Theurer Wagon Works, Inc..

National Labor Relations Board - Board Decisions

Dec 28, 1939

18 N.L.R.B. 837 (N.L.R.B. 1939)

In the Matter of THEURER WAGON WORKS, INC. and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCALS 259
AND 374
Case No. C-563.-Decided December 08, 1939
Automobile Body Building Industry-Interference , Restraint , and Coercion:
expressed opposition to "outside" labor organization ; expressed preference for
"local" unaffiliated labor organization ; employer •held elections to determine
employees ' choice of representative ; discrediting union and union leaders ;
engendering fear of loss of employment for union membership or activity;
denial of right to be represented by "outside" representatives ; persuading
employees to resign from union ; effort to break strike by soliciting or inducing
individual strikers to return to work ; anti -union activity by supervisory
employees during working hours and on company property ; circulation of
anti -union statements and petitions among employees-Company-Dominated
Union: domination of and interference with formation and administration ;
organization activity in plant ; soliciting members on compay time and property ;
responsibility of respondent for union activity of its supervisory employees ;
encouragement of inside and discouragement of outside labor organization-
Unit Appropriate for. Collective Bargaining : all employees at two plants , includ-
ing working foremen, maintenance men, porters , chauffeurs , night watchmen, and
shipping and stockroom clerks, but excluding executives , clerical and office
employees, employees with the right to hire and discharge , and salesmen ; no
controversy as to ; labor policies at both plants same ; collective bargaining
relations with respondent-Representatives : proof of choice : comparison pay
roll with union list and cards-Collective Bargaining : recognition of union :
an essential prerequisite to collective bargaining ; cannot be withdrawn or
questioned according to whim ; negotiation in good faith : meeting with repre-
sentatives but with no bona fide intent to reach an agreement ; employer's duty
to negotiate in good faith in an effort to make an agreement ; employer's duty
to enter into a signed agreement ; employer ordered to bargain with union ;
enter into a signed agreement , if understanding is reached-Strike: prolonged
by respondent 's unfair labor practices-Discrimination : non-reinstatement
following strike ; retention of strikebreakers ; refusal to reinstate strikers to
former positions ; delayed reinstatements ; hiring new employees in preference
to striking employees ; charges of , not sustained as to 19 persons-Employee
Status: independent contractor ; lay-off prior to strike-Regular and Sub-
stantially Equivalent Employment : factors considered-Reinstatement Ordered:
employees refused reinstatement ; application for reinstatement not prerequisite
to order requiring , in view of employer 's conduct ; special forms of : displace-
ment of employees hired after prolongation of strike ; preferential list, to be
followed in further reinstatement-Back P 'ay: awarded ; as to one employee,
from date of refusal to reinstate to date of offer of reinstatement ; as to re-
maining employees who were discriminated against, no indicia to determine
order of reinstatement : lump sum computed consisting of earnings paid by
18 N. L. R. B., No. 97.
837
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer to certain new employees whose positions could have been filled by
striking employees ; distributed among discriminated employees in proportion
to former wages from date of general refusal to reinstate to date of rein-
statement or placement on preferential list, although immediate employment
for all unavailable.
Mr. John T. McCann, for the Board.
Lipton & Nachby, by Mr. Samuel R. Nachby, of New York City,
for the respondent.
Mr. Samuel L. Rothbard, of Newark, N. J., and Mr. Albert Fisher,
of New York City, for the U. A. W. A.
Mr. Arnold R. Cutler, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by International Union, United
Automobile Workers of America, Locals 259 and 374, herein called
the U. A. W. A., the National Labor Relations Board, herein called
the Board, by the Regional Director for the Second Region (New
York City), issued its complaint dated December 13, 1937, against
Theurer Wagon Works, Inc., New York City, herein called the re-
spondent, alleging that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by notices of hearing,
were duly served upon the respondent, upon the U. A. W. A., and
upon the Custom Built Commercial Body Builders, Inc., herein called
the Body Builders, a labor organization alleged in the complaint
to be dominated by the respondent.
The complaint, as amended at the hearing, alleged in substance
(1) that the respondent refused to bargain collectively with the
U. A. W. A. as the exclusive representative of its employees at the
New York and New Jersey plants of the respondent although the
U. A. W. A. represented a majority of the employees within an appro-
priate unit; (2) that the respondent's refusal to bargain caused its
employees in both plants to go out on strike on or about May 12, 1937,
and that on or about July 16, 1937, on which date the strike ended,
the respondent discriminatorily refused to reinstate 97 of its striking
employees; (3) that the respondent, by its officers and agents, initiated,-
formed, sponsored, dominated, and interfered with the Body Builders,
and contributed support thereto; and (4) that the respondent by the
THEUR'ER WAGON WORKS, IN.COIRPORA'TED 839
foregoing and other acts, interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act. The answer of the respondent denied the material averments
of the complaint , as amended.
After several postponements , notices of which were duly served
upon the respondent , the U . A. W. A., and the Body Builders, the
hearing opened in New York City on January 27, 1938, before Martin
Raphael, the Trial Examiner duly designated by the Board. The
hearing was closed on February 28, 1938. The Board , the respondent,
and the U. A. W. A. were represented by counsel and participated in
the hearing . The Body Builders was not represented although its
counsel appeared as a witness for the Board. . Full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evi-
dence bearing on the issues was afforded to all parties.
During the hearing, the respondent made numerous motions to
dismiss the complaint and to strike certain testimony from the record.
Except as to certain of these motions and parts thereof, which the
Trial Examiner denied at the hearing , ruling on these motions and
certain other motions was reserved . In his Intermediate Report the
Trial Examiner granted a motion to dismiss the complaint as to a
group of 18 employees who had been reinstated by the respondent,
and denied the other motions. At the close of the Board's case and
again at the close of the hearing, counsel for the Board moved that
the pleadings be conformed to the proof . These motions were granted
by the Trial Examiner . The Trial Examiner made a number of rul-
ings on other motions and on objections to the admission of evidence.
The Board has reviewed all the rulings of the Trial Examiner and
finds that no prejudicial errors were committed . The rulings are
hereby affirmed.
On April 22, 1938, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the respondent and the
U. A. W. A. He found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), (3), and ( 5) and Section 2 (6) and (7)
of the Act, and recommended that the respondent cease and desist
therefrom , disestablish and refuse to deal with or recognize the Body
Builders , bargain collectively with the U. A. W. A., and offer 79
employees reinstatement to their former positions with back pay.
Thereafter the respondent filed exceptions to the Intermediate Re-
port and to various rulings of the Trial Examiner. Pursuant to notice,
duly served upon the respondent and the U. A. W. A., a hearing was
held before the Board on November 17, 1938, in Washington, D. C.,
for the purpose of oral argument . The respondent and the U. A. W. A.
were represented by counsel and participated in the oral argument.
283029-41-vol. 18--54
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to permission granted by the Board, the respondent sub-
mitted a brief. The Board has reviewed the exceptions of the re-
spondent to the findings, conclusions, recommendations, and rulings
of the Trial Examiner and, save for those exceptions which are con-
sistent 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
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation having its principal
office and place of business in New York City. It operates two plants,
one in New York City and the other in North Bergen, New Jersey.
It is engaged in repairing and building commercial bodies for motor
trucks, trailers, and wagons, and in assembling cooling units used for
food trucks.
For the period from June 1 to December 1, 1937, the respondent
purchased for its New York plant about $7,858 worth of materials of
which 70 per cent were shipped to the New York plant from outside
the State of New York. For the same period the respondent pur-
chased for its New Jersey plant about $63,422 worth of materials of
which 49 per cent were shipped to the New Jersey plant from outside
the State of New Jersey.
During the same period the respondent did $260,206 worth of busi-
ness at both plants. Twenty-eight per cent of this total volume rep-
resented products finished at the. New Jersey plant and shipped
outside the State of New Jersey. Only a fraction of 1 per cent of
this volume represented products finished at the New York plant and
shipped outside the State of New York. Generally the repair work
done at each plant is performed on equipment shipped from the
State in which the plant is located, except that the overflow repair
work at the New 'York plant, representing from 1 to 2 per cent of
the total repair work received there,, is shipped to the New Jersey
plant and then returned to the New York plant for delivery to the
owners.
II. THE ORGANIZATIONS INVOLVED
Locals 259 and 374, International Union, United Automobile
Workers of America, are labor organizations affiliated with the Com-
mittee for Industrial Organization, herein called the C. I. 0., admit-
ting to membership all employees at the respondent's New York
I Now the Congress of Industrial Organizations.
THEURER WAGON WORKS, INCORPORATED 841
plant and New Jersey plant, respectively, including working foremen,
maintenance men, porters, chauffeurs, night watchmen, and shipping
and stockroom clerks, and excluding clerical and office employees,
executives, salesmen, and employees with the right to hire and
discharge.
Custom Built Commercial Body Builders, Inc., is a labor organiza-
tion without any outside affiliation. It admits to membership only
employees of the respondent at the New York and New Jersey
plants, exclusive of executives.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On March 15, 1937, a number of the employees at the respondent's
New Jersey plant signed a petition requesting an increase in wages
and improvements in working conditions and submitted it to John
Theurer, president and treasurer of the respondent, at the New Jersey
office. During the lunch hour that day Theurer addressed the em-
ployees at the New Jersey plant. Directing his remarks to the peti-
tion which had been presented, he denounced the employees as
foreigners, Communists, and radicals and stated that he was "going
to hire all American citizens in this plant." When some of the em-
ployees stated that the petition constituted only a plea motivated by
the high cost of living, Theurer answered that he considered it a
demand, and that he was going to operate the plant to suit himself.
On the following day Theurer approached some of the employees
individually and asked them why they had signed the petition.
A few days later the employees sent a committee to Theurer to
discuss the petition. The respondent permitted only one of the
committee members, Luke Durbin, to see him. Theurer told Durbin
that he would grant wage increases on a merit basis only and that he
would "run the plant as he saw fit." At the same time, however, he
offered a wage increase to Durbin, who refused to accept it because
it might be misunderstood by the other employees. When Durbin
told Theurer that if he did not take advantage of this opportunity
to confer with his employees "the C. I. O. might come along later,"
Theurer replied that "the men would not pay dues to join an
organization like that."
Following the failure of the respondent to consider their requests,
the employees decided to seek outside assistance. A committee of
the employees thereupon communicated with the U. A. W. A., which
began an organization drive among the respondent's employees at
both plants. The employees at the New York plant were solicited
for membership in Local 259, which had jurisdiction over employees
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at similar plants in New York City and the employees in the New
Jersey plant were enlisted as members of Local 148.2
On March 31, 1937, the U. A. W. A. sent letters to all the em-
ployers in the commercial body building industry within the New
York area, requesting each employer to meet with the U. A. W. A.
for the purposes of collective bargaining. Many of these employers
advised the U. A. W. A. to confer with The Vehicle Body Associa-
tion Incorporated of Metropolitan New York, herein called the Asso-
ciation, an organization composed of various employers in the afore-
said industry within the New York area. The Association advised
the U. A. W. A. of its desire to negotiate, but took no further action.
As a result, about April 28 the employees of some 17 of the approxi-
mately 60 employers within the New York area and the employees of
about 7 employers in adjacent New Jersey, went on strike. Almost
simultaneously representatives of the Association and the U. A. W. A.
met and arranged a conference to discuss wages, hours of employ-
ment, and working conditions. At the same time the U. A. W. A.
carried on an organization demonstration in front of the respondent's
New York plant during which pickets paraded with U. A. W. A.
placards and distributed circulars and application cards. This dem-
onstration was terminated by the U. A. W. A. at the request of the
respondent in consideration for its promise that it too would meet
and confer with the U. A. W. A.
On the morning of May 1, prior to its meeting with the U. A.
W. A., the respondent "decided to have the men vote in both plants
to determine how they felt about negotiations with any union, so
that [the respondent] would be in a position to know how to talk
with the union delegation." At each of the plants the respondent's
managerial officials conducted a ballot among the employees to de-
termine their preference for an inside or an outside union. At the
New York plant Nachby, the attorney for the respondent, in the
presence of its officials, told the employees, "You can joint an outside
union, if you want; or you can get together and-, appoint a committee
of your own, with whom we will talk, without any outside inter-
ference." 3 Despite testimony to the contrary, it is clear that the
respondent meant, and the employees understood the term "outside
union" to mean, the U. A. W. A. At each of the plants a majority
of the respondent's employees voted in favor of the outside union.
At Theurer's suggestion the employees also elected a shop committee
at each plant.
Several days later Theurer called the members of the shop com-
mittees at both plants to lunch with him, Diehl, and Nachby at a
2 Thereafter Local 374 was chartered with jurisdiction over the employees of the New
Jersey plant.
8 Italics supplied.
THE'URRR WAGON WORKS, IN.CO11S'0RAT] D 843
restaurant in New York. Theurer arranged this meeting because,
according to Nachby's testimony, "a number of men had come to
him [Theurer] and stated that they did not have a proper oppor-
tunity to vote [at the May 1 elections] as they really wanted, because
a number of men had been looking over their shoulders and in addi- '
tion to that they did not know what was meant by an outside union."
