Venango Plastics, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1958

119 N.L.R.B. 1318 (N.L.R.B. 1958)

1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following employees of the Employers constitute
units appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
A. All production and maintenance employees of Berkley Feed
Corporation at its Liberty Street feed plant in Norfolk, Virginia,
including warehouse and shipping employees and truckdrivers, but
excluding salesmen, office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
B. All production and maintenance employees of Carva Food
Corporation at its Norfolk, Virginia, warehouse, including stockmen,
warehousemen, and truckdrivers, but excluding salesmen, office cleri-
cal employees, professional employees, guards, and supervisors as
defined in the Act.
[Text of Direction of Elections omitted from publication.]
Venango Plastics, Inc. and United Rubber, Cork , Linoleum and
Plastic Workers of America , AFL-CIO
Venango Plastics, Inc. and United Rubber, Cork, Linoleum and
Plastic Workers of America , AFL-CIO, Petitioner. Cases Nos.
6-CA-1102 and 6-RC-1814. January 15, 1958
DECISION, DIRECTION, AND ORDER
On September 9, 1957, Trial Examiner Arthur E. Reyman, issued
his Intermediate Report in the above-entitled consolidated proceed-
ings, finding that the Respondent had engaged in and was engaging
in certain unfair labor practices in violation of the Act, and recom-
mending that it cease and desist therefrom and take, certain affirmative
action as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner further found that the challenges to
certain ballots in the representation proceeding should be overruled,
but failed to recommend that they be opened.' Thereafter the General
Counsel filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins I.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed,
'The 'Trial Examiner is in error in stating in his Intermediate Report that the Respond-
ent refused to recognize the Charging Party as the certified bargaining representative of
the Employer's employees, and in recommending that the Board enforce the certification
Obviously, no certification has issued in this case
119 NLRB No 160
VENANGO PLASTICS, INC. 1319
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions filed by the General Counsel,
and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
exceptions, additions, and modifications noted below 2
At the hearing, the General Counsel moved for summary judgment
on the ground that the Respondent's letter of July 15, 1957, did
not constitute an answer which complied with the requirements of
Rule 102.20 of the Board Rules and Regulations. The Trial Examiner
reserved ruling on this motion and proceeded to take the testimony
of approximately 20 witnesses offered by the General Counsel to
support the allegations of the complaint. The Respondent's presi-
dent, who appeared on behalf of the Respondent, cross-examined
several witnesses and, except for recalling one witness to answer a few
questions, offered no testimony. Although the Trial Examiner in
his Intermediate Report stated that he accepted the Respondent's
letter as an answer to the complaint, he nevertheless granted the
General Counsel's motion for summary judgment because of the
"default of the Respondent properly to answer the allegations of
the complaint" or to offer testimony to contradict the General Coun-
sel's witnesses, whom the Trial Examiner, therefore, credited.
Whether or not, in such circumstances, the Trial Examiner was
correct in granting the motion for summary judgment, we need not
decide.' However, in agreement with the Trial Examiner, we find
that the undisputed, credited testimony establishes that the Respond-
ent interfered with, restrained, and coerced its employees. in violation
of Section 8 (a) (1) of the Act and discriminated against employees
in regard to their hire and tenure of employment in violation of
Section 8 (a) (3) of the Act.
The facts, as revealed by the record, may be briefly summarized as
follows :
On or about June 29, 1956, the Respondent received a letter from
the International Association of Machinists demanding recognition.
The Respondent's president thereupon called the employees on the
various shifts into the office and informed them that he would not
tolerate any white-collar man telling him how to run his business.
He further stated that, if the employees wanted a union, he would
2 We note the following inadvertencies in the Intermediate Report. The amended
charges were filed on January 2 and July 2, 1957, not on January 1 and 7, 1957, as set
forth in the Intermediate Report. Moreover, the Respondent did not file objections to
conduct affecting the election as stated in the Concluding Findings of the Intermediate
Report but did interpose challenges to certain ballots cast in the representation election
which were sufficient in number to affect the results of the election. In addition, para-
graph 4 of the Conclusions of Law should read that the Respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and
8 (a) (3) of the Act instead of Section 8 (a) (1) and 8 (a) (5).
