Whitting-Mead Co.

National Labor Relations Board - Board Decisions

Dec 3, 1942

45 N.L.R.B. 987 (N.L.R.B. 1942)

In the ,Matter of WAITING ,MEAD Co- and -'n ' OFFICE EMPLOYEES. UNION
LOCAL, No. 20798 (A.F.L.)
Case No. CD252.Decided December 3, 1942
Jurisdiction : building material and supply manufacturing industry.
Unfair Labor Practices
In General: statements of industrial engineer employed by firm contracting with
respondent to revise respondent's business and personnel organization, attrib-
uted to respondent..
Interference, Restraint, and Coercion: anti-union statements.
Company-Dominated Union: revival of dormant, innocuous union which respond-
ent had assisted, stimulated by respondent in order to combat charging union
which appeared when dormant union proved ineffectual-execution by
respondent of closed-shop contract when respondent was aware, that. charging
union claimed majority.
Discrimination: discharge of subordinate employees and a supervisory employee
for union activities.
Collective Bargaining: majority established by membership application cards-
refusal to bargain by: action of respondent in embarking upon course of con-
duct designed to destroy union having majority of employees.
Remedial Orders : cease and desist unfair labor practices; upon request to bar-
gain collectively ; dominated organization ordered disestablished, and contract
therewith abrogated ; reinstatement and back pay awarded.
Unit Appropriate for Collective Bargaining : office, sales, and clerical employees
at respondent's main 'and branch stores.
Mr. John Paul Jennings, for the Board.
Mr. Cecil W. Collins and Mr. E. Allen Reading, of Los Angeles,
Calif., for the respondent.
Mr. J. Howard Sullivan, of Los Angeles, Calif., for the Association.
Mr. David. Sokol, of Los Angeles, Calif., for the Union.
Mr. Charles TV. Schneider, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed April 9, 1942, by Office
Employees Union Local'No. 20798 (A. F. L.), herein called the,Union,
the National Labor Relations Board, herein called the Board, by the
45 N. L. R. B., No. 144.
987
988 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
Regional Director for the Twenty-first Region (Los Angeles, Calif or-
nia), issued its complaint dated April 18, 1942, against Whiting-Mead
Co., Los Angeles, California, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 -(1-),
(2), (3), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices the complaint alleged, in
substance: (1) that since October 6, 1941, the respondent has refused
to bargain collectively with the, Union as the collective bargaining'
representative of the Company's employees in an appropriate unit;
(2) that in March 1939, the respondent caused to be formed the
Whiting-Mead Employees Mutual Benefit Association, herein called
the Association, and since that time dominated and interfered with its
administration and contributed financial and other support to it; (3)
that since September 1941, through its various officers and agents,
the respondent urged its employees to withdraw from the Union and to
become members of the Association ; (4) that the respondent dis-
charged James W. Cowan on October 10, 1941, W. R. Greenwood, C.
P. Swanson, and August Scheiffele, Jr., on October 17, 1941, and Mrs.
Helen Woods on April 2, 1942, and thereafter refused to reinstate
them, because of their membership in the Union; and (5) that by the
foregoing acts the'respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act. The complaint and accompanying notices of hearing were
duly served upon the respondent, the Union, and the Association.
Pursuant to. notice, a hearing was, held at Los Angeles, California,
on May 6, 7, 8, 11, and 12, 1942, before C. W. Whittemore, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, the Association, and the Union were represented by
counsel. All parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues.
The respondent filed no written. answer. At the opening of the
hearing counsel for the respondent orally admitted certain allega-
tions in the complaint as to the nature of the respondent's business
but denied that its interstate business was of sufficient volume to
'bring it within the Board's jurisdiction, and also denied all- allegations
of unfair labor practices. At the opening of, the hearing counsel, for
the respondent and counsel for the Association moved for a "con-
tinuance" with respect to the introduction of evidence on other issues
until the respondent's contentions regarding the commerce issue were
ruled upon. The Trial Examiner denied the motion. At the close
of tbP.hearing counsel for the Board, without objection, moved to con-
WHITING-MEAD CO. 989
form the complaint to the proof with respect to names, dates, and other
formal matters. The motion was granted.
At the close of'the hearing counsel for the Board and counsel for the
Association, and the general manager of the respondent r argued
orally, on the record, before the Trial Examiner, and, subsequent to
the hearing, the respondent and the Union filed briefs for the con-
sideration of the Trial Examiner. On June 4, 1942, the parties filed
a written stipulation correcting the record and also covering certain
facts relating to the business of the respondent not appearing in the
transcript of the testimony. The Trial Examiner ordered that the.
stipulation be incorporated in the record, and corrections made in'
accordance therewith. During the course of the hearing the. Trial
Examiner also 'mad'e rulings on various objections to the admission
of evidence. The Board has reviewed all the rulings of the' Trial
Examiner and finds that no prejudicial errors were'committed. The
rulings are hereby affirmed.
On July 7, 1942, the Trial Examiner filed an Intermediate Report;
copies of which were duly served upon the parties. The Trial
Examiner found that the respondent had engaged in and' was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the
Act, and recommended that it cease and desist therefrom and take
certain affirmative action to' effectuate the policies of the Act. On
July 29, 1942, the respondent filed exceptions to the Intermediate
Report and a brief in support of,the exceptions.
Pursuant to notice, a hearing for the purpose of oral argument was
held before the Board in Washington, D. C., on August 27, 1942. The
respondent was represented by counsel and by its general manager and
participated in the argument. The Board has considered the excep-
tions to the Intermediate Report and the brief filed by the respondent,
and the matters raised by the respondent in the oral argument, and,
except insofar as, the respondent's exceptions are consistent with the
findings, conclusions and order set forth below; finds them to be with-
out merit. a
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Whiting-Mead Co. is a California corporation with its principal
office and place of business in Los Angeles, California, where it is
engaged in-the business of buying and selling building materials and
1 Counsel for the respondent was not present during the last day of the hearing
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supplies. The respondent owns all the capital stock of Washington-
Eljer,Company, a California corporation engaged, also at Los Angeles,
in the manufacture and sale of enamel ware. The respondent owns
54.2 percent of the capital stock of Whiting-Mead Pottery Company,
a California corporation doing business as Elj er-California Company
and engaged, at Los Angeles, in the manufacture and sale of plumbing
fixtures and supplies. The respondent also owns 63.06 percent of the
capital stock of Whiting-Mead Company of San Diego, a California
cwppmtio,i gaged, at San Diego, California, in a business similar
in nature to that of the respondent. Washington-Eljer Company and
Whiting-Mead Pottery Company have offices adjoining the respond-
ent's place of business in Los Angeles. W. H. Mead, president of
the respondent, is also president of Washington-Eljer Company and
Whiting-Mead- Pottery Company.2
During 1941 the respondent purchased materials 3 at a total cost of
$2,148,802.33, of which $306,989.88 represented the cost of lumber
originating in Washington, Oregon, and British Columbia. During
the;sarne year the respondent purchased materials and fittings, valued
at $109,112.35, and lumber and other materials, valued at $76,628.09,
from companies located outside California. Such materials were
shipped to the respondent by truck, rail, and steamship. During 1941
the respondent's total sales amounted to $2,639,996.66. Of this total,
materials valued at $18,532.28 were shipped by the respondent to points
outside the State of California.
Of its total purchases of raw materials in 1941, amounting to $456,-
047.10, the Washington-Eljer Company purchased 79.5 percent outside
California. Of its total sales, amounting to $1,717,286.29, 23.8 percent
was shipped to points outside California.
Of its total purchases of raw materials in 1941, amounting to $473,-
737.38, the Eljer-California Company purchased 33.77 percent outside
California. Of its total sales,' amounting to $1,287,595.00, 37.75 per-
cent was shipped to points outside California.
The respondent denies that it is engaged in, commerce within the
meaning of the Act. The foregoing facts, however, clearly establish
that the respondent and its subsidiaries, by purchase and sale, cause
substantial amounts of material to be transported in interstate com-
merce. The operations of the respondent thus have a close, intimate,
and substantial relation to trade, traffic, and commerce among the'
several States. We therefore find the respondent's contention to be
without merit.4
2 The findings of fact in this paragraph are based upon a stipulation entered into at
the hearing between counsel for the Board and for the respondent.
8 These, materials included, plumbing , hardware, paint, and floor'covering, wall board,
lumber, sash and door, electric, salvage, and miscellaneous building materials.
' See N. L. R. B, v, Suburban Lumber Co., 121 F. (2d) 829 (C. C. A. 3).
WHITING-MEAD CO.