The respondent's representatives thereupon proceeded to give their
explanation of the differences between the two types of unions. They
stated that the employees would benefit more by an inside union, for
whereas in an outside union the employees paid large dues while the
union officials had good jobs, in an inside union the employees could
keep the money among themselves. They then advised the com-
mittee members that even though the employees had signed member-
ship applications with the U. A. W. A. they could resign if they
wished. The respondent's representatives then asked the committee
members to return to the plants, "explain the situation to the men,"
urge them to cast another ballot, and then "inform" the respondent
"what they wanted." Although the respondent in part called this
meeting because a "number" of employees had complained about the
May 1 elections, at the hearing Diehl could name only one such
employee who had so complained.
At the termination of the conference, shortly before the close of the
working day, the members of the shop committees returned to the
plants. It does not appear that the committee took action at the New
York plant. At the New Jersey plant, however, the committee mem-
bers went to their respective departments and called the employees to
a meeting. After all the employees had assembled, a shop committee
member explained that the respondent "wanted another vote" on their
desires regarding an inside or outside union. When the employees
protested against voting again, another committee member persuaded
them to vote by a show of hands. In this election all the employees,
amid cheers, voted for an outside organization.
By May 7 more than 90 per cent of the employees in the body
building industry had gone on strike, although the respondent's em-
ployees continued to work. On that day the U. A. W. A. and the
Association held a conference which representatives of the respondent
attended as members of the Association. The parties discussed vari-
ous proposals and, although no agreement was reached, they agreed
to meet again on May 12.
Meanwhile the respondent's employees, more than a majority of
whom had become members of the U. A. W. A., met independently
and embarked upon a course of action separate from though parallel
to that of the U. A. W. A. At each of the respondent's plants the
employees submitted a contract, similar to the one which the U. A.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. A. had previously submitted to the Association and the respond-
ent, and requested a reply by May 12. At the New York plant a
U. A. W. A. representative endeavored to present the contract to
Theurer, but he refused to accept it, stating that "he would not deal
with outsiders ." The U . A. W. A. representative "said he represented
the Union [and that it ] was his job to present the contract," but
Theurer refused to accept the contract from him, saying , "I don't
know who you are. I have nothing to do with you. If my men
want to give me a proposal , or contract , I will accept it from them
... You are not an employee of our organization here, and I do not
see why I should have to accept anything from you." When the
union representative insisted that it was his job to present the con-
tract , Diehl told him, "As long as Mr. Theurer is not in the mood
to accept it from you, what is the harm of having you pass it on to
our men." Accordingly the union representative handed the contract
to a U. A. W. A. employee who then gave the contract to Theurer.
On the morning of May 12 a committee of the employees at the
New Jersey plant approached Theurer for his reply regarding the
contract . Theurer told the committee that it should communicate
with his attorney and that he did not have anything to do with the
matter. When the committee stated that the employees might vote
to strike , Theurer replied , "You go on strike , and you are going to
walk the streets ." Theurer's threat, that the employees who struck
would walk the streets , was not denied . Theurer testified that he,
told the committee that no answer had been promised them and fur-
ther that the Association was to meet with the U. A. W. A. that after-
noon. During the noon hour the U. A. W. A. employees at both
plants, after being informed about this conference, voted to strike
and thereupon walked out.
It is clear that the respondent , through its agent, the Association,
had in fact , as noted above , agreed to meet with the U. A. W. A.
later that afternoon . In addition , either earlier that morning or
the night before, Nachby had told the U. A. W. A. employee who
had a few days previously given Theurer the contract at the New
York plant , that the Association was going to submit a definite wage
scale at the meeting to be held that afternoon . We are of the opinion
that the employees at the respondent 's plants called the strike pri-
marily to join the other 'striking employees in the body building
industry.
In addition to the above , there is evidence that about May 6 a fore-
man advised an employee during working hours that the U . A. W. A.
was "no good," that it was only interested in the money from his
dues, that the respondent would close its plants before yielding to
THEURER WAGON WORKS, INCORPORATED 845
the U. A. W. A., and that the employees had better give up the idea
of a union as Theurer knew everything that went on at the meetings.
During the strike Theurer and Diehl called three of the most active
U. A. W. A. employees from picket duty into the plant and tried
to persuade them to send the strikers back to work and then discuss
the contract. When they refused, Theurer called them Communists
and radicals and told them, "You will never have an outside union
come into this shop.". Theurer again enumerated the benefits of an
inside union and threatened that anyone "who went out on strike
out of his shops would not work there any more."
B. Conclusions
The foregoing findings clearly show that the respondent was op-
posed to the organization of its employees and made every effort to
offset their attempts to form the U. A. W. A. Theurer's speech to
the employees of the New Jersey plant on March 15, 1937, fore-
shadowed the hostility which the U. A. W. A. was to encounter.
Following the initial collective action of the employees, the respond-
ent sought to discourage its employees from exercising their rights
under the Act when Theurer called them foreigners, Communists, and
radicals, and threatened them with the loss of their jobs by stating
that he would "hire all American citizens" at his plant and that he
would operate it as he saw fit. He approached the employees in-
dividually to impress upon them his disapproval of such collective
action.
The elections which the respondent held at its plants constituted
not only an attempt to ascertain the strength of the union but also
served as a pretext to influence the employees to form an inside union
"without any outside interference." 4 The respondent, while urging
the support of an inside union, sought to intimidate its employees
against membership in the U. A. W. A. by discrediting it and its
officials and advising withdrawal from its membership. Theurer
also discouraged affiliation with the U. A. W. A. when he refused
to deal with the U. A. W. A. representative because he was an "out-
sider." After the employees went on strike the respondent sought to
destroy the free organization of its employees by continuing its anti-
union threats and intimidations.
We find that by the foregoing acts the respondent interfered with,
restrained, and coerced its employees in the exercise of the right to
4 The Board has elsewhere expressed its disapproval of such employer elections. See
Matter of The Heller Brothers Company of Neaocomerstown and International Brother-
hood of Blacksmiths , Drop Forgers, and Helpers , 7 N. L. R. B. 646; Matter of Harter
Corporation and International Assn. of Machinists, 8 N. L. R. B. 391, enf'd as mod.,
Harter Corporation Y.. N. L. R. B., 102 F . ( 2d) 989 (C. C. A. 6).
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining and other mutual aid and protection as guaranteed in
Section 7 of the Act.
C. Domination of and interference with the Body Builders
When, following the first collective action of the employees, one of
the employees told Theurer that they might join the C. I. 0., he
retorted that such a thing was unlikely. When it became evident
that they desired to affiliate with the C. I. 0., the respondent sought,
by praising the benefits of an inside union, by deprecating the value
of outside unions, and by advising the members to resign from the
U. A. W. A., to persuade the employees to maintain their labor
organization as an "inside union." It was following these efforts
of the respondent and during the negotiations with the U. A. W. A.
that the Body Builders was formed. Three employees, John Hamp-
ton, James McDonough, and Frederick Roehr, took an active part
in its formation. Each of them occupied a position superior to that
of other employees.
Roehr, one employee testified, was the electrical foreman, under
whom there were about four employees. Theurer, when asked
whether Roehr was a foreman, replied, "Well, he was. He is a
foreman and was a foreman . . . I would not say he is much of a
foreman." Theurer testified that Roehr also. attended certain meet-
ings of the respondent's foremen. It appears from the record that
Roehr was a working foreman. As such, although he was eligible to
membership in the U. A. W. A.,5 he could not under the Act use his
supervisory status to interfere with the organization of the employees.
"Supervisory employees, although eligible for membership in com-
peting labor organizations, are forbidden by the Act, in their capacity
as the employer's agents, to interfere in the selection of employee bar-
gaining representatives . . . It is perfectly consistent for supervisory
employees to belong to labor organizations and yet be prohibited from
conduct permitted non-supervisory employees." 6
Hampton and McDonough were salesmen. We recognize that sales-
men ordinarily have no supervisory authority. In the instant case,
however, because the respondent's products are custom built accord-
ing to special specifications, the salesmen perform supervisory func-
tions. In order to insure compliance with the specifications of a
° See Section III, D, 1, below
° Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164,
9 N. L. R. B. 117.
THEURER WAGON WORKS, INfiOiRPORAT1D 847
particular product, it is necessary that the salesman who secured the
order therefor maintain continual supervision over its construction.'
Although Theurer denied that the salesmen were obligated to main-
tain such supervision, he admitted that they "may do that." Two
employees testified that Hampton and McDonough gave orders with
respect to the performance of work. During 1.936 Hampton earned
commissions amounting to about $10,000. In its brief, the respond-
ent stated, "It seems ridiculous to believe that a man of John Hamp-
ton's caliber, earning approximately $10,000 a year, apparently a
high pressure salesman, would suddenly fraternize with and take into
his confidence an active striker and divulge to this active striker
that John Theurer, President of the respondent company, was respon-
sible for the organization of the [Body Builders]." It is equally
amazing that a man of Hampton's "caliber" should on his own initia-
tive, suddenly take all interest in aiding the employees to form a
labor organization for the purposes of collective bargaining.
Although neither Hampton nor McDonough had the power to hire
and discharge employees, it is evident that in addition to their actual
supervisory powers, their relations to the management were such as
reasonably to convey to the employees that they voiced the policy and
wishes of the respondent."
Hampton stated that he first conceived the idea of the Body Builders
on the second day of the strike because he was "losing business, and
seeing a lot of outsiders come in and dictate to the men inside." How-
ever, no steps were taken toward its formation until June 15, when
simultaneously with Hampton's interview with an attorney regarding
the formation of the Body Builders, the respondent, in the midst of
its negotiations with the U. A. W. A., insisted that a Board election be
held among its employees to determine whether the U. A. W. A. repre-
sented its employees .9
' See the following examination of Hampton by counsel for the Board :
A. (By HAMPTON .) And, of course , in our business-a salesman in our business
has to follow his own job all the way through to make sure they are all correct.
Q. You still do follow your own jobs through the plant, is that correct.
A. Absolutely , I do, yes.
Q. And where you find that they are not being built according to specifications,
you register a complaint , is that so?
A. That is right.
See Matter of The Serrick Corporation and International Union , United Automobile
Workers of America, Local No. 459, 8 N. L. R . B. 621, enf'd , International Association of
Machinists , Tool and Die Makers Lodge No. 35, Affiliated with the International Associa-
tion of Machinists and Production Lodge No . 1200, Affiliated with the International Asso-
ciation of Machinists v. N. L. R. B., 110 F. (2d) 29 (C. A., D. C .) ; Matter of Ameri-
can Manufacturing Company; Company Union of the American Manufacturing Company;
The Collective Bargaining Committee of the Brooklyn Plant of the American Manufac-
turing Company and Textile Workers' Organizing Committee, C. I. 0., 5 N. L. R. B. 443,
enf'd, N. L. R. B. v. American Manufacturing Co., 106 F. ( 2d) 61 (C. C. A. 2) ; Matter
of Cupples Company, a corporation and Matchworkers ' Federal Labor Union No. 20927,
affiliated with A. F. of L., 10 N. L. R. B. 168, enf 'd as mod ., Guppies Company Manufac-
turers v. N . L. R. B., 106 F. (2d) 100 (C. C. A. 8).
O The election , conducted under the supervision of the Regional Director, is discussed
in Section III, D , below.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day before the election Hampton and McDonough appeared
at the plants with petitions for membership in the Body Builders. For
several days thereafter they, with several other employees, circulated
the petitions among the employees at work and on the picket line.
Other strikers were approached at their homes. All the employees
who remained at work became members of the Body Builders, whose
organizers circulated freely through the plants during the working
hours. The activity of these organizers in the plants proceeded with-
out objection from any of the foremen, who, Hampton testified, "were
heartily in favor of" the Body Builders. Hampton told the strikers
"that the boss would recognize [the Body Builders] . . . but he will
never recognize the C. I. 0.," and that the sooner they joined the inside
union, the sooner they would return to work. Hampton also told
Henry Zaice, an employee, that he, Hampton, had spoken to Theurer
about the Body Builders before expending any funds for it and that
"Theurer said go ahead and whatever you do I will stand behind it."
Although Theurer denied speaking to Hampton regarding the forma-
tion of the Body Builders, this conversation was not denied by Hamp-
ton and we accept Zaice's testimony as true.
Hampton unsuccessfully endeavored to have the Board election
postponed. Nevertheless the organizing efforts of the Body Builders
continued for the next 2 or 3 months. Hampton testified that Theurer
was not aware of the activity carried on by this organization during
working hours. Elsewhere Hampton testified that eventually Theurer
was apprised of the circulation of the petitions but that he did "not
know whether [Theurer] did or [did] not" object. We find that the
respondent was aware of the Body Builders' activities during working
hours.
On June 25 Hampton sent to each of the respondent's employees a
letter falsely imputing the cause of the strike to the disagreement
between the Committee for Industrial Organization and the American
Federation of Labor, urging membership in the Body Builders, and
enclosing an application card together with a separate yellow slip
containing the following message :
I was to a meeting of Auto Union 317 and they announced on the
floor that the strike in the truck body is not legal, that Mr. Wells,
who is a Vice-President of the International, told Alberts of
Local 259 that he had no right to call the men out, and not to
expect any kind of help from them in any way, but get the men
back to work. 259 is broke. Report this to the rest of the shops,
and to the pickets at all the shops.
Yours for the ending of strike,
A AUTO WORKER.