8 Of. Magnet Cove Barium Corporation, 119 NLRB 1202.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close the plant and move to Florida. He then told the employees that
he was going to circulate a sheet of paper on which they should
indicate whether they were for or against unionization. Later in the
day, the secretary of the corporation came through the plant asking
employees to sign such a paper. Certain of the employees were told
that they had to sign or else be fired. On July 2, 1956, employees
Ruth Milner, Blanche King, Geraldine Crawford, Arlene Baker,
Ernest Frankenberger, and Mary Walker were laid off. When these
employees returned to the plant on July 5 for their pay checks, the
Respondent's president told them that they could return to work, as
he had learned that they had had nothing to do with the unionization
drive. All were reinstated. Subsequently, Frankenberger was
questioned by the president's wife as to whether he had signed an
authorization card and the identity of the individual who had given it
to him.
Thereafter the International Association of Machinists discon-
tinued its organizational drive in favor of the Charging Union,
United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, which then distributed its own authorization cards among
the employees and requested recognition from Respondent. As a
result, the Respondent's president, on July 27, 1956, spoke to several
employees soliciting their advice on how to confront the problem of
unionization. He stated that he could either shut right down or else
lay off some employees and let the Union die out. He also stated to
at least one employee that he was going to give a raise to those
employees who "remained" with him. The same day, the Respondent
resorted, we find, to the layoff procedure in order to get rid of the
Union, as he had previously threatened, and, accordingly, a majority
of the employees were laid off.4 Subsequent to July 27, the president's
wife told one employee that the result of a union meeting the next
day would determine whether or not her husband would close shop
and go to Florida. None of the employees laid off on July 27 has
been reinstated, although 12 employees have been hired since that
date.
In view of the foregoing, we find, like the Trial Examiner, that
the Respondent violated Section 8 (a) (1) of the Act by threatening
to close the plant if it became organized; polling its employees as to
their union or nonunion preferences; making participation in the
poll a condition of continued employment; interrogating employees
as to their union affiliation or sympathies; promising wage increases
to the employees remaining with the Respondent; and threatening to
4 These employees are : Arlene Baker, Nettie Carder, Matilda McDaniel, William Orr,
Beverly J. Rice, Geraldine Crawford, Florence Richards, Theresa M. Scapaticci, Cora
Sober, Arvilla Settlemire, Catherine Slocum, Walter Lee Snyder, Mary Walker, Hazel L.
White.
VENANGO PLASTICS, INC. 1321
discharge employees to prevent unionization. We further find that,
,by laying off the employees on July 2 and 27 to prevent the unioniza-
tion of its employees, the Respondent discriminated against them in
.violation of Section 8 (a) (3) of the Act.
In substantial accord with the Trial Examiner's recommendations,
we shall order the Respondent to cease and desist from interfering
with, restraining, or coercing its employees in violation of Section
8 (a) (1). We shall also adopt his recommendation to reinstate and
make whole the employees discriminatorily discharged in violation
of Section 8 (a) (3) of the Act, except as otherwise provided herein.
We shall not order the reinstatement of Ruth Milner, Blanche King,
and Ernest Frankenberger. As pointed out by the General Counsel,
these individuals were discriminated against only during the period
from July 2 to 5, on which latter date, they were reinstated.-' The
complaint does not allege that the subsequent layoff of any of them
was discriminatory. For the same reason, we shall not order that they
be made whole beyond July 5, when they were reinstated.
We further do not adopt the Trial Examiner's recommendation
that Nettie Carder, Matilda McDaniel, William Orr, Beverly Rice,
Florence Richards, Theresa Scapaticci, Cora Seber, Arvilla Settle-
mire, Katherine Slocum, Walter Lee Snyder, and Hazel L. White be
reimbursed for loss of pay suffered by them during the July 2 to 5,
1956, period, as they were first discriminated against on July 27.
However, as Geraldine Crawford, Arlene Baker, and Mary Walker
were discriminatorily laid off both on July 2 and July 27, they are
entitled to be reimbursed for loss of pay suffered during both periods.
Case No. 6-RC-1814-The Challenges
The Trial Examiner found that Arvilla Settlemire, William Orr,
Walter Lee Snyder, Katherine Slocum, Ernest Frankenberger, and
Maxine Lamey, whose ballots were challenged, were entitled to vote.
We agree insofar as Arvilla Settlemire, William Orr, Walter Lee
Snyder, and Catherine Slocum are concerned, as they were dis-
criminatorily discharged or laid off before the election and, therefore,
retained their status as employees eligible to vote. We shall direct
their ballots be opened and counted.