U. THE ORGANIZATIONS INVOLVED
991
Office Employees Union Local No. 20798, affiliated with the Ameri-
can Federation of Labor, and Whiting-Mead Employees Mutal Bene-
fit Association, unaffiliated, are labor organizations admitting to
membership employees of the respondent.,
J III . THE UNFAIR LABOR PRACTICES
A. The formation of the Association
Early in March 1939, about a dozen employees of the respondent,
principally comprising office, clerical, and sales personnel, and includ-
ing some department heads, met at the home of Davies, a fellow em-
ployee who had just been discharged,' to discuss the employees' dissat-
isfaction with the supervisory conduct of the general superintendent.
Inasmuch as Mr. Whiting, then the respondent's president, was ill,
the group decided to submit their grievance to Mead, the respondent's
vice president. On March 14, about 35 employees gathered at the home
of Mrs. Whiting, where they placed the grievance against the super-
intendent before Mead. The meeting was attended by foremen and de-
partment heads.6 Mead informed the group that he would consider
a change in the management if they Would bring him, in writing,
proof that a majority of the employees desired it. Mrs. Whiting
suggested that it would make for better feeling between employees and
employer if an "Association" were formed.7 In accordance with her
suggestion, the employees thereafter discussed, at the main store, the
formation of an organization 8
5 The present proceedings involve only the office , cleiieal , and sales employees , numbering
about 100 , at the respondent ' s main store and branches within the Los Angeles area. The
branches are 3 in number , and are known respectively as the Long Beach , the Belvedere,
and the North Hollywood branches.
6 Among those present were Banker, head of the plumbing department , 0. E. Selleck,
floor manager , Cripps, yard foreman, Jules Vigne , mill foreman , and "Jim" Becktel,
wrecking foreman -
'rThe finding as to Mrs Whiting's suggestion rests upon the testimony of August
Scheiffele , which was corroborated, in general , by the testimony of James W. Cowan, a
salesman for the respondent , who subsequently became steward of the Union Scheiffele
attended the meeting at Mrs Whiting's home and thereafter became one of the Associa-
tion organizers , but did not attend the meeting at Davies ' home Bessie Stewart , secre-
tary of the Association, was not questioned as to Mrs. Whiting's suggestion„ but testified
that the group of employees meeting at Davies ' home there discussed permanent organi-
zation Her testimony on this point, however, was at variance with other testimony given
previously in her examination, which confined the discussion at Davies' home to conditions
at the store and the resolve to submit the matter to Mead Futtheruioie, the Association's
constitution states : ", . the time of organization of this Association . . is March
14, 193')," the date of the meeting at Mts. Whiting's home However,'we do not regard
the suggestion of Mrs Whiting as a conclusive element in the disposition of the case Our
conclusions with respect to the status of the Association , which are based upon that
organization 's complete history, and not upon isolated events, would be the same even
though we found that Mrs. Whiting had not made the suggestion
'The testimony of Bessie Stewart, the Association 's secretary , indicates that Mead
received a copy of the minutes of this, and possibly subsequent , meetings ; but at whose
suggestion ' does not appear.
1992 DECISIONS OF RATIONAL LABOR RELATIONS BOARD
Several days later amass meeting of 80 or 90'employees was held
at a public hail for the purpose of, obtaining signatures to a petition
expressing the employees' dissatisfaction with the superintendent.,.
At the same meeting," temporary officers of an employees' organiza-
tiori were elected and the name "Whiting-Mead Employees Mutual
Benefit Association" selected. 0. E. Selleck was elected president, and
was continuing in that office at the time of the hearing. When first
elected, Selleck was floor manager of the respondent's main store, and
also had supervision over all, 3 branch stores. In, general, Selleck's
responsibility was to "encourage more business," and to that end he
supervised the performance-of the employees' work at each of 'the
branch stores, had the power to recommend changes in Personnel,
and, according to his own testimony, "to a certain extent" had the
power to hire and discharge. During 1940 and 1941, Selleck was
superintendent of sales at the main store, a position which he held
until January 1942, when he was made manager of stock control, a
position in which he has supervisory authority, including the power
to hire and discharge, over 6 employees.
The Association's constitution provides that all employees except
officers of the Company may become members of the organization.
The bylaws provide for various, social committees, and a "relations,"
or grievance, committee, the duties of which are to investigate em-
ployee grievances with respect to working conditions, and to "arbi-
trate" differences between employees and management. "It is spe-,
cifically understood," the bylaws state, "that this committee in no
way is to act for members already represented by outside Unions in
any matters which is [sic] a question for Unions to arbitrate or settle,.
unless requested to do so, by Union officials:" 10
Membership was open to the respondent's millmen and truckmen as,
well as its other employees. According to the testimony of the Asso=
ciation secretary, Stewart, the millmen and truckmen were accepted.
,as "social members," as they were already members of A. F. of L.
unions.11 Various management' officials, including the yard foremen;,
wrecking foreman, sales manager, and office manager, were members
of the Association.
From March 1939 until May 1941, the Association's activities were'
mainly devoted to social and relief matters, although its committees
negotiated with management concerning specific problems, such as
0 Stewart testified that officers were elected' at one of the three meetings " held in March,
but that she could, not, recall at which one of the three. Selleck, president of the Asso-
ciation since its creation , testified that he had held office since March ' 1939. Because of
the sequence of events as above found , and because the fourth meeting was not held
until April , it is found that the election took place at the mass meeting
10 Although the Association now has a closed-shop contract with the respondent, there
is no evidence that this clause in its bylaws has been altered.
11 The respondent has contracts with two A. F. of L . unions, covering its mill workers
and truckmen.
WHITING-MEAD CO. 993
the discharge of employees, vacations, a bonus, wage increases, group
insurance, and a, credit union. During the latter part of 1940-the
respondent refused the, Association's request for a wage increase and
early in 1941 the members discussed the possibility of joining the
CIO or the AFL.in- order to better their condition. In May 1941,
a committee visited the- Board's Regional Office, and was advised to
obtain the signatures of 51 percent of the clerical employees to a
petition if the Association wished to be,certified as the. collective bar-
gaining representative.12 About 80 office, sales, and clerical employees,
including a' number of department heads,13 thereafter'signeid'a petition
bearing-the text :
The undersigned, an employee of the Whiting-Mead Company,
and not belonging to any organized union, hereby agrees that
the Whiting-Mead 'Employees Mutual Benefit Association is
authorized to act as my bargaining agent, in any, matters perr
taining to wages, hours, discriminations, working conditions,
vacations, between the Whiting,-Mead Co. and myself..
On June 10,.1941, the, Association submitted the petition and a• writ;
ten request for recognition to Mead,, who had, become the respondent's
president, and to General Manager Vigne. On'Jluie,19'Mead replied;
in'part; as, follows,:
You have petitioned me for recognition and 'I very gladly recog;
nize. 1 thoroughly approve- of the spirit of the- employees in
bandingWtheniselves together' for - their mutual' protection.
On. July. 29 the Association submitted to Mead. certain requests for
salary adjustments and increases. No reply, was received., Dissatis-
fied with their failure to obtain salary adjustments, vacations,. and
sick leave through the Association, a, number-of the employees then
turned. to 'the A. F. of L. for assistance. Thereafter there were, no.
further meetings, negotiations, or communications between the Asso-'
,ciation and the, respondent until late in October.
During, the foregoing period, from 1939, through 19,41„ the, Asso-
ciation's executive committee met regularly, in. the respondent's lum-
ber office at the rear of'the main store. Association dues were paid to
the organization's treasurer at the respondent's cashier "cage," in the
presence of the respondent's officials.. The :Association ._used the
espondent's mimeograph machine and stationery, for the production
';f various documents and notices of meetings ,and other, activities.
12 No charges that the Association was company -dominated had been filed at that time ;
it is , therefore clear that the advice given byj the Board agent in no -way , placed the stamp
of legitimacy upon the organization.
,13 Among others , C A._Bollette , sales manager , whose activities are discussed hereafter,
and Banker , head of the plumbing department . ----- ---- ---
493508-43-vol 45-83
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New employees were solicited to join the Association during working
hours. The respondent -contributed to the Association's relief. and
social funds. Donations for the Association's' picnics were received
from the respondent and its subsidiaries. The Association was ac-
corded the use of the respondent's general ledger for Association
bookkeeping.
B. Events of September and October 19/1
On September.2, 1941, the respondent entered into a contract with
the George S. May Company, a firm of industrial engineers, by which
the latter was to set up new operational systems and procedures, and
assist in sales promotion. E. Allen Reading was assigned to this
task; for his services the respondent paid the May Company, and the
latter paid Reading. In January 1942, Reading severed his connec-
tion with the May Company and became the respondent's general
manager.