THETJRER WAGON WORICS, INOO'RPORA'TED 849
Five days later Hampton sent another letter to all the employees,
again urging them to join the Body Builders, stating that it was not
a company union, and concluding, "Join the March Back to Work .. .
Yours for working as real Americans should." Hampton also spoke
to the strikers and was instrumental in persuading some of them to
return to work.
Hampton, McDonough, and Roehr, as the original trustees, had
first incorporated the Body Builders on June 16, 1937. However, it
was not until July 12 that the first meeting of the organization was
held. Hampton presided over this meeting, which was held during
the noon hour outside the plant and lasted about 20 minutes. During
that time the permanent officers were'elected and the constitution and
bylaws were read and adopted. Hampton and McDonough were
elected members of the executive committee, comprised of three mem-
bers, and Roehr was elected president. Thereafter the notices pertain-
ing to the Body Builders appeared regularly on the bulletin boards
of the plants.
Since its organization the Body. Builders has neither taken up any
grievances nor attempted to bargain collectively with the respondent.
Although its constitution and bylaws provide for collective bargain-
ing, Hampton testified that it was his "personal opinion" that if a
man felt aggrieved he should himself go to the employer to adjust his
difficulties. Although the Body Builders had circulated a petition
requesting recognition as the collective bargaining representative of
the employees, it was never presented to the respondent. According
to Hampton,.the executive committee had decided to wait until after
the charges brought by the U. A. W. A. had been disposed of and
furthermore the "men were lucky . . . to have their jobs . . . with-
out making demands on the company."
When the respondent was first confronted with the collective action
of its employees it forcefully expressed its opposition. Thereafter,
when it found that the employees could not be dissuaded from organ-
izing, it sought to divert their organizational efforts into channels
more acceptable to the respondent 10 When its. urgings and other
anti-union activities failed to induce the employees to form the inside
union, in the face of the clear evidence that the employees desired
representation by the U. A. W. A., the respondent, through the direct
activity of three employees, sponsored and encouraged the formation
of the Body Builders. We have found that these three employees
were supervisors. But whatever their official position, it is evident
10 Cf. Matter of Texas Mining of Smelting Company and International Union of Mine,
Mill of Smelter Workers, Local No. 412, 13 N. L. R. B. 1163; Matter of Gutman of Com-
pany and National Leather Workers Association, Local 43, 18 N. L. R. B. 64.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they acted in fact in behalf of the respondent, and that through
them the respondent brought pressure to bear upon its employees
which was intended to and did deprive them of their free and inde-
pendent choice." We are satisfied that the respondent exercised con-
trol over these three employees, directed their actions in the formation
of the Body Builders, permitted the use of the respondent's property
during working hours to further the growth of their labor organiza-
tion, and ratified the action of the Body Builders in breaking the
strike.
Upon the basis of the foregoing facts, we find that the respondent
dominated and interfered with the formation and administration of
the Body Builders, and contributed support to it, and that it thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
D. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that all the respondent's employees at the New
York and New Jersey plants, including working foremen, maintenance
men, porters, chauffeurs, night watchmen, and shipping and stock-
room clerks, but excluding executives, clerical and office employees,
employees with the right to hire and discharge, and salesmen, con-
stitute a unit appropriate for the purposes of collective bargaining.
The answer neither admits nor denies this allegation of the complaint.
The labor policies at both plants are the same and the bargaining
hereinafter described proceeded on the basis of such a unit without
objection from the respondent.
We find that all the respondent's employees at the New York and
New Jersey plants, including working foremen, maintenance men,
porters, chauffeurs, night watchmen, and shipping and stockroom
clerks, but excluding executives, clerical and office employees,' em-
ployees with the right to hire and discharge, and salesmen, constitute
a unit appropriate for the purposes of collective bargaining and that
such unit insures to employees of the respondent the full benefit of
their right to self-organization and to collective bargaining and oth-
erwise effectuates the policies of the Act.12
"Matter of The Serrick Corporation and International Union, United Automobile
Workers of America, Local No. 1,59, 8 N. L. R. B. 621, enf'd , International Association of
Machinists, Tool and Die Makers Lodge No. 35 , Affiliated with the International Associa-
tion of Machinists and Production Lodge No. 1200, Affiliated with the International Asso-
ciation of Machinists v. N. L. R. It., 110 F. (2d) 29 (C. A., D. C.).
" See Matter of Todd Shipyards Corporation , Robins Dry Dock and Repair Co., and
Tietfen and Lang Dry Dock Co. and Industrial Union of Marine and Shipbuilding
Workers of America, 5 N. L. R. B. 20.
T,*H URE;R WAGON WORKS, IN.COiRPORATED 851
2. Representation by the U. A. W. A. of a majority
in the appropriate unit
Lists prepared from the records of the respondent and containing
the names of its employees on its pay rolls of both plants as of May
12, 1937, were introduced in evidence. These lists contain the names
of 282 employees within the appropriate unit.
Pursuant to stipulation of the parties there was also introduced in
evidence, in lieu of the U. A. W. A. records, a list containing the names
and dates of payment of initiation fees of 159 U. A. W. A. members.
It was further stipulated that the U. A. W. A. assistant financial
secretary, who appeared at the hearing, would testify that the list was
an accurate copy of the U. A. W. A. records, that the individuals
named thereon were employees of the respondent up to the time of
the strike, that they joined the U. A. W. A. and paid their initiation
fees on the dates appearing therein, and that they were still members
of the U. A. W. A. at the time of the hearing. The respondent con-.
tended that such stipulations do not admit the truth of the facts.
However, as counsel for the respondent stated that he did not desire
to cross-examine the U. A. W. A. assistant financial secretary, the
facts contained in the stipulations remain uncontradicted. We have
compared the U. A. W. A. list with the pay-roll lists of May 12 and
find that all but 7, or a total of 152, of the names appearing on the
U. A. W. A. list also appear upon the May 12 pay rolls. Of the 152
persons named, 147 became members of the U. A. W. A. between May
4 and 7, 1937. -
In addition there were introduced in evidence 82 U. A. W. A.
application cards which were signed between April 30 and June 30.
After counsel for the Board and the respondent compared these cards
with the May 12 pay rolls, counsel for the respondent conceded that all
the persons whose names appeared on the cards except one 13 were em-
ployees of the respondent on May 12 and that the signatures on the
cards were genuine except as to 1214 Thereafter testimony was intro-
duced that the signatures of 616 of the 12 were in fact signed by them
or their agents. Consequently the signatures appearing on 75 of
the 82 cards are genuine or duly authorized and represent persons
who were employees of the respondent on May 12. Of the 75 cards,
50 were signed between April 30 and May 7. Thus on May 7, 1937,
197 employees of the 282 employees within the appropriate unit had
13 Titus Novesky ; see Section III, E.
14 Adelbert Beretvas, Anton Capellmann, Saul Castille, Jacob (Jakob) Eisen, George
Gozher (Gozner), John Mockoviak, Andy Orell, Frank Rura, Joseph Schoonejans, John
Schounot , Ludwig ( Louis ) Seidman , Hugh Van Buerden ( Van Beurden).
15 Anton Capellmann , Jacob ( Jakob ) Eisen, George Gozher ( Gozner), John Mockoviak,
Joseph Schoonejans , Ludwig (Louis ) Seidman.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized the U. A. W. A. to represent them for the purposes of col-
lective bargaining.
We find that on May 7, 1937, and at all times thereafter, the U. A.
W. A. was the duly designated representative of a majority of the
employees in the appropriate unit and that, pursuant to Section 9 (a)
of the Act, it was the exclusive representative of all the employees in
such unit for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
3. The refusal to bargain
Between May 12 and 21, 1937, the U. A. W. A. and the Association
held a series of conferences at which they discussed the various offers
and counteroffers made by each of them, but reached no agreement.
Finally, dissatisfied with the lack of progress of these discussions, due
in part to the disagreement among the Association members them-
selves, a group of 16 employers began to negotiate independently with
the U. A. W. A. On May 28 these employers successfully concluded
an agreement with the U. A. W. A. Thereafter, almost all the em-
ployers in the New York and New Jersey area executed similar agree-
ments. The respondent and about six other employers, however,
refused to accept such contracts. By May 26 the negotiations between
the Association and the U. A. W. A. had ceased and were not there-
after resumed.
The U. A. W. A. negotiating committee at the respondent's plant,
following the cessation of negotiations through the Association, com-
municated with the respondent regarding direct negotiations with it,
but was advised to see Nachby. A few days later the committee met
with Nachby at his office and presented him with a proposed contract.
On June 15 the representatives of the U. A. W. A. and the respondent
held a conference at the Regional Office of the Board. The U. A. W.
A. had come to the conference "with one purpose, ... and that is
to get an agreement." Nachby, however, questioned whether the
U. A. W. A. actually represented the respondent's employees and re-
quested that an election be conducted by the Board. In view of the
duration of the strike, the number of the respondent's employees who
were out on strike, and the negotiations which had been conducted
until then, the U. A. W. A. contended that an election was unnecessary.
It finally gave its consent, however, and an election was conducted
under the supervision of the Regional Director. Of 262 voting, 215
registered their choice of the U. A. W. A. as their bargaining
representative.
Following the Board election another conference was held between
the U. A. W. A. and the respondent, at which the U. A. W. A.
T'HEURER WAGON WORKS, IN00RPORATED 853
submitted a copy of an agreement similar to the one which had been
signed by the other employers in the industry. It provided for a
closed shop, arbitration of disputes, prohibition against soliciting
or campaigning on shop premises, a guarantee against discrimination
for union activity or membership, seniority in lay-offs, a 40-hour,
5-day week, a minimum wage scale including time and a quarter for
overtime, a guarantee against strikes or lock-outs, and a 10-percent
wage increase for those already receiving the minimum. The agree-
ment further provided that the wage rates and all other conditions
were to be the same for all employers with whom agreements would be
made in the New York area. Except for two sections of the contract,
it appears that at least some accord was reached with respect to
each of its provisions. Nachby made suggestions to modify the
arbitration provision and to provide against intimidation or coercion
of employees by the U. A. W. A. in addition to the guarantee against
discrimination for union membership or activity. As to other pro-
visions, Nachby stated that they were either satisfactory or that they
would probably meet with the approval of the respondent subject to
certain subsequent modifications. The U. A. W. A. representatives
agreed to modify their demands to meet the respondent's suggestions.
According to Nachby, when the union committee left his office that
day, the "two things still left open" related to the closed shop and
Saturday work.
On July 1, 1937, the respondent obtained a temporary injunction
in the New Jersey courts restraining the U. A. W. A. and certain
of its members from picketing the New Jersey plant. As a result,
all picketing soon ceased. Shortly thereafter, the efforts of the
respondent to break the strike began to take effect and many of
the strikers began to return to work is
On July 10 a conference was held at the respondent's New York
plant. At this meeting the U. A. W. A. agreed to all of the respond-
ent's previously proposed modifications of the contract as well as
a modification of the seniority provision, a change in the 40-hour
week to provide for Saturday work, and a new wage scale classifica-
tion, to be determined later. There is some testimony that the U. A.
W. A. was willing to waive the_ closed-shop provision, although
Nachby testified that this matter was to be taken back to the U. A. W.
A. members for consideration. However, Theurer made it clear to
the U. A. W. A. representatives that "[the respondent] would under
no conditions sign any contract," that he "was an American citizen
and he would run his shop as he saw fit," and further, that "he
did not see any reason why he should sign a contract" as "the men
were coming back."
16 See Section III, C.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 13 the parties held a conference at the Regional Office of
the Board . Nachby testified that one Shatzow represented the Board
at this conference , that he "looked at the agreement , Board's Exhibit
9, and I told him that all of the provisions had been agreed upon with
the exception of the [closed shop] paragraph , and he thereupon
turned to . . . Mr. Fisher [who was one of the U. A. W. A. repre-
sentatives], and questioned him as to why the Union had consented
to the various changes," that he, Shatzow , told the "Union that they
should not accept several of the changes ," that he raised so many
questions with regard to all the paragraphs of the proposed agree-
ment that at the conclusion of the conference Theurer and Nachby
did not know what parts of the agreement were or were not accept-
able to the U . A. W. A. The testimony of Theurer was similar to
Nachby's.
Fisher denied that Shatzow had offered the objections as claimed
by Nachby and his denial is supported by the record . It does not
appear that the "various changes" were ever reduced to writing.
Except as to one change proposed by the U. A. W. A . and a few
penciled notes, the "various changes " were neither incorporated in
Board Exhibit No. 9, nor in any of the other proposed drafts of
contracts contained in the record . From Nachby's own testimony, it
is difficult to conceive how Shatzow could have raised the objections
claimed by Nachby upon looking at the agreement . Upon all the
evidence , we resolve the testimony in favor of Fisher.
The U. A. W. A. contends, and its contention is supported in the
record, that at that meeting the U. A. W. A. offered to waive all
its prior demands and made only two requests , namely, a written
contract recognizing the U . A. W. A. as the sole collective bargain-
ing agent for the respondent 's employees and the reinstatement of the
strikers to their former positions. The respondent took the position
that it would reinstate the strikers when it could, but would not dis-
charge any strikebreakers . It also took the position that there was
nothing in the Act which required it to continue to recognize the
the U. A. W. A. as the sole collective bargaining agent, simply
because "some time ago there was an election conducted by the
Board , and at that time you had a majority." Further, Nachby
stated, there was nothing in the Act "which says that we have to
sign a written contract in which we state we will recognize the Union
as the sole collective bargaining agency"; that even if the U. A. W. A.
and the respondent had agreed upon all the terms of a contract,
"he wouldn 't say whether [the respondent] would or would not sign
a contract."