However, it was not alleged or proven that Ernest Frankenberger
and Maxine Lamey were discriminatees at the time of the election.
The General Counsel contends that a decision on the eligibility of
Frankenberger and Lamey should be based on whether or not these
employees were in a laid-off status with a reasonable expectation of
6 For this reason we find, contrary to the Trial Examiner 's finding , that the Respondent
did not continue to discriminate against Milner, King , or Frankenberger after their re-
instatement on July 5, 1956.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reemployment at the time of the election. The record reveals that
Frankenberger was laid off in late August or early September. No
evidence was adduced indicating that he had any reasonable expecta-
tion of reemployment. In fact, as of the time of the hearing herein,
which was a year after his layoff, Frankenberger had not yet been
recalled. As for Maxine Lamey, she was on sick leave when the
layoffs of July 27 occurred. Subsequently, her husband informed
the Respondent that she had quit, which information Mrs. Lamey
never corrected. Accordingly, we find that both Frankenberger and
Lamey were not employees eligible to vote and, therefore, sustain the
challenges to their ballots.
[The Board directed that the Regional Director for the Sixth Re-
gion shall, within ten (10) days from the date of this Direction, open
and count the ballots of Arvilla Settlemire, William Orr, Walter Lee
Snyder, and Catherine Slocum.]
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders \Tenango Plastics, Inc., Franklin,
Pennsylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in, or activities on behalf of United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
or any other labor organization of its employees, by laying off or
discharging employees, or in any other manner discriminating against
them in regard to their hire or tenure of employment or any term or
condition of employment, except to the extent permitted by Section
8 (a) (3) of the Act.
(b) Interrogating its employees as to their union views and
activities and as to the identity of employees engaged in union
activities in a manner constituting interference with, restraint, or
coercion of employees in violation of Section 8 (a) (1) of the Act.
(c) Polling its employees as to their union or nonunion preferences
and making participation in such polling a condition of continued
employment.
(d) Threatening its employees with loss of employment or other
reprisals if they engaged in union activities.
(e) Promising wage increases or other benefits if they abstained
from joining or supporting a union.
(f) Threatening to close its plant or to sell its business in the
event the employees selected a union as their representative for the
purpose of collective bargaining.
VENANGO PLASTICS, INC. 1323
(g) 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 any labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted
.activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Geraldine Crawford, Arlene Baker, Mary Walker, Nettie
Carder, Matilda McDaniel, Hazel L. White, William Orr, Beverly
Rice, Florence Richards, Theresa Scapaticci, Cora Seber, Arvilla
:Settlemire, Katherine Slocum, and Walter Lee Snyder immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay they may have suffered as
a result of the discrimination against them by payment to each of
them of a sum of money equal to the amount which he or she normally
would have earned as wages less his or her net earnings during the
period from July 27, 1956, to the date of the Respondent's offer of
reinstatement.
(b) Make Ruth Milner, Blanche King, Ernest Frankenberger,
Geraldine Crawford, Arlene Baker, and Mary Walker whole for any
loss of pay suffered as a result of the discrimination against them by
payment to each of them of a sum of money equal to the amount which
he or she normally would have earned as wages less his or her net
earnings during the period from July 2 to July 5, 1956.
(c) Preserve and make- available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay
due and the rights of employment under the terms of this Order.
(d) Post at its plant in Franklin, Pennsylvania, copies of the notice
attached hereto as an appendix .6 Copies of said notice to be fur-
nished by the Regional Director of the Sixth Region, shall, after being
duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for a period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
U In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activities on behalf
of United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, or any other labor organization of our em-
ployees, by laying off or discharging employees or in any other
manner discriminating against them in regard to their hire or
tenure of employment or any term or condition of employment,
except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT interrogate our employees as to their union views
and activities and as to the identity of employees engaged in
union activities in a manner constituting interference with, re-
straint, or coercion of employees in violation of Section 8 (a)
(1) of the Act; poll our employees as to their union or nonunion
preferences and make participation in such polling a condition
of continued employment; threaten our employees with loss of em-
ployment or other reprisals if they engage in union activities;
promise wage increases or other benefits if they abstain from
joining or supporting a union; or threaten to close our plant or sell
our business in the event the employees select a union as their
representative for the purpose of collective bargaining.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organi-
zation, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, or to
engage in other .concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer Geraldine Crawford, Arlene Baker, Mary
Walker, Nettie Carder, Matilda McDaniel, Hazel L. White, Wil-
liam Orr, Beverly Rice, Florence Richards, Theresa Scapaticci,
VENANGO PLASTICS, INC. 1325
Cora Seber, Arvilla Settlemire, Catherine Slocum, and Walter
Lee Snyder immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole
for any loss of pay they may have suffered as a result of our
discrimination against them from July 27, 1956, to the date of
our offer of reinstatement.
