
ciliatory as he asserts. Moreover, if Jackson had initiated the curs-
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing it seems unlikely to us that he would have immediately and
voluntarily have sought out Hausserman to request the redress of a
grievance. Upon all the evidence we find that Holmes cursed Jack-
son first.
However, even if contrary to our finding, Jackson cursed Holmes
first we would conclude that the altercation was not the actual cause
of Jackson's discharge but rather a pretext for it. Holmes was the
United's principal antagonist among the respondent's supervisory
staff. Jackson on the other hand was one of the United's active
adherents and, in October, shortly after his reinstatement, had been
elected the United's shop chairman. About a month before Jackson's
discharge Holmes had tried unsuccessfully to have Jackson dis-
charged for the incident in connection with the "cone." The fact
that despite the asserted pressure to get the barge loaded on the
day of Jackson's discharge, Holmes took an hour to observe the man's
activity before approaching him evidences a similar attempt to secure
cause for his discharge.
We find that Holmes discharged Jackson in actuality because of his
union membership and activity and not because of the altercation
which served as the occasion for it. While we do not believe that
Hausserman ratified Holmes' act for discriminatory reasons, we do
not consider that material. Jackson's discharge by Holmes was dis-
criminatory. The respondent had clothed Holmes with authority to
effect such a discharge and hence is chargeable with his action. We
find that the respondent discharged Jackson on December 29, 1937,
because of his membership and activity in the United.
We find that the respondent has discriminated with respect to the
hire and tenure of employment of Philip Jackson, thereby discourag-
ing membership in the Union and has thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
At the time of his discharge on December 29, 1937, Jackson was
earning 45 cents an hour and was averaging from 53 to 55 hours a
week. Jackson has been unemployed since his discharge, and desires
reinstatement.
Edward Crum was active in the United from its inception in June
and had attended its first meeting on June 28. Like most of the
other employees who attended this meeting he was discharged on
June 30, and, pursuant to the agreement discussed above, was rein-
stated by the respondent on September 27. Thereafter, he was in-
structed by Holmes not to discuss the United with his fellow em-
ployees in the plant. After his reemployment he was assigned to
work which was hard and unvaried, but after complaining to Haus-
serman his work was made easier.
THE VAN IDERSTINE COMPANY 789
Crum was discharged a second time on October 23, 1937. The
respondent claims that he was discharged for tardiness . The record
shows that, although Crum knew that his reemployment was subject
to one month's good behavior , he repeatedly reported late, for which
lie had been reprimanded several times. In fact , just two or three
days prior to his discharge , Crum had been warned that the next
time he reported for work late , he would be discharged, and on
October 23, 1937, when Crum reported 30 minutes late, Walsh dis-
charged him . At the hearing Crum admitted that he was often late
and stated : "After I got reinstated I worked so doggoned hard I did
not care if I came in or not. If they fired me, I did not care."
The Trial Examiner in his Intermediate Report found that Crum
had been discharged for cause . No exceptions . were . filed to this
finding. We affirm the findings of the Trial Examiner and find that
the respondent has not discriminated against Cruni in regard to his
hire or tenure of employment , or any term or condition of employ-
ment, as alleged in the complaint , as amended.
The discharge . of Zigmund Cenderoski
Cenderoski entered the respondent 's employ in March 1937. In
July, Larry Dietz, who was Cenderoski 's foreman , assembled the
employees in his department , shortly before their lunch period, and
urged them to join the Association and warned them not 'to join the
United because it was a "racket ." About a week later, Dietz escorted.
several employees from his department , including Cenderoski, to the
timekeeper 's office where the Association 's membership petition was.
posted.36 Dietz attempted to persuade Cenderoski and the other em-
ployees to sign it by describing the benefits they would derive from.
joining the Association , such as insurance and sick benefits, but.
Cenderoski flatly refused to sign, stating that he was not interested
in insurance , but wanted "a raise now ." Wojcik, an employee, who.
was active in the Association , also urged Cenderoski to join the Asso-
ciation, but Cenderoski refused, explaining that he was already a
member of the United. Cenderoski had joined the United in July..
Wojcik warned Cenderoski that if he did not join the Association,.
and pay his initiation fee, he would be discharged. Wojcik was the
Association's delegate for Dietz 's department , and received Associa-
tion fees and dues from the employees . Wojcik stated at the hearing
that Dietz had questioned him regarding how the employees in the'.
department "were coming along" with the payment of their fees and-
dues, and that he told Dietz "how things were." Wojcik informed.
Dietz that Cenderoski would not join the Association . We find that
86 The petition is described fully in section B above and in footnote 5.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent used Wojcik to obtain information concerning
Cenderoski's activities with respect to the two labor organizations.