By July 15 the employees, having concluded that the "strike was
getting pretty bad" and that " it was no use fighting any longer,"
sent a committee that day to see Theurer about, terminating the strike
THEURER WAGON WORKS, INCORPORATED 855
and "getting the men's jobs back." The respondent refused to recede
from its prior position regarding the reinstatement of strikers and
refused to discharge any of the new employees hired after the strike
began. Theurer promised only to employ men "we had work for at
that particular time. " The U. A. W. A. committee was unable to
obtain any other agreement . The following day, acting on the order
of the U. A. W. A., the strike was ended and the employees began to
apply for work.
During the latter part of July and in early August, two other con-
ferences were held, but nothing was accomplished at either of them.
The final conference was held on August 31 , 1937. At this meeting
the respondent again refused to discharge any of the employees hired
during the strike in order to reinstate the strikers . In addition the
respondent's representatives refused to reinstate several employees
alleging that they were drunkards or the like. Nesin, one of the
U. A. W. A. representatives , thereupon stated that the additional
reasons given by the respondent for refusing to reinstate the employ-
ees had never theretofore been offered by it and that its doing so was
an insult to the intelligence of the U. A. W. A. representatives.
Nesin further stated that the respondent's "whole attitude towards
collective bargaining was phoney , that [it] never said at any time
that [it] would sign any kind of an agreement" but instead empha-
sized "that the law did not require [it] to sign." Nesin also told
Nachby and Theurer that their conduct at the conferences indicated
that they were "unprincipled," "arrogant ," and "impudent." Nachby
and Theurer , who contended that Nesin made these statements be-
cause of some minor provocation , broke off the negotiations forthwith
and left, Theurer saying, "I don't intend to stand by and be insulted."
4. Conclusions
The course of negotiations described above reveals unmistakably
that since June 15, 1937, the respondent has sought to avoid its obli-
gation to bargain collectively with the U. A. W. A. At the May 1
elections held by the respondent it was made abundantly clear to
the respondent that the employees desired to be represented by the
U. A. W. A. That the U. A. W. A. represented a majority of the
employees was confirmed by the fact that all but a small group of
employees in each plant joined the strike which occurred some.2 weeks
later . In the negotiations which followed , the respondent dealt
with the Union as the sole collective bargaining agent of its employees.
However, on June 15, after a protracted period of negotiating,
during which the respondent had accorded the U. A. W. A. due
recognition , the respondent suddenly saw fit to challenge the seem-
283029-41-vol. 18-55
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly unquestioned majority representation of the U. A. W. A. At
that time most of the employees were still on strike. No acts had
occurred to indicate that the employees had withdrawn from the
U. A. W. A. or become affiliated with any other labor organization.
It is clear that the sole purpose of the respondent in challenging the
U. A. W. A. majority was to suspend the negotiations sufficiently to
enable the Body Builders to be formed. Thereafter, however, the
respondent used the Body Builders as an effective instrument to
break the strike and destroy the U. A. W. A.
At the conference following the Board election, which the U. A.
W. A. won by a convincing majority, the parties reached a substantial
agreement . Despite the fact that a mutual accord was then close
at hand, the respondent opened a vigorous campaign to break the
strike and to impugn and discredit the U. A. W. A. and its leaders.
Within the following 2 weeks the respondent used every means ,at
its disposal to this end. Through the mails it sent anti-union liter-
ature to the employees and it approached the employees personally.
Successful in its effort to break the strike, and with the employees
returning to, work, the respondent could no longer "see any reason"
for signing a contract. It refused to sign an agreement according
the U. A. W. A. sole bargaining rights and announced that even if
all the terms of a contract were agreed upon it would not sign.17
Thereafter, the employees went back to work in accordance with the
respondent's previously announced terms. Although we do not con-
done the conduct of the U. A. W. A. representative at the last con-
ference, whatever the provocation, it is clear that the respondent's
refusal to bargain had been made manifest.
We have found that several times during the course of the negotia-
tions the respondent modified its position with respect to the sole
collective bargaining rights which it had granted to the U. A. W. A.
We have repeatedly held that to meet with union representatives
and to discuss terms does not satisfy the requirements of the Act if
union recognition is withheld.18 The corollary of this principle fol-
lows, that to meet with union representatives and to discuss terms
similarly does not satisfy the requirements of the Act if, as in this
17 The testimony of the U. A. W. A. witnesses with respect to the refusal of the re-
spondent to sign any contract is corroborated by Nachby's following testimony :
At one of the- meetings . . . towards the latter part . . . where the question of
signing an agreement came up, and at that time I mentioned that I did not think
that Mr. Theurer would sign any agreement but that it was my suggestion that
if he did take that position and if we did arrive at all of, the terms of an
agreement , that the terms be set down in writing , so that there would be no
ambiguity, and that that memorandum be witnessed by anyone that the Union
wanted , other than Mr. Theurer.
18Matteir of The Griswold Manufacturing Company and Amalgamated Association of
Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L. R . B. 298, enf'd,
N. L. R. B . v. Griswold Manufacturing Co., 106 F. ( 2d) 713 ( C. C. A. 3).
THEURER WAGON WORKS, IN,OORPORATED 857
case, union recognition is granted and then withdrawn or questioned
according to whim.
We have also found that the respondent refused to enter into a
signed agreement , whether it applied only to recognition of the
U. A. W. A. as sole collective bargaining agent for its employees or
whether the parties were successful in reaching an agreement relating
to all the matters at issue. Such a refusal was only calculated further
to undermine and damage the prestige of the U. A. W. A. as the
bargaining agent in the respondent's plants.19 Under substantially
similar circumstances we have held :
We cannot find any justification for saying that while the re-
spondent was obligated to. embody terms in some sort of an
agreement, it was privileged to withhold a signed statement .. .
We regard it as well settled that collective bargaining in good
faith requires a willingness to consummate the negotiations, if
successful , by entering into some sort of an agreement. And we
hold that under circumstances such as are presented here, it is
the employer's obligation to accede to a request that understand-
ings reached be embodied in a signed agreement . . . We take
judicial notice of the fact that today thousands of employers
have accorded unions their right to normal contractual relation-
ships, and that, as is shown by the record, the signed collective
bargaining agreement is the prevailing practice. From the view-
point of harmonious and cooperative labor relations, as well as
of sensible business practice, the importance of embodying under-
standings in signed agreements is obvious. Whether there may
be, in some future case, circumstances indicating that the em-
ployer there involved may under the Act decline to, embody un-
derstandings in a signed agreement, we need not here decide.20
The respondent's domination of and interference with the forma-
tion and administration of the Body Builders, its organization of the
back-to-work movement, its tactics regarding union recognition, its
refusal to sign an agreement under any circumstances, and its con-
tinuance of other unfair labor practices which interfered with,' re-
strained , and coerced its employees in the exercise of their right to
self-organization, all of which were simultaneously carried on during
the attempted negotiations, clearly indicate that the respondent did
19 Matter of Western Felt Works, a corporation and Textile Workers Organizing Com-
mittee, Western Felt Local, 10 N. L. R. B. 407.
20 Matter of Inland Steel Company and Steel Workers' Organizing Committee and Amal-
gamated Association of Iron, Steel, and Tin. Workers of North America, Lodge Nos. 64,
1010, and 1101, 9 N. L. R. B. 783; see also Matter of Fort Wayne Corrugated Paper Com-
pany and Local No. 182, International Brotherhood of Pulp, Sulphite, and Paper Mill
Workers, 14 N. L. R. B. 1.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not at any time, on and after June 15, 1937, intend in good faith to
bargain collectively with the U. A. W. A.21
We find that on June 15, 1937, and thereafter, the respondent re-
fused to bargain collectively with the U. A. W. A. as the representa-
tive of its employees in respect to rates of pay, wages, hours of
employment, and other conditions of employment. We also find that
the respondent, by refusing to bargain collectively with the U. A.
W. A. as the representative of its employees in respect to rates of pay,
wages, hours of employment, and other conditions of employment, on
and after June 15, 1937, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of
the Act.
We further find that the above refusal to bargain collectively and
the other activities of the respondent described above which inter-
fered with the exercise by the employees of the rights granted by the
Act were primary and continuing factors in the prolongation of the
strike.
E. The refusals to reinstate
The complaint, as amended, alleges that on or about July 16, 1937,
and at all times thereafter, the respondent refused to reinstate to
employment at its New York and New Jersey plants 97 employees
who participated in the strike, for the reason that they joined and
assisted the U. A. W. A. and engaged in other concerted activities for
the purpose of collective bargaining. It further alleges that by such
refusal to reinstate these employees, the respondent discriminated
against them in regard to their hire and tenure of employment in vio-
lation of Section 8 (3) of the Act. These allegations are denied by
the respondent.
As we have above described, on July 15, 1937, in an effort to ter-
minate the strike, the U. A. W. A. sent a committee to the respondent
to request the reinstatement of all the respondent's employees still on
strike. . The respondent refused to discharge any of the new em-
ployees hired after the strike began and agreed only to employ men
for whom there was work at the time. We find that the U. A. W. A.
committee thereby made an application for reinstatement on behalf
21 Matter o f National Licorice Company and Bakery and Confectionery Workers Inter-
national Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. R. B.
537, enf'd as mod., N. L. R. B. v. National Licorice Company, 104 F. (2d) 655 (C. C. A.
2) ; Matter of American Manufacturing Company; Company Union of the American Man-
ufacturing Company; The Collective Bargaining Committee of the Brooklyn Plant of the
American Manufacturing Company and Textile Workers ' Organizing Committee, C. 1. 0.,
5 N. L. R. B. 443, enf 'd, N. L. It. B. V. American Manufacturing Co., 106 F. (2d) 61
(C. C. A. 2).
T'HETJRER WAGON WORKS, INOORPORA'TED 859
of all such employees.22 In addition, on the following and succeeding
days applications for reinstatement were made by many of the em-
ployees individually. Some of the 97 employees did not make indi-
vidual applications for reinstatement. In view of the general appli-
cation made on July 15 and in view of the respondent's position which
indicated that new employees would not be discharged to make room
for the striking employees, subsequent individual applications would
have availed the employees nothing. It cannot be said that because
some of the employees did not make individual applications to go to
work they were not refused employment. That would "place a
penalty on them for not doing what they knew would have proved
fruitless in the doing."'23
Twenty-two of the 97 employees were reinstated by the respondent
at various dates prior to the close of the hearing. Two of the 22 were
reinstated before July 15, 1937.24 As these two employees were reem-
ployed prior to the U. A. W. A. application and the termination of
the strike, the respondent did not discriminate against them as to their
hire or tenure of employment. Accordingly, we shall order that the
allegations of the complaint, so far as they pertain to these two, listed
in Appendix E, shall be dismissed. Of the remaining 20, each of
whom is listed in Appendix A together with the date of his reinstate-
ment, 16 were reinstated at various dates after July 15, 1937, but prior
to the hearing, while 4 were reinstated during the hearing. Exclud-
ing the 2 employees who were reinstated prior to July 15, 1937, there
remain for our consideration the alleged discriminations relating to
the delay in the reinstatement of the 20 and the failure to reinstate the
remaining 75 of the 97 strikers, all of whom are listed in Appendix B.
Prior to the strike of May 12 the respondent employed 299 em-
ployees. Following the strike the number of employees dropped to
55. As a result of the various above-described activities carried on
by the respondent many of the employees began to return to work.
By July 14, 1937, the total number of employees rose to 128. In the
week following the termination of the strike the number of the re-
spondent's employees reached a total of 163. By October 13, 1937,
and thereafter until the hearing, the respondent employed a total of
approximately 216 employees.
22 Matter of Western Felt Works, a corporation and Temtile Workers Organizing Com-
mittee, Western Felt Local, 10 N. L. R. B. 407.
23 Matter of Carlisle Lumber Company and Lumber & Sawmill Workers Union, Local
2511, 2 N. L. R. B. 248, enf'd, N. L. R. B. v. Carlisle Lumber Company, 94 F. (2d) 138
(C. C. A. 9 ), cert . denied, 304 U. S. 575; Matter of Denver Automobile Dealers Association,
et al. and Capitol Automotive Lodge No. 606, International Association of Machinists,
10 N. L. R. B. 1173.
2+ H. Martin was reinstated on May 28, 1937 , and S. Odrobina , on June 30, 1937.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the strike the respondent has hired 70 new employees.26 Of
this number 65 were hired on or after June 15, 1937.28 A table of the
65 new employees, indicating as to each of them, his name, the date
of his employment, the type of work performed by him, and the dura-
tion of his employment, follows. It will be noted from the table that
the employment of 27 of the 65 terminated prior to the hearing
whereas 38 are presently employed.