AVE WILL make Ruth Milner, Blanche King, Ernest Franken-
berger, Geraldine Crawford, Arlene Baker, and Mary Walker
whole for any loss of pay they may have suffered as a result of our
discrimination against them from July 2 to July 5, 1956.
All our employees are free to become or remain, or to refrain
from becoming or remaining members of the above-named Union or
any other labor organization, except as that right is affected by an
agreement authorized in Section 8 (a) (3) of the Act.
VENANGO PLASTICS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These consolidated cases require the Trial Examiner to determine in first instance
whether the Respondent, Venango Plastics , Inc., has violated and continues to
violate Section 8 (a) (1) and ( 3) of the National Labor Relations Act, as
amended, ' in Case No. 6-CA-1102 ; also to decide whether six employees of this
Respondent-Employer , who cast votes in a secret ballot election conducted under
the provisions of Section 9 (b) of the Act , cast valid votes upon challenge in
the representation case designated 6-RC-1814.
On July 10, 1957, the General Counsel of the National Labor Relations Board
on behalf of the Board , by the Regional Director for the Sixth Region , issued
a complaint against the Respondent in Case No. 6-CA-1102. The complaint
is.based on a charge and amended charges timely filed by United Rubber, Cork,
Linoleum and Plastic Workers of America , AFL-CIO,2 on December 18, 1956,
and January 1 and 7 , 1957 . At the time of the issuance of the complaint, the
Regional Director entered an order pursuant to and under Section 102.33 of the
Rules and Regulations of the Board , Series 6, as amended, consolidating Cases
6-CA-1102 and 6-RC-1814. Within the same order , the Regional Director set
the cases down for hearing at Franklin , Pennsylvania, for and on August 12, 1957.
The Respondent failed to answer the complaint , as required by Rule 102.20.
Counsel for the General Counsel, on July 30, 1957, moved for summary judgment.
These cases came on to be heard before the Trial Examiner , pursuant to notice,
on August 12, 1957. At the hearing , this Trial Examiner followed a ruling made
on August 1, 1957, by Trial Examiner Sidney S. Linder, to the effect that a letter
dated July 15, 1957, signed by the president of Venango Plastics , Inc., be accepted
in lieu of a formal answer to the complaint.
i 61 Stat. 136, herein called the Act.
s Herein sometimes called the Union or the Rubber workers.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint sets forth, in essential part regarding alleged violations of Section 8.
(a) (1) and (3) of the Act, that:
3. Respondent . by its officers, agents, representatives and employees,
more particularly by J. T. Demers, Mrs. J. T. Demers, Shirley Blair, and
John Yeager, has since on or about June 29, 1956 and at various times
thereafter, permitted, authorized, instigated, and acquiesced in the following acts
and conduct:
a. threats to close and sell the plant if it became organized;
b. polling of employees respecting their union or nonunion preferences;
c. making participation in said poll a condition of continued employment;
d. interrogation of its employees as to their membership in, sympathy with,
or activities in behalf of union organization;
e. threats of discharge, layoff and other reprisals for engaging in union and
other collective activities;
f. discharging, laying off and failing and refusing to reinstate and otherwise
discriminating against its employees as described in paragraphs 4, 5, and 6
below; and
g. offers and grants of wage increases in return for disavowal of union
organization.
