Western Tablet and Stationery Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1946

66 N.L.R.B. 930 (N.L.R.B. 1946)

In the Matter of ICALAMAzoo STATIONERY COMPANY, DIVISION OF
WESTERN TABLET AND STATIONERY CORP. and INTERNATIONAL
BROTHERHOOD OF BOOKBINDERS , A. F. L.
Case No. 7-C-1367.-Decided March 20,1946
DECISION
AND
ORDER
On August 8, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a supporting brief. On February
28, 1946, the Board heard oral argument at Washington, D. C. The
respondent participated in the oral argument; the Union did not
appear.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief filed by the respondent,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the modifi-
cations and additions noted below :
1. We agree with the Trial Examiner that the respondent engaged
in conduct violative of Section 8 (1) of the Act by, among other
things, discouraging the formation of a labor organization, by pro-
hibiting union solicitation at the plant on the employees' own time,
by questioning employees concerning their and other employees' atti-
tude toward the Union, by confining Hamilton to the maintenance
department and assigning him baser work, and by the preelection
letter of October 16, 1944.1
Our finding that the respondent's treatment of Hamilton was moti-
% Contrary to the Trial Examiner's finding in footnote 13 of the Intermediate Report,
we do not agree that the respondent evinced an anti -union bias by not seeking to deter-
mine the facts surrounding the altercation which preceded the no-fighting rule.
66 N. L . R. B., No. 116.
930
KALAMAZOO STATIONERY COMPANY 931
vated by his union membership and activity is based upon, among
other things, the statement of McMahon, vice president of the re-
spondent, to Hamilton on June 16, 1944, that Hamilton would be "the
sorriest guy" before McMahon was done; the statements of De Leeuw,
the respondent's superintendent, on June 20, in which he upbraided
Hamilton for having started the Union and told him not to "expect
any more favors"; and the remarks of Pritchard, Hamilton's foreman,
that "I will make you [Hamilton] wish that you have never heard the
word `Union' or else you quit, by God."
Our conclusion with respect to the preelection letter is predicated
on different reasoning than that revealed in the Intermediate Report.
As hereinabove set forth and as more fully detailed in the Interme-
diate Report, the respondent engaged in a campaign to discourage
the organizational efforts of its employees by the acts and statements
of various officials and supervisory employees. In such a setting the
letter became an inseparable part of the respondent's coercive course
of conduct violative of the Act.
2. We do not agree with the Trial Examiner that the lay-off and
failure to reinstate Hamilton was because of his union membership
and activity. The respondent's employment statistics disclose that
Hamilton's lay-off was in accord with his seniority status and that
after the lay-off the proportion of employees in the maintenance de-
partment to production employees remained unchanged. Nor have
any additional employees been hired in the maintenance department
in derogation of Hamilton's lay-off status. While certain circum-
stances give rise to a suspicion of discrimination, we are unable to
find for the record as a whole that the respondent was discrimina-
torily motivated in laying off and failing to reinstate Hamilton. We
shall accordingly, dismiss the complaint in this respect.
As we previously held,2 there is no merit in the respondent's con-
tention that, because the strike of September 5, 1944, was called with-
out notice of a labor dispute first having been given as required by
the War Labor Disputes Act, Abraham and Smith, who were dis-
charged for leading the strike, are not entitled to the protection of
the Act 8
The strike in which Abraham and Smith participated was a con-
certed activity for the purpose of the mutual aid and protection of the
respondent's striking employees. The right to engage in such activity
is guaranteed to employees in Section 7 of the Act. We find that by
discharging Abraham and Smith because of their strike activities,
the respondent interfered with, restrained, and coerced the employees
'Matter of Fairmont Creamery Company, 64 N. L. R. B. 824; Matter of Republic Steel
Corporation, 62 N. L. R. B. 1008.
$ The nature of the strikers ' conduct and the manner in which the strike was called
neither remove the Act's protection from this type of concerted activity as a matter of
law nor move us in the exercise of our discretion to deny such protection to the strikers.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of their rights guaranteed in Section 7 of the Act and
thereby violated Section 8 ( 1). We also find that the respondent's
conduct in thus discriminating in regard to the hire and tenure of
employment of Abraham and Smith discouraged membership in the
Union and hence also constituted a violation of Section 8 (3) of the
Act. Whether the respondent 's discriminatory conduct be viewed
as a violation of Section 8 (1) or a violation of Section 8 (3), we
find that the effectuation of the policies of the Act requires the
remedy set forth in our Order.
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 respondent, Kalamazoo Stationery
Company, Division of Western Tablet and Stationery Corp., Kala-
mazoo, Michigan, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Bookbinders, affiliated with the American Federation of Labor, or
in any other labor organization of its employees, by laying off, dis-
charging, or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Bookbinders, affiliated with the American Federation of Labor, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities, for
the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to William Abraham and Earl Smith immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges;
(b) Make whole said Abraham and Smith for any loss of pay they
may have suffered by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal
to the amount which he normally would have earned as wages from
the date of the respondent's discrimination against him to the date
of the respondent's offer of reinstatement, less his net earnings during
such period;
KALAMAZOO STATIONERY COMPANY 933
`(c) Post at its plant at Kalamazoo, Michigan, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to
be furnished by the Regional Director of the Seventh Region, shall,
after having been duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof and main-
tained by it 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 respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ARDERED that the complaint, insofar as it alleges that
the respondent discriminated against Harold Hamilton, within the
meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.
MR. GERARD D. REILLY, concurring in part; dissenting in part :
I concur in this decision, except with respect to the finding that
Abraham and Smith, the leaders of the strike of September 5, 1944,
are entitled to affirmative relief under the Act.
While the Trial Examiner made no specific finding as to whether
Abraham and Smith were the leaders of the strike, it is clear from
the record that such was the case. Thus, Abraham and Smith were
among the group of employees who sent out cards to the employees,
notifying them to form a picket line in front of the plant on the morn-
ing of September 5. They were the first ones to leave work in the
morning. And they were among the group whose reinstatement was
requested by the Union as a basis for settling the strike.
As leaders of the strike, Abraham and Smith were thus the repre-
sentatives of the employees required by the War Labor Disputes Act
to file a notice 30 days in advance of the proposed strike with this
Board and two other designated Government agencies. For the
reasons set forth in my dissenting opinion in Matter of Republic Steel
Corporation, 62 N. L. R. B. 1008 (in which I discussed the legislative
history of the War Labor Disputes Act), representatives like Abra-
ham and Smith, who admittedly struck without giving the notice
required by the War Labor Disputes Act, are not entitled to rein-
statement and back pay.
I would dismiss the complaint in this respect.
MR. JOHN M. HousTox, concurring in part; dissenting in part:
I concur in this decision. except with respect to the finding that the
lay-off and failure to reinstate Hamilton was not violative of the
Act.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the Trial Examiner found, the maintenance department always
had plenty of work to keep it busy and they "let a lot of stuff lay"
around because they were busy teaching new help how to operate
machines. Moreover, when employee Peterson asked Superintendent
De Leeuw for a job in the maintenance department, De Leeuw told
Peterson that he could use help there but that he could not hire any-
one because Hamilton was laid off. Finally, the record shows, as the
Trial Examiner found, that the respondent recalled laid off employees
when needed and that the respondent was aware of Hamilton's readi-
ness to return to work.
In view of the foregoing, the respondent's discriminatory assign-
ments to Hamilton, and the respondent's demonstrated opposition to
the Union by other conduct violative of the Act, I agree with the
Trial Examiner that, in laying off and failing to reinstate Hamilton,
the respondent was discriminatorily motivated in violation of Section
8 (3) of the Act.
"APPENDIX A"
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 right to self-organization, to
form labor organizations, to join or assist International Brother-
hood of Bookbinders, A. F. L., or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
William Abraham
Earl Smith
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate 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.