Table of New Employees
No. Name Type of work
Date of
hire
Employ-
ment
termi-
nated
1 Allen, H --------------------- Painter apprentice______________________________ 10-18-37 12- 6-37
2 Borngesser, R________________ Stockroom and body assembler apprentice--__-_ 8-30-37 (1)
3 Borngasser. Jr., W_____-_--__ Woodworker apprentice------------------------- 6-21-37 9- 3-37
4 Borngasser, Sr., W____-_---__ Porter and watchman--------------------------- 6-22-37 (1)
5 Bruno, F --------------------- Checker ----------------------------------------- 7- 6-37 (1)
6 Catrini, V____________________ Painter apprentice------------------------------ 6-23-37 (1)
7 Clark, B -------------------- Porter and watchman --_-_-_ -____-__-
6-23-37 8-11-37
8 Cleary,J -------------------- Painter apprentice------------------------------
6-15-37 11-12-37
9 Day, F ----------------------- Painter helper----------------------------------- 6-22-37 (1)
10 Ebber, W-------------------- Washer -----------------------------------------
10-16-37 (1 )
11 Feeley, J--------------------- Stockroom clerk---------------------------------
9-13-37 (1)
12 Fisher, W-------------------- Body assembler---------------------------------
6-17-37 (1)
13 Fuchs, B--------------------- Blacksmith finisher_____________________________
12-13-37 (1)
14 Cannon, J___________________ Painter apprentice ------------------------------ 6-18-37 8-30-37
15 Oilronan, M_________________ Blacksmith helper------------------------------ 9 8-37 (1)
16 Hakalahti, M---------------- Fender repairs---------------------------------- 10-22-37 10-28-37
17 Hammond, H---------------- Painter apprentice______________________________ 10- 4-37 (1)
18 Hayden, W------------------ Woodworker helper_____________________________
10-22-37 10-27-37
19 Horlin, A -------------------- Painter apprentice______________________________ 10- 4-37 11-12-37
20 Huenick, A__________________ Building alterations_____________________________ 6-17-37 7-15-37
21 Inzina, D____________________ Painter helper----------------------------------- 10- 4-37 10-23-37
22 Jacikoff, S-------------------- Woodworker ------------------------------------ 8-25-37 C)
23 Johnson, E------------------- Assembling completed jobs---------------------- 10- 7-37 (1)
24 Kalita, A-------------------- Painter helper ----------------------------------- 10-18-37 10-27-3725 Kier, S ----------------------- Millhand helper--------------------------------- 1-24-38 (1)
26 Kluge, A --------------------- Painter helper__________________________________ 6-19-37 (1)
27 Koeppel, J------------------- Body assembler apprentice______________________ 10- 7-37 (I )28 Kosits, J--------------------- Blacksmith finisher_____________________________ 9-22-37 (1)29 Kratz, R--------------------- Finisher apprentice----------------------------- 10-18-37
10-22-37
30 Kucharski, S----------------- Maintenance ------------------------------------ 8- 3-37 (1)
31 Kurtz, A --------------------- Blacksmith finisher helper______________________ 6-24-37 (1)
32 Lampert, M_________________ Body assembler-------------------------------- 10- 4-37
(1)
33 Lawless, T------------------ Woodworker apprentice_________________________ 10-11-37 10-15-37
34 Linn, J----------------------- Fender apprentice_______________________________
8-30-37 9-18-37
35 Long, F ---------------------- Porter and watchman___________________________ 11- 5-37 (1)
36 Malato, C-------------------- Painter apprentice------------------------------ 10-29-37 (1)
37 Malloy, M------------------- Porter -------------------------------------------
10-25-37 11-17-37
38 Mason, E-------------------- Stockroom clerk_________________________________
9-20-37 1
39 Mason, G -------------------- Maintenance helper_____________________________ 9-20-37
40 Mattson, E__________________ Body assembler apprentice______________________ 9- 7-37 O
41 McCarthy, C________________ Painter apprentice______________________________ 10- 6-37 (1)
42 McPherson, D_______________ Striping finisher--------------------------------- 10-29-37 11-26-37
43 Merker, W------------------ Painter ----------------------------------------- 10-22-37 P)
44 Michl, Jos___________________ Woodworker helper_____________________________ 9- 8-37 (i)
45 Miller, 0 -------------------- Painter helper___________________________________ 10-18-37 (1)
46 Missbach, J__________________ Trimmer's helper_______________________________ 1-29-38 (1)
47 Monico, D ------------------- Stockroom clerk apprentice ___________________•__ 12-14-37 (1)
48 Morquadt, P_________________ Blacksmith finisher_____________________________ 6-17-37 (1)
49 Moyer, J--------------------- Stockroom clerk apprentice_____________________ 7-17-37 8-18-37
50 Palle, A ---------------------- Porter and watchman___________________________ 10- 4-37 10-23-37
51 Podesta, L------------------- Porter and watchman___________________________ 7- 2-37 7-22-37
52 Polcha, 0____________________ Blacksmith finisher----------------------------- 10-15-37 (1)
53 Posser, J--------------------- Blacksmith finisher----------------------------- 9- 7-37
(1)
See footnotes at end of table.
25 The term "new employees" as used herein includes those persons hired by the respond-
ent after May 12, 1937 , who, in so far as the record shows , had never previously been
employed by the respondent . It also includes three persons who, although previously
employed by the respondent , had last been employed prior to 1936 and no longer retained
their employee status.
26 One of the 70, who was hired after June 15, 1937 , was an office worker and accord-
ingly has not been included among the 65.
THEURER WAGON WORKS, INiCO}RPORA'TED
Table of New Employees-Continued
861
No. Name Type of work Date ofhire
Employ-
ment
termi-
nated
54 Radek, 0 -------------------- Apprentice-------------------------------------- 9-29-37 1- 7-38
55 Rodrigues, 0----------------- Finisher apprentice ----------------------------- 10-11-37 10-16-37
56 Roehrer , E------------------- Woodworker apprentice ------------------------- 6-21-37 8- 7-37
67 Schaefer , 0------------------- Painter helper----------------------------------- 10-26-37 (')
58 Schran , H-------------------- Body assembler helper ---- ---------------------- 9- 8-37 (1)
59 Smith, W------------------ Painter----------------------------------------- 10-21-37 (')
60 Stemmler , A----------------- Woodworker helper----------------------------- 10-19-37 (1)
61 Suter, T --------------------- Laborer----------------------------------------- 2- 5-38
(2
62 Thieme , W------------------ Chauffeur--------------------------------------- 6-18-37 (')
63 Trickel , A------------------- Fender repairs ---------------------------------- 12-15-37 1-17-38
64 Wagner , F------------------- Body assembler apprentice ---------------------- 9- 8-37 (1)
65 Wong, 0 --------------------- Woodworker------------------------------------ 7-13-37 7-17-37
I Where no date or other indication appears the employee is still employed.
2 The exact date does not appear.
Under Section 2 (3) of the Act, the strikers remained employees
of the respondent. As we have frequently held, where, as here, a
strike has been caused or prolonged by the respondent's unfair labor
practices, the striking employees are entitled to their former positions
upon making application therefor.21 Thus, 95 28 of the 97 striking
employees were entitled to reinstatement to their former positions
on and after July 15, 1937, and the respondent, except for good cause
shown, was required to discharge persons hired after the strike was
prolonged by reason of the respondent's unfair labor practices'29 if
necessary to effectuate such reinstatement.
The respondent contends that since the strike the nature of its
business has changed and its operations have decreased. It contends
that for these reasons and other specific reasons it delayed the rein-
statement of 20, and failed to reinstate the remaining 75, of the 95
striking employees. In the absence of other considerations, the re-
spondent's refusal, on July 15, 1937, to displace employees hired
after the prolongation of the strike and its hiring of new employees
thereafter, constituted a violation of the Act within the meaning
of Section 8 (3).30 The relevant inquiry is whether the 65 positions
filled by new employees after June 15, 1937, the date of the refusal
27 Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and
Clay Workers of America , 1 N. L. R. B. 618, enf'd, Jeffery-DeWitt Insulator Company v.
N. L. R. B., 91 F. (2d) 134 (C. C. A. 4), cert. denied , 302 U S. 731; Matter of Remy
ington Rand, Inc. and Remington Rand Joint Protective Board of the District Council
Office Equipment Workers, 2 N. L. R. B. 626, enf'd, N. L. R. B. v. Remington Rand, Inc.,
94 F. (2d) 862 (C. C. A. 2), cert. denied, 304 U. S. 576, 585; Matter of Western Felt
Works, a corporation and Textile Workers Organizing Committee, Western Felt Local,
10 N. L. R. B. 407; Matter of Los Angeles Brick & Clay Products Co. and Alberhill Clay
Products Workers' Union No. 373, 11 N. L. R. B. 750.
28 As described above, although 20 of the, 95 striking employees were reemployed, their
reinstatements were delayed.
29As found above, on and after June 15 , 1937, the respondent refused to bargain col-
lectively with the U. A. W. A., which unfair labor practices prolonged the strike.
S0 Matter of Western Felt Works, a corporation and Textile Workers Organizing Com-
mittee, Western Felt Local , 10 N. L. R. B. 407.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to. bargain, could have been filled by the 95 strikers. Accordingly
we turn to a consideration of the reasons advanced by the respondent.
I
Among the 95 strikers there were at least 3 painters,31 Sakir, Turos,
and Zapotocky, 2 painter helpers, Koenig and Voyvodich,32 and 2
painter apprentices, Pavlu and Van Clief. These men had been in
the employ of the respondent for periods ranging from 2 to 6 years,
except for the apprentices who had been employed for about 6 to 8
months. The respondent contended that it refused to reinstate these
employees because no work was available for them. The respondent
made other specific and additional contentions with respect to Sakir,
and Koenig.
The respondent contended that Sakir's "work was never of late
of any great satisfaction," 33 that his "foreman was always after him
on complaints", that he "missed half of" his work and "forgot some
of it," and that he was "careless and shiftless." However, on cross-
examination, Theurer also testified that Sakir was a "steady man"
and that his work was "fair" and "passable." The record does not
disclose that, when Sakir applied for reinstatement, any mention
was made by the respondent of his unsatisfactory work. It appears
from Theurer's own testimony on cross-examination, that Sakir was
not incompetent. Further, according to Theurer, his work had be-
come unsatisfactory only during the period immediately preceding
the strike. Sakir had worked as a painter for 25 years. He had been
employed by the respondent for the past 5 years. We find it difficult to
believe that one with such experience, who had worked satisfactorily
for the respondent for 5 years, should suddenly have become incompe-
tent. Further, even if Sakir's asserted incompetence were deemed
established, the respondent's failure to discharge or discipline him for
his inefficiency prior to the U. A. W. A. strike indicates that such
reason "was culled ex post facto to screen its true motive" 34 for the
refusal to reinstate him after the strike ended. It is evident that this
81 Under the general category of painters there are painters, helpers, and apprentices.
The respondent contended that there are other subdivisions , as plasterers , inside painters,
gear cleaners or gear punks , and various classifications of apprentices . In reality, plas-
terers are painters or their work is done by painters; inside painters and certain appren-
tices appear to be helpers ; and gear cleaners , gear punks , and gear punks apprentices
are apprentices.
32 It appears that Voyvodich was a helper as his pay was similar to that paid to
helpers.
sa Italics supplied.
a' See Matter of Highway Trailer Company and United Automobile Workers of America,
Local No . 135, etc ., 3 N. L. R. B . 591, enf'd, N . L. R. B. v. Highway Trailer Company,
95 F. (2d ) 1012 (C. C. A. 7) ; Matter of Montgomery Ward & Company and Reuben
Litzenberger, et al., 9 N . L. R. B. 538, enf 'd as mod., Montgomery Ward & Co., Inc. v.
N. L. R. B., 107 F. ( 2d) 555 (C. C. A. 7).
THIJURRR WAGON WORK'S, IN.GORS'ORATED 863
reason was a mere pretext to conceal the fact that Sakir was refused
reinstatement because of his union membership and activities.
Koenig had been employed by the respondent for approximately
51/2 years. At various times he had worked as a painter's helper, a
chauffeur, and a miscellaneous employee. His last position, according
to Theurer, was that of a painter's helper. Theurer testified that
Koenig was "very incompetent," that his work was "not very" satis-
factory, and that he had been discharged and rehired several times.
During his testimony, when asked to state what Koenig had done
that was not satisfactory, Theurer merely replied, "Quite a number
of things." Two incidents of alleged incompetence appear in the
record. One related to the loss of certain hinges, valued at $15, from
a case which Koenig had trucked from one of the respondent's plants
to the other. Koenig testified that the hinges "must have bounced off
the truck" unnoticed, as there "was a heavy storm that night," and
"I had all I could do to see ahead of me without behind to see if any-
thing would fall off." On the other occasion, Koenig had momen-
tarily parked a customer's truck to open the respondent' s garage
doors. Due to a defective emergency brake, about which Koenig had
been unaware, the truck, under its own momentum, crashed into the
building, causing damage amounting to $49. On each occasion Koenig,
who earned $20 per week, had paid the costs under threat of discharge.
It appears that whatever fault may have attached to Koenig in each
of these incidents was subsequently condoned by the respondent. At
the time of the strike, Koenig was regularly employed by the respond-
ent. We are convinced that, as in Sakir's case, the respondent's claim
of incompetence was a mere pretext to conceal the fact that Koenig was
refused reinstatement because of his union membership and activities.
