Weaver Wintark

National Labor Relations Board - Board Decisions

Dec 5, 1949

87 N.L.R.B. 351 (N.L.R.B. 1949)

In the Mutter of C. A. AV' EBB, MARY H. WEBB, AND C. B. WEBB, CO-
PARTNERS , DOING BUSINESS AS WEAVER WINTARIK and PLAYTI3INGS,.
JEWELRY AND NOVELTY WORKERS INTERNATIONAL UNION, CIO
Craw No. 4-CA-16.-Decided December 5, 1949
DECISION
AND
ORDER
On June 28, 1949, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy. of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
The Board' has reviewed the rulings of the Trial Examiner at
the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed.2 The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner insofar as they are consistent with this
decision and order.
1. The Respondents, relying upon Section 10 (b) of the amended
Act, except to all findings made by the Trial Examiner which are
in any respect based upon events that occurred more than 6 months
before service upon them of the last amended charges in this case,
although less than 6 months before service upon them of the original
charges. However, as we stated in our recent decision in Cathey
'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 [ Members Reynolds , Murdock,.
and Gray].
2 At the close of the hearing, the Trial Examiner granted the General Counsel's motion
to correct the pleadings and formal papers in this case to conform to the proof. The,
Respondents except to certain findings made by the Trial Examiner in his Intermediate
Report on the ground that they are at variance with the allegations of the complaint..
However, the Respondents suffered no surprise at the hearing and had full opportunity
to litigate all the issues. We find, therefore, that they suffered no prejudice by reason
of the said variances between the complaint and the proof. Accordingly, we affirm the.
'trial Examiner's ruling and overrule the aforesaid exceptions.
5.7 NLRB No. 53. 351
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lumber Company, 86 NLRB 157, Section 10 (b) of the amended
Act does not require charges to specify or particularize each unfair
labor practice to be litigated. The filing and service of the initial
charges herein tolled the 6-month period of limitations contained in
Section 10 (b). The respondents' objections with respect to the time-
liness of the charges are therefore without merit because the Trial
Examiner in arriving at his findings of fact has not relied upon any
transactions which occurred more than 6 months before the date on
which the initial charges herein were filed and served. Accordingly,
eve overrule the aforesaid exceptions.
2. We agree with the Trial Examiner that the Respondents inter-
fered with, restrained, and coerced their employees in the exercise
of the rights guaranteeed them in Section 7 of the Act. We base such
findings upon :
(a) C. B. Webb's remarks made at conferences between representa-
tives of the Respondents and bargaining committees of the employees
that, "Over your dead body there will be a union come into this plant"
and that, "She [one of the partners] was foolish wasting her time
with us [union bargaining committee] and they was in business for
30 years, and he never had anything like that going on, and lie would
be damned if he would put up with it now";
(b) C. A. Webb's interrogation of employees with respect to their
union affiliations and sympathies coupled with his promises of in-
creased wages if the employees would abandon, at least for a period of
time, their union activities;
(c) The appearance of Forelady Heath's signature on the petition,
dated October 27, 1947, addressed to the Respondents requesting them
not to bargain with the C. I. 0., because the undersigned employees
do not recognize the C. I. O., as their bargaining agent.'
3. We agree with the Trial Examiner that the Respondents dis-
criminatorily discharged Lucy Mentzer on October 3, 1947, and there-
after refused to reinstate her, thereby violating Section 8 (a) (1) and
(3) of the Act.
4. For the reasons stated in the Intermediate Report, we find that on
October 31, 1947, and at all times thereafter, the Respondents refused
to bargain collectively with Playthings, Jewelry and Novelty Work-
ers International Union, CIO, as the exclusive representative of their
employees, and by such refusal interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed them in Section
7 of the Act, in violation of Section 8 (a) (1) and (5) thereof.
3 We do not agree with the Trial Examiner that the evidence in the record supports the
finding that Mary Webb, one of the Respondents, requested an employee to obtain the
signature of another employee to the said petition.
WEAVER WINTARK 353
Remedy
We have found that the Respondents by their illegal acts violated
Section 8 (1), (3), and (5). We are of the opinion, upon the entire
record in this case, that the commission in the future of such acts and
of other unfair labor practices may be anticipated from the Respond-
ents' conduct in the past. We shall therefore order the Respondents
to cease and desist from such conduct , and from in any other manner
infringing upon the rights guaranteed to their employees in Section
7 of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the' National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents , C. A. Webb, Mary H.