Finally, due to Dietz's persistence, Cenderoski agreed to be the
last employee to sign the petition and when Dietz informed Cen-
deroski that he was the last one, Cenderoski signed the petition.37
Cenderoski was discharged on November 25, 1937. On that day, at
about 2 a. m., Cenderoski went to the lavatory which was located in
the dressing room. Although it was not Cenderoski's lunch period, a
group of employees from another department were eating their
lunches in the room at the time. Some of these employees were
smoking. Cenderoski picked up a cigarette stub and, as he was
smoking it, Dietz and Lyons, an assistant foreman, entered the dress-
ing room. When Dietz observed Cenderoski smoking, he called it
to Lyons' attention and then instructed Cenderoski to punch his card
"and go home." The next day Cenderoski reported for work, but
Dietz instructed him to return the following day. On the day there-
alfter, when Cenderoski reported for work, the timekeeper told him
that he was discharged.
The circumstances under which Cenderoski's discharge was effected
convince us that the respondent discharged him because of his
reluctance in joining the Association and of his affiliation with the
United. The record establishes that Dietz was opposed to the United
and favored the Association. He was active in soliciting member-
ship for the Association, and used coercive methods to compel the
employees, including Cenderoski, to join it. Wojcik had warned
Cenderoski to join the Association and had been told by Cenderoski
that he did not desire to join because he was a member of the United.
Later Wojcik informed Dietz that Cenderoski would not join the
Association. We believe that Dietz resented Cenderoski's attitude
and, when he saw him smoking, decided to use this occasion as an
excuse for discharging him.
The respondent contends that the immediate cause for Cenderoski's
discharge was his smoking in violation of a plant rule but that an
antecedent cause existed because of his past absences from work with-
out permission. We cannot accept these contentions. The record
shows that smoking was prohibited in the respondent's plant except
in the dressing room. At the time Cenderoski was discharged, signs
were posted in the plant which read "smoking permitted in the
dressing room." Sometime after Cenderoski's discharge the words
"during the lunch hour" were added to these signs. At the time of
Cenderoski's discharge, he was smoking in the dressing room and,
therefore, was not violating any of the respondent's rules.
With respect to Cenderoski's unexcused absences, toward the close
of the hearing the respondent sought to introduce into evidence cer-
^ See footnote 15. The record does not disclose the date on which Cenderoski signed
the petition.
THE VAN IDERSTINE COMPANY 791
taro of Cenderoski's time cards for the purpose of showing that
Cenderoski was irregular in his attendance at the plant. The Trial
Examiner had these cards marked for identification but refused to
admit them in evidence upon the ground that no defense had been
raised during the hearing that Cenderoski was discharged for irregu-
larity in his attendance at the plant.33 The respondent then made an
offer to prove by Cenderoski's_ time cards, and by other proof, that
during the period from April 3, 1937, to the date of his discharge,
Cenderoski was absent without permission on 11 different working
days, in addition to 2 full weeks. In his Intermediate Report the
Trial Examiner, in reviewing his reason for the exclusion of this
evidence, stated that the offer "was obviously an afterthought."
While we: agree with the Trial Examiner concerning the weight to
be accorded the evidence, we are of the opinion that it is relevant
and material and that he erred in excluding it. We hereby admit
the time cards in evidence and deem proved the matter covered by
the offer of proof. Although cause for Cenderoski's discharge may
have existed because of his absences from work without permission,
as asserted by the respondent, we are satisfied upon all the evidence
that it was not the actual cause for his discharge.39 We find that. the
respondent discharged Zigmund Cenderoski on November 25, 1937,
in order to encourage membership in the Association and to dis-
courage membership in the United and thereby and by other acts and
conduct set forth in this section, including the respondent's attempt
through Koch to induce Hunter to spy on United members and report
to it, has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act.
At the time of his discharge, on November 25, 1937, Cenderoski
was earning 45 cents an hour and averaged about 45 hours a week.
He desires reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
as Although Dietz, who was Cenderoski ' s foreman , was employed by the respondent at
the time of the hearing , he was not called by the respondent to explain Cenderoski's dis-
charge or to contradict Cenderoski's testimony concerning it. However , the respondent's
answer merely denied the allegations of the complaint with respect to the discriminatory
nature of Cenderoski ' s discharge and pleaded no affirmative defense.
While proof of the presence of proper causes at the time of discharge may have
relevancy and circumstantial bearing in explaining what otherwise might appear as a dis-
criminatory discharge , such proof is not conclusive . The issue is whether such causes In
fact induced the discharge or whether they are but a justification of it in retrospect.