On September 27, 1941, General Manager Vigrie called the em-
ployees together, introduced Reading, and stated- that the latterhad
been' brought in to make certain changes in personnel policies and
systems in order ^ to make the business more efficient, but that the
employees should understand that there would be no lay-offs. On
the contrary, Vigne declared that the Company would probably
have to hire more people to take care of the business.
Reading's appearance added to the restlessness caused by the fail-
ure to obtain concessions through the Association, and many of the
employees feared that reorganization would cause them to lose their
jobs. Some of the employees then approached the Union, and on
September 22 and 26 organizational meetings for the office, clerical,
and sales force were held at the home of one of the respondent's
.employees. On September 28 a meeting was held at the A. F. of L.
office, and on the following day another meeting was held at the home
of W. R. Greenwood, whose subsequent discharge is hereinafter dis-
cussed. Between September 22 and 29, inclusive, 67 employees had
applied for membership in the Union and had designated the Union
as their exclusive bargaining agent. August Scheiffele, whose sub-
sequent discharge we hereinafter find to have been a result of his
union activities, testified that on September 29 the Union's member-
ship' buttons "blossomed all over the place." As of September 30,
there were 86 employees in the appropriate collective bargaining
unit.14
At the meeting on September 28 a tentative contract was drafted
for submission to -the respondent. This contract was submitted in.
11 Determination of the appropriate unit is discussed below.
WHITING-MEAD CO. 995
written form to the membership of the Union at a meeting on Sep-
tember 29 and approved.
On the same day the respondent was notified by letter from the
union president : (1) that the respondent's office, clerical, and sales
employees, had selected, the. Union as, their sole collective-bargailiing
agent; (2) that James Cowan and Helen Woods, whose union activi-
ties subsequently resulted in their. discharges, as we hereinafter find,
had been elected steward and assistant steward, respectively; and (3)
that the Union requested an appointment for the purpose of pre-
senting and opening negotiations upon a proposed agreement.
On September 29, Banker, head of the plumbing department, ap-
proached Clarence P. Swanson, whose subsequent discharge because *of
his union activities'is discussed in Section D, 4, hereinafter, and said
that he had heard that Swanson had joined the Union'the day before.
When Swanson admitted the fact, Banker declared "it's just going
to be too bad for you fellows'." On September 30 Sales Manager
Bollette; Cowan's immediate superior, summoned the ' latter' to his
desk and asked him,wklat the-Union could,offer that had.not already
'-been provided. Bollette declared that he-'had°-done much for the
salesmen, and that it now appeared to him that they did not appre-
ciate it, Were "putting him on the spot," and that "it looks like you
fellows are tearing down all I have built up." Cowan voiced his
belief that the sales manager was wrong in attributing lack of appre-
ciation to the salesmen, but said that he did not care to discuss the
Union with him at that time. Bollette then said, "Well, you are,
going to force me to do a lot of things that I don't want to do." 11
A few days after this incident,' Bollette came irito' the office of
Cashier August Scheiffele, who, as we hereinafter find, was sub-
sequently , discharged because of his activities with- the Union,, and
asked the; latter, who was wearing the organization button,, whether
he had joined the Union. When Scheiffele admitted 'the- fact, Bol-
lette demanded, "What the hell did you do that for?" The cashier
said that he would rather not talk about the matter, and the sales man-
ager declared, "I'll tell you one thing, I'll make it God damned hot for
you before I'm finished." 16
On October 3 Cecil W. Collins, counsel for the respondent, met with
the Union's negotiating committee at the union office. Among those
present were the union president, w,ho is not an. employee of the re-
spondent, and ,Cowan. Colling {told the committee that he :was
,15 The findings in this paragraph are based on the undenied testimony of Swanson and
Cowan, which the Trial Examiner credited.
' 1" The above findings as to Bollette 's remarks to Cowan and to Scheiffele rest ,upon the.
undisputed testimony of the two employees. Although counsel for the respondent stated
that Bollette was not working for the respondent at the time of the hearing , no showing
was made that he was not available as a sitness.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized to negotiate and to sigh, •a contract if agreement. were
reached as to its terms. Collins examined the proposed contract,
commented that he believed that everything but the closed-shop
clause would be satisfactory to the respondent but stated that.he, pre-
ferred to submit the document directly to it. An appointment was
then, made for a meeting with President. Mead on October 6, and
about noon Collins left the union office.
At 1 p. in. the same clay., Reading called a meeting of employees
at the main office, in which Collins also took part. Reading com-
mented upon the progress being made in.his work, and then informed
the employees that they, were under no obligation to any organization
simply because they had signed a little white slip and had paid $5. for
it 17 Unions, he declared, were "fine and dandy for truck drivers
and hod-carriers" but office workers were intelligent enough. to do
their own thinking, and therefore needed no such representation.
Nothing but grief, he told the employees, would come from joining
the American Federation of Labor. Furthermore, he declared that
for the same amount of dues the employees could have an. organiza-
tion.of their own, hire the best legal talent in the country, and, have a
tidy sum remaining at the end of'the ,year. Reading then, ;introduced
Collins with the comment that the attorney would tell them. just how
binding. were the application blanks- for the Union. Collins, how-
ever, made no comment' upon the application blanks, but said that,,as
counsel for the respondent, he would bargain with any union that had
the majority, but that if he bargained with the Association he would
"do business with an attorney only." Reading then continued, stating
that the employees, many of'whom had started wearing union buttons
on September 29, did not need to wear them any more than they, need
wear buttons indicating membership in the Elks, Moose, or any other
organization. He also asked the employees, while gathered there,, to
vote upon their choice of certain working hours. Cowan indicated.
to some of the employees his disapproval of this request, and no vote
was taken. Reading then commented to the employees, "I observe
you are letting Mr. Cowan do your thinking for you."
Following the meeting, Reading called, Cowan into the general
manager's office. Reading asked the employee to forget, about the
Union, but'Cowan declared that he was in the Union and would stay.
Reading told" Cowan that he would make Mead a very happy man if
he would change his mind, but' Cowan declined to do so. Reading
further declared that, with his help, Cowan could form a, company
organization which would be-better-for all concerned. The conversa-
tion ended with Reading's urging Cowan to think it over, and stating
that if Cowan continued to wear his union, button, Reading' would'
17 The Union 's application blanks were white Initiation fees were $5.
WRITING-MEAD CO. 997
know that he had loot changed his mind 18 Several days later Reading
met Cowan in the corridor and said, "I see you haven't lost your
button yet."
On-October 6 Elma Goodwin, the Union's president, met with Mead;
Vigne, and Collins, at the office of the respondent's president. Good-
win suggested that they begin negotiations at once. Collins replied
that the respondent did not intend to negotiate because it was, not
satisfied' that the Union represented a majority of the employees.
Goodwill declared that any such doubt could be quickly,, dispelled,
and offered to submit the Union's applications-for check-by,the, Board
or by any disinterested party. Collins said 'lie -was not 'interested- in
this procedure. Goodwin then turned to Mead and asked to open
negotiations at once. Mead replied that the had been good -to his em-
ployees and that the felt that they had stabbed him in the back. He
further declared that they already-had an Association and asked why
they'had'to "go and join something else." 'Goodwin pointed-out that
although the respondent had "recognized" the Association, it had/ig-
nored requests for specific negotiations. Collins interrupted and de-.
Glared that there would be no negotiations until after an election.
Goodwin replied that, as president of the Union, she would not approve
an election in view of the recent intimidation and coercion of em-
18 These _findings as to the meeting called eby Readmg,and the statements made by him,
are-based upon the testimony of Cowan and Helen Woods, who were both present. The
findings as to -Reading's subsequent conversation with 'Cowan are based upon-the latter's
credible testimony. Reading's testimony concerning these incidents was, as the .Trial
Examiner found, confused and contradictory and, insofar as it appeared to dispute that
of Cowan and'Woods, unconvincing. ReadingprecededrCowan as a witness, and 'was -not
recalled to testify, either in affirmation or contradiction of the specific statements attrib-
uted to-lum•by Cowan and Woods.
,Reading testified-that one'reason for calling the meeting was that three employees 'had
successively refused a proffered position on the ground that,the Union would not approve.