KALAMAZOO STATIONERY COMPANY,
DIVISION OF WESTERN TABLET AND STATIONERY CORP.,
Employer.
Dated .................. By....................................
(Representa tive) (Title)
KALAMAZOO STATIONERY COMPANY 935
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
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
Mr. Mozart G. Ratner, for the Board.
Mr. G. N. Sessions of Muskegon , Mich ., for the respondent.
Mr. Robert E. Haskin of Kalamazoo , Mich., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge duly filed by International Brotherhood of
Bookbinders, A. F. L., herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Seventh
Region (Detroit, Michigan ), issued its complaint dated April 19, 1945, against
Kalamazoo Stationery Company, Division of Western Tablet and Stationery
Corp., herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (3) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint, accompanied by
notice of hearing, were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance
that from about May 1944, to the date of the issuance of the complaint the
respondent disparaged, vilified, and expressed disapproval of the Union and
of employees who joined or assisted the Union ; advised, cajoled, urged, and
warned its employees to refrain from assisting the Union or from becoming or
remaining members thereof ; inquired of employees as to membership in, and
activities on behalf of, the Union ; threatened to discharge, to deprive of over-
time employment, and adversely to alter the wages and working conditions and
other terms and conditions of employment of employees who joined or assisted
the Union ; offered to promote or otherwise beneficially alter the wages and
working conditions and other terms and conditions of employment of employees
who refrained from joining or assisting the Union or who withdrew from or
ceased to participate in activities on behalf of the Union ; and on and after
September 6, 1944, solicited individual employees who had joined a strike to
return to work and give up their concerted activities. The complaint further
alleged that the respondent, from about June 12, 1944, deprived Harold Hamil-
ton of overtime work and assigned him more arduous and distasteful work
than before ; from about August 10, 1944, restricted said Hamilton' s movements
within the plant ; and on September 1, 1944, laid off said Hamilton, all for the
reason that he had joined or assisted the Union and engaged in concerted activi-
ties with other employees in the plant for the purpose of collective bargaining
or other mutual aid or protection ; and that since September 1, 1944, the respond-
ent has, for the same reason , failed or refused to reinstate or recall said Hamil-
ton. The complaint further alleged that the respondent on or about September 5,
1944, unjustifiably criticized, kept under surveillance, and subjected to discrimi-
natory restrictions William Abraham because he had joined and assisted the
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and engaged in concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection ; that the respondent on or about Septem-
ber 5, 1944, discharged, and since then has failed or refused to reinstate,William
Abraham and Earl Smith because they joined or assisted the Union or had
gone out on strike on that date ; and that a strike starting on September 5,
1944, was caused by the aforesaid conduct of the respondent and was prolonged
by the further acts of the respondent in (1) soliciting individual employees to
abandon the strike, (2) refusing to reinstate said Harold Hamilton, ( 3) dis-
charging and refusing to reinstate said Abraham and Smith.
The respondent's answer in substance admitted that it had on or about
September 5, 1944, solicited and urged a small number of employees, who were
on strike, to return to their jobs, claiming that it had a right to do so ; admitted
the lay-off of Harold Hamilton and the discharge of Abraham and Smith but
denied the causes therefor alleged in the complaint and denied the commission
of all unfair labor practices. Affirmatively the answer alleged that Hamilton
was laid off, at a time when there was a general reduction in staff, because he
had the least seniority of anyone in his department, and that Abraham and
Smith were discharged because they instigated the strike of September 5, 1944,
and that they became subject to such discharge by virtue of the fact that they
were guilty of a misdemeanor under the provisions of a Michigan statute
requiring prior notice of strike to be served on the State Labor Mediation
Board, which notice they failed to give, and by virtue of the fact that no notice
of strike was served on the respondent as required by the War Labor Disputes
Act.
Pursuant to notice a hearing was held in Kalamazoo , Michigan , on May 8 to
12, inclusive, and May 16, 1945, before the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and the Union by its representative. All participated
in the hearing. Full opportunity was afforded all parties to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues. At the close of the hearing Board's counsel moved to amend the
complaint to conform to the proof as to immaterial matters , such as names
and dates. The motion was granted. At the close of the hearing counsel for
the Board and for the respondent argued orally. The parties declined the
opportunity to file briefs with the Trial Examiner.
From his observation of the witnesses and upon the entire record in the case,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Michigan corporation having its office and sole plant in
Kalamazoo, Michigan, where it is engaged in the business of manufacturing,
distributing, and selling stationery and related products. During the fiscal
year ending October 31, 1943, the respondent purchased raw materials , supplies,
and equipment valued in excess of $1,500,000 and more than 45 percent thereof
was shipped to it from points outside the State of Michigan. During the same
period the respondent's total receipts from sales of the products manufactured
by it exceeded $3,000,000, of which amount more than 70 percent represented
products shipped from its plant outside the State of Michigan.' The respondent
' The respondent conceded that the facts for the fiscal year ending in 1944 were not
substantially different from those for 1943.
KALAMAZOO STATIONERY COMPANY 937
manufactures school supplies and supplies used by persons and agencies
engaged in the war effort.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Bookbinders, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the lay-off of Harold Hamilton
In the first part of June, 1944, a C. I. O. union had approached some of the
employees, and unions became a topic of conversation. On the evening of
June 15 employees Harold Hamilton and William Abraham were having
refreshments at the Moose Lodge. Foreman George Nason was nearby.
Because there were certain conditions of work at the respondent's plant which
they thought could be improved, they informed Nason that they were going
to join the C. I. O. union, expecting that word thereof would reach management
and that perhaps some action would be taken to remedy such conditions?
On the morning of the following day, Friday, June 16, Hamilton passed his
foreman, Everett Pritchard and remarked that when the C. I. O. got in they
would have better working conditions. That morning Hamilton talked to some
of the envelope machine operators about unions. About 1 p. m. Hamilton was
notified by his foreman that he was wanted in the office of Superintendent
Robert De Leeuw. Upon Hamilton's arrival there, De Leeuw said that he had
heard in a round-about way that Hamilton had been talking to some of the
operators about joining a union, and that he (Hamilton) and Abraham were
starting a union at the plant. Hamilton said he thought a union would be
fine as they might then get vacations with pay, raises, and clean toilets. De
Leeuw replied that he had attempted unsuccessfully to get the respondent to
give paid vacations, that he did not see how he could raise wages, and that he
had procured a man to clean up the toilets. At about this time L. J. McMahan,
respondent's vice president, walked into the room and asked Hamilton hou
many of the employees were "tied up in this thing ," adding, according to
Hamilton's credited testimony, "If I thought you were alone I would fire you." I
Hamilton replied that that was McMahan 's privilege but that he had only to
go through the factory to find employees standing around in groups talking
about the union (C. I. 0.). McMahan said that an answer could not be given
yet on the vacation matter, but that he was able to tell Hamilton from an
employee's standpoint that the union would be no good and that he could inSu-
I During the first or second week in June, Abraham had made an unsuccessful effort to
get a release from the respondent because be felt that the bad air of the respondent's
bindery was affecting his health. De Leeuw informed Abraham that he was trying to get
the money to improve conditions and asked him what he thought about unions. Abraham
said they might be all right but he did not want anyone from the outside running his
business . De Leeuw agreed with him, according to Abraham.