Webb, and C. B. Webb, co-partners, doing business as Weaver Wintark,
at Shamokin, Pennsylvania, their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Playthings, Jewelry and Novelty
Workers International Union, CIO, or any other labor organization of
their employees by discharging or refusing to reinstate any of their
employees, or in any other manner discriminating in regard to their
hire, tenure of employment , or any term or condition of employment;
(b) Interrogating their employees concerning their -union affilia-
tion, activities, or sympathies, or threatening their employees with
reprisals , or economic loss because of their union affiliation , activities,
or sympathies , or making promises of economic gain to their employees
if they refrain from engaging in such activities;
(c) Refusing to bargain collectively with Playthings, Jewelry and
Novelty Workers International Union; CIO, as the exclusive represen-
tative of all the Respondents' production and maintenance employees
at their Shamokin, Pennsylvania, plant, excluding office and clerical
employees, guards, watchmen, and supervisors as defined in Section
2 (11) of the Act;
(d) In any other manner interferingZfl with, restraining, or coercing
their employees in the exercise of their rights to selfcorganization, to
form labor organizations, to join or assist Playthings, Jewelry and
Novelty Workers International Union, CIO , or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities. fdr the purposes 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
3 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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) Upon request, bargain collectively with Playthings, Jewelry
and Novelty Workers International Union, CIO, as the exclusive rep-
resentative of their employees in the appropriate unit described above,
with respect to rates of pay, wages, hours of employment, and other
conditions of employment and, if an understanding is reached, embody
such understanding in a signed agreement;
(b) Offer Lucy Mentzer immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her
seniority or other rights and privileges;
(c) Make whole Lucy Mentzer for any loss of pay she may have
suffered by reason of the Respondents' discrimination against her by
payment to. her of a sum of money equal to the amount which she
normally would have earned as wages from the date of her discharge
to the date of the Respondents' offer of reinstatement, less her net earn-
ings during said period;
(d) Post at their plant in Shamokin, Pennsylvania, copies of the
notice attached hereto and marked Appendix A.4 Copies of said
notice, to be furnished by the Regional Director for the Fourth Region,
shall, after being signed by one of the Respondents, be posted by the
Respondents upon receipt thereof, and maintained by them for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Fourth Region in writing,
within (10) clays from the date of this Order, what steps the Respon-
dents have taken to comply herewith.
APPENDIX A
o NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain , or coerce
our employees in the exercise of their rights. to self- organization,
* In the event this order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
WEAVER WINTARK 355
to form labor organizations , to join or assist PLAYTEIINGS , JEW-
ELRY AND NOVELTY WORKERS INTERNATIONAL UNION, CIO, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in 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 agree-
ment requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL OFFER to Lucy Mentzer immediate and full reinstate-_
relent to her former or substantially equivalent position without
prejudice to any seniority or other rights and privileges. pre-
viously enjoyed, and make her whole for any loss of pay suffered
as a result of the discrimination against her.
WE WILL BARGAIN collectively, upon request, with PLAYTHINGS,,
JEWELIIY AND NOVELTY WORKERS INTERNATIONAL UNION, CIO, as.
the exclusive representative of all employees in the bargaining
unit described herein, with respect to rates of pay, wages, hours
of employment, and other conditions of employment and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All production and maintenance employees at our plant in,
Shamokin, Pennsylvania, excluding office and clerical employees,
guards, watchmen and supervisors as defined in the Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any terra
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
C. A. WEBB, MARY H. WEBB, AND
C. B. WWEBB, CO -PARTNERS, DOING
BUSINESS AS WEAVER WINTARK,
Employers.
By -------------------------------
Dated - ---------------- ( Partner)
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
John H. Garver, Esq ., for the General Counsel.
Stevens & Lee , by William R. Lessig, Esq., for the Respondents.
Messrs. Dominic Tripode, Frank Prataric, and John Bianco , for the Union.
877359-50-vol. 87--24
356 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a charge and three amended charges duly tiled by Playthings, Jewelry
and Novelty Workers International Union, affiliated with the Congress of Indus-
trial Organizations, herein called the Union, the General Council of the National
Labor Relations Board, herein called, respectively, the General Counsel and the
Board, by the Regional Director for the Fourth Region (Philadelphia, Penn-
sylvania), issued a complaint, dated February 21, 1949, alleging that C. A. Webb,
Mary H. Webb, and C. B. Webb, co-partners, doing business as Weaver Wintark,
herein collectively called the Respondents, had engaged in, and were engaged in,
unfair labor practices affecting commerce, within the meaning of Section 8 (a)
(1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and
charges, together with notice of hearing thereon, were duly served upon each
Respondent and upon the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the Respondents (1) by certain stated acts interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7 of
the Act; (2) discriminatorily discharged Lucy Mentzer on October 7, 1947, and
thereafter refused to reinstate her because she had joined and assisted the Union
and had engaged in concerted activities with other employees for the purpose
of collective bargaining and other mutual aid and protection; and (3) on or
about October 31, 1947, and at all times thereafter, refused to bargain collectively
with the Union as the exclusive representative of their employees in an appro-
priate unit, although the Union had been selected and designated as their collec-
tive bargaining representative by a majority of such employees at an election
held, pursuant to the terms of a consent election agreement and under the
auspices of the Burgess of the city of Shamokin, Pennsylvania, on September
12, 1947.