He-admitted, however, that within an hour and a half after the offer was made one em-
ployee had accepted it. The testimony of Helen Woods,,one of the three employees 'to
whom the job was offered, established that this incident occurred on October 2. the day
before Reading called the meeting. Since the position was filled on October 2, Reading's
testimony that it was an issue on October 3 lacks persuasive merit. He -also 'testified'
that he called the meeting\ because "our entire system was being slowed down by failure
of people to stay on their jobs," and "because of an absolute break-down in personnel
and 'a bunch of-people running around fighting,with each other about absolutely nothing
at all"
'Reading did-admit, 'howwever, that at this meeting he-discussed labor organizations and
the various alternatives open to the .employees, -as well as the payment' of dues.
Although he denied that he knew of any A. F. L. activity at the time of this meeting
(a contradiction of previous testimony indicating that he was aware of such activity prior
to the meeting), Reading also admitted discussing with Cowan an "organization" with
which he told Cowan, the latter could "go to town." He testified, however, that in using
the teim "organization" he was referring to the respondent, and not to any union. Al-
though at fist he denied mentioning the A. F. L in the conversation with Cowan, Reading
later testified that any remarks he made about the A. F. L. were, "facetious" and
"kidding." He did not, he declared, reproach Cowan for his union membership, but did
recall asking Cowan to give "a button" to 'Mead. He testified that he assumed that it
was a union button, but what kind he did not know. Finally he recalled that at the
"tall end" of the conversation Cowan informed him that he (Cowan) belonged to the
A. F. L., although Reading claimed not to have been aware of that fact previously. We
regard Reading's admissions as corroboration of Cowan's testimony.
998- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. Collins then said, "Go ahead and strike. We're not going
to negotiate." Mead left the conference. At length Goodwin agreed
to call a meeting of the Union's members to consult their wishes as to
an election, provided she were assured that there would be no further
intimidation, and that there would be no mention of the Association
on the ballot. Collins agreed to this provision, in the presence of
Vigne 19 ,
That evening a meeting of the Union's members was held at Green-
wood's home. The employees present voted unanimously to leave the
question of an election for decision by union officials. 'Goodwin there-
after left the city, empowering the Union's attorney to care for its
affairs.
On October 7 the Union's attorney filed at the Board's Regional
Office a Petition for Investigation and Certification of Representatives
(Case No. XXI-R-1475). Having been informed by Goodwin that
no other labor organization would assert claim to representation,
he left blank the space on the petition for the notation of any other
claimant.
. Three days later Cowan, steward, of the Union and its leading
spirit, was discharged, as we hereinafter find, because of his union
activities.
In the meantime, the respondent apparently reconsidered its agree-
ment to' a consent election. 'On October 15, a conference was held
at the Board's Regional Office with respect to the election. The
conference was, attended by Selleck, president of the Association,
counsel for the Union, and counsel for the respondent. The re-
spondent's counsel insisted that the Association appear on the election
ballot. Selleck said, "What Mr. Collins says goes for me." 20 Counsel
for the respondent refused to agree 'to a cross check of the union
membership cards then in the possession of a Board agent. No
agreement as to an election was reached at this conference, ' or there-
after. On the advice of Sokol, its attorney, the Union thereafter
withdrew its petition for certification.
A meeting of union members was held the following evening,
October 16, at Greenwood's home. The Association secretary, who
was also a union member, attended. Greenwood moved, or seconded,
19 Goodwin 's testimony regarding this meeting was in the main undisputed , and our
findings are in accordance with those of the Trial Examiner who heard , and observed the
demeanor of, the witnesses.
20 The finding as to Selleck 's part in the conference is based upon the credible testimony
of the union attorney . The Trial Examiner made a similar finding. Selleck denied mak-
ing the statement attributed to ' him. His recollection of the incident was obviously
confused . He placed it as occurring "possibly" in August when asked by counsel for
the respondent as to occurrences at the meeting, Selleck testified : "why, you asked Mr.
Sokol why-I will put it different . I asked Mr . Sokol why we didn't come to a vote, an
election , why we ' couldn ' t. You asked him if he would , and why he Nsouldn't stand for
an election."
WHITING-MEAD CO. 999
a motion to disband the Association. Among the 40 employees pres-
ent there were no dissenting votes and it was agreed that the Associa-
tion would hold a formal meeting and disband.
During the afternoon of the next day, October 17, Vice-President
Schell of the Association conferred with Mead and the respondent's
counsel in Mead's office. Schell had not joined the Union. Counsel
for the respondent told Schell that it made no difference to him
whether he bargained with the Union or with the Association,, that
the Union "would get something," but that if he dealt with the
Association, it would get all, and more than, the requests made by
the Association in its previous letter and, as Schell termed it, the
accompanying "semblance of a contract." Counsel for the respondent
then had the employees called together, where he repeated what he
had told Schell. Schell introduced the attorney to the gathering,
and told them that conditions between management and the em-
ployees had become so bad that it was difficult for him to work, and
that he had therefore asked Mead to call the meeting. Collins there-
after discussed a "contract" with the Association and said that he
was then ready to bargain with the Employees Association or, any
other association the employees designated.21
On the same day, and within 20 minutes of quitting time, W. R.
Greenwood, August Scheiffele, and Clarence Swanson , all union
members, were discharged, as we hereinafter find, for their union
activities. Robert M. Clem, a plumbing salesman and a member of
the Union, who was also discharged on the same day, was reinstated
on October 20, after Selleck had interceded with, Mead on,'n ,' Clem's
behalf.
On October 20, Selleck called a special meeting of the Association:
Selleck ruled that only paid-up members could remain in the meeting
and ruled, as out of order, a motion to permit former members to
remain. Goodwin requested permission to speak on the floor, which
Selleck refused.
No motion was made to disband the Association. The employees
who were permitted by Selleck to remain then discussed the offer
made by the respondent's counsel on the previous Friday, to enter
into a contract with the Association. Thereupon, the employees
present voted, 28 to 11, to accept the offer.
On the following day, Selleck and a committee visited the respond-
ent's attorney, Collins, advised him that they were ready to bargain,
and asked him to recommend a Uwyer. Collins secured the services
of Attorney Sullivan who, Collins said, he thought would do the work
n The findings in this paragraph are based upon the undisputed testimony of Schell.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a reasonable fee and they need not worry about the bill .22. The
committee then proceeded to the office of Sullivan who drafted a con-
tract which was signed by the committee the same night. The next
day Selleck gave it to Mead,, who returned it- the same afternoon,
signed by the respondent's vice president, Vigne, and its attorney,
Collins. The contract provided for wage increases, paid vacations,
and- a closed shop. The terms of the agreement had never been dis-
cussed between the Association and the respondent.
C. Conclusions as to'unfair labor'practices in part
1. Interference, .restraint, and coercion
The respondent urges that .Reading's actions while employed as
an industrial engineer by the May Company should not be attributed
to 'the respondent. We find no merit in that contention. Until :his
direct employment as general manager on January 1, 1942, Reading
was engaged in making surveys and recommendations 'to the respond-
cnt as-to its personnel and organization. In that capacity he made,
recommendations which were acted upon by the respondent. 'Irre-
spective of what may have 'been -his legal authority over the em-
ployees, he exercised the power to make recommendations for their
discharge, and, at least in the case of Swanson, as "e`find in'Section
D; 4, hereinafter, Reading exercised the power of discharge itself.
Whether that action was upon Reading's own initiative, or at the
direction of -Vigne, is immaterial. Reading purported 'to act in the
respondent's interest, a fact of which both the respondent and the
employees were aware, and which the respondent did not disavow.
We think it evident that 'Reading was acting as an agent 'for the
respondent. In -any -event,'his acts were sufficiently on behalf of -and
122'These.findings-are based upon,the undisputed testimony of Bessie Stewart, secretary
of the Association, and o'ne of the committee. Stewart testified that the committee first
approached another attorney, who, however,
• • told us that he vas not a labor, attorney, that it would beonecessary-'for-
,him in labor matters to work -with, I believe, a Mr. Johnson of San Pedro That
-would take considerable time 'So we knew that we had no time -to 'waste because
,we wanted to work and work quickly to get-their,names on the contract,-the employers'
names.
So 'Mr. Collins, being the Company -attorney, we w ent -over to'Mr. Collins and -we
said, "Now, we are ready to bargain, but .we know of,no attorney,.who is ja :labor
attorney. Can you tell us one?"
And be said he knew a young man with'whom he-had-gone to-school at Loyola.
We also told him we hadn't -any money. He.said he thought that -he would :do it
for a reasonable fee, that he -wouldn't hold us up, that we wouldn't have to worry
about our bill.
,And 'so he called Mr. Sullivan :on ,the phone and asked him if he would ,help us.
Mr. Sullivan said he would be glad to.