3 McMahan denied saying that Hamilton would be discharged if he was the only one
in the affair . Hamilton testified with straight-forward assurance and impressed the
undersigned as being sincere and frank. McMahan corroborated generally the subjects
testified to by Hamilton, but categorically denied specific quotations attributed to him
which might be regarded as interference, restraint, or coercion. The undersigned credits
Hamilton 's testimony.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence all the employees against it. He then requested Hamilton to go out In
the factory and take as much time as he needed to bring the organizing com-
mittee in to McMahan to talk with him, stating, "And when I get done maybe
we won't need a Union In here." 4 There was no organizing committee known
to Hamilton but he discussed the matter with Abraham, who said he thought
they should have a union and that that was the sentiment in the bindery,
Abraham's department. Then Hamilton circulated through other departments
to learn whether the employees favored a C. I. O. union, an A. F. L. union,
or no union. The majority of those he talked to favored an A. F. L. union.'
Hamilton reported this to Abraham and asked the latter's advice as to what
he should tell McMahan with reference to the organizing committee. Abraham
suggested he say that the committee refused to come in. As Hamilton started
for the office, he met be Leeuw in the doorway of the bindery and told him
that the employees refused to deal with the respondent individually, as they
wanted a union. De Leeuw suggested that Hamilton go with him to see
McMahan. In the office, Hamilton repeated to McMahan his statement to
De Leeuw. McMahan told Hamilton he would be the "sorriest guy on earth"
before he (McMahan) was done'
That night Hamilton contacted an A. F. L. representative and requested an
organizer. Over the week-end Hamilton typed several A. F. L. pledge forms,
and on Monday, June 19, he gave these to the people he regarded as leaders
of the movement in the various departments. On about the morning of Tues-
day, June 20, De Leeuw walked in to where Hamilton was standing and said
to him, according to Hamilton's credited testimony, "I have been all over the
factory about this union business, and so far as I can learn, it Is you, you
big bastard, that started it all. We have been good to you letting you work
as many overtime hours as you please, but that is out from now on. From
now on, remember you don't get any more overtime. Don't expect any more
favors."'
In the fall of 1943, the respondent had decided to overhaul completely a line
of envelope machines and De Leeuw had given Hamilton permission to work
as many hours over the 48-hour week as he wanted in order to get the work
done as rapidly as possible. The envelope machines were taken from the
envelope department to the maintenance department one at a time, and Hamil-
ton had worked on overhauling them along with his other work of repairing
them, adjusting them, and making spare parts for them. Up to the middle of
April, Hamilton had completed six overhauling jobs. De Leeuw testified that
at that time the program for overhauling was completed except for one machine
for which they were not in a hurry and that It was at that time that he told
Hamilton not to work overtime any more. During the time he was overhauling
those machines Hamilton put in many long days, and put In from 57 to 63%
hours per week during the period from January 1 to April 15, 1945. Hamilton
finished the last overhaul job he worked on, except for the one referred to as
a fill-in job, on April 14. However, between then and the week of June 24,
when Hamilton testified De Leeuw stopped his overtime work, there were only
• The quotation is from Hamilton's credited testimony.
& Hamilton testified that he might have spoken to as many as 150 people. His work
report showed he had spent 2% hours on this matter.
@ This finding Is based on Hamilton's credited testimony. McMahan denied making the
statement.
The quotation is taken from Hamilton's testimony on direct and cross- examination
combined . De Leeuw denied the statement attributed to him. The latter's testimony
gave evidence of being shaded in portions and he displayed reluctance to remember inci-
dents or language which appeared damaging . The undersigned does not credit his denial.
KALAMAZOO STATIONERY COMPANY 939
2 weeks in which Hamilton worked less than 50% hours and those were weeks
In which he had absences . In the week following April 15 Hamilton worked
583/4 hours . In the 10-week period between June 26 and September 1, Hamilton
worked only one week of 50 hours and one of 49 hours , the rest all being 45
or less. The undersigned concludes that Hamilton had been permitted to work
overtime independently of the overhaul program , and credits Hamilton's testi-
mony with respect to the fact and time of De Leeuw 's terminating his privilege
of working overtime . Hamilton also testified that after De Leeuw had pro-
hibited him from working overtime, Foreman Pritchard told him not to work
on Saturdays any more without his permission.8
On Wednesday , June 21, the day after De Leeuw put an end to his overtime
work, Hamilton , arriving at work, remarked to employee William Kelder that
he hoped wheh the Union got in it would do all the employees good . At this,
employee Charles Bassett , reputedly a close acquaintance of McMahan , picked
up a sizeable piece of pipe and approached Hamilton , saying, "I have been here
20 years and I don't need any goddam union. One more word out of you and
I will knock your damn brains out ." Board 's counsel contended that Bassett
spoke for management by virtue of his close acquaintance with McMahan.
The undersigned finds such acquaintance inadequate basis to warrant such an
inference . However, the incident assumes a place in the picture because of
what followed. As Bassett finished speaking, Hamilton's foreman , Everett
Pritchard, stepped between them, told Hamilton he had a new job for him, and
directed him to follow him to the press room . On the way, Pritchard remarked,
according to Hamilton 's credited testimony , "I will make you wish that you
never heard the word `Union' or else you quit, by God ." In the press room
Pritchard set Hamilton , whose customary work was repairing , adjusting, and
overhauling envelope machines , to scrubbing a press with gasoline and brush
preparatory to its being overhauled . According to Hamilton 's testimony,
Pritchard then walked over to Foreman Cook, indicated Hamilton , and re-
marked, laughing, "There is a Union big-shot over there washing up the press."
Pritchard folded his arms and watched Hamilton for a while, laughing with
Cook. Pritchard denied having made the statements attributed to him by
Hamilton , although he admitted that he had assigned Hamilton to that job.
The respondent's witnesses gave testimony that the men in the machine shop,
Pritchard's department , were subject to call for any kind of maintenance work,
including cleaning of machines to be repaired . The evidence disclosed, how-
ever, that Hamilton customarily spent his time in repair work and washed
parts only of machines that he was overhauling himself, whereas the press he
was required to clean was scheduled to be overhauled by someone else° The
undersigned credits Hamilton 's account of the foregoing incident in its
entirety.
8 Hamilton 's recollection of the time when Pritchard told him this was vague. At one
time he testified it was about a week after De Leeuw had spoken to him ; at another
time he said it was sometime in July and that he had worked only two Saturdays
thereafter . The record Indicates that Hamilton worked three Saturdays after July 15
and five out of ten Saturdays between the time De Leeuw spoke to him and the
Friday be was laid off . Pritchard denied having told Hamilton to get his permission
before he could work Saturdays . While Hamilton 's testimony that Pritchard made the
statement is credited , it is believed that Hamilton was confusing the number of weeks
on which he worked Saturdays with the number of weeks which were full weeks of 48
hours or more. The work day was 9 hours from Monday through Friday and usually 5
hours on Saturday . Hamilton as previously stated had only 2 weeks of more than 45
hours after June 24.
9 The evidence also indicated that there were 3 men other than Hamilton in the main-
tenance department who customarily did general work including such work as cleaning
a press being overhauled
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Glenn Pelkey of the press room was one of those to whom Hamilton
gave a pledge form to circulate on June 19. The next day Pelkey was called into
De Leeuw's office by McMahon, who was there alone . McMahan said, he was
calling in employees from the various departments to find out what they wanted
Pelkey asked if he was called in because he had passed "this paper" around,
and McMahan said that was not the reason . After Pelkey enumerated causes
of dissatisfaction among the employees, McMahan explained what efforts were
being made to rectify the matter mentioned. Pelkey told McMahan that If the
Union was organized he expected to join it. That afternoon Pelkey's foreman,
Starr Cook, related to Pelkey an experience he had had with a union at a former
employer's which resulted in his losing seniority rights . That evening Cook
asked Pelkey to work overtime and, while they worked together, Cook, after
repeating what he had previously told Pelkey, went on to say that a pressman
like Pelkey would find it difficult if he was unable to get help from the foreman,
that Cook had big ideas for the department, but that he would not use any
if the Union came in, and that if the Union came in the employees would be
on their own.