4. Respondent . by its officers, agents, representatives and employees,
on or about July 2, 1956, laid off its employees named below and failed and
refused to reinstate the said employees until July 5, 1956, because of and
for the purpose of discouraging membership in and activities on behalf of
Machinists and because they engaged in concerted activities with other employees
of Respondent for the purposes of collective bargaining and other mutual aid
and protection:
Ruth Milner Arlene Baker
Blanche King Ernest Frankenberger
Geraldine Crawford Mary Walker
5. Respondent . by its officers, agents, representatives and employees,
on or about July 27, 1956, laid off its employees named below and has at
all times since that date failed and refused to reinstate them because of and
for the purpose of discouraging membership in and activities on behalf of
Rubber Workers, and because they engaged in concerted activities with other
employees of Respondent for the purposes of collective bargaining and other
mutual aid and protection:
Arlene Baker
Nettie Carder
Matilda McDaniel
William Orr
Beverly J. Rice
Geraldine Crawford
Florence Richards
Theresa M. Scapaticci
Cora Seber
Arvilla Settlemire
Catherine Slocum
Walter Lee Snyder
Mary Walker
Hazel L. White
6. By the aforementioned acts of Respondent, its officers, agents, representa-
tatives, and employees, and by each of them . Respondent did discrimi-
nate, and is now discriminating, in regard to hire, tenure, and conditions of
employment in order to discourage membership in Machinists and Rubber
Workers and, by all of the said acts and by each of them, has engaged in and
is now engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
7. By the aforementioned acts of Respondent, its officers, agents, representa-
tives, and employees, and by each of them . Respondent did interfere with,
restrain, and coerce, and is now interfering with, restraining, and coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act,
and by all of the said acts and by each of them, has engaged in, and is now
engaging in, unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
8. The aforesaid acts of Respondent .. . occurring in connection with the
operations of Respondent . . . have a close, intimate and substantial relation-
ship 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.
9. The aforesaid acts of Respondent . . . above constitute unfair labor
practices affecting commerce within the meaning of Sections 8 (a) (1) and
(3) and Sections 2 (6) and (7) of the Act.
VENANGO PLASTICS, INC. 1327
The letter of the Respondent dated July 15, 1957, taken. in lieu of answer to the
complaint, states:
Mr. HENRY SHORE [The Regional Director], JULY 29, 1957.
2107 Clark Building,
Pittsburgh 22, Pennsylvania.
DEAR MR. SHORE: I will attempt to comply with your request to the best of
my ability in case #6-CA-1102 and case #6-RC-1814.
On July 15, our Mr. Horth wrote you in my absence regarding the above
complaints, he being of the opinion there would be a court session August 12
and these complaints could be thoroughly discussed at that time.
So that everyone concerned will be familiar with our operation I will give
you an explanation on this subject.
Venango Plastics, Inc. is strictly custom molders who work for other com-
panies and do not have any proprietary items for sale of their own. These
various customers control our production and plant operation. When they
cease to send in orders or releases we have no alternative but lay off our em-
ployees and shut our plant down until such time as they resume operation.
Due to this fact there are no employees working for Venango Plastics, Inc.
who have a guarantee of steady employment. Every effort is made on our
part to maintain sufficient orders to keep the plant operating but when we come
into a slow season layoff takes place and this would be the case regardless of
their affiliation with the union organization or not.
In these complaints I will again attempt to answer them in rotation to the
best of my ability.
A. Threats to close and sell the plant if it become organized. Venango
Plastics, Inc. has been for sale since October 15, 1955. At that time an
option was given to the R and E Manufacturing Company, Inc.
B. Polling of the employees. I received a letter from the C. 1. O. stating
they had the majority of my employees organized. I believe that I had a
definite right to find out whether this information was correct or not. The
employees were called together in group form and this information was
requested.
C. At no time in this discussion was anything said about continued
employment or any other guaranteed condition if they would not become
affiliated with the union.
D. I believe the answer to C would cover D.
E. Threats to discharge or lay off. There were no threats to discharge
or lay off any employee. Layoffs occur as explained in the above paragraph
and if you will check the state unemployment after the layoff did occur
you will find in each case all employees reported they were laid off for
lack of work.
F. When we again resumed operation each employee was called by
telephone . and if they could not report for work other employees were
called in to take their place. Not one of these employees that was laid off
at any time contacted me to find out if we had resumed operation or how
long this layoff period would be.
G. There were no offers or grants, of wage increases mentioned to
any employee. I solely make this decision and when an employee takes
on an extra burden, in my opinion, is justified in receiving an increase and
this could occur at any time.
H. Where you state six (6) below employees were laid off July 2, 1956,
and reinstated July 5, 1956, 1 believe the 4th of July is a national holiday
and would make it impossible to lay off employees July 2 and reinstate
them on July 5.
Regarding paragraph 5 I believe that is covered thoroughly under E.
I believe the above mentioned facts cover the mentioned complaints and is not
necessary to continue with paragraphs 5, 6, 7, 8, and 9.3
Cordially yours,
VENANGO PLASTICS, INC.,
J. T. DEFIERS, President.
At the hearing, the General Counsel and the Union were represented by counsel.