WHITING-MEAD CO. 1001
in the interests of the respondent to make the latter responsible for
them, whether expressly authorized or not.23
As we have found, Banker, head of the plumbing department,
questioned Swanson as to his membership in the Union and informed
him that it, was "just. going to be too bad for you fellows." Like-
wise on September 30 Sales•Manager Bollette questioned Cowan con-
cerning the latter's union membership and warned that Cowan was
"going to force [Bollette] to do a lot of things" that Bollette did not
want to do. Several days thereafter Bollette also questioned Scheif-
fele as to his union membership and when Schieffele admitted mem-
bership declared that he would "make it God damned hot" for Scheif-
fele before he was "finished." On October 3 Reading urged Cowan
to withdraw from the Union and to support the Association. On the
same dayhe,disparaged the Union at a,meeting of the employees, and
urged an inside organization.
By these, interrogations, threats of reprisals, disparagements of the
Union, and;exhortations to abandon, the Union.and to support another
labor organization. as well as by urging, the' employees to-deal directly,
with it in the matter of changing hours of work, the respondent has
interfered with, restrained, and coercedits.employees in,the exercise of'
the rights guaranteed in Section 7. of. the Act.. - -
2. Conclusions as to the respondent's, domination and ;support of the
Association
As we have found the Association was formed in accordance with
the suggestion of Mrs. Whiting, wife of the respondent's president,
in 1939, at a meeting which was attended by the respondent's vice
president, and- was headed by' Selleck, whose duties and responsibil-
ities were supervisory. Selleck's activities on behalf of the Associa-
tion were in. complete accord with the expressed desires of Collins
and Reading:' We find-the• respondent -to-be responsible for. Selleck's
acts.24 The respondent contributed money to the. Association. It
permitted the Association. to meet! and solicit on the, respondent's
property; to use. the, respondent'si stationery, and equipment for the
preparation of Association literature; and permitted the use- of its
cashier's cage --for the' collection of, and- its' general ledger for the ac=
counting of, Association funds. Although during, the first' 2 years
the Association's, functions. were largely social, it served as a' labor
organization through its grievance committee. In June 1941, the
respondent readily agreed to recognize the Association as the bar--
gaining agent for all its employees, but ignored the Association's
'u See International Association of Machinists v. N. L. R. B., 311 U. S. 72.
21 See International Association of Machinists v. N. L. R. B , supra.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request to negotiate on specific matters. Thereafter the employees
turned to the Union. Faced with (,he prospect of bargaining with
that organization, the respondent chose to revive the innocuous and
then dormant Association. Reading's address of October 6 and his
statements to Cowan soon apprised the employees of the respondent's
distaste for the Union, its preference for the Association, and its
desire that the employees adhere to the latter organization. Collins'
statement to Schell that the Union "would get something" if the
respondent bargained with it, but that the Association would get all
and more than it requested, was an unmistakable declaration of favor-
itism arid support. Through Collins; the respondent rendered assist-
ance to the Association by securing an, attorney to draw up the con-
tract. Thereafter, although fully aware that- the Union claimed to
represent its employees, and at a time when-the Union in fact repre-
sented a majority (as we hereinafter find), the respondent neverthe-
less entered into a closed-shop contract with the Association. That
contract was not the result of bona fide collective bargaining but was
effected in order to assist the Association and to enhance its prestige
and authority.
By that course of conduct the respondent dominated and interfered
with the formation and administration of the Association, and con-
tributed support thereto, and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7
of the Act.
3. The refusal to bargain
a. The appropriate unit and the Union's majority
At the hearing it was stipulated by all parties that all office, sales,
and clerical employees of the respondent 'at its main and branch
stores in Los Angeles, California, excluding executives, constitute a
unit appropriate for the purposes of collective bargaining.
A list of the respondent's employees at its main and branch stores,
on,the respondent's pay roll as of September 30, 1941, was submitted
in evidence. As to 87 of these employees, it was stipulated by the
parties that they were included within the appropriate unit. The
parties differed as to 4 other employees : Leo Charlebois, J. R. Dillon,
C. P. Swanson, and J. W. Cozby.
The Union contended that Charlebois should be excluded from the
unit because, at the time of the alleged refusal to bargain, he was
driving a truck for the respondent and was a member of the Team-
sters Union, with which the respondent was under contract. The
Association urged that he be included within the unit, and the
respondent expressed no preference.- The evidence shows that
WHITING-MEAD CO. 1003
Charlebois, in October, was serving part time in the Long Beach,
store, and part of the time delivering goods by truck, but the record
does not reveal the proportionate amount of time spent at each
service. Charlebois' employment as a truck driver and his apparent
membership in the Teamsters Union indicate that his major interests
lie with the outside employees, rather than with those of the office.
He will therefore be excluded from the unit.
As to Dillon and Cozby, it is the Union's position that both should
be excluded from the unit on the ground that the former is the garage
superintendent and the latter the lumber yard superintendent, and
on the further ground that at the meeting of the union president
with Mead on October 6, it was agreed that neither should be included
in the appropriate unit. The Association contended that both should
be included. The respondent took no position on the point. The
respective positions of Dillon and Cozby--as described on the pay roll,
to wit : "garage foreman" and "lumber yard foreman," make inappro-
priate their inclusion in a unit of office employees. They, will there-
fore be excluded.
As to Swanson it is the Union's position that he should be included
within the unit, on the ground that his duties were similar to those
of Selleck and another department head included within the unit by
stipulation. The Association' would exclude Swanson, on the ground
that, at the period material in this proceeding, as appears hereinafter,
he had succeeded to the position of Stiefel, the credit manager, who,
also by stipulation, had been excluded from the unit. The respondent
likewise urged the exclusion of Swanson from the, appropriate unit.
As disclosed hereinafter, the evidence establishes the fact that Swan-
son had been assigned to Stiefel's duties and responsibilities while
the latter was ill, although on the pay roll. In view of the fact that
Stiefel is being excluded from the appropriate unit, we find that
Swanson should also be excluded.
The, stipulation of the parties includes O. E. Selleck within the ap-
propriate unit. Since, however, we have previously found Selleck
to be a supervisory employee having authority to hire and discharge,
he will be excluded from the unit.
We therefore find that all office, sales, and clerical employees of the
respondent at its main and branch stores in Los Angeles, California,
excluding executives, Leo Charlebois, J. R. Dillon, C. P. Swanson,
J. W. Cozby, and O. E. Selleck, at all times material herein constituted,
and now constitute, a unit appropriate for the purposes of collective
bargaining and that such unit ensures to all the employees of the
respondent the full benefit .of their right to self-organization and to
collective bargaining and otherwise effectuates the policies of the Act.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The Union's majority
The Union submitted membership application cards signed between
September 22 and October 6, 1941. The respondent did not challenge
the genuineness of the signatures on any of these cards. Examination
of the pay-roll list and of the list of employees drawn up from the ap-
plication cards and submitted in evidence, without objection by the
respondent, in lieu,of the cards, shows that on September 29, 1941, the
Union had been authorized as their bargaining agent by 65 employees
in the appropriate unit of 86 employees. Between 'September 29 and
October 6, 1 more employee signed an application card.
We therefore find that on September 29, 1941, and at all times
thereafter, the Union was and has been the ,duly designated representa-
tive of a majority of the employees in the appropriate unit, and by
virtue of Section 9 (a) of the Act, was, and is now, the exclusive repre-
sentative of all the employees in such. unit for the purposes of collec-
tive bargaining, in respect to rates of 'pay;, wages, hours of * employment,
and other conditions of employment.
c. The refusal: to bargain
As, we- have- found' above, the- Union represented a majority,, of the
respondent's employees in the appropriate- unit on September 29; 1941,
and, at all times thereafter`. It thereupon became the- respondent's
duty upon request-to' bargain collectively with the Union in a sincere
effort,to reach an agreement: It,is the respondent's position, however,
that it was under no duty to, enterinto negotiations until satisfied
that the Union represented a majority of the employees. We have
heretofore recognized that it is, not a, refusal to bargain collectively
for an employer in.good.faith to request.proof of 'the Union's-majority
status before' beginning' negotiations.25, In the present case, however,
the respondent without raising any question of the Union's majority
at the first conference- on= October 3, immediately: thereafter' undertook
to destroy that majority by urging its employees to abandon the-Union
and to revive the company-dominated Association, and also attempted
to bypass the Union, which was in fact the exclusive. collective bar-
gaining' representative of the,employees, by requesting the- employees
to vote on the question of hours of work. These acts, as we have here-
tofore found in Section III, C 1, interfered with, restrained, and co-
erced the respondent's employees in the exercise of their right to self-
organization. The respondent's unmistakable purpose in engaging
in these unfair labor: practices, was, to undermine the majority status
25 Cf Matter of L. Hardy Company and Steel Workers Organizing Committee, (CIO)
44 N. L. R. B. 1013 (C-2175).
WHITING-MEAD CO. 1005
of the Union 'and thus escape its duty to bargain collectively. These
acts, coupled ,with the 'respondent's subsequent conduct, -convince us
that! therespondentdid'not entertain a)genuine doubt as to the Union's
maJority:status. Thus, • the respondent did not question the Union's
majority' until -the'meeting of-October'6 which had been scheduled for
the purpose of discussing the terms of the -contract previously pro-
posed by the Union. By that date .the respondent's campaign to
stamp out' the Union and to revive the Association was well under way.