On March 3, 1949, the Respondents duly filed an answer admitting certain
allegations of the complaint with respect to the nature and extent of the business
transacted by them, but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was duly held on April 26 and 27, 1949, at
Shamokin, Pennsylvania, before Howard Myers, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The General Counsel and the Respondents
were represented by counsel and the Union by representatives. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues was afforded all parties. At the conclusion of the General
Counsel's case-in-chief, counsel for the Respondents moved to dismiss the com-
plaint in its entirety. Decision thereon was reserved. The motion is hereby
denied. At the conclusion of the taking of the evidence, the General Counsel
moved to conform the pleadings to the proof with respect to minor variances.
The motion was granted. The parties were then advised that they might file
briefs and proposed findings of fact and conclusions of law with the undersigned
on or before May 12, 1949.1 Briefs have been received from the Respondents
and from the General Counsel and have been carefully considered by the under-
signed.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
' Upon the request of the General Counsel the time to file briefs was extended to May 25,
1949.
WEAVER WINTARK
FINDINGS OF FACT
1. TILE BUSINESS OF THE RESPONDENTS
357
The Respondents are copartners doing business as Weaver Wintark and have
their principal office and plant at Shamokin, Pennsylvania, where they are engaged
in the manufacture, sale, and distribution of rubber balls, basketballs, footballs,
and kindred articles. The Respondents' annual purchases, consisting mainly of
rubber, rayon, and cotton, aggregate in excess of $40,000, about 90 percent of
which is shipped to its Shamokin plant from points located outside the Common-
wealth of Pennsylvania. The Respondents' annual sales aggregate in excess of.
$75,000, about 90 percent of which is shipped to customers located outside the
Commonwealth of Pennsylvania.
The undersigned finds the Respondents are engaged in commerce, within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Playthings, Jewelry and Novelty Workers International Union, affiliated with
the Congress of Industrial Organizations, is a labor organization admitting to
membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
In August 1947, Frank Vrataric , a CIO field representative , received a tele-
phone call from the office of the Textile Workers Union , an affiliate of the CIO,
and was advised to get in touch with Penrose Jones , one of the Respondents' then
employees . Shortly after this telephone call, Vrataric met and conferred with
Jones and several other employees of the Respondents . Immediately thereafter
Jones , Lucy Mentzer, and others began to solicit membership for the Union from
among the Respondents ' employees.
C. A. Webb, a Respondent herein, admitted on the witness stand that "right
after" he heard of the employees ' union activities , he called into his private
office, individually , or in small groups , most of the nonsupervisory employees and
asked them why they thought it was necessary to organize.
According to the credible testimony of Penrose Jones , Webb's interview with
him was not as casual or restricted as Webb attempted to make it appear while
on the witness stand . Thus, Jones testified , and the undersigned finds, that
during the course of the interview Webb shoved him the firm's financial books
.and then said, to quote Jones , that if the employees "held off for about three
months, [and ] when he got his head above water, he would give us a raise and
[would] do more for us than the union could ." Upon leaving Webb ' s office Jones
was requested to tell the other employees that if they held their union activities
in abeyance for 3 months or so, then Webb would grant them a wage increase.
Jones did as requested.
Regarding his interview with C. A. Webb , former employee Edward Weinhoffer
testified , and the undersigned finds, that when he was called into Webb 's private
office sometime in August 1947, Webb asked if he knew "anything about the
.union that was trying to come" into the plant ; that he replied in the affirmative ;
that Webb then asked how he felt about the Union ; that he replied "I didn't care
whether the union came in or not, but if it came in, I would do my darnest to
make" it a success ; and that Webb then said he was not ready to talk to the
Union, but if the employees ' union . activities were held in abeyance for about 6
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months then he would be better financially "and could negotiate better with
as...
With respect to her interview in August 1947, with C. A. Webb, Lucy Mentzer
testified credibly that Webb asked her why she was in favor of the Union then
when she was opposed to it when the Union previously had tried to organize the
plant; that Webb said he had tried to do everything he could for the employees
and he could not understand why they wanted a union; and that when business
improved he would increase the employees' wages.
By September 2, despite the Respondents' efforts to forestall the employees'
union activities, about 26 of the Respondents' then 43 or 4a nonsupervisory
employees had signed cards reading in part as follows :
[Stamp Name of Union Here]
AFFILIATED WITH C. I. O.
I hereby request and accept membership in the above named union, and
of my own free will authorize it, C. I. 0., their agents or representatives to
act for me as a collective bargaining agency in all matters pertaining to pay
rates, wages, hours of employment and other conditions of employment.
Date ------------------------- ------------------------------
(Signature)
Address -- -----------------------------------
Employed by --------------------------------------------------------
On that day, September 2, Vrataric wrote Playthings, Jewelry and Novelty
Workers International Union, herein called the Union, regarding the success-
ful organizational campaign he had conducted at the Respondents' plant, that
since the Respondents' employees came within the Union's jurisdiction he and
another CIO official were of the opinion that the Respondents' plant should be
"turned over" to the Union for organizational and processing purposes ; and that
the Union should send a representative to Shamokin to attend a membership
meeting scheduled to be held on September 7.