The respondent offered no convincing evidence that the above paint-
ers, painter helpers, and painter apprentices could not have performed
the work for which the new painters, painter helpers, and painter
apprentices were employed. In fact, the record discloses that one of
these new employees had been performing the work of one 35 of this
group of strikers since September 1937. Accordingly we consider
the respondent's contentions with respect to these strikers to be without
merit.
Among the 95 was one painter foreman, Zaice. ' He had been em-
ployed in the respondent's painting department for about 11 years.
For 9 months prior to the strike he had worked as a foreman with
some 30 men under his supervision. He joined the strike on May 14
and later joined the Union .3' The respondent contended that Zaice
as Sakir.
se As described above, the strike was called on 1\Iay 32, 1937 . Zaice, along with other
foremen who did not join the strike, engaged in numerous duties of non -supervisory
employees during the strike. Thus for 2 days Zaice engaged in regular production opera-
864 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
had been appointed foreman for a trial period and that, on May 12,
the day of the strike, after a trial period similar in length to his
predecessor's, he was found unsatisfactory because, although a ca-
pable worker, he could not "handle men properly." As proof that
the refusal to reinstate Zaice to his former position was not dis-
criminatory, Theurer testified that Russo,37 the foreman appointed
in Zaice's stead, was also an employee who had gone on strike and
had picketed the plants. During his period as a foreman Zaice
received three increases, his wages rising from $36.50. to $42 per week.
The last increase was given him about 2 months prior to the strike.
We do not believe that the respondent would have granted these
increases to Zaice unless it had been satisfied with his work. During
the strike, Theurer told Zaice that the employees had no business
going out on strike, that "As far as foremen's job, that is out."
When Zaice applied for reinstatement after the strike terminated
Theurer told him that he, Theurer, was ashamed of Zaice "for stick-
ing with that bunch of Communists and C. I. O. guys that can never
do anything for you, they cannot get your job back." We reject the
respondent's contention that Zaice was demoted before he joined the
strike on May 14. Upon the basis of the entire record it is clear that
the reasons offered at the hearing were mere pretexts to conceal the
fact that Zaice was demoted after May 14, 1937, and refused rein-
statement to his former position because of his membership in and
activity for the U. A. W. A. Russo was reinstated on July 14, 1937.
Zaice could have been reinstated to his former position on July 15,
1937.
Among the 95 strikers there were at least 4 blacksmith finishers,
Gozher, Ott, Svetics, and Treusc/i,.and 2 blacksmith helpers, Sadlon
and Sohtettino. These men had been in the employ of the respondent
for periods varying from 1 to 71/z years. With the exception of
Sadlon, the only reason advanced for the refusal to reinstate these
employees was that work was not available for them. Although
Theurer testified that Treusch had engaged in a fist fight with an-
other employee while at work some 3 months prior to the strike, the
respondent did not contend that he was refused reinstatement
therefor.
As to Sadlon, the respondent contended that because his work
was poor and not "very satisfactory" and because his eyesight was
bad, he had been recommended for dismissal at the time that the
strike commenced. For these reasons, Theurer testified, he did not
reinstate Sadlon to his former position, but as he, Theurer, con-
tions. As Zaice was permitted to become a member of the U. A. W. A., it is evident
that he was a working foreman.
37 Also spelled Rousso in the record.
THEURER WAGON WORK'S, INCORPORATED 865
sidered Sadlon an "honorable chap," "if there was any place where
I could put him back, I would." On each of the occasions that
Sadlon had applied for reinstatement he was told that there was
"no work for him in his line." The record does not show that the
respondent ever told him that he was refused reinstatement to his
former position because of incompetency. At no time was he told
that he would not be reinstated to his former position. Even if
Sadlon's asserted incompetence were deemed established, as in the
case of Sakir, in view of the fact that Sadlon was not discharged or
disciplined prior to the strike and further was not apprised of his
purported incompetence when he applied for reinstatement, we find
that the respondent's reasons were mere pretexts to conceal the fact
that he was refused reinstatement because of his union membership
and activities.38
The respondent offered no convincing evidence that the above
blacksmith finishers and blacksmith helpers could not have per-
formed the work for which the new blacksmith finishers and black-
smith helpers were employed. Accordingly we consider the re-
spondent's contentions with respect to these strikers to be without
merit.
Among the 95 there were at least 4 woodworkers,39 Behn, Brandies,
Alfred Cole, and Foelsl, and 1 woodworker helper, Casagrande.
These men had been in the employ of the respondent for periods
varying from 2 to 15 years. The respondent contended that they
were not reinstated because there was no work available for them.
In addition, Theurer testified that Behn could not be reinstated
because the respondent had orders only for light bodies whereas
Behn's experience was confined to heavy bodies. The record dis-
closes that Behn in fact had constructed light bodies as well as
heavy bodies. Although Casagrande had not been an efficient work-
er initially, more recently he "was doing fairly well" as a helper.
The respondent did not consider Casagrande's former inefficiency
a bar to his reinstatement.
The respondent offered no convincing evidence that the above
woodworkers and woodworker helper could not have performed
the work for which the new woodworkers and woodworker helpers
were employed. Accordingly, we consider the respondent's conten-
tions with respect to these strikers to be without merit.
sH After the strike was terminated, Sadlon received, but refused an offer to be reinstated
as a porter. As the offer was not one of substantially equivalent employment, the re-
spondent 's duty to reinstate him continued . Matter of Kuehne Manufacturing Company
and Local No. 1791, United Brotherhood of Carpenters and Joiners of America,
7 N. L. R. B. 304.
39 There are four categories of woodworkers , namely, lay -out men , woodworkers , helpers,
and apprentices. The respondent contended that there are other categories , as body
assemblers, helpers , and apprentices . It appears from the record that actually body
assemblers and woodworkers and their further subdivisions are the same.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At least 1 of the 95 strikers, Pacailler, had been employed by the
respondent as a chauffeur. Theurer testified that Pacailler's work
as chauffeur consisted "mainly" in moving trailers, and as there was
not enough trailer work to employ one worker continuously, it was
being done by another former chauffeur as part of his work. How-
ever, a new chauffeur was employed after June 15, 1937, and is still
employed. The record does not disclose that Pacailler, who had
had considerable experience as a chauffeur, and who had been em-
ployed in this position by the respondent for approximately 3 years,
could not have performed the work for which the new chauffeur
was employed.
Another of the 95, Wirsching, had been employed in the respond-
ent's paint department for approximately 8 years, being last em-
ployed there as a clerk. Theurer testified that no one had been em-
ployed in Wirsching's place, that "I haven't anything for him to
do to-day," and that there was a "man that takes care of a small part
of [that] work and he has been there for 39 years." Three new
stockroom clerks were employed after June 15, 1937. The record
does not disclose that Wirsching's experience as a clerk in the paint
department would not have qualified him as a clerk in the stock-
room in preference to the new employees.
At least 1 of the 95 strikers, Callen, had worked as a porter and
watchman. He had been employed by the respondent for approxi-
mately 1 or 2 months. The respondent had, not reinstated Callen
because "there was no one needed" as one of the new employees was
satisfactory. The record does not disclose that Callen could not
have performed the work for which the new porters and watchmen
were hired.
Another of the 95, Mankowski, the respondent contended, per-
formed the work of a watchman and related duties. He had been
employed by the respondent as a woodworker for 61/2 years. For
2 weeks to 3 months prior to the strike, however, he had been engaged
in the yard as a watchman, also performing other tasks as cleaning
the yard and removing iron parts from burned bodies. The re-
spondent contended that prior to the period in question it had de-
moted Mankowski because his work had become unsatisfactory on
account of his nervousness and bad eyesight. Mankowski's foreman
had complained about his work. Prior to his demotion, Theurer
had explained to Mankowski why the demotion was necessary.
Although it is not entirely free from doubt that he was demoted,
as his salary was not decreased and the record is in conflict as to
whether his hours of work were increased, upon all the facts we find
that Mankowski was last employed as a porter and watchman.
Theurer testified that he could not reinstate Mankowski to the posi-
tion of porter and watchman because the gate which he had watched
THEUJRER WAGON WORKS, INCORPORATED 867
had been closed . However, the record does not disclose that Man-
kowski could not have performed the work for which the new porters
and watchmen were employed.
At least 1 of the 95 striking employees, Bonnano, had worked in
the respondent 's trimming department . He had been employed there
for 11/2 to 3 years . During his term of employment his wages had
been increased from $12 to $18.70 per week . Bonnano testified that
although he was first hired as an apprentice , he was last employed
as a helper . Theurer testified that Bonnano was still an apprentice
despite his length of service. One new employee was hired in the
trimming department .. Theurer at various times testified that such
new employee was a trimmer, a trimmer's helper , and a "trimmers
apprentice or helper ." Despite Theurer's attempt to fix a definite
category for Bonnano , Theurer was not at all certain of the classi-
fication into which the new employee should be placed. The record
does not establish that Bonnano and the new employee occupied
different classifications . In fact, it discloses that the new employee
did "about the same type of work" that Bonnano had done. Fur-
ther, Bonnano was the more experienced employee . Whereas Bon-
nano had worked in the trimming department during his entire
employment with the respondent , the new employee had not en-
gaged in such work for a considerable period of time. The new
employee "had worked in the men's uniform industry , a good many
years" and had not done any trimming work "for a number of years."
The respondent contended that Bonnano's work "was not so satis-
factory," that he was a "clock watcher ," that he "would quit before
time and would steal off in a corner and smoke," and that he was
"just about at the end of his rope ." The respondent does not ex-
plain why in the face of such objections it increased Bonnano's pay
by more than 50 per cent . Bonnano had never been discharged or
disciplined prior to the strike. As in the case of Sakir, it is clear
that the reasons now offered by the respondent are mere pretexts
to conceal the fact that Bonnano was refused reinstatement because
of his union membership and activities . We find the respondent's
contentions with respect to Bonnano to be without merit.
All the employees hereinabove discussed , 24 in number , are listed
in Appendix C.
II
Among the 95 strikers there were 2 decalcomania workers, Gobich
and Noe,40 2 sheet-metal workers, Durbin and Sacclaris, 2 sheet-metal
40 After the strike was terminated , Noe received but refused an offer to be reinstated
as an apprentice in the tinsmith 's shop at a beginner 's salary. As the offer was not one
of substantially equivalent employment , the respondent's duty to reinstate him con-
tinued. See Matter of Kuehne Manufacturing Company and Local No. 1791, United
Brotherhood of Carpenters and Joiners of America, 7 N. L. R. B. 304.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
helpers or apprentices , Mayer and Moedebeck , 1 welder, Pasqua, and
1 electrician 's helper, Devone . Up to the time of the hearing the re-
spondent had not hired any new employees to perform the work
previously done by them . Also two, Larini and Ritchik , were wood-
workers who constructed wooden floors in bodies prior to the strike.
The record does not show that any new employees were hired subse-
quent to June 15, 1937 , to perform their work , although some of the
new employees did do such work occasionally . An additional two,
Duranik and Leeseman, were finishers who had been engaged in
wagon repair work prior to the strike . The respondent contended
that they were unable to do the work for which the new blacksmith
finishers were hired . The record does not show that any new em-
ployees were hired subsequent to June 15 , 1937, to perform their work.
Accordingly we find that the respondent has not discriminated with
regard to the hire and tenure of employment of these strikers.
Although no new employees were hired in the places of the above
strikers , we shall consider the respondent 's separate contentions re-
lating to them in view of their status as employees whose work has
ceased as the consequence of a labor dispute prolonged by reason of
the respondent 's unfair labor practices.41
Theurer testified that during the strike Pasqua, who had returned
to the plant to obtain his tools, had been "quite insulting and abusive."
Theurer merely "laughed it off," and told Pasqua to "forget it,"
which "he did, and that was the end of it." However , when about a
month later Pasqua applied for reinstatement , Theurer replied that
in view of the, prior incident he, Theurer , was astonished to see Pasqua
apply for reinstatement . Theurer thereupon told Pasqua to "step
out and not let me see [you] again." There is some conflict in the
record as to whether Pasqua was in fact insulting and abusive at
the time in question . Although we do not condone Pasqua's conduct,
upon the entire record and in view of Theurer's condonation of the
incident immediately after it occurred , we find that it should not
constitute a bar to his future reinstatement.
The respondent contended that Devone was not.an employee. He
was laid off on May 7, 1937 , and was not working at the time of the
strike. Devone testified that the respondent told him to return to
work on May 12. Theurer testified , "Possibly he was told to come
back in a few weeks, but I doubt it very much because his type of
work was completed ." It is clear that Devone had not been dis-
charged. The mere circumstance that he was not physically engaged
in work at the time of the strike does not affect his employment
status under the Act. 42
41 See section entitled "The Remedy," infra.
44 Matter of Kuehno Manufacturing Company and Local No. 1791, United Brotherhood
of Carpenters and Joiners of America, 7 N. L. R. B. 304.