The Respondent (Employer) appeared by its president and secretary-treasurer; it
s The paragraphs marked A and 4 of this letter were stricken at the hearing uponj
motion by counsel for the General Counsel.
1328 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
was not represented by counsel. All parties were afforded full opportunity to be
heard, to present testimony, to examine and cross-examine witnesses, to argue orally
upon the record and to file briefs, proposed findings of fact, and conclusions of law,
as desired or advised.
The Trial Examiner, at the outset of hearing, took the renewed motion for
summary judgment made by counsel for the General Counsel in Case No. 6-CA-1102
under advisement. For reasons stated below, this motion will now be granted.
Upon the whole record herein, after hearing and observing the witnesses, and
after careful consideration, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF VENANGO PLASTICS, INC., RESPONDENT-EMPLOYER
Venango Plastics, Inc., is, and has been for a long period of time, a Pennsylvania
corporation having its only office and place of business at Franklin, Pennsylvania,
where it is engaged in the production, sale, and distribution of molded plastic
products. Respondent, in the course and conduct of its business, causes its products
of a value in excess of $50,000 annually to be sold, shipped, and transported from
its plant within the Commonwealth of Pennsylvania, to points outside the Common-
wealth of Pennsylvania.
II. THE LABOR ORGANIZATIONS INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
and International Association of Machinists, District 83, AFL-CIO, are labor or-
ganizations within the meaning of Section 2 (5) of the Act.
III. (A ) THE UNFAIR LABOR PRACTICES (CASE NO. 6-CA-1102)
Some 20 witnesses were called by counsel for the General Counsel to support
the allegations contained in the complaint in Case No. 6-CA-1102. The Respondent
made no effort to meet the facts set forth by the sworn testimony of any witness, so
that the Trial Examiner can make no finding other than that the Respondent,
through its officers and agents, contravened Section 8 (a) (1) and (3) of the Act,
as set forth in the complaint in Case No. 6-CA-1102.4 Upon default of the
Respondent properly to answer the allegations of the complaint or to make any
effort to meet the testimony of witnesses called by the General Counsel, and the
failure of its president to accept time offered to him by the Trial Examiner to put
in a defense , no course seems proper other than to grant the motion for summary
judgment against the Respondent. The motion therefore is now granted. The
recommendations of the Trial Examiner in this respect are set forth below.5
4 The cumulative uncontradicted testimony of Blanche King, Ruth Milner, Mary Walker,
Arlene Baker, Geraldine Crawford, Ernest Frankenberger, Jr., William Orr, Matilda
McDaniel, Beverly Rice, Wynona Scott, Nettie Carder, Arvilla Settlemire, Florence Rich-
ards, Catherine Slocum, Walter Snyder, Hazel White, Cora Seber, and Theresa Scapaticci,
prove the Respondent to have engaged in the unfair labor practices set forth in the com-
plaint. Wallace Cratty, a foreman, testified under subpena issued by the General Counsel.
0. H. Bosley, an official of the Union, appeared as a witness . The Trial Examiner has no
reason to question the credibility of any of the above-named witnesses.
5 Counsel for the General Counsel in his memorandum in support of the motion for
summary judgment, cites the Board's Rules and Regulations governing answers to com-
plaints issued by the General Counsel. He also states (and the Trial Examiner believes
correctly) that:
The Board within the past year has explicitly reaffirmed the foregoing rules in the
following language :
Accordingly, we find that pursuant to the authority granted the Board under the
Act, our rules governing the filing of answers to complaint are valid and have
the force and effect of law, and we affirm our rule that, if a party charged with
an unfair labor practice in a complaint does not file an answer within the time
and in the manner prescribed by such rules, all allegations in the complaint shall
be deemed to be admitted to be true and may be so found by the Board, and
judgment may be rendered on the complaint alone. [Citing Liquid Carbonic
Corp., 116 NLRB 795 at 797.]
Motions for summary judgment based on Respondent's failure to file an answer were
granted by the Trial Examiner In Paul Cochran and Albert Overbay d/ b/a 0 rf 0 Coal
VENANGO PLASTICS, INC. 1329
III. (B ) THE CHALLENGED BALLOTS (CASE NO. 6-RC-1814)
In Case No. 6-RC-1814, at this hearing, the Trial Examiner heard testimony in
order to determine whether Arvilla Settlemire, William Orr, Walter Snyder, Catherine
Slocum, Ernest Frankenberger, Jr., and Maxine Lamey, whose ballots were chal-
lenged at the election conducted on November 7, 1956, properly were entitled to vote.