The Union wrote Vrataric on September 3 that it could not send a representa-
tive to attend the meeting because most of the Union's officials would be attending
a CIO convention on the day in question, but that Vrataric should "carry on"
until the convention had concluded and then the Union would "pick up" where
Vrataric "left off."
On September 7, the first membership or organizational meeting was held at a
public meeting hall in Shamokin at which an organizational committee and
trustees were elected. Vrataric addressed the meeting and said , among other
things, that as soon as the contemplated election, for the purpose of proving to
the Respondents that the employees actually wanted a collective bargaining
representative, had been had the employees would be affiliated with either the
United Rubber Workers, a CIO affiliate, or with the Union, whichever was
better suited for the employees' purposes.
A few days after the above-mentioned meeting, Vrataric, Weinhoffer, Mentzer,
and Jones met with C. A. Webb for the purpose of attempting to induce the
Respondents to consent to a secret election. to ascertain the employees ' desires
with respect to a union. While the parties were conferring in Webb's office,
the latter's father and a partner, C. B. Webb, came into his son 's office and
said, to quote Jones, "Maybe you want me to join the Union" and then added
"over your dead body there will be a union come into this plant." C. B. Webb
admitted making the remark but contended that he did not make it in his son's
WEAVER WINTARK 359
-office during the above-described conference, but made it to Vrataric in the
hallway of the plant on the day of election, which was held on September 12. In
view of the fact that C. B. Webb admitted that his memory had become faulty of
late coupled with the fact that Jones impressed the, undersigned as an honest
and forthright witness, the undersigned concludes, and finds, that C. B. Webb
made the remark in the setting as described by Jones. The undersigned further
finds that the said remark of C. B. Webb was violative of the Act.
The Respondents agreed to allow the Burgess of the city of Shamokin to con-
(]net a secret election. The election was held in the plant on September 12.
The ballot read as follows :
Do you want the CIO to represent you as bargaining agent?
Yes q
No u
Thirty-eight employees voted,z 5 did not. Twenty-seven valid ballots were cast
for the CIO and 11 against.
Several weeks after the election, a membership meeting was held at which an
application for a charter in the Union was executed by 3 of the 4 officers elected
at the meeting of September 7. About 18 or 19 members were present at the
meeting and there is no evidence in the record to indicate that anyone disapproved
the action taken by the subscribing officers. The only officer who (lid not sign
the application for the charter was the vice president. On October 20, the
Union granted a charter.
October 3, by arrangement, Vrataric, Dominic Tripode, an international rep-
resentative of the Union, Weinhoffer, Mentzer, and Winifred llestlin, represent-
ing the employees, met for the purpose of negotiations, with Mary H. Webb,
the wife of C. A. Webb and a member of the respondent firm, and its attorney,
There, Tripode submitted a proposed contract to Mrs. Webb.' While the meeting
was in progress , C. B. Webb came in and said to his daughter-in-law, Mary
Webb, to quote Weinhoffer's testimony, "she was foolish wastin,t her time with
us [for] they was in business for 30 years, and he never had anything like that
going on, and he would be damned if he would put tip with it now . . . it
was awful that lie had to do business with a man that couldn't even speak good
English . . ."' Regarding this incident, C. B. Webb testified on direct examina-
tion as follows: *
Q. Did you ever make any statement concerning Mr. Vrataric to the effect
that, "It is awful to do business with a man who can 't speak proper English?"
A. Well, I don't remember making the remark . I would like to follow
that with this assertion . If we lived up to that in our business , I don't
think we would have accounts on our ledger , because the toy business is
generally in the hands of those that don't speak perfect English . I don't
see any reason why I should say that.
Q. Do you say that you did or did not say it?
A. I have no recollection of saying it.
As found above , Weinhoffer impressed the undersigned as a credible witness.
This fact , coupled with C. B. Webb ' s unsatisfactory testimony regarding the
above-quoted statements attributed to him by WVeinhoffer, leads the undersigned
to find that C. B. Webb made the statements attributed to him by Weinhoffer.
2 Anna Heath , admittedly It supervisor 'with authority to hire and fire, was permitted
to vote when the Respondents refused to allow the election to proceed unless Heath voted.
' This meeting will be discussed in detail below under Section C.
4 Referring to Vrataric.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned further finds that the statement contains language violative
of the Act,
Sometime during the month of October several antiunion petitions were openly,
circulated in the plant in the presence of Mary Webb, Foreman Joseph Kotch,°
and Forelady Anna Heath. One of such petitions, dated October 27, 1947, which
was received in evidence in the instant case, bears the legend :
To: The Weaver Wintark Company
Shamokin, Pa.
We, the undersigned, request that you do not engage in collective bar-
gaining with the C. I. O. in our. behalf as we do not recognize the C. I. O.
as our bargaining agent.
One of the signatories to this petition is Forelady Heath.