About June 22 the Union held its first meeting and the majority of those
attending signed application cards. At this meeting, International Representa-
tive Robert Haskin appointed as temporary officers : Hamilton, president,
Martin Rowing, vice president, and Abraham, financial secretary. A day or two
later, after Hamilton had passed out application cards at the gate before work,
McMahan walked to the machine where Hamilton was working and expressed
In uncomplimentary language his opinion of Hamilton' s passing out applica-
tions. Hamilton accused McMahan of "sicking" Pritchard on him 10
About the middle of June, employee Earl Smith, while working In his depart-
ment, the box department, was approached by his foreman, Fred Kline, who
asked Smith what he thought of the Union and whether he was going to join
Smith replied that he was not sure, but added that, if he did join, he did not
expect to take an active part. Kline told him unions were no good and to
keep out of them" After the meeting of the Union on June 22 Smith passed
out some application cards, and one noon in the last week of June , with some
application cards in his hip pocket, he went out to the parking lot to deliver
them to Hamilton, who was sitting in his car. Kline, sitting in his own car,
noticed the cards in Smith's pocket as he passed and saw him hand them to
Hamilton. As Smith returned to work, Kline asked him why he had all those
cards in his pocket.' Smith replied he only had a couple there; Kline charged
that he had a dozen, and Smith said that was his own business If he did.
Kline then said he thought Smith was not going to take an active part in the
Union. Smith replied that he had changed his mind.
A few days later Kline told Smith that he was wanted by McMahan in
10 This finding is based on Hamilton's credited testimony. McMahan testified that on
this occasion he had gone to see Pritchard and Hamilton had called him over and said
that he understood that McMahan and the foreman were making threats that the organ-
izers of the Union were going to lose their jobs and that that had better be stopped as
he was going to get affidavits and file charges. McMahan testified that he denied the
accusation. The undersigned credits McMahan's testimony as to what was said as being
consistent with the tenor of the conversation, but the undersigned finds that this portion
of the conversation was additional to the portion set forth above. Insofar as there is
any conflict, the undersigned credits Hamilton.
u This finding is based on Smith's credited testimony. Kline gave a slightly different
version of this conversation but, although he did not include the statement attributed to
him that unions were no good and that Smith should stay out of then, he corroborated
Smith on other portions of the conversation.
KALAMAZOO STATIONERY COMPANY 941
De Leeuw's office. When Smith arrived there McMahan asked him what he
thought of the Union and how the others felt about it. Smith told McMahan
that, if the employees had gotten the vacation with pay that they had requested
for the past year or two, he did riot believe they would have joined. McMahan
replied that lie had been working on a plan for the past 6 months which might
result in their getting a vacation with pay.
About July 20 McMahan called into his office eight employees, five of whom
were union members Hamilton, Howing, Abraham, Smith, and John Com-
missaris. The non-union employees included Charles Bassett, who had threat-
ened Hamilton with a piece of pipe. McMahan opened his remarks by
suggesting that they were all aware of "a little incident" that had happened
the day before. This referred to an incident in which an opponent of the Union
had pushed a girl who was soliciting a union membership and had been pushed
in return. McMahan then said that reports had come to him that several of
those present were going to start fights and start slashing tires if people did
not sign up for the Union,' and that he intended to discharge anyone who
started or participated in a fight regardless of whether he was a union advocate
or opponent. Hamilton accused McMahan of calling the meeting to discredit
the Union and asked why he did not get the girls down there to tell the true
story of what had happened. McMahan said he did not think that was neces-
sary. Hamilton assured McMahan that if a union member were discharged
unfairly, they would do all in their power to see that he was reinstated, and
lie told McMahan that the respondent might just as well accept the fact that
they were going to have a union and moreover a closed shop. McMahan said
he was willing to bet Hamilton that if the Union got in it would not get a
closed shop." Hamilton and McMahan were reaching for their money when
De Leeuw stopped them. During the course of McMahan's subsequent state-
ments as to what the union advocates could and could not do regarding organ-
izing activities, Abraham stated that he thought the respondent should famil-
iarize itself with the Wagner Act and suggested that the respondent get a good
attorney. McMahan said that this Act was the unfairest thing that had ever
been foisted on employers, but that they had hopes of a change in the existing
regime in the fall and that something might be done about it. During the
course of the conversation, McMahan told Abraham that he would like to see
him after the meeting.
About 15 minutes after this meeting closed, McMahan came to the press
where Abraham was working and said he had not noticed him before as he
did not say much. He then asked Abraham why he wanted to get "mixed up"
in the Union. Abraham said that he was in it and could not back out. Mc-
Mahan told him that they could use a man of his experience in a better job,
that the Union would not do him any good, that he could promote Abraham
more easily if there were no union, but that even if the Union did get in he
would do what he could to help him.
There was no announced rule against solicitation in the plant, but on several
12 McMahan in his testimony identified the source of the tire slashing rumor as a cer-
tain employee in the bindery department who was supposed to have told it to the man-
ager of the papeterie department Neither these persons nor the girls who participated
in the pushing incident were called in to this meeting.
13 Hamilton and McMahan were not in accord on what the terms of the bet were.
Hamilton understood that MsMahan said he would bet the Union would not get in, but
if it got in it would not get a closed shop. McMahan testified that he said the Union
might get in but if it did he would bet it would not get a closed shop. The undersigned
finds it unnecessary to decide the issue since in any event, McMahan disclosed an atti-
tude of opposition to the Union and, by failure to learn the true facts in regard to the
girls' fracas and the tire slashing charge he exhibited a distinct bias.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasions foremen stopped Hamilton from soliciting. During the lunch hour a
few days after the meeting just related, Hamilton went to an envelope machine
operator to hand her an application form and talk to her about joining the
Union. Foreman Lester McMorrow came up to Hamilton and told him that
he would have to do his talking about unions outside and not there. Around
the first of August, Hamilton stopped to chat with a girl in the box department
but not about unions , and Foreman Fred Kline came to Hamilton, told him
that he could not talk to any of the employees in that department, and re-
quested him to leave. Prior to the interest in the Union no one was prohibited
from talking with employees of other departments unless he abused the privi-
lege . Sometime between August 12 and 15 rumors were passing around that
there was to be a strike. Abraham went to Hamilton at that time and told him
they would have to prevent the strike. They set out to investigate and Hamil-
ton went to the press room and there asked employee Irving Doty if anything
was wrong there or if anyone were walking out. According to Hamilton, Fore-
man Cook came to him, told him he could not talk to any of the employees In
that department, and ordered him out. Cook testified that he told Hamilton
he should not come into that department to talk union during working hours,
that Hamilton said he was talking strike and not union, that he would talk
to anyone he pleased when he pleased, that Hamilton went on to talk to two
more persons, that he (Cook) spoke to Hamilton again , that Hamilton replied
that if Cook knew how much they had on him he would keep his mouth shut
and mind his own business, that he (Cook) replied that that was his own busi-
ness and ordered Hamilton out, and that Hamilton then left. The undersigned
believes these accounts are not contradictory and accepts both as correct.
Cook heard only a few of the words that Hamilton spoke to Doty and appar-
ently inferred mistakenly that Hamilton was trying to get the employees to
walk out.
Between July 25 and August 15, 1944, Hamilton was on a number of occasions
assigned to menial jobs out of his customary line of work?4 The testimony of
witnesses for the respondent that the men in the maintenance department were
all subject to call for any type of work may have been theoretically true, but
as previously found, in practice, Hamilton had, except for 3 months at the
beginning of his employment in 1941, spent all his time repairing, adjusting,
and overhauling envelope machines and making spare parts for them. The
type of work he was assigned to do on these occasions in July 1944 was cus-
tomarily performed by three men who did not do the type of work Hamilton
performed. Abraham and Commissaris, hearing a rumor that Hamilton was
out behind the plant digging post holes, went to De Leeuw and complained
about it, saying that, if the practice continued, almost anything could happen,
such as a strike or filing of charges. De Leeuw said he would investigate.