Matter of Kelly-Springfield Tire Company and United Rubber Workers of America, Local
No. 26, et al., 6 N . L. R. B. 325 , enforced in the Kelly-Sprin gfield Tire Company v . National
Labor Relations Board, 97 F. (2d) 1007 (C. C. A. 4th , 1.938). See also Alisteel Products
Manufacturing Company ( Inc.) and International Association of Machinists, Local 1308,
16 N. L. R. B. 72.
247384-40-vol. 17-51
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent 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
We have found that the respondent has dominated and interfered
with the formation of the Association, and has contributed aid and
support to it. The respondent's unfair labor practices have rendered
the Association incapable of functioning as a free representative of
the respondent's employees for the purposes of collective bargaining.
Therefore we shall order the respondent to withdraw recognition
from and to disestablish the Association as collective bargaining
representative for any of its employees.40
We have found that the respondent has discriminated in regard
to the hire and tenure of employment of Philip Jackson and Zigmund
Cenderoski. Accordingly, we will order the respondent to offer each
of these employees reinstatement to his former position with the
respondent, and to make each of them whole for any loss suffered
by reason of the discrimination by paying to each of them a sum
of money equal to that which they normally would have earned as
wages from the date of their discharges on December 29, 1937, and
November 25, 1937, respectively, to the date of such offer of rein-
statement, less their net earnings 41 during said period. We shall
likewise order the respondent to take certain further affirmative
action which we deem necessary to effectuate the purposes and policy
of the Act, and to cease and desist from its unfair labor practices.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Mine Workers of America, District No. 50, affiliated
with the Committee for Industrial Organization, and The Van
4O See Matter of Pennsylvania Greyhound Lines, Inc., Greyhound Management Company,
Corporations and Local Division No. JOGS of the Amalgamated Association of Street, Electric
Rdilwasj and Motor Coach Employees of America , 303 U. S . 261; American Manufacturing
Company v. National Labor Relat ions Board, 106 F. ( 2d) 61 (C. C. A. 2).
41 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by such employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his un-
lawful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of'America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal , State, county , municipal, or other work-relief
projects are not considered as earnings, but, as provided in the Order below, shall be
deducted from the sum due the employee; and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State, county , municipal , or other government
or governments which supplied the funds for said work-relief projects.
THE VAN IDERSTINE COMPANY 793
Iderstine Employees ' Association , an unaffiliated organization, are
labor organizations , within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of The Van Iderstine Employees ' Association and by con-
tributing support thereto, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ--
ntent of Zigmund Cenderoski , thereby encouraging membership in
the Association and discouraging membership in the United, the
respondent engaged in and is engaging in an unfair labor practice,
within the meaning of Section 8 ( 3) of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of Philip Jackson, thereby discouraging membership in the
United, the respondent engaged in and is engaging in an unfair labor
practice , within the meaning of Section 8 (3) of the Act.
5. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
7. By discharging Edward Crum , the respondent has not engaged
in unfair labor practices within the meaning of Section 8 (3) of the
Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders the respond-
ent, The Van Iderstine Company, and its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of The
Van Iderstine Employees' Association, or with the formation or
administration of any other labor organization of its employees, and
from contributing support to The Van Iderstine Employees' Associa-
tion, or to any other labor organization of its employees;
(b) Discouraging or encouraging membership in any labor organ-
ization of its employees, by discharging or refusing to reinstate any
of its employees or in any manner discriminating in regard to their
hire and tenure of employment or any term or condition of employ-
ment ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from The Van Iderstine Employees'
Association as a representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of
employment, and completely disestablish The Van Iderstine Em-
ployees' Association as such representative;
(b) Offer to Philip Jackson and Zigmund Cenderoski immediate
and full reinstatement to the positions which they formerly held
with the respondent on December 29 and November 25, 1937, respec-
tively, without prejudice to their seniority and other rights and
privileges;
(c) Make whole the said Philip Jackson and Zigmund Cenderoski
for any loss of pay they may have suffered by reason of the respond-
ent's discrimination in regard to the tenure of their employment
by payment to them of a sum of money equal to that which they
would normally have earned as wages during the period from Decem-
ber 29, 1937, and November 25, 1937, the date of their discharges,
respectively, to the date of such offer of reinstatement, less their net
earnings during said period; deducting, however, from the amount
otherwise due to the said employees, monies received-by said em-
ployees during the said period for work performed upon Federal,
State, county, municipal, or other work-relief projects, and pay over
the amount, so deducted, to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects;
(d) Post immediately, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees in conspicuous places in its plant, stating that the respond-
ent will cease and desist in the manner set forth in 1 (a), (b), and (c)
and that it will take the affirmative action set forth in 2 (a), (b), (c),
and (d) of this Order;
(e) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint
with respect to Edward Crum, be, and they hereby are, dismissed.