.Regarding the circulation of this petition, one witness testified it was passed
from employee to employee "along the line." Gladys Witman testified that
Mary Webb told her that she should not obtain signatures to the petition in
the plant because it was against the law to do so. Witman further testified
that at Mary Webb's request she left the plant and obtained the signature of
Russ Leshinskie, who was just leaving the plant at the end of his shift. Regard-
ing this incident, Mary Webb testified on. direct examination as follows :
Q. (By Mr. Lessig.) Mrs. Webb, did you have any conversation with
Gladys Witman, or any other employee of the company, with reference to
the petition designated as General Counsel's Exhibit No. 15, before it was
received by the company?
A. No, I didn't. The thing is that I did say, as testimony has shown,
that I refused to let the girls circulate things within the factory. That,
I said to the girls all on my shift, and I believe that was made known to the
rest of the employees.
Q. Did you, yourself, see that petition before it was received by the
company?
A. Not until Mr. Webb had received it, and then I saw it after that.
Mary Webb did not impress the undersigned as a forthright witness. On the
other hand, Witman did. Mrs. Webb gave the undersigned the impression that
she was withholding true facts. This conclusion is buttressed by the fact that
she insisted that she did not know the contents of the above-described petition
until it was received by her husband and then shown to her by him. This to
the undersigned seems incredible. The record is replete with credible evidence
that everyone in the plant was aware of the contents of the petition. Further-
more, Mrs. Webb (lid not deny that she requested Witman to obtain Leshinskie's
signature to the said petition. Moreover, Leshinskie testified that he signed "a"
petition at the request of employee Dilliplane, but did not deny that he signed
the petition in question at Witman's request. Under the circumstances, the
undersigned finds that Witman's testimony to be substantially in accord with
the facts. The undersigned further finds that Mary Webb's action in requesting
Witman to obtain the signature of Leshinskie to the petition and Heath's signing
the petition to be violative of the Act.
The undersigned finds upon the entire record in the case, that by the making
of antiunion statements and by engaging in antiunion activities, as epitomized
5In a notice posted by him in the plant in September 1941 , Kotch refers to himself as
"plant manager." .
WEAVER WINTARK 361
above , including C. A. Webb's interrogation of the employees with respect to
their union affiliations and sympathies coupled with his "promise of benefit" if
the employees would abandon , at least for a period of time, their union activities,
the Respondents have , and each of them has, interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7
of the Act , thereby violating Section 8 ( a) (1) of the Act.
B. The discriminatory discharge of Lucy Mentzer
Mentzer was first employed by the Respondents in January 1947 . Her starting
wage was 60 cents per hour . Within a month 's time her wages were increased
5 cents per hour. In July 1947 , her wages were increased to 70 cents per hour.
According to Foreman Kotch, Mentzer was a good worker and was able to per-
ford her job very satisfactorily which he admitted takes skill and adeptness.
Mentzer last worked for the Respondents on September 23. She claimed that
she was ill that day and was unable to report for work until October 3. The
Respondents do not contend that Mentzer remained away from the plant between
September 23 and October 3, for any reason other than illness. In fact, the record
indicates that they were aware of Mentzer 's illness , the nature of which the record
does not disclose . The Respondents maintain , however, that when Mentzer
returned to the plant on October 3, and sought employment they were unable to
comply because Mentzer's job had been filled and there was no other job available.
Besides the contention that there was no job available for Mentzer, the Re-
spondents offered various and sundry other reasons for refusing to continue
Mentzer in their employ. Botch first testified that when Mentzer reported to him
on October 3, he told her that before he "would even consider re-employing her,"
Mentzer would have to obtain a doctor 's certificate attesting to her good health.
Kotch testified that that procedure was in accordance with the Respondents'
normal and usual practice . However , the record does not bear out Kotch ' s asser-
tion . In fact , he admitted that a doctor 's certificate was required only in cases
where employees were injured in the plant.
The contention that Mentzer ' s job was filled prior to October 3 likewise belies
time record . Gladys Witmnan was allegedly hired to replace Mentzer, or to replace
the employee who was assigned to Mentzer 's job. Counsel for the Respondents
stipulated , after examining _ the Respondents ' personnel files, that Witman nvas
not hired until October 5. The record also discloses that Nina Long, whom
Kotch described while testifying as an employee who "would come and go," was
rehired on October 25 to perform the same or similar duties as Mentzer performed.
Furthermore , between October 3 and December 31, 1947, ° the Respondents hired a
great many new employees who performed work which Mentzsr was capable of,
performing.
The Respondents also maintained that Mentzer 's poor attendance. record was
a contributing reason for not reemploying her. The pay-roll records of the
Respondents for the year 1 .947 show that a great number of employees worked
less hours than Mentzer. The records do not give the job classifications of the
various employees nor the reasons why some, including Mentzer, worked less than
40 hours during any given pay-roll week . For those reasons, the undersigned is
unable to find that the Respondents ' contention with respect to Mentzer's poor
attendance record is meritorious or not. However, the undersigned does. find
that it was incumbent upon the Respondents to submit satisfactory proof to this
contention. This the Respondents failed to do.