Actually Hamilton had been required to remove some heating tanks from a
pit which was half filled with water, rust, and grease. Hamilton testified that
the temperature must have been 140° in the pit. De Leeuw did not testify
what further action he took after he found Hamilton there.
From about August 15 on Hamilton was given no further menial jobs, but
on about August 15, Foreman Pritchard told Hamilton not to leave the mainte-
u The data on Hamilton's job card records, although not detailed, show the following :
July 25, pipe fitting on sprinkler tank in basement, 6 hours ; July 27, pipe fitting on
sprinkler system tank heaters, 9 hours ; July 28, repair pipes and tanks on heater for
sprinkler tank, 9 hours ; July 31, repair sprinkler tank heaters, 3 hours ; August 3, install
new gasket in main steam line , 8 hours ; August 4, replace gaskets in main steam line in
Boa Shop, 4 hours ; August 5, sweep machine shop, 1% hours ; August 15, cut pipe for
down spout for Warehouse and help install , 5 hours.
KALAMAZOO STATIONERY COMPANY 943
nance department during working hours." Pritchard testified that he had
received orders from De Leeuw and McMahan not to let Hamilton go to the
envelope department any more but to keep him in the machine shop.
On August 4 Hamilton went to the regional office of the Board in Detroit
with Haskin to file a petition for certification of representatives." About
August 15 De Leeuw asked Hamilton what the rumor of a walkout was.
Hamilton told him that the employees were getting tired of the Company's
stalling" and wanted the respondent to meet with their International Repre-
,,entative. De Leeuw said he would go to see Tannehill, the respondent's
president, about it. He returned shortly and told Hamilton that Tannehill
had agreed to meet with the International Representative of the Union on
August 24. On the latter date a meeting was held at which Tannehill, Mc-
Mahan, De Leeuw, Haskin, Hamilton, Abraham, and Rowing were present.
Haskin asked the respondent if it would consent to an election. Tannehill
refused, saying that there was reason to doubt that the Union had a majority,
that the respondent was neutral, and that the employees might think the re-
spondent wanted a union if it consented to an election without Board order.18
At this meeting the respondent announced that it would be obliged to lay off
some employees on September 1 because it had over-cut its allotment of paper
for the third quarter.
On September 1, 1944, the respondent laid off all of the part- time workers
who had not previously been laid off during August." These part-time
employees were almost all school children who were returning to school. In
prior years the respondent had been able to avoid laying off permanent
employees by reducing the number of hours. However, in 1944 Kalamazoo was
changed from a number 3 to a number 2 area by the War Manpower Com-
mission and a 48-hour week became compulsory, so it was impossible to reduce
hours On August 1, 1944, the respondent had about 380 to 390 employees.
De, Leeuw testified that he was given figures on estimated production for
September by Tannehill and McMahan, that from such figures he computed the
number of persons needed to produce that amount, and that he decided to
reduce the number of employees to a little more than 300. In addition to the
part-time employees laid off,21 the respondent laid off 9 full-time employees on
September 121 One of these was Harold Hamilton. With the exception of two
girls who were unable to work days after the night shift was abolished, the
full-time employees to be laid off were intended to be selected on a basis of
departmental seniority22 For the purpose of analysis, the case of the two girls
laid off from the night shift out of the order of their seniority will be excluded.
The 7 remaining full-time employees laid off came from 6 of the 16 departments.
15 On the morning of September 1 Hamilton asked a co-worker to note the time while
he went to the toilet. When he returned in 7 minutes, Pritchard came to him and asked
where he had been and accused him of being gone for 25 minutes. Hamilton explained
where he had been and that he had been gone 7 minutes as his co-worker could affirm.
l'iitchard said, according to Hamilton's credited testimony, "You have probably been out
organizing the damned union again."
le On the following day Hamilton's first assignment was to sweep out the machine
shop
17 No finding is made that this inference drawn by the employees was justified.
is Thereafter a hearing was held in Case No. 7-R-1829, and the Board ordered an elec-
tion This was scheduled for October 18.
10 Three were laid off on September 2
20 The respondent began laying these people off about August 10 and continued to do so
until September 2.
81 One full-time employee was laid off on August 18.
0 An unexplained deviation from this appears in the lay-off of Vern Carpenter, hired
May 17, 1944, and the retention of Marvel Spencer, hired June 15, 1944, In the shipping
department.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton was the only one laid off from the maintenance department. He had
the least seniority there, although he was hired in 1941, while the remaining 6
were all employed in 1944.1' And although Hamilton's work, for upwards of
2 years prior to his interest in the Union, had been devoted almost exclusively
to maintenance of the envelope machines, it is significant that no one was laid
off from the envelope department. On September 1, 1944, there were 21 oper-
ators in this department.
McMahan testified that the slack period in the respondent 's business cus-
tomarily extended from September through November. The respondent's
records indicate, however, that it was recalling employees in September and
October and that it employed many new employees from late October on into
1945. McMahan testified that, whereas the respondent had 22 to 25 envelope
,machines operating in August 1944, it had 13 operating at the time of the
hearing. The respondent's records show that of the 21 operators employed on
September 1, 1944, 3 quit thereafter and 1 was discharged, but they also showed
4 operators hired between November 13, 1944, and February 12, 1945, the latest
date recorded for that department on the record introduced in evidence. As
of February 12, 1945, therefore, there were still 21 envelope operators. Mc-
Mahan testified that the respondent was unable to get envelope operators. He
offered this as the explanation of why the respondent had procured envelopes
to be made for it by another company. The respondent has a standing arrange-
ment with the Illinois Envelope Company under which the latter company noti-
fies the respondent when it has capacity for manufacturing but no paper. The
respondent furnishes the paper to the Illinois Envelope Company, and the latter
makes the envelopes. Although the total purchases of the respondent from the
Illinois Envelope Company for 1944 were approximately the same as for 1943,
the respondent's purchases for the last 3 months of 1944 were much greater
than for the last 3 months of 1943. The undersigned does not credit McMahan's
testimony that these additional purchases were made because of the difficulty
of getting women to serve as envelope operators. In November the respondent
advertised at least three times in the Kalamazoo Gazette for women as machine
operators. Between October 25 and the end of the year 1944 the respondent
hired 56 women, and between the first of 1945 and March 15 It hired another
59 women. Only 4 of the total 115 were assigned to the envelope department.
The undersigned concludes that if only 13 envelope machines were operating
at the date of the hearing, the reason therefor was not inability to hire women
to operate them Y4
If Hamilton had been laid off because the respondent expected its shortage of
paper during the remainder of the third quarter so to limit its operations that
it would not require Hamilton's services, that excuse would end with the
beginning of the fourth quarter. In fact the respondent apparently had enough
paper to continue with 21 envelope operators and to furnish large quantities
to the Illinois Envelope Company. Some of the respondent' s witnesses testified
that the envelope machines have run satisfactorily since Hamilton left and
that there is still a supply of the most important parts in stock. But Pritchard
testified that the maintenance department always has plenty of work to keep
it busy, that recently they have had to teach the new help how to operate
machines, and that they have "let a lot of stuff lay that breaks down ." Board
sa Four of these were recalled in October 1944. The others were not recalled so far as
the evidence shows.
PA The respondent in November 1944 advertised for women to serve as machine oper-
ators and hand table workers and stated in each of three advertisements that no expert-
ence was necessary.