At that meeting the respondent refused the Union's offer to submit the
union application cards for an -impartial check against • the respond-
ent's pay roll. When the Union then' offered to submit to an election
on condition 'that the Association 'be omitted from the ballot, the re-
spondent first agreed to the proposal. 'But on October 15, the re-
spondent withdrew its consent, dedlined to honor the -understanding,
and insisted that the company-dominated Association appear on the
ballot. Under such circumstances the Union was clearly warranted in
relying upon its previously attained majority and in refusing to pit
itself in a contest of strength against 'the employer-supported Asso-
ciation. In any, event the Board could not have permitted an election
in which a dominated organization was accorded a position on the
ballot. '
'The respondent's whole course of conduct disclosed an antagonism
toward, and a, continuing refusal to'bargain with theUnion. As we
have previously found, as soon as the-Union appeared the respondent's
officials expressed opposition 'to it and threatened employees who were
affiliated )Vith it. 'The respondent's conduct on -the afternoon of
'October :3, 'immediate'ly after the first conference with 'the Union,
shows an unmistakable effort to destroy the Union's majority -at the
outset of negotiations. On October'6, the respondent refused to rec^-
ognize.and enegotiate with the Union, and refused to agree to -an im-
partial'card check. On October 10, as will-appear, it discriminatorily
discharged 'Cowan, the Union's steward. On 'October 15 it insisted
that the Union compete on the 'ballot -with an organization -of the
respondent's own creation, the Association. On October 17 it com-
pleted the revival of the Association and offered 'to sign a contract
with that spurious organization. On the same day the respondent,
as will `further appear, discharged three more members of -the Union;
and on'October 22 it hastily executed a closed-shop contract with the
Association. We are convinced from these facts that the respondent
had a fixeddetermination at all times not to -baigain'with'the Union
under any circumstances, and that the above-described conduct was
devised to evade collective bargaining. 26
2e See Matter of New Era , Die Company , and -International Association of Machinists,
Lodge 243 (A . F. of L. ), 19 N. L R. B. 227 , at 239 et seq., aff'd 118 F. ( 2d) 500 (C. C.
A. 3) ; Matter of Stehli and ' Co., Inc and Textile W,orke 'rs Union etc ., 11 N.'L.'R. B.'1397
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We therefore find that on October 3, 1941, and at all times there-
after, the respondent refused to bargain collectively with the Union
as the exclusive representative of a majority of the employees within
the appropriate unit, and thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
D. The discharges
1. James, W. Cowan: Cowan was employed by the respondent on
January 7, 1929, as a mill helper. In 1930 he quit voluntarily. In
1934 he was reemployed. Cowan served, in sequence, as mill helper,
shipping clerk, receiving clerk, retail salesman, and , from January
1939-until his discharge in October 1941 as a salesman in the wholesale
plumbing department. During his employment as a wholesale plumb-
ing salesman , Cowan's average monthly sales were about $11,000.
The other two salesmen in this department averaged , monthly, about
$6000 and $7500 each. Cowan's monthly sales exceeded by about
$7000 the average of his predecessor in the same territory. During
his employment by the respondent Cowan had received five raises in
pay. .
Cowan was the steward of the Union. On September 30 he had
been warned by his immediate superior, Sales Manager Bollette con-
cerning his activities with the Union. He attended the first negoti-
ating conference on October 3 and his action in preventing a vote on
hours of work received unfavorable comment from Reading. Im-
mediately thereafter he was urged privately by Reading to abandon,
the Union and to support the Association, and to give his union button
to Mead.. After the latter incident, Reading remarked that he noted
that Cowan had not,"lost" his button.
During this period Cowan was using the desk, and performing
some of the duties of.C. D. Goetz, purchasing agent in the plumbing
department, who was at home ill. Cowan was, however, still engag-
ing in his duties as salesman and was being carried on the pay roll as
"outside plumbing salesman." In the course of his work, Goetz had,
been keeping a personal record of the cost of plumbing materials for
price references. In this record Goetz calculated the net cost price
after the deduction of various chain discounts.- Similar records
maintained by'Goetz had been destroyed during a fire in 1939, after,
which he purchased, personally, loose-leaf notebooks and fillers, in,
which he continued to note net cost prices, obtaining the information
from the Company's regular cost cardex system. Cowan frequently
assisted Goetz in making entries in this record and Goetz often took
the booklets home with him. On October 9, at a time when office
desks were being moved, Goetz' daughter, also employed by the
at 1427, 1432 ; Matter o (,'L. Hardy Company and Steel Workers Organizing Committee,
4 CIO), supra.
WHITING-MEAD CO. 1007
respondent, requested Cowan to give her various belongings, of her
father which were in the desk, specifying the notebooks as well as
other personal articles. She explained that she desired to prevent
their loss by taking them home to her father. Cowan gave them to
her openly. Within a few hours, the notebooks were returned.
The next day Miss Goetz came to Cowan crying, informed him that
she had been discharged, and declared that he, too, would be "fired"
for taking the notebooks.27 Soon after this conversation, R. W.
Banker, head of the purchasing department, came to Cowan and said
that he was sorry the latter was "mixed up in it,',' but made no further
explanation. Later the same morning, Banker returned to Cowan
and informed him that he [Banker] had received orders to discharge
Cowan. Cowan asked for his check. On giving Cowan his check
sometime later , Banker declared, I'd rather cut off my right arm than
do this, Jimmy." That afternoon, Cowan went to Mead, who said
that he did not know that Cowan had been discharged and could give
him no explanation other than that many changes would be made of
which he knew nothing, but. that he would not interfere until all
-changes had been completed.
,On`October 14 Cowan and the union attorney visited the respondent's
office and interviewed Vigne, Mead, and' Banker. They were assured
by Mead and Banker that the "little black book" incident had nothing
to do with Cowan's discharge. Mead informed the union attorney
that Cowan was one of his best men and would soon be back on the pay
roll. Cowan has never been recalled?
The respondent has retained both the other wholesale salesmen on
its pay roll. Although the respondent is not now engaged in the sell-
ing of plumbing at wholesale, these salesmen have been transferred to
other departments.
The• sole testimony offered by the respondent as to the reasons for
the discharge of Cowan and of the other employees discussed herein-
after, is that of Reading. Reading testified that when Cowan was
discharged there was no work for him its a salesman, but that he was
being kept on the pay roll for possible use elsewhere because he was*a
"good man." At about this time, according to Reading,- it was de-
cided to discontinue the outside plumbing department. He later
testified, however, that he made no recommendation as to reduction in
personnel until October 11, the day after Cowan's discharge. .
Reading also testified that when Cowan admitted having taken
"company records" he believed that "the .Company considered 'it suffi-
cient cause for dismissals without notice." Later in ^ his testimony,
27 How or by whom the books were, returned is not clear who discharged Miss Goetz
and what explanation was given her for ' the discharge are'facts not disclosed b"y the record.
I The findings in these paragraphs are based upon the uncontradicted testimony of
Cowan and the union attorney Mead, Banker , and Vigne were not called as witnesses.
1008 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
however, Reading denied that this was the principal reason. "It would
have'been just a question of time," he declared, "with the discontinu-
ance` of the wholesale plumbing department, that Mr. Cowan's resig-
nation would have had to have been accepted because of a reduction in
force based on seniority."
As to the records which Cowan gave to Goetz's-daughter, Reading '
stated that they were -the "only" record -the. Company 'had; that, 'al-
though he could not place any value -on the -specific'booklets,-similar
records had been insured 'by'other.companies for "as much as twenty-
five or thirty thousand dollars,"-and that there were no other records of
a similar nature available at the respondent's office. At one point in
his examination Reading denied that 'the information contained inithe
booklets was contained in any -other company documents. Imme-
diately thereafter, he stated that information -in the booklets -was a-
".recapitulation" of data appearing in other records. -
Reading testified that he •recommended'to Vigne 'that, Cowan 'be dis-
charged and that he wrote upon the -latter's employment card, after
the discharge, that the dismissal-was'because of "removal of price'rec-
ords without authorization." The pay-roll -list submitted'-by -the 're-' --
spondent at the hearing, which covers the period'of "Cowan's discharge,
bears the notation -as to this employee: "Released -10/15/41 -for
removing company property." 29
Reading also asserted -that Cowan had once been discharged for
"drinking",and that for this reason and because of-Cowan's "removal
of company property," the respondent would mot reinstate him.