6 The pay-roll records introduced at the hearing,do not go beyond December 31, 1947.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 9, Mentzer returned to the plant and saw Kotch and again requested
reinstatement to her former or to some other job . Kotch refused to rehire her.
A group of employees , referred to in the record as a committee , then demanded
that Mentzer be rehired or they would "strike the plant." The employees, how-
ever, did not go out on strike , despite the fact that Mentzer was told by Kotch, to
quote his testimony while testifying as a Respondents ' witness, she "would be
considered a trouble maker and not considered for rehiring."
Under all the circumstances in the case , when viewed together with the Re-
spondents ' demonstrated hostility to the unionization of their employees , includ-
ing the fact that Mentzer was very active on behalf of the unionization of the
employees , having secured about 10 members , and was a member of the organizing
committee , plus such self-contradictory reasons as ( 1) Mentzer 's job was filled by
someone else , ( 2) no other job available , ( 3) Mentzer was a " trouble maker," and
(4) and other unconvincing character of reasons advanced by the Respondents-
established that the Respondents discriminatorily discharged Mentzer on October
3, 1947, and thereafter refused to reinstate her, thereby violating Section 8 (a)
( 1) and ( 3) of the Act.
C. The refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged , the Respondents' answer admitted , and the undersigned
finds , that all the Respondents ' production and maintenance employees , except
office and clerical employees , guards , watchmen , and supervisors as defined in
Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collec-
tive bargaining . Accordingly , the undersigned finds that , during all times
material herein all the Respondents ' production and maintenance employees,
except office and clerical employees , guards, watchmen, and supervisors with
authority to hire , promote, discharge , discipline , or otherwise effect changes
in the status of employees , or effectively recommend such action , constituted, and
now constitutes , a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages , hours of employment , and other conditions
of employment.
2. Representation by the Union of a majority in the appropriate unit
At a secret ballot election conducted by the Burgess of the city of Shamokin,
Pennsylvania, the CIO, the parent organization of the Union, was designated by
a majority of the Respondents' employees in the appropriate unit as their repre-
sentative for the purposes of collective bargaining.
As found above, at the first general membership meeting of the employees,
which was also attended by some of those who signed cards ° designating the
CIO "their agents or representatives to act for [them] as a collective bargaining
agency," were informed by Vrataric, a duly accredited representative of the
CIO, that after the election, which election was held on September 12, the CIO
would transfer the Respondents' employees to the proper affiliated international
union of the CIO. The CIO also issued a leaflet, which was distributed to the
Respondents' employees 3 clays prior to the said election, a copy of which came
to C. A. Webb's attention before the said election, confirming the statements
of Vrataric made by him at the September 7 meeting regarding the contemplated
transfer of affiliation.-. Walter Dilliplane, a witness called by the Respondents,
7 The pertinent portions of the card are set out in Section A above.
WEAVER WINTARK 363
testified, and the undersigned finds, that he attended a membership meeting,
which presumably was held prior to the election, at which the members were
informed by Vrataric that the latter "was going to try to have the thing put" into
the Union.
The contention of the Respondents that the Union is not the collective bargain-
ing representative of the employees in the appropriate unit is without merit.
The Board and the courts have uniformly held that the designation of a parent
organization is a valid designation of its affiliate' Moreover, prior to the elec-
tion, the employees were informed that if the CIO won the election the employees
would then become affiliated with the appropriate affiliate of the CIO, which
transfer actually did take place.°
3. The refusal to bargain
On October 3, representatives of the Union and representatives of the Respond-
ents met at the plant. There, Tripode submitted a proposed contract. Mary
Webb testified that, after the submission of the proposed contract, she demanded
of Tripode proof that the Union represented a majority of the Respondents'
employees; that he refused to do so stating "he would let it stand on the strength
of the election" ; and that she refused to negotiate further until satisfactory
proof of the majority status of the Union was produced. On the other hand,
Tripode testified that at that meeting, or at any other time, no demand was
made for proof of the Union's majority status by anyone representing the
Respondents and that after a casual discussion of the proposed contract the meet-
ing broke up when the attorney for the Respondents stated he would have to get
in touch with C. A. Webb, who was then out of town, and that the Respondents
would submit counterproposals at the next meeting of the parties. With respect
to what transpired at that meeting, the testimony of Weinhoffer is in substantial
accord with that of Vrataric.
As found above, the undersigned was not impressed with Mary Webb's testi-
mony. Accordingly, he finds that at the October 3 meeting no one on behalf
of the Respondents questioned the Union's right or authority to represent the
employees in the appropriate unit. This finding is buttressed by the fact that
between October 3 and 27, there was an exchange of letters between Tripode and
counsel for the Respondents in which the parties were attempting to arrange for
another collective bargaining meeting, and in none of the letters of Respondents'
counsel was the matter of the Union's majority status questioned or mentioned.