KALAMAZOO STATIONERY COMPANY 945
witness Lynn Peterson testified that in November 1944 he telephoned De Leeuw
and asked for employment. De Leeuw told him, according to Peterson, that
there were plenty of jobs but that USES would not give him the help he
needed. Peterson asked for a job in the maintenance department and De
Leeuw told him, according to Peterson, that he could use help there but that
he could not hire anyone because Hamilton was laid off.74 De Leeuw denied
having made the latter statement. Because Peterson impressed the under-
signed as an honest witness, and because, unlike De Leeuw, he appeared to be
unbiased, the undersigned credits Peterson's testimony and discredits De
l.eeuw's denial.
The record indicates that the respondent recalled laid-off employees as they
%ere needed and that the respondent was well aware of the fact that Hamilton
was holding himself in readiness to return when recalled.
On the foregoing, and on the entire record, the undersigned concludes and
finds that the respondent laid Harold Hamilton off on September 1, 1944, in-
tending not to reemploy him 28 because of Hamilton's union membership and
activity, thereby, in effect, discharging him. By such lay-off or discharge the
respondent discriminated in regard to Hamilton's hire and tenure of
employment.
By such lay-off or discharge and refusal to reinstate, by statements of
respondent's officials and supervisors attempting to discourage Hamilton and
others from forming a union, by assigning Hamilton to baser work, by con-
lining Hamilton to the maintenance department, by prohibiting union talk, by
prohibiting or attempting to prohibit employees from soliciting during their
flee time, and by questioning employees concerning their and other employees'
attitudes toward unions, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. The discharge of Abraham and Smith
William Abraham was first employed by the respondent in 1929 , but after a
period of a year he was either laid off or quit. He testified that he returned
ili 1931 as having been laid off, but the respondent 's records show his last hiring
date as July 24 , 1933 . He worked in the bindery where he ran a printing
press. George Nason was his foreman . As previously explained, Abraham
was one of the organizers of the Union and was appointed temporary financial
secretary during the organizational period.
ei Peterson, who testified that he had been told by employee Bassett (the employee who
had threatened Hamilton with a piece of pipe), and by others, that Bassett was very
friendly with McMahan, also testified that Bassett had told him more than once that
McMahan had said that management intended to get rid of Hamilton, and that a few
clays before the lay-off Bassett told him that the respondent was going to lay off enough
people to reach Hamilton. Bassett was reported to be ill and did not testify. While
Peterson's testimony as to Bassett's statements was hearsay evidence, the undersigned
believes that the record, aside from Peterson's testimony, so strongly indicates that the
lay-off of September 1 was a move to get rid of Hamilton that Peterson's testimony,
which the undersigned credits, may be regarded as cumulative evidence.
24 This appears apart from the circumstances leading up to his lay-off, both from the
fact that Hamilton was not recalled when most of the laid-off employees were recalled or
when new employees were hired and from the following incident : On October 16, 1944,
Hamilton returned to the plant to get a list of employees eligible to vote in the election.
At that time De Leeuw told Hamilton, according to the latter's credited testimony, that
he hoped Hamilton had another job so that he would not want to return to the respond-
ent's plant.
686572r-46-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earl Smith was employed on July 5, 1933. He was an assistant to the fore-
man of the box department, a non-supervisory job. His duties were to train
new help and make set-ups. Smith actively solicited union applications and
was the head of the union movement in his department.
On the evening of September 1, 1944, following Hamilton 's lay-off, the Union
held a special meeting and decided to strike as of September 5, the day after
Labor Day. Cards were sent to the members notifying them to be on picket
duty on that day. One of these cards came to the attention of De Leeuw and
McMahan, and the latter consulted the respondent's attorney, C. N. Sessions,
who told him that since the strike was called without the statutory notice to
the respondent it was illegal and that anyone who incited the strike could be
discharged. On Sunday, September 3, Hamilton, Abraham, Smith , and George
Bradfield were advised by a representative of another union that the strike
would be illegal and also that It would hurt the Union. They thereupon called
the strike off, contacting as many employees as they were able to by telephone
and personal call. On Tuesday morning after Labor Day, as the employees
came to work, two of the union members stood at the gate to the plant and
told the employees the strike was off and to go to work. Nevertheless , through-
out the day rumors pervaded the plant that a strike would occur at various
times.
On the morning of September 5, Abraham started to work his press at 7 a. in.
as usual. At about 8 or 8:30 a. m. his foreman, George Nason, who customarily
let Abraham work without much supervision, as he was not too familiar with
the type of work that Abraham did, came to Abraham with a binder" of the
kind on which Abraham was printing a design and asked him how the ink
got smeared on it. Abraham, who took this as a criticism of his work, replied
that if the binder had come from his press , it had been smeared after it left
his machine. Nason said nothing but walked away and stood watching
Abraham. After a while he returned and told Abraham he would have to
stop running, stating that the plate he was using was smashed and indicating
that a portion of the ear of the figure on the plate was gone . Abraham told
Nason that the plate had come from the engraver that way ; then he washed
up the plate and showed it to Nason. Since running a smashed plate would
be a fault of the pressman, Abraham again understood that his work was
being criticized.
That noon Abraham ate his lunch on the back dock with several employees,
two of whom were Commissaris and Smith, and topics of conversation were
the Union and the way Nason "was riding" Abraham. During the lunch period
Hamilton came to the rear of the plant and spoke to employees Fisher and
flowing, asking them if all the employees went back to work. Hamilton's
presence was witnessed by others and may have contributed to the suspicion
and rumors of strike which were in the air.
That afternoon Abraham observed Nason watching him. At about 2:80 p. in.,
being annoyed with Nason's watching, Abraham, accompanied by another
employee, Clarence Cook, went out to the back dock for a smoke, returning in
5 or 10 minutes?' Upon their return, Nason told them that they had to quit
going out and smoking so much. Abraham protested that he was not gone
long. Nason said that he was going too often. Abraham replied that he had
not been out oftener than usual, but Nason merely said , "It has got to stop."
Abraham, after stating that the others went out and that Nason never said
27 A binder consists of two covers held together by metal fasteners to hold loose leaf
paper.
28 Abraham 's press was automatic and did not have to be stopped when he left it.
KALAMAZOO STATIONERY COMPANY 947
anything to them, asked if Nason was imposing this restriction because of his
union activities. Nason replied, "I am entirely neutral, but you boys have
got your neck out a mile." Abraham, who impressed the undersigned as a
sens.tive person, and who apparently was brooding over Nason's attitude, went
out for another smoke at about 3.45 p. in. and decided that he would go home
at 4 p in, as he had previously been privileged to do because of poor health
He returned and began cleaning up his press. Commissaris saw him and asked
uuhere lie was going. Abraham replied that he was "fed up" and was going
home Commissaris turned to the other people in the bindery and told them
they were all going out's As the bindery was preparing to walk out, De
l.eeuw and McMahon looked in the door and saw them shutting their machines
(town. Before he left, Abraham told his sister, who worked in the spiral
department, that he was going home because Nason had been riding him, and
that the bindery had walked out. According to Abraham, he left the building,
passing through several departments to reach the exit. As he passed through
the box department Smith asked where he was going and Abraham told him,
adding that the bindery had walked out. Smith made up his time record and
left, too.30 Thereafter a number of the box department employees followed
Smith.
While employees from the bindery and box departments were still standing
on or near the parking lot, De Leeuw and McMahan, who had made a tour
of the whole plant, came out hurriedly, walked up to the group and asked the
reason for the walkout. Abraham said that when the respondent took back 21
union members that it had laid off they would all return to work. McMahon
told Abraham he was not coming back to work, and turning to Smith, he told
him lie was discharged too. Smith asked why, and McMahan said for causing
the girls to walk out. Smith denied this. McMahan told Smith and Abraham
they could come in and get their checks then if they wanted to 31 De Leeuw
then told the others that they had better be back at work by Thursday morning
or they would be discharged.