THEURER WAGON WORKS, INCORPORATED 869
Theurer testified that on prior occasions in the past Larini had
been "sent home to adjust his debts"' and had been discharged for
drinking, although subsequently reinstated on each occasion. At the
hearing, Theurer, when asked whether he would employ Larini at the
present time, testified, "If I had work, I may fall again and help him
out once more. I would say that I would not." Larini denied that
he had ever been intoxicated at work. Admitting his prior instances
of intoxication or failure to pay his debts, it is clear that Larini was
nevertheless thereafter reemployed by the respondent and was so em-
ployed prior to the strike. Although the respondent thereby con-
doned the past activities of Larini, it now proposes to use them as a
reason for refusing him reinstatement. In view of the record and the
surrounding circumstances we find that Larini should not be barred
from future reinstatement. In its brief the respondent contended
that it offered reemployment to Larini. However, the alleged offers,
which were made after the strike terminated, were vague and indefi-
nite. Thus one of the respondent's foremen told Larini, "I could
use you." On another occasion Larini was told to "hang around for
a couple days . . . If you hang around a little more you will have
your position back in a couple days." We find that these proposals
to reinstate do not constitute offers within the meaning of the Act.
Duranik's work, Theurer testified, was "not very". satisfactory.
However, the respondent did not indicate that it would refuse to
reinstate him for this reason. In the case of Leeseman, who had
been in its employ for 12 years, the respondent contended that he
had been several times discharged in the past and that at times his
work had not been satisfactory. However, the respondent did not
take the position that his past deficiencies constituted a bar to his
reinstatement.
The employees hereinabove discussed, 12 in number, are listed in
Appendix D.
III
Of the 95 strikers, the respondent contended that 2, Novesky and
Ross, did not retain the status of employees at the time of the strike.
Novesky had not worked for the respondent for approximately 9
months prior to the strike due to an ailment. His illness had pre-
viously compelled him to absent himself from work. At that time
his foreman had told him, "if that is going to go like this, you cannot
work here." Upon all the evidence, we find that at the time of the
strike Novesky did not retain the status of an employee.
Ross had done pictorial and lettering work for the respondent for
a period of 6 years. At the hearing counsel for the respondent
moved to dismiss the complaint in so far as it applied to Ross on the
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground that he was an independent contractor. It appears from the
record that the respondent did'not exercise control over Ross in the
execution of his work. Other. factors, taken in conjunction with this
absence of control, tend to support the contention that Ross was an
independent contractor. Thus, he worked not only for the respond-
ent but for other employers, only giving preference to work of the
respondent because it gave him more work than any of the other
employers. He did not work during fixed hours, and, although, as
noted below, he estimated the cost of some of his work in accordance
with the probable time required for completion, he did not punch
a time clock as did the ordinary employees. He worked whatever
hours he pleased, at times from early in the morning until late at
night, as well as on Sundays and holidays. Although Ross received
a fixed amount for lettering, this was not true with respect to his
pictorial work, for which, on each job, he submitted an estimate in
advance based upon the probable time required for completion, and
then bargained with the respondent as to the price that the respond-
ent was to pay for it. Upon completing a job he submitted a bill
therefor to the respondent. His bills contained his own letterhead.
Upon all the evidence we find that Ross was an independent con-
tractor and not an employee of the respondent.
Accordingly, we shall order that the allegations of the complaint,
as amended, so far as they pertain to Novesky and Ross, be dismissed.
The above persons are listed in Appendix E.
IV
Of the 95 strikers, there remain 57 about whom there was no rele-
vant testimony except as to 4. Of these 57, the afore-mentioned 4 and
16 others, listed in Appendix A, were reinstated prior to the close
of the hearing. As to the remaining 37 who were not reinstated,
although the respondent had it in its power to make such proof, if
it could, it made no showing that they could not have been
reinstated.43
Of the above four who were reinstated prior to the close of the
hearing, three, Canova, Johnson,44 and Praskac, were sheet-metal
workers or welders. The record discloses that no new employees
who could perform their work had been employed prior to their
43 Matter of Western Felt Works, a corporation and Textile, Workers Organizing Com-
mittee, Western Felt Local, 10 N. L. R. B. 407 ; cf. Montgomery Ward & Co ., Inc. v.
N. L. R. B., November 7, 1939 (C. C. A. 7), enf'g as mod ., Matter of Montgomery Ward
& Company and Reuben Litzenherger, et al ., 9 N. L. R . B. 539.
*+ Johnson, after his reinstatement, ceased working because of a physical disability.
As the respondent reinstated him once , we do not feel that it will effectuate the policies
of the . Act to require the respondent again to offer him reinstatement . See Matter of
Precision Castings Company, Inc. and Iron Molders Union of North America , Local 80,
8 N. L. R . B. 879.
THEURERR WAGON WORKS, INCOiBPORATED 871
reinstatement. The fourth, Juretic, was a blacksmith finisher. The
record does not disclose that he could not have performed the work for
which new blacksmith finishers had been employed. Similarly, as
to the remaining 16 employees listed in Appendix A, although the
respondent had it in its power to make such proof, if it could, it
made no showing that they could not have been reinstated sooner.
Accordingly, we find without merit the respondent's contentions
that the 37 could not have been reinstated and that the employees
listed in Appendix A, except Canova, Johnson, and Praskac, could
not have been reinstated sooner. Except as to Canova, Johnson, and
Praskac, who are listed in Appendix E, the above employees are
listed in Appendix C. We also find that the respondent has not
discriminated with regard to the hire and tenure of employment of
Canova, Johnson, and Praskac.
The respondent also contended that during the period under con-
sideration it had learned that some of the striking employees had
been employed elsewhere. It does not appear that any of such em-
ployees had received other regular and substantially equivalent em-
ployment. Accordingly, the respondent's employer relationship to
such employees remained unchanged and its duty to reinstate them
continued.
We find that the respondent, by refusing to reinstate or to reinstate
sooner the employees listed in Appendix C, discriminated in regard
to their hire and tenure of employment, thereby discouraging mem-
bership in the U. A. W. A. and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.45
Independently of the foregoing, we find from the record that the
actual reason for the respondent's refusal to reinstate or to reinstate
sooner the employees listed in Appendix C lay in its desire to punish
them for their concerted activity and thereby discourage membership
in the U. A. W. A. This is clear from the circumstances surrounding
the application of some of the strikers for reinstatement.
Theurer refused to reinstate one employee because he was a member
of the U. A. W. A. and remarked that he was surprised that the em-
ployee had continued "with that bunch of Communists and C. I. 0.
guys that can never do anything for you, they can never get your job
back. I have no sympathy for you at all." To other individual
45 Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial
Association, Local No. 33, 3 N. L. R . B. 84, enf'd , Black Diamond Steamship Corp. v.
N. L. R. B., 94 F. (2d) 875 (C. C. A. 2), cert. denied , 304 U. S. 579; Matter of McKaig-
Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of North
America. Local No. 1139, 10 N. L. R. B. 33; Matter of Western Felt Works, a corpora-
tion and Textile Workers Organizing Committee , Western Felt Local, 10 N. L. R. B.
407; Matter of Denver Automobile Dealers Association , a corporation , et al. and Capital
Automotive Lodge No. 606 , International Association of Machinists , 10 N. L. R. B. 1173.
283029-41-vol. 18 56
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers who applied for reinstatement, Theurer refused their applica-
tions with the following statements : "Strike has spoiled business.
You should not have walked out." "After all the C. I. O. has misled
you and you were one of the men who went out with them." "You
fellows put me in a very bad shape . . . I ain't got no job for you."
"You have made an awful mess. You might as well take your tools
out. There is no work for you." Other statements attributed to
Theurer are : "Why did you go out? Do you know, you neglected your
duty? . . . The C. I. O. is not running my business, or the Labor
Board either." "[I do] not care for the Wagner Act and [I run my]
business [myself]." Theurer did not deny making the above state-
ments. In addition, Theurer made other statements disparaging the
Board and the Regional Director and denying that the Act could afford
the striking employees any relief.
We find that the respondent, by refusing to reinstate or to reinstate
sooner the employees listed in Appendix C, discriminated in regard to
their hire and tenure of employment, thereby discouraging member-
ship in the U. A. W. A. and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion 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.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Body Builders and has
contributed support to it. In order to effectuate the policies of the
Act and free the employees of the respondent from such domination
and interference, and the effects thereof, which constitute a continuing
obstacle to the exercise by the employees of the rights guaranteed them
by the Act, we will order the respondent to refuse to recognize the
Body Builders as the representative of the respondent's employees for
the purpose of dealing with the respondent concerning rates of pay,
wages, hours of employment, and other conditions of employment.
THEURER WAGON WORKS, INCORPORATED 873
We will also order the respondent to bargain collectively with the
U. A. W. A., upon request, and, if understandings are reached, to
embody such understandings in a signed agreement upon request.
We have found that the respondent discriminated against all the
employees listed in Appendix C in respect to their hire and tenure
of employment in violation of Section 8 (3) of the Act. For this
reason and, independently thereof, for the reason that the strike was
prolonged by the respondent's unfair labor practices including its
refusal to bargain collectively with the U. A. W. A., the employees
listed in Appendices C and D are entitled to reinstatement, unless
they have already been reinstated. Since application for reinstate-
ment was previously made by them or in their behalf, it will be un-
necessary for them to apply again. Accordingly we shall order the
respondent to offer all the employees listed in Appendices C and D,
who have not been reinstated, immediate reinstatement to their former
or substantially equivalent positions.46 The offers of reinstatement
shall be without prejudice to seniority and other rights and privileges.
The reinstatement of such employees, except Zaice, shall be effected
in the following manner: All new employees hired after June 15,
1937, the date after which the strike was prolonged by reason of the
unfair labor practices, shall, if necessary to provide employment for
those to be offered -reinstatement, be dismissed. If, thereupon, by
reason of a reduction in force there is not sufficient employment im-
mediately available for those to be offered reinstatement, all available
positions shall be distributed among the remaining employees in ac-
cordance with the respondent's usual method of reducing its force,
without discrimination against any employee because of his union
affiliation or activities, following a system of seniority to such extent
as has theretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution, for
whom no employment is immediately available, shall be placed upon
a preferential list prepared in accordance with the principles set forth
in the previous sentence, and shall thereafter, in accordance with such
list, be offered employment in their former or in substantially equiva-
lent positions, as such employment becomes available and before other
persons are hired for such work.
In cases where we have found that a certain employee was dis-
criminated against, we have ordinarily ordered the offending employer
to make him whole with back pay, this being an amount equal to the
amount he would have earned with the employer from the date of the
discrimination to the date of reinstatement pursuant to our order,
+e As noted above, at the time of the hearing there was no work available for the
employees listed in Appendix D. If at the time of the Order, there has been no change
in this respect with regard to any of such employees, they will be placed on the prefer-
ential list hereinafter described.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less net earnings 47 during the same period. The objective is to restore
the situation, as nearly as possible, to that which would have obtained
but for the illegal discrimination. Our order in the present case is
designed to achieve the same objective, but the peculiar factual situa-
tion here presents certain difficulties in fashioning our remedy so as
to restore the status quo. Thus, although prior to the strike the re-
spondent employed 299 employees, at the time of the hearing it em-
ployed only approximately 216 employees. Consequently, even had
the respondent acted lawfully in restaffing its force, there is no cer-
tainty that all the claimants found to have been discriminated against
would have returned to work, since there were presumably at all
times fewer jobs open than striking employees available. It is fair
to assume, on the other hand, that some 65 of the 95 employees would
have been reinstated or reinstated sooner than they were. Except as
to Zaice, the record neither discloses which of the employees would
have been so reinstated nor the dates on which such reinstatements
would have occurred.
Excluding Zaice, we could, of course, order the respondent to de-
termine which of the employees against whom it discriminated it
would have taken back after July 15, 1937, had it acted legally. Back
pay would then be due to those of such claimants who would have
been reinstated or reinstated sooner and nothing would be due to
those whom the respondent now decides would not have been rein-
stated during the past 21/2 years. In the light of the entire record,
we do not believe that it would effectuate the purposes of the Act
thus to permit the determination of the back pay due to rest almost
wholly within the discretion of the respondent, with no objective
standards by which a third party could test their determination. We
reject this method, and turn to a solution which seems better cal-
culated to serve the purposes of the Act 48
A lump sum shall be computed, consisting of all wages, salaries,
and other earnings paid out by the respondent since July 15, 1937,
the date of the application for reinstatement, to the 65 new employees
47 By "net . earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
refusal to reinstate him and the consequent necessity of his seeking employment else-
where . 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, enf'd, N. L. R. B. v. Crossett Lumber Company, 102 F. (2d) 1003 (C. C. A. 8).
Monies received for work performed upon Federal, State, County, municipal, or other
work-relief projects are not considered as earnings , but as provided below in the Order,
shall be deducted from the sum due the employees , 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.
48 Cf . Matter of Eagle-Picher Mining & Smelting Company, a corporation and Eagle-
Picher Lead Company, a corporation and International Union of Mine , Mill & Smelter
Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B. 727; Matter of Jefferson
Lake Oil Co., Inc. and Sulphur Workers Union No. 21195, 16 N. L. R. B. 355.
T'HEURER WAGON WORKS, INGOtRPORATED 875
whose positions we have found could have been filled by the striking
employees, up to the date on which the respondent complies with our
Order reinstating or placing on a preferential list the employees
listed in Appendix C. The lump sum shall consist of all such monies
so paid to such persons during the period set forth in the preceding
sentence. We shall then order that such lump sum shall be divided
among all the employees listed in Appendix C, except Zaice. Each
of such employees shall receive an amount proportionate to the wages
paid him prior to the strike, computed from July 15, 1937, to the
date of his reinstatement or placement on a preferential list, less his
net earnings during said period.