A meeting finally was set for October 31. With respect to what he said and
what occurred at this meeting, C. A. Webb testified, and the undersigned finds,
as follows:
The members of the CIO wished to discuss the contract and I answered by
handing the petition [of October 27, wherein the signatories thereto requested
the Respondents not to bargain in their behalf with the CIO] and saying
that on the basis of that petition we did not feel that we were in a position to
discuss any contract with the CIO. . . . I made reference to the petition
and said that we could not negotiate any further with the CIO in view of the
petition . . . that is the way the meeting ended.
No further meetings were had between the parties.
N. L. R. B. Y. Bradford Dyeing Association, 310 U. S. 318 ; N. L. R. B. V. Franks
Bros. Co., 137 F. 2d 989 (C. A. 1) ; N. L. R. B. v. Nabone Company, 155 F. 2d 523 (C. A. 3).
° Cf. N. L. R. B. v. Chicago Apparatus Company , 116 F. 2d 753 (C. A. 7) ; A. Sartorins &
Co., Inc ., 40 NLRB 107; Northwest Cabinet Company, 38 NLRB 357 ; N. L. R. B. v. May
Department Stores , 146 F. 2d 66 (C. A. 8).
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the above recital of the facts concerning the negotiations
between the parties, as summarized above, that at no time prior to, or on, Octo-
ber 31, 1947, did the Respondents question the majority status of the Union. It
is equally clear that the Respondents sought to utilize their own illegal actions in
order to defeat the statutory rights of their employees ; that is, to permit the
employees to choose their own collective bargaining representative free of any
interference by the Respondents.
In the instant case, as more fully shown above, the attempted repudiation of
the Union was brought about by the unfair labor practices of the Respondents
and not as a result of the free choice of the employees.. The Board and the courts
have repeatedly held that the unfair labor practices of an employer cannot oper-
ate to change the collective bargaining representative previously chosen by the
unhampered will of the majority.
The alleged defections from the Union, on which the Respondents rely, were
induced by the Respondents' actions. These actions, as found above, constituted
unfair labor practices. It is well settled that defections from a union which
have been induced by the employer's unlawful practices "are not effective either
to change the bargaining representative previously chosen or to excuse [em-
ployers] from their duty to bargain in good faith with that representative." 10
Upon the entire record in the case, the undersigned finds that on October 31,
1.947, and at all times thereafter, the Respondents refused to bargain collectively
with the Union as the exclusive representative of their employees in the appro-
priate unit with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and by such refusal interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8 (a) (1) and (5) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III above, occurring in
connection with the operations of the Respondents described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as has been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices
violative of Section 8 (a) (1), (3 ), and (5 ) of the Act , the undersigned will
recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondents have refused to bargain collectively with
the Union as the exclusive representative of their employees in the appropriate
unit, the undersigned will recommend that the Respondents , upon request, bar-
gain collectively with the Union as the representatives of such employees, and
if an agreement is reached embody such understanding in a signed agreement.
Having found that the Respondents discharged Lucy Mentzer on October 3,
1947, and thereafter refused to reinstate her for the reasons that she joined and
assisted a labor organization and engaged in concerted activities with her fellow
'I N. L. R. B. v. Dixie Coach Corp., 128 F. 2d 201, 202 (C. A. 5) ; N. L. R. B. v. Brad-
forri. Dyeing Ass'n, 310 U. S. 318-,;- International Assn of Machinists v. N. L. R. B., 310
U. S. 72 ; Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678. Cf. Franks-Bros.
Co. v. N. L. R. B., 321 U. S. 702.
WEAVER WINTARK 365
employees for the purposes of collective bargaining and other mutual aid and
protection, it will be recommended that the Respondents offer her immediate and
full reinstatement to her former or substantially equivalent position.
It will be further recommended that the Respondents make Lucy Mentzer whole
for any loss of pay she may have suffered by reason of the discrimination, by
payment to her of a sum of money equal to the amount she normally would have
earned as wages from the date of the discrimination to the date of the offer
of reinstatement, less her net earnings," during such period.
The scope of the Respondents' illegal conduct discloses a purpose to defeat self-
organization among their employees. The conduct engaged in by the Respondents,
which is specifically violative of Section 8 (a) (1), (3), and (5) of the Act,
reflects a determination generally to interfere with, restrain, and coerce their
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, and presents a ready and effective
means of destroying self-organization among its employees. Because of the
Respondents' unlawful. conduct and since there appears to be an underlying atti-
tude of opposition on the part of the Respondents to defeat the purposes of the
Act, the undersigned is convinced that if the Respondents are not restrained
from committing such conduct, the danger of their commission in.the future is
to be anticipated from the Respondents' conduct in the past, and the policies
of the Act will be defeated. In order, therefore, to make effective the interde-
pendent guarantees of Section 7 of the Act, to prevent a recurrence of unfair
labor practices, and thereby minimize industrial strife which burdens and ob-
structs commerce, and thus effectuate the policies of, the Act, the undersigned
will recommend that the Respondents cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact and upon the entire record in the
ease, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Playthings, Jewelry and Novelty Workers International Union, affiliated
with the Congress of Industrial Organizations, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. All Respondents' production and maintenance employees, except office and
-clerical employees, guards, watchmen, and supervisors with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section 9 (b) of
the Act.