Reading at first declared -that he had seen company -records showing
that Cowan had -previously'been discharged for -druiikenness. L- a'ter,
however, -he testified that when 1h6 wrote on(Cowan's card, the- "reason"
for the October discharge he saw, on the reverse 'side, • the ' words-"
"Discharge, conduct,"'but'he could not recall'the date, although the""
card bore one. This card,-he'stated, could not be found at-the time-of
the'hearing. Later, during 'his examination by counsel for the-Board,
Reading testified that he had never seen a card 'relating to a previous
discharge of Cowan, but'that it was a "mental -record"' kept byVigne.-30
'At another point in his -testimony, Reading 'testified that Cowan's
previous discharge 'had occurred sometime `between 1937 and 1939.
Earlierlili 'his testimony, however,'he'had testified -as'to'items appear-
ing upon Cowan's pay-roll card, covering the 'period from 1929 -to
21 Although discharged on October 10, Cowan waslpaid . until the 15th.
131 Reading 's testimony at this point is as follows [Tr. 176]
A. There is no written record ,[ of Cowan's alleged 'discharge-for` drunkenness].
Q. What other type of record is there?
A Mental records as.kept by that organization. '
Q. 'Have you a mental record of such a discharge?
A. No. '
Q. Who has? -
A. Mr. Vigne.
WHITING-MEAD CO. 1009
January 1939, but his review of this document revealed no record of
any previous discharge,31
As the Trial Examiner found , the inconsistent nature of Reading's
testimony with respect to Cowan deprives it of credibility . 'Reading
attempted to rest justification for Cowan 's dismissal upon two grounds,
neither of which, in-fact, existed . The testimony of both Cowan and
,he union attorney is undisputed that they were assured by manage-
inent officials at the time of the discharge that the 'booklet incident was
not the cause . Reading's oscillating claims that this incident 'was, and
was not, - the principal cause, ' and that the information in Goetz's
booklet was not, and was , available in other company records, discredit
his entire testimony on the subject.
It is plain that Cowan was not laid off because of a reduction of
force. Reading admitted that he made no recommendations as to
such reductions until October 11, the day after Cowan 's discharge.
Furthermore , Reading testified that Cowan was a good man, and was
being kept on during the reorganization period while another place
was being sought for him. The other two salesmen are still em-
ployed by the respondent , although their sales records were far below
that of Cowan.32 It is unnecessary to determine whether or not
Cowan would later have been "asked to resign ," as Heading con-
tended.
We therefore find upon the entire record , that Cowan was dis-
charged and ' thereafter ' refused reinstatement by the respondent be-
cause of his union membership and activity.
'2. W. R. -Greenwood : Until his dismissal on October 17, =1941,
Greenwood had been continuously employed by the -respondent since
July 1931. He had also worked for the respondent between 1920
and 1929.- ' He served , in -sequence , as ;assistant shipping clerk, ship-
ping clerk, and at various office jobs including the handling -of in-
voices and , in April 1936, was transferred to the purchasing depart-
ment , doing most of the local buying for the wholesale plumbing
section . According to a list of employees on the respondent 's pay roll
as of September 30, 1941, submitted by Reading at the hearing,
Greenwood ' was attached -to the purchasing department.
cJ1
81 Cowan explicitly denied having been previously discharged ' Vigne was _not.called as
a witness by the respondent . We therefore find that Cowan was not discharged 'for , drink-
ing as asserted .by Reading.
32 The record is not entirely clear on the point of Cowan 's relative seniority , but, 'like
the Trial Examiner , ,we.are satisfied that Cowan had greater seniority as a'wholesale
plumbing salesman than Botticher, one of the other two salesmen . Although requested
by the Trial Examiner , to submit company records on the point , the respondent failed to
do so. As to , similar records for other employees , produced at the hearing by Reading,
the general manager testified that they were inaccurate , inadequate , and that no attempt
had been made to classify -the employees on departmental seniority lines.
493503-43-vol. 45-64 0
a
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While being introduced by Auditor Haworth 33 to Controller Mock
early in October 1941, when the latter assumed his position, Green-
wood was characterized as the respondent's "best detail man." 34
During the preceding August President Mead told Greenwood that
he was being trained to fill the position of Goetz, previously identi-
fied as the purchasing mcn in the wholesale plumbing department
who was ill. In September George Howard, then lumber purchasing
agent, told Greenwood that while, according to the new organization
plan being drawn up, he would not have Goetz's position, a place
had been arranged for him in a different set-up.35
Greenwood joined the Union during the latter part of September
and became active in its behalf. He wore his union button from
September 29 until his dismissal on October 17. On October 10, the
day of Cowan's discharge, Banker informed Greenwood that he
would "have to quit doing what [he] was doing, or else ... be dis-
charged," and that "the Company already had two strikes on [Green-
wood] and at least a dozen fouls," and that Greenwood would "find
out soon what it was all about." 3G As found above, union meetings
were held at Greenwood's home. One of these meetings -was Ahat of
September 29; at'which the proposed union contract was approved
by the employees. As found above, another meeting was held at his
home on the evening of October 16 at which he moved, or seconded
the motion, that the Association be dissolved.
During the meeting of employees held in the respondent's office
on October 17, discussed above, Banker called Greenwood out and
told him that he was "through." When asked why, Banker replied,
"one of them things," and stated that the discharge was effective at
once.
Reading first testified that as an industrial engineer at the time,
he was in consultation with the respondent's officers when Greenwood
was dismissed, that in his capacity it was necessary to make-written
recommendations, and that he had recommended Greenwood's dis-
charge. Thereafter, however, he stated that the general recommenda-
tion was in writing but did not specify the individuals to be dis-
charged, and that he had had oral conferences with management as
to individuals. He then, testified that sometime between - October 1
81 "Haworth " erroneously appears as "Howard" on page 560 of the transcript.
34 In objecting to the examination of Gicenwood as to this incident , upon which' the
finding is based , counsel for the respondent stated that Haworth is now deceased ' Mock,
however; had been previously present at the hearing as -a witness on other matters.' He
was not recalled by the respondent.
' The 'finding as to this incident rests upon the undisputed testimony of Greenwood'
Although Howard, - now merchandise manager, was a witness at the hearing, he -wag noi
examined on this point
ia The findings as to Banker 's remarks are based upon Greenwood's undisputed testimony'
I
WHITING-MEAD co. 1011
and October 16 he had discussed Greenwood with Vigne, that the
"recommendation for the dismissal of Mr. Greenwood was an auto-
matic affair with the discontinuance of wholesale-plumbing," and
that there was no necessity for continuing his services. He further
stated that:
... it was impossible to place him in any kind of clerical posi-
tion because of his'' highly inefficient methods of performing
clerical duties. He was careless, inaccurate, inefficient,
but that in the purchasing of wholesale plumbing he "*as a good
employee," and that he had no objection to reemploying him if he
had a job for which he was qualified.
Counsel for the respondent' conceded at the hearing that Green-
wood was a satisfactory employee until business necessitated his
release.37
Later in his testimony Reading stated that he did not recommend
Greenwood's discharge, to the best of his recollection. "In that par-
ticular case," he testified, "this was just a group of individuals of
which they only needed two and they had some four or five, and in
that particular case they picked the two men ,that had' seniority and
go." , When asked to name others besidelet the other employees .9o.'5-'
Cowan and Greenwood who had been discharged in this department,
he replied that he could not name them. When offered a -list of the
employees of that date, he stated that reference to it would not help,
"because employees have been shuffled and transferred around." Also
later in his testimony, while referring to Greenwood's employment
card, Reading stated that Greenwood was laid off from the purchas-
ing department. As to the recommendations made by himself to
management on October 11, previously referred to in the case of
Cowan, he testified that the wholesale purchasing department was not
listed, but had been "spread between the Vernon floor sales, that one
of the employees-had been transferred over to planning and esti-
mating, and one or two of the employees were in the stock control
unit."