Implicit in the record is the fact that these employees were refused employment
because of their interest in the Union or their activity for the purpose of collective
bargaining or other mutual aid or protection.
The Machinists' union representative first undertook to organize the employees of
Venango Plastics, Inc. Thereafter a representative of the Machinists turned over
individual authorization cards signed by employees of the Employer to a representa-
tive of the petitioning union, who thereupon solicited and obtained separate indi-
vidual signatures to cards authorizing and designating the (here) Petitioner Union
as their representative for the purposes of collective bargaining with their employer.
William Orr, one of the employees, was among those active in soliciting member-
ship in the Union. He had support from at least 12 of the employees (out of
some 40) and probably more.
Under date of July 25, 1956, a representative of the Union directed a letter by
registered mail to the Respondent, for the attention of its president:
GENTLEMEN: You are hereby advised that the majority of the production
and maintenance employees (excluding supervisory employees) in the Franklin,
Pa. plant of the Venango Plastic, Inc., Franklin, Pa. have designated the United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the
exclusive representative of the production and maintenance employees in the
above named plant for the purpose of collective bargaining in respect to rates
of pay, wages, hours of employment and other conditions of employment.
As the designated representative of said employees, the Union requests that
you begin negotiations with it in respect to rates of pay, wages, hours of
employment and other conditions of employment.
No other person or organization now represents a majority of the employees
who have designated the undersigned as bargaining agent, and you are hereby
cautioned against entering into any collective bargaining contract, or any
renewal or extension of any existing contract, or engaging in any collective
bargaining or negotiations with any other person or organization presuming to
act as agent for, or in behalf of the employees represented by this organization.
It will be appreciated if you will advise me promptly whether you will recog-
nize the undersigned Union as the exclusive bargaining agent of the. production
.and maintenance employees and negotiate accordingly.
This letter was not answered.6
Counsel for the General Counsel and counsel for the Union contend (and the
Trial Examiner agrees) that the proven and admitted discriminatory discharges of
Settlemire, Orr, Snyder, Slocum; Frankenberger, and Lamey show, prima facie,
that each of them was an employee at the times of their respective work termina-
tions. Mrs. Lamey was an extra machine operator, capable of handling any one
of five'machines used by her employer, and was customarily notified when her
services were needed. Frankenberger was regularly employed until his layoff or
termination of employment. Each was available for work after July 2, 5, and 27,
1956, but no one was ever recalled by his or her employer, the Respondent herein.?
Each had accepted other temporary employment.
The contention of the Employer that each one of these six employees bad volun-
tarily left its employ for other work is unsupported, and must be regarded as an
unproven assertion.
Company, Case No. 5-CA-621 and in Tom Heneger d/b/a Bluff Coal Company, Case
No. 5-CA-624. These findings and orders based solely upon the complaints were, in the
absence of exceptions, adopted by the Board.
6A petition for certification was filed by the Union on August 2, 1956. The Board
issued Its Decision and Direction of Election on October 10, 1956, after hearing. A report
on challenged ballots was made by the Regional Director on December 17, 1956 ; a revised
tally of ballots was filed ; and on January 9, 1957, the Board entered an order directing
the Regional Director to open and count certain challenged ballots and directing, inter
alia, that a bearing be held in Case No. 6-RC-1814 for the purpose of determining the
eligibility of Settlemire, Orr, Snyder, Slocum, Frankenberger, and Lamey to vote in the
election conducted on November 7, 1956.
7 Between July 27 and November 8, 1956, the Respondent hired at least 12 new
employees.
476321-58-vol. 119-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner finds that Settlemire , Orr, Snyder, Slocum , Frankenberger,
and Lamey cast valid ballots in the Board election conducted on November 7, 1956.
Concluding Findings
The allegations of the complaint in Case No. 6-CA-1102 have been practically
admitted and proven in substance ; the objections of the Respondent to alleged con-
duct affecting the result of the election held in Case No. 6-RC-1814 have not been
sustained by any effort of proof in support thereof by the Respondent -Employer.