3. Playthings, Jewelry and Novelty Workers International Union, affiliated
with the Congress of Industrial Organizations, was on September 12, 1947, and
at all times thereafter, and still is, the exclusive representative of all the em-
ployees in the aforesaid appropriate unit for the purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the Act.
4. By refusing on October 31, 1947, and at all times thereafter to bargain
collectively with the Union as the exclusive representative of their employees
in the appropriate unit, the Respondents have engaged in, and are engaging in,
,unfair- labor practices, within the,meaning of Section 8 (a) (5) of the Act.
" See Crossett Lumber Company , S NLRB 44b; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
366 DECISIONS OF !NATIONAL LABOR RELATIONS BOARD
5. By interfering with , restraining , and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act , the Respondents have
engaged in , and are engaging in, unfair labor practices , within the meaning of
Section 8 ( a) (1).
6. By discriminating in regard to the hire and tenure of employment of Lucy
Mentzer, thereby discouraging membership in the Union, the Respondents have
engaged in , and are engaging in, unfair labor practices , within the meaning of
Section 8 ( a) (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that C. A. Webb, Mary H. Webb, and C. B. Webb,
co-partners doing business as Weaver Wintark, Shamokin, Pennsylvania, their
successors, agents, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Playthings, Jewelry and Novelty Workers
International Union, affiliated with the Congress of Industrial Organizations,
or any other labor organization of their employees, by discharging or refusing to
reinstate any of their employees, or in any other manner discriminating in
regard to their hire and tenure of employment or any term or condition of
employment;
(b) Refusing to bargain with Playthings, Jewelry and Novelty Workers In-
ternational Union, affiliated with the Congress of Industrial Organizations, as
the exclusive representative of all the employees in the unit hereinabove found.
to be appropriate for the purposes of collective bargaining ;
(c) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the rights to self-organization, to form labor organi-
zations, to join or assist the Union herein, or any other labor organization, 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to Lucy Mentzer immediate and full reinstatement to her former or
substantially equivalent position without prejudice to her seniority or other rights
and privileges ;
(b) Make whole Lucy Mentzer for any loss of pay she may have suffered by
reason of the Respondents' discrimination against her by payment to her of a sum
of money equal to the amount which she normally would have earned as wages
from the date of her discharge to the date of the Respondents' offer of reinstate-
ment, less her net earnings during said period ;
(c) Upon request, bargain collectively with the Union herein, as the exclu-
sive representative of their employees in the unit found herein to be appro-
priate, and if an agreement is reached, embody such understanding in a signed
agreement ;
(d) Post at their plant at Shamokin, Pennsylvania, copies of the notice at-
tached to this Intermediate Report marked Appendix A. Copies of said notice, to.
be furnished by the Regional Director for the Fourth Region, shall, after being
signed by one of the partners or the Respondents' representative, be posted by
the Respondents, and maintained by them for sixty (60) consecutive days there-
WEAVER WINTARK 367
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for, the Fourth Region in writing, within
twenty (20) clays from the date of the receipt of this Intermediate Report, what
steps the Respondents have taken to comply therewith.
It is further recommended that unless on or before twenty (20) days from the
receipt of this Intermediate Report the Respondents notify said Regional Direc-
tor in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondents to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
eluding rulings upon all motions or objections) as he relies upon, together with
the original and six copies of a brief in support thereof ; and any party, may with-
in the same period, file an original and six copies of a brief in support of the Inter-
mediate Report. Immediately upon the filing of such statement of exceptions
and/or briefs, the party filing the same shall serve a copy thereof upon each of the
other parties. Statements of exceptions and briefs shall designate by precise cita-
tion the portions of the record relied upon and shall be legibly printed or mimeo-
graphed, and if mimeographed shall be double spaced. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 28th day of June 1949.
HOWARD MYERS,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist PLAYTHINGS, JEWELRY AND NOVELTY WORK-
ERS INTERNATIONAL UNION, affiliated with the CONGRESS OF INDUSTRIAL
ORGANIZATIONS, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purposes of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the employee* named below immediate and full rein-
statement to her former or substantially equivalent position without
prejudice to any seniority or other rights and privileges previously enjoyed,.
and make her whole for any loss of pay suffered as a result of the
discrimination.
AVE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other-
conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All our production and maintenance employees, except office and clerical.
employees, guards, watchmen, and supervisors with the authority to hire,
discharge, discipline, or otherwise effect changes in the status of employees,
or effectively recommend such action.
*Lucy Mentzer
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
C. A. WEBB, MARY H. WEBB, AND
C. B. WEBB, Co-partenrs doing
business as WEAVER WINTMARK,
En rployers.
By ----------------------------------
(Partner)
Dated ----------------------------------------
. This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.