We have found that Zaice was refused reinstatement to a specific
position, namely, that of foreman in the respondent's painting depart-
ment. Accordingly, we shall order the respondent to offer Zaice
immediate and full reinstatement to his former position with the
respondent as foreman of the painting department without prejudice
to his seniority and other rights and privileges. We shall also
order the respondent to make him whole for any loss of pay he has
suffered by reason of the respondent's illegal acts against him by
payment to him of it sum of money equal to the amount which he
normally would have earned as wages from the date of the discrimina-
tion, namely, the date on which he should have been reinstated,
July 15, 1937, to the date of the offer of reinstatement, less his net
earnings during said period. In order to effectuate the purposes of
the Act, we shall also order that Russo, the employee who had been
appointed as foreman in Zaice's stead on July 14, 1937, shall be rein-
stated to the position which he held prior to the strike, or one sub-
stantially equivalent thereto, in the manner hereinabove provided for
the employees listed in Appendices C and D, without prejudice to his
seniority and other rights and privileges.
As to the remaining employees to be offered reinstatement, listed
in Appendix D, our Order will provide that each of such employees
whom the respondent fails, within 5 days after the date of the Order,
to offer to reinstate or place on a preferential list, in violation of the
Order, shall be entitled to payment of a sum of money equal to that
which he would normally have received as wages during the period
from 5 days after the date of the Order to the date of the offer. of em-
ployment or placement upon the preferential list as set forth above.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the.following :
CONCLUSIONS OF LAW
1. International Union, United Automobile Workers of America,
Locals 259 and 374, and Custom Built Commercial Body Builders,
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By dominating and interfering with the formation and ad-
ministration of Custom Built Commercial Body Builders, Inc., and
by contributing support to said organization, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
3. All the respondent's employees, including working foremen,
maintenance men, porters, chauffeurs, night watchmen, and shipping
and stockroom clerks, but excluding executives, clerical and office
employees, employees with the right to hire and discharge, and sales-
men, constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act.
4. International Union, United Automobile Workers of America,
Locals 259 and 374, are and at all times since May 7, 1937, have been
the exclusive representative of all employees in such unit for the
purposes of collective bargaining, within the meaning of Section 9
(a) of the Act.
5. By refusing on June 15, 1937, and at all times thereafter, to
bargain collectively with International Union, United Automobile
Workers of America, Locals 259 and 374', as the exclusive represent-
ative of all its employees in such unit, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of all the employees listed in Appendix C, thereby discouraging
membership in International Union, United Automobile Workers of
America, Locals 259, and 374, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8
(3) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor, practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent has not discriminated in regard to the hire and
tenure of employment of the employees listed in Appendices D and
E, and has not engaged in unfair labor practices, within the meaning
of Section 8 (3) of the Act, with regard to them.
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
T'HEURER WAGON WORKS, INiGOiRPORATED 877
Act, the National Labor Relations Board hereby orders that the re-
spondent, Theurer Wagon Works, Inc., and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Custom Built Commercial Body Builders, Inc., or with the
formation or administration of any other labor organization of its
employees, and from contributing support to said Custom Built Com-
mercial Body Builders, Inc., or to any other labor organization of its
employees ;
(b) Discouraging membership in International Union, United Au-
tomobile Workers of America, Locals' 259 and 374, or any other labor
organization of its employees by discriminating in regard to hire or
tenure of employment or any term or condition of employment;
(c) Refusing to bargain collectively with International Union,
United Automobile Workers of America, Locals 259 and 374, as the
exclusive representative of all the respondent's employees, including
working foremen, maintenance men, porters, chauffeurs, night watch-
men, and shipping and stockroom clerks, but excluding executives,
clerical and office employees, employees with the right to hire and
discharge, and salesmen;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection, 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) Refuse to recognize Custom Built Commercial Body-Builders,
Inc., as the representative of any of its employees for the purposes
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment;
(b) Upon request, bargain collectively with International Union,
United Automobile Workers of America, Locals 259 and 374, as the
exclusive representative of all the respondent's employees, including
working foremen, maintenance men, porters, chauffeurs, night watch-
men, and shipping and stockroom clerks, but excluding executives,
clerical and office employees, employees with the right to hire and dis-
charge, and salesmen, and if any understandings are reached, embody
such understandings, upon request, in a signed agreement;
(c) Offer to Zaice immediate and full reinstatement to his former
position of foreman of the respondent's painting department, without
prejudice to his seniority or other rights and privileges; and make
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him whole for any loss of pay he may have suffered by reason of the
respondent's discriminatory refusal to reinstate him by payment to
him of a sum of money equal to the amount which he would normally
have earned as wages from the date of his discrimination, July 15,
1937, to the date of the offer of reinstatement, less his net earnings
during that period ; provided, however, that the respondent shall de-
duct from the amount otherwise due to him, monies received by him
during 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 governments which supplied the
funds for said work-relief projects;
(d) Offer to the employees listed in Appendices C and D, including
Russo, but excluding Zaice and those who have been previously re-
instated, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other
rights and privileges, in the manner set forth in the section entitled
"Remedy," placing those employees for whom employment is not im-
mediately available upon a preferential list in the manner set forth
in said section, and thereafter, in said manner, offer them employment
as it becomes available;
(e) Make whole each of the persons listed in Appendix C for any
loss of pay he may have suffered by reason of the respondent's
discrimination against him as to his hire and tenure of employment,
in the manner set forth in the section entitled "Remedy," less his
net earnings during said period; provided, however, that the re-
spondent shall deduct from the amount otherwise due to each of the
said employees, monies received by said employee during 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 governments which supplied the funds for
said work-relief projects;
(f) Make whole the employees listed in Appendix D for any loss
of pay they may suffer by reason of any failure, within five (5)
days after the date of this Order, to offer to reinstate or place them
upon the preferential list, by payment to each of them, respectively,
of a sum of money equal to that which each normally would have
earned as wages during the period from five (5) days after the date
of this Order to the date of the offer of employment or placement
upon the preferential list described in the "Remedy," less his net
earnings during said period ; provided, however, that the respondent
shall deduct from the amount otherwise due to each of the said
employees, monies received by said employees during said period for
work performed upon Federal, State, county, municipal, or other
THEIURER WAGON WORKS, INCORPORATED 879
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 governments which supplied the funds for
said work-relief projects;
(g) Post immediately, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, notices in
conspicuous places throughout its New York and New Jersey plants,
stating that the respondent will cease and desist in the manner set
forth in 1 (a), (b), (c), and (d) and that it will take the affirmative
action set forth in 2 (a), (b) (c), (d), (e), and (f) of this Order,
that its employees are free to become or remain members of Inter-
national Union, United Automobile Workers of America, Locals 259
and 374, and that it will not discriminate against any employee be-
cause of membership or activity in that organization;
(h) Notify the Regional Director for the Second Region in writ-
ing 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 complaint be, and it hereby is,
dismissed in so far as it alleges, with regard to the employees listed
in Appendices D and E, that the respondent has engaged in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
APPENDIX A4° Date of reinstatement
1. Baumann, G---------------------- . September 20, 1937
2. Block, M-------------------------- August 28, 1937
3. Canova, A. J______________________ February 24, 1938
4. Eckhoff, Louis____________________ August 30, 19.37
5. Ettore, Tua_______________________ October 15, 1937
6. Heilman , Jacob -------------------- October 19, 1937
7. Johnson, O------------------------ February 18, 1938
8. Juretic, Simon____________________ February 24, 1938
9. Klepers, J------------------------ . July 28, 1937
10. Londregan, E_____________________ July 26, 1937
11. Markovitz, Peter ------------------ October 5, 1937
12. Praskac, Paul --------------------- February 26, 1938
13. Rura, Frank ----------------------- July 20, 1937
14. Schenck, F________________________ January 25, 1938
15. Seniow, Paul_____________________ October 22, 1937
16. Strolin, A------------------------- October 4, 1937
17. Takass, L------------------------- August 3, 1937
18. Van Beurden, Hugh --------------- August 10, 1937
19. Vogt, Joseph ------- --------------- January 28, 1938
20. Weigele , William------------------ September 27, 1937
49 The spellings of many of the names appearing in the Appendices varied in the record.
880 DECISIONS OF
1. Behn, Frank
2. Behrmann, H.
3. Bierman, Otto
4. Bonnano, Joseph
5. Brandies, George
6. Callen, Edward
7. Carey, W.
8. Casagrande, Oreste
9. Caviek, C.
10. Cole, A.
11. Cole, Alfred
12. Curry, W. A.
13. Curry, Wm.
14. Devone, James
15. Dorr, W.
16. Duranik, M.
17. Durbin, Luke
18. Faverie, August
19. Ferraris, A.
29. Foelsl, Anton
21. Foerst, A.
22. Fuchs, F.
23. Gobich, Dan
24. Gozher, George
25. Granavich, Paul
26. Hinch, John
27. Kallesser
28. Karle, E.
29. Karle, R.
30. Kepple, Frank
31. Klein, R.
32. Koenig, Rudolph
33. Kronenbitter, F.
34. Kuntz, W.
35. Larini, Claude
36. Leeseman, Christ
37. Maikisch, Chris
38. Maikisch, P.
NATIONAL LABOR RELATIONS BOARD
APPENDIX B
39. Mankowski, Stanley
40. Mayer, Raymond
41. Mazick, P.
42. McCarthy, Wm.
43. Messerschmidt, A.
44. Moedebeck, Fred
45. Noe, Joseph
46. Novesky, Titus
47. Ott, Carl
48. Pacailler, Clarence A.
49. Pasqua, Nick
50. Pavlu, Frank
51. Plutchok, Jack
52. Ritchik, N.
53. Ross, L. William
54. Rye, S.
55. Sacclaris, Peter
56. Sadlon, Samuel
57. Sakir, John
58. Sampson
59. Saurecropf, Steve
60. Scarperi, L.
61. Schaefer, H.
62. Schettino, James
63. Schneider, Frank
64. Schuler, J.
65.. Skibowski, A.
66. Stomberger, N.
67. Svetics, Joseph
68. Treusch, John
69. Turos, F.
70. Van Clief, Steven
71. Voyvodich, Christ
72. Wilhelm, C.
73. Wirsching, Armin
74. Zaice, Henry
75. Zapotocky, Connie
THEURER WAGON WORKS, INCORPORATED 881
1. Baumann, G.
2. Behn, Frank
3. Behrmann, H.
4. Bierman, Otto
5. Block, M.
6. Bonnano, Joseph
7. Brandies, George
8. Callen, Edward
9. Carey, W.
10. Casagrande, Oreste
11. Caviek, C.
12. Cole, A.
13. Cole, Alfred
14. Curry, W. A.
15. Curry, Wm.
16. Dorr, W.
17. Eckhoff, Louis
18. Ettore, Tua
19. Faverie, August
20. Ferraris, A.
21. Foelsl, Anton
22. Foerst, A.
23. Fuchs, F.
24. Gozher, George
25. Granavich, Paul
26. Heilman, Jakob
27. Hinch, John
28. Juretic, Simon
29. Kallesser
30. Karle, E.
31. Karle, R.
32. Kepple, Frank
33. Klein, R.
34. Klepers, J.
35. Koenig, Rudolph
36. Kronenbitter, F.
37. Kuntz, W.
38. Londregan, E.
39. Maikisch, Chris
APPENDIX C
40. Maikisch, P.
41. Mankowski, Stanley
42. Markovitz, Peter
43. Mazick, P.
44. McCarthy, Wm.
45. Messerschmidt, A.
46. Ott, Carl
47. Pacailler, Clarence A.
48. Pavlu, Frank
49. Plutchok, Jack
50. Rura, Frank
51. Rye, S.
52. Sadlon, Samuel
53. Sakir, John
54. Sampson
55. Saurecropf, Steve
56. Scarperi, L.
57. Schaefer, H.
58. Schenck, F.
59. Schettino, James
60. Schneider, Frank
61. Schuler, J.
62. Seniow, Paul
63. Skibowski, A.
64. Stomberger, N.
65. Strolin, A.
66. Svetics, Joseph
67. Takass, L.
68. Treusch, John
69. Turos, F.
70. Van Beurden, Hugh
71. Van Clief, Steven
72. Vogt, Joseph
73. Voyvodich, Christ
74. Weigele, William
75. Wilhelm, C.
76. Wirsching, Armin
77. Zaice, Henry
78. Zapotocky, Connie
882 DECISIONS OF
1. Devone, James
2. Duranik, M.
3. Durbin, Luke
4. Gobich, Dan
5. Larini, Claude
6. Leeseman , Christ
1. Canova, A. J.
2. Johnson, O.
3. Martin, H.
4. Novesky, Titus
NATIONAL LABOR RELATIONS BOARD
APPENDIX D
7. Mayer, Raymond
8. Moedebeck, Fred
9. Noe, Joseph
10. Pasqua, Nick
11. Ritchik, N.
12. Sacclaris, Peter.
APPENDIX E
5. Odrobina, S.
6. Praskac, Paul
7. Ross, L. William
MR. WILLIAM M. LmsERsoN took no part in the consideration of the
above Decision and Order.