Uncontroverted on the record are these facts : ( a) The Respondent by its officers,
agents, and representative, most particularly by J. T. Demers and Shirley Blair,
has since on or about June 29, and at various times thereafter , permitted , authorized,
instigated , and acquiesced in the following acts and conduct : ( 1) threatened to close
and sell the plant if it became organized ; ( 2) polling its employees respecting their
union or nonunion preferences ; ( 3) making participation in such poll a condition
of continued employment ; ( 4) interrogated employees as to their membership in,
sympathy with , or activities in behalf of union organizations ; ( 5) threatened to
discharge, lay off, and threatened other reprisals , for engaging in union and other
collective activities ; ( 6) discharged , laid off, and failed and refused to reinstate,
and otherwise discriminated against its employees ; and (7 ) offered wage increases
in return for disavowal by employees of union organization.
It is found that all of the aforementioned acts of the Respondent were intended
to interfere with, restrain , and coerce its employees in the exercise of the rights guaran-
teed by Section 7 of the Act . The Respondent has been shown to have discriminated
against the employees discharged or laid off because of each of his or her member-
ship in , and activities for and on behalf of , the Union and its members and other
employees ; and it has been shown to have refused to recognize the Union as the
certified representative of its employees in the named appropriate bargaining unit,
as provided by the provisions of Section 9 (a) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above , occurring in
connection with the operations of the Respondent as set forth in section I, above,
have a close , intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The Trial Examiner has found that the Respondent has discriminated and con-
tinues to discriminate in regard to the hire and tenure of employment of Ruth
Milner , Blanche King, Geraldine Crawford , Arlene Baker, Ernest Frankenberger,
Jr., Mary Walker , Nettie Carder , Matilda McDaniel , William Orr, Beverly J. Rice,
Florence Richards , Theresa M. Scapaticci , Cora Seber , Arvilla Settlemire , Catherine
Slocum, Walter Lee Snyder, and Hazel L. White . It will be recommended that the
Respondent offer to each of the above -named employees immediate reinstatement
to his or her former or substantially equivalent position and make him or her whole
for the loss of pay he or she may have suffered as a result of the discrimination against
him or her by payment to him or her of a sum of money equal to that which he or
she would have earned as wages from on or about July 2, 1956 , to the date of the offer
of reinstatement , less his or her net earnings . The loss of pay should be computed
on a quarterly calendar basis in accordance with the formula adopted by the Board
in F. W. Woolworth Company, 90 NLRB 289, earnings in one particular quarter
to have no effect upon back-pay liability for any other earnings in any other quarter
year. It will be further recommended that the Respondent make available to the
Board or its duly authorized agent or agents , upon request, payroll and other records
necessary to facilitate back-pay computations.
The Trial Examiner has found that the Respondent has refused to give credit to
the results of the election conducted under the direction of the Board in Case No.
6-RC-1814. It will be recommended that the Board enforce its certification of
United Rubber, Cork , Linoleum and Plastic Workers of America, AFL-CIO, as
the representative of the employees in the designated collective bargaining unit.
The Trial Examiner is of the opinion that the unfair labor practices found herein
disclose a course of conduct displaying a deliberate intent on the part of the
Respondent in opposition to the purposes of the Act and indicates the likelihood of
DUANE'S MIAMI CORPORATION 1331
the Respondent resorting to other acts of interference , restraint , and coercion in
violation of the Act. He therefore will recommend that the Respondent be ordered
to cease and desist from in any manner infringing upon the rights of the employees
as guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS of LAw
1. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
and International Association of Machinists , District 83, AFL-CIO, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment of:
Ruth Milner William Orr
Blanche King Beverly J. Rice
Geraldine Crawford Florence Richards
Arlene Baker Theresa M. Scapaticci
Ernest Frankenberger , Jr. Cora Seber
Mary Walker Arvilla Settlemire
Nettie Carder Catherine Slocum
Matilda McDaniel Walter Lee Snyder
Hazel L. White
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination , and by interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. By interfering with, restraining and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
( 1) and 8 (a) (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Duane's Miami Corporation and Retail Clerk 's International As-
sociation, Local 1625, AFL-CIO, Petitioner. Case No. 12-RC-
170. January 15,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Herbert B. Mintz, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is a Florida corporation operating a retail shoe
department under lease in the Jordan Marsh Department Store at
Miami, Florida. Its annual sales, all of which are intrastate, approxi-
mate $600,000; and its annual purchases, all of which are from out of
119 NLRB No. 161.