On Wednesday evening employee Grace Schoonbeck, who had not walked out
on Tuesday but who on Wednesday had joined the strike on instructions of
Flowing, received a telephone call from her forelady, Dorothy Otten3' Otten
asked the reason for the strike and Schoonbeck said she had been told that
21 union members had been laid off. Otten asked her to return to work the
next day but Schoonbeck refused. About 10 minutes later Foreman Roy Doty
telephoned Schoonbeck, asked her the reason for the strike and asked her to
return to work.
During the strike a State Mediator and it Federal Conciliator were attempting
to settle it. They contacted Hamilton who told them that the strike would be
called off if the respondent reemployed the union members who had been laid
off and discharged, as he regarded it, discriminatorily. They reported back to
the Union that the respondent had rejected this offer and asked what was the
21 This is based on Abraham s testimony Commissaris refused a mailed subpoena and
did not testify.
1o According to De Leeuw, he and McMahan saw Abraham in the bindery when that
department was shutting down, then went to the box department, apparently prior to
Abraham 's leaving , and noted that Smith and several others had already gone. Respond-
ent's witness Winifred Schedeler, however, testified that she saw Abraham pass through
the department while Smith was still present. The undersigned accepts Abraham's and
Smith's account of the details of the walk-out.
st Smith's and Abraham's separation slips gave as the reason for their discharge : "Mis-
conduct connected with work."
32 Otten apparently bad little managerial authority, since she voted in the Board
ordered election on October 18.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least the Union would take to settle the strike. Hamilton told them the strike
would be called off if Abraham, Smith, Gladys Wiggington and he, himself,
were reemployed. The Mediator and Conciliator reported back that the re-
spondent rejected this offer likewise. Finally the Union, whose members were
getting low on funds, was obliged to call off the strike on condition that those
who had not been laid off would be taken back without discrimination.
Hamilton delivered the settlement agreement to President Tannehill on
Saturday, September 16, and at that time Hamilton asked whether, as a tem-
porarily laid off employee, he might have permission to enter the plant to talk
to some of the employees during the noon hour. Tannehill said he was sorry,
but that he did not want any more trouble and that he was obliged to refuse
the request. On Monday, September 18, the employees not discharged or laid
off returned to work.
On the afternoon of May 3, 1945, De Leeuw went to the box department,
approached employee Irene Wicke, and remarked that he heard she was going
to be away for a few days the following week. She asked what for, and
De Leeuw said that that was when the hearing before the Board was to be
held. Wicke said she did not know anything about it, and De Leeuw asked
if she had not been subpoenaed. After Wicke had answered that she had not
been, she remarked that she was sorry that Smith had been discharged and
that she did not think Smith had anything to do with the strike. De Leeuw,
according to Wicke, replied that he did not discharge Smith for walking out
but because he was organizing during working hours. De Leeuw testified that
he made no reply after Wicke's last remark and denied the statement attributed
to him. The undersigned credits Wicke's testimony.83
The respondent in its answer justified the discharge of Abraham and Smith
on the ground that they "left their work in the plant of respondent and an-
nounced to other employees in their department and in other departments of
said plant that a strike was being called among the employees of said respond-
ent and urged other employees to join in said strike, and threatened such
employees with reprisals if they did not join in such strike * * *" and alleged
that Abraham and Smith were the instigators of such strike and that tinder
a Michigan statute requiring that work continue uninterrupted until 5 days
after a notice of intent to strike had been filed with the State Board, Abraham
and Smith were guilty of a misdemeanor and became subject to discharge by
the respondent. The respondent likewise relied upon the War Labor Disputes
Act as justification for their discharge. The evidence is conflicting as to
whether Abraham and Smith called upon anyone to leave work, although It
is quite clear that no threats were made. The union members came to work
on September 5 strike-minded and most of them would have required no per-
suason to walk out. The undersigned believes it not unlikely that Com-
missaris, Cook, and Smith may have promised to walk out if Abraham did and
that word thereof spread through the plant, but he does not find the evidence
adequate to prove that Abraham or Smith called anyone away from work.
But it is immaterial how the strike commenced, in view of the decision of
the Board in the Republic Steel case84 decided since the hearing in the instant
33 On cross-examination, Winifred Schedeler, a respondent's witness, testified that about
a week before the hearing De Leeuw and McMahan had called her to the office and asked
her how Wicke felt about the Union. The undersigned finds it unnecessary to decide
whether De Leeuw was stating the respondent 's actual motivation for Smith's discharge
or, in the belief that Wicke had forsaken the Union, was trying to lessen her sympathy
for Smith . Either ground for discharge would have been improper.
"Matter of Republic Steel Corporation, 62 N. L. R. B. 1008.
KALAMAZOO STATIONERY COMPANY 949
case. The Board there distinguished its decision in the American News case"
by pointing out that in the latter case the object of the strike was illegal. In
the present case there is no basis for a finding that the object of the strike
was illegal, and the evidence discloses no disorders or illegal acts in connection
with the strike, except the failure of compliance with the provisions of the
War Labor Disputes Act and the Michigan Labor Relations Law in failing to
give notice. In neither law is there any provision requiring notice to the
employer individually. In each case notice is to be served on a governmental
agency to permit such agency to take some action in the interest of the public
welfare. Neither statute authorizes the employer to take it upon himself to
inflict a penalty of his own selection for violation of the public law. The
Board in the Republic Steel case found that the Congress did not intend the
rights of employees or representatives under the National Labor Relations Act
to be affected by the War Labor Disputes Act. It may be doubted that the
Michigan legislature intended to deprive employees of such rights either, but
if it did have such intention, that intent would be ineffective to alter the inten-
tion of Congress as expressed in a valid and applicable Federal law 86 As shown
by the legislative history of the War Labor Disputes Act as traced in the
Republic Steel case, the Congress intentionally forebore to include provisions
for forefeiture of rights of employees under the National Labor Relations Act.
Since Congress eschewed a forefeiture of such rights by any Federal law,
a fortiori such rights must be regarded as unaffected by State laws inconsistent
with the Act.
It follows that, whether or not Abraham and Smith were leaders of the strike
of September 5, the respondent was not justified in discharging them, and the
undersigned finds that, by such discharges on that date and by refusing there-
after to reinstate them, the respondent discriminated in regard to the hire and
tenure of their employment in violation of Section 8 (3) of the Act, thereby
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
C. The respondent's pre-election letter
Two days before the Board-scheduled election, the respondent sent to all Its
employees eligible to vote in the election the following letter over the signature
of President Tannehill:
October 16, 1944.
To OUR EMPLOYEES :
On Wednesday, October 18th, between the hours of three to five P.M.,
an election will be held to enable you to express whether you desire the
Bookbinders AFL Union to represent you and have exclusive bargaining
rights for all the productive employees of our company, or whether you
prefer something else. This day will be a very important one for all
employees of our company because if the majority of those voting vote
in favor of the Union, then the Union will become the exclusive bargaining
agent for all of the productive employees in all matters concerning wages,
hours, working conditions, and other conditions of employment.
This election will be by secret ballot, and as nearly as possible will be
conducted like our town and city elections. No one will know by any
means how you vote. The outcome of the election will be, determined by
35 Matter of American News Company, Inc , 55 N L R B 1302.
'"See Matter of Eppinger h Russell Company, 56 N. L. R B 1259 , and cases there
Cited
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a majority of those voting, which means that if more than one-half of
those voting choose the Union, then the Union will have the say for all.
This is different from a majority of those entitled to vote, so BE SURE
TO VOTE so the election will really show your wishes. And remember,
if you do not vote it is the same as letting someone else decide who will
represent you. A failure to vote is almost the same as a vote for the
choice you do NOT want.
Some of you may wonder if your preference as expressed at any time in
the past must govern how you vote on Wednesday. It does not have to
do so. This election is by secret ballot so that you can record your vote
as to how you feel today without fear or favor. You have the right to
vote in accordance with your own desires regardless of whether or not you
signed an application card, authorization card, or anything else.
I do not know what the Union desires other than to represent you,
because that is the only request it has ever made of us. I do know that
so long as this company has had a free hand to meet your requests indi-
vidually and collectively, that you have enjoyed steady work at increasing
rates of pay, with steady promotions, and free from strife and dissension.
Look aound you. There are shops in Kalamazoo with Unions. Ask
yourself : Are these shops with Unions more peaceful ? Is their work
steadier? Is working there more pleasant? Is the pay over a whole year
higher for the kind of work which I am doing? These are some of the
questions which you want to ask and answer for yourself before voting
We want you to choose wisely for yourself.
Wages are of the utmost importance to you, so let's talk about them
for a minute. You already know that under the provisions of "The Little
Steel Formula" employees of any company are entitled to 15% more in
wages for the same job than they were receiving January 1, 1941. You
know that if you were working for this company in 1942 you benefited
by increases that were given in June and September of that year. You
know that these increases have amounted to a lot more than 15% since
January 1, 1941. You know that Wage Stabilization became effective
October 2, 1942, and since that time it has been unlawful to give any
general wage increases without the approval of the War Labor Board.
You know that permission was secured from the War Labor Board to
classify the jobs in our factory and to pay our people within the rate ranges
for these jobs. You know that many of you have had further increases by
reason of this fact. You know that your present wages are in line with
other paper companies in Kalamazoo, and you know that we will make
every effort to continue to keep them in line.
I have already said that this is an important election. For many of you
it is the most important one you have ever voted in. It bears directly
upon your welfare and that of those dependent upon you.
To what kind of leadership are you going to entrust your future with the
company?
Is it unselfish or is it not?
Is it interested in your personal, individual welfare, or is it self-seeking?
On the basis of its past record, Is it open and above board and depend-
able, or don't you know?
These are questions you should think about and talk over at home. You
must choose for yourself, but again we want you to choose wisely.
Your interest and the interest of Management are the same . When the
Company prospers, so do you.
KALAMAZOO STATIONERY COMPANY 951
From an employee's point of view, the very fact that an employer undertakes
to inject himself into the election controversy at all by a preelection letter
such as this almost inevitably would be regarded as an indication of partiality.
The understanding that the respondent is opposed to the Union is conveyed
by the letter not by the words used, but by the emphasis that is placed on
certain ideas by the fact of mentioning them rather than their opposites"
A phrase which, used by a known neutral , might have an innocent meaning
takes on a sinister meaning when used by one who has previously shown bias,
as the respondent had. The respondent's letter omits to assure the employees
that, if they should choose the Union, they need have no fear of reprisals."
Such omission in the letter of an employer who had already made use of
reprisals by its treatment of Hamilton and others would leave the employees'
minds burdened with the fear that already had been planted there by the re-
spondent. Upon these considerations and upon the entire record in the case,
the undersigned concludes and finds that the foregoing letter sent by the
respondent to its employees interfered with, restrained, and coerced such em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operation described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices , it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Since it has been found that, by the lay-off or discharge of Harold Hamilton
on September 1, 1944, and by the discharge of William Abraham and Earl
Smith on September 5, 1944, and by the refusal thereafter to reinstate them,
the respondent committed unfair labor practices , it will be recommended that
the respondent offer them immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their seniority or
a+ When the respondent says, "You have a right to vote in accordance with your own
desires regardless of whether or not you signed an application card * • " the
emphasis is certainly on the signing rather than the not signing . No doubt the respond-
ent, who feared that its consent to an election would be interpreted as a sign of favoring
the Union , would likewise feel that it would be such an indication if the emphasis of
the letter were changed by stating : "You have a right to vote in accordance with
your own desires regardless of whether or not you failed to sign an application card."
So, from the employees ' point of view , the language used by the respondent would indi-
cate disfavor of the Union . That such an understanding was in fact conveyed is shown
by the testimony of Board 's witness Carolyne Burch , an employee who had received a
copy of the letter , and who said she understood from it that the respondent wanted
the employees to vote against the Union . Burch was permitted to testify over objection
of the respondent . The undersigned reserved ruling on a motion to strike her testimony
The motion to strike is herewith denied . The conclusions of the undersigned are, how-
ever, reached independently of Burch 's testimony.
m The respondent 's letter tells the employees that, since the ballot is secret , they may
record their vote without fear or favor. This cannot be considered sufficient reassurance
to the employees , since in its context this sentence might be interpreted to mean "with-
out fear of what the Union will think of you if you change your mind."
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other rights and privileges, and make them whole for any loss they may have
suffered by reason of the respondent's discrimination against them by payment
to each of them of a sum of money equal to the amount he normally would have
earned as wages from the date of his lay-off or discharge °B to the date of the
respondent's offer of reinstatement, less his net earnings AO during such period.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF L .w
1. International Brotherhood of Bookbinders, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Harold Hamilton, William Abraham, and Earl Smith, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exer-
cise of the 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 (1)
of the Act.
4. 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 foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent , Kalamazoo Stationery Company,
Division of Western Tablet and Stationery Corporation (Kalamazoo, Michi-
gan), its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of Bookbinders,
affiliated with the American Federation of Labor , or in any other labor or-
ganization of its employees , by laying off, discharging , or refusing to reinstate
any of its employees or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of their employment ;
(b) In any other manner interfering with , restraining , or coercing its em-
ployees in the exercise of the rights to self-organization , to form labor organiza-
tions, to join or assist International brotherhood of Bookbinders , AFL, or any
other labor organization , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , as guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
seSince Smith and Abraham were discharged for their activities in connection with
the strike of September 5, and since it is impossible to determine to what extent their
discharge may have prolonged the strike, it will not be recommended that their back
pay be tolled by the strike.
40 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but foi his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company, 8 N. L. R. B 440. Monies received for work
performed upon Federal, State, county, municipal, or other work-relief projects shall be
considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
KALAMAZOO STATIONERY COMPANY 953
(a) Offer to Harold Hamilton, William Abraham, and Earl Smith immediate
and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges;
(b) Make whole said Hamilton, Abraham, and Smith for any loss they may
have suffered by reason of the respondent's discrimination against them in the
manner set forth in the section entitled, "The remedy" above ;
(c) Post immediately at its plant at Kalamazoo, Michigan, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Seventh Region, shall, after having
been duly signed by the respondent's representative, be posted by the respond-
ent immediately upon receipt thereof and maintained by it for sixty (60) con-
secutive 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 that said notices are not altered, defaced, or cov-
ered by any other material;
(d) Notify the Regional Director for the Seventh Region (Detroit, Michigan)
in writing within ten (10) days from the date of the receipt of this Intermedi-
ate Report what steps the respondent has taken to comply herewith
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report the respondent notifies said
Regional Director in writing that it has complied with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 3, as amended, effective July 12, 1944-
any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Rochambeau Building,
Washington 25, D. C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in
support thereof. As further provided in said Section 33, 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 the order
transferring the case to the Board.
JAMES R. HEMINOWAY,
Trial Examiner.
Dated August 8, 1945.
"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 em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist International Brotherhood of Bookbinders,
AFL, or any other labor organization , to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities for
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
Harold Hamilton
William Abraham
Earl Smith
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.
KALAMAZOO STATIONERY COMPANY,
Division OF WESTERN TABLET AND STATIONERY CORP.,
Rmployer.
Dated ........... By .. ................. .............................
(Representative ) (Title)
NoTE: Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.