37 The respondent also asserted throughout the hearing , in its brief 'and exceptions, and
at the oral argument, that, due to priority requirements and other factors, its business
declined approximately 50 percent , which necessitated the discharge of the employees here
involved , as well as many others . However , the respondent 's sales records , which were
admitted into evidence , disclose that in 1941 the respondent 's volume of sales was the
highest in its history . Sales in September 1941 were $303 ,816 05, a record high, and in
October they were $214 ,741.08. , The highest month shown for 1940 was November when
sales totaled $170,615 13 . It is therefore clear that loss of business could not have been
a factor in the October 1941 discharges. It is also significant that since October 1, 1941,
the respondent has hired 11 new employees. i
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a
The respondent urges that Greenwood was discharged on the basis
of departmental seniority. Reading -testified-that:
As closely as it has been humanly possible to do so along efficient
lines, no one has been discharged .other than along departmental
seniority lines.
Questioned later on the.same subject;; he•stated :
My only instructions to department heads since I have been in
,charge out -there is to lay off the employees based strictly along
lines of seniority within the departments. '
He also testified that "discharges are always made along depart-
mental lines."
Reading's testimony that departmental seniority was a company
policy which was enforced is at variance with other parts of this
testimony and with facts otherwise established by the;recbrd. Earlier
in the hearing, when describing the changes made after his employ-
ment with the respondent, he testified : -
In making this adjustment, it was necessary to re-shuffle-people.
Some people had to be dismissed, other people of greater capabil-
ity had to be hired. The square pegs had to be-put in the square
holes and the round pegs in the round holes, and that was our job.
In further, refutation of Reading's claim that departmental sen-
iority ,was a company ,policy was the discharge of,Scheiffele, discussed
-immediately below. That the respondent kept.no accurate depart-
mental seniority records is clearly shown by Reading's testimony with
respect to a,number of cards submitted by him during the .hearing.
Concerning them,he. said :
The employment-dates that I have just read are entirely :on an
overall^company basis.. Edo not:believe the re-cords.tolbeiaccurate
in their entirety,'nor -do I -believe, that they show,all of the various
movements of the employee. . . . Statements )read from the
personnel cards are only as the records show. A careful study
would have to be made in order to determine departmental senior-
ity basis. This would be: almost impossible due to the inaccuracy-
'and inadequateness of'the records.
We'find,'as did the'Trial'Examiner, that the respondent's contention
as to,a:general departmental -seniority 'policy .cannot :be , sustained.'
As'.to company or "plant-wide" seniority,-the record does not reveal
how many positions, held by employees with,less seniority, Greenwood
was qualified to fill. Greenwood's testimony is unrefuted, however,
WHITING-MEAD CO. 1013
that he and. Kenneth Ballenger had been doing similar work in the
-purchasing department. Records.submitted by the respondent during',
the hearing established that Ballenger was not employed until 1936;
Greenwood had been employed continuously since 1931. We conclude
that seniority, either departmental or plant-wide,, was not a deter-
minant factor in the discharge of Greenwood.
- The real cause for the sudden decision to release Greenwood, follow-
ing, so soon after Mead's statement in August that Greenwood was
being trained-to fill Goetz's position, and Howard's assurance in Sep-
tember that a place. had been arranged for him in the reorganization,
must be. sought elsewhere than in the reasons urged by Reading.
Banker's, warning to Greenwood, on the day of Cowan's discharge,
may reasonably be interpreted as an announcement that the- respondent
was, aware of Greenwood's union activity and we so view it. On the
evening before Greenwood's discharge, a union meeting, was held at
his home, where dissolution of the Association was agreed upon.
Greenwood was summoned by Banker. from the meeting, of employees
called' by management, at ' which the,, respondent. openly placed its
approval upon. the Association, and informed of. his immediate dis-
missal.
On the entire, record. we conclude and find, as did the Trial Examiner,
that Greenwood was- discharged on October 17, 1941, and thereafter.
was refused, reinstatement, because of his union membership and,
activity.
3. August Scheiffele, Jr.: Until his discharge on October 1.7, 1941,
Scheiffele had been continuously, employed by the respondent. since
1912, and from 1919 ha2d served as cashier, at various times, in all-three
of. ,the. respondent's stores. During his employment Scheiffele's work
ivas complimented by Mead, Vigne, and Haworth.. In the spring of
1941 he was told by Mead that as long as he wanted to work he had a
job with the respondent. Counsel for the respondent conceded that
Scheiffele "was a good employee, there were no complaints about his
work, and that up to and including the day he was laid off, he was
a good employee."'
As found above, Scheiffele had aided in forming-the Association
in 1939. On September 22, 1941, he joined the Union, and- on Septem-
ber 29 began wearing his union button while at work. Immediately,
thereafter Mead, began addressing him' as "Mr. Scheiffele," instead of
"Gus," as he had-called him during the preceding 29 years. Although
previously cordial toward Scheiffele, Mead now began to avoid him,
and spoke only in answer to remarks addressed to him by Scheiffele.
Shortly after September 30, as previously found, Sales Manager
Bollette threatened "to make it hot" for Scheiffele because he had
joined the Union.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturday was not a regular working day. On October 15 and 16,
both Haworth and Mock asked Scheiffele to work the following
Saturday. About 20 minutes before quitting time on Friday, October
17, Scheiffele was called to Mock's office and told that he was discharged
as of that day. When Scheiffele protested against this action, after
30 years of service, Mock replied that is was not "his doing," and that
nothing pleased him more than to have Scheiffele working for him. -
During the final 10 years of his service Scheiffele had been employed
continuously at the Vernon store. During the last 6 or 7 years he had
been assisted in his work by Mrs. Mannon, who was, at the time of
Scheiffele's discharge, treasurer of the Association. Although she
joined the Union, Mannon ceased to wear its button after October 10,
the day of Cowan's discharge, and was still treasurer of the Association
at the time of the hearing. Mannon has performed Scheiffele's duties
since his discharge.
A notation on the pay roll of September 30, 1941, produced by
Reading at the hearing, states that Scheiffele was released on October
18, and that his "entire duties" were "taken over by assistant." At
the time of Scheiffele's dismissal, according to Reading, he was
receiving $175 a month, while Mrs. Mannon was being paid $120 a
month. Scheiffele was not offered retention on his job at a reduced
rate. Although Scheiffele's service had extended through other slack
periods, when his wages had been cut, as he testified, "practically in
half," he had always, up to this time, been retained on the pay roll.
Reading testified that he orally recommended to Vigne the dis-
charge of Scheiffele, pointing out to Vigne the difference in salary,,
and that Scheiffele was less efficient. The employment card, produced
by Reading at the hearing bore the statement as the reason for
Scheiffele's discharge :
Part of general program of reducing personnel because of re-
duced volume and business prospects, assistant more capable.
It is not urged by the respondent that Scheiffele was discharged on
the basis of seniority. The respondent contends that Scheiffele was
discharged to create a saving of his salary. In its brief the respond-
ent also asserted that:
if Mr. Scheiffele had been interested in remaining with the re-
spondent corporation as a "pensioner," he need only [have gone]
to his brother-in-law, [the respondent's treasurer] or to his
friend, Mr. Mead, to demand that despite his age or lack of
ability, that he be given consideration and a job.
Clearly the respondent's case cannot be supported by such incon-
siderate speculation. The suddenness and arbitrary manner of this
discharge of an employee of 30 years' service, occurring as it did
WHITING-MEAD CO . 1015
against the background already outlined, suggests that the reasons
were other than operating efficiency.
So far as the record discloses no consideration whatever was given
of the possibility of retaining Scheiffele in another job. --During
his first 7 years of employment with the respondent Scheiffele had
been a collector; he was also a comptometer operator and had had
sales experience. Counsel for the respondent conceded that Scheiffele
was a "good employee." Since in previous slack periods he had ac-
cepted a cut in salary, but had been retained on the pay roll, it is
reasonable to infer that the situation in October 1941 contained some
special factor which occasioned the difference in treatment. The
day before his discharge Scheiffele had been requested to work on
the following Saturday, indicating that his discharge was not planned
by Mock.
The special circumstance is to be found in Scheiffele's failure to
abide by Bollette's warning that Bollette would "make it God damned
hot for" Scheiffele because he had joined the Union, and in the
action of union members on the.night before Scheiffele's discharge
in 'seeking dissolution of the Asso'ciati'on.
It is therefore found and concluded, in accordance with the find-
ings of the Trial Examiner, that Scheiffele was discharged, on Octo-
ber 17, and thereafter was refused reinstatement, because of his
membership and activity in the Union.
4. Clarence P. Swanson: Swanson began employment with the re-
spondent in February 1937. Prior thereto he had been employed for
11 years by the American Telephone and Telegraph Company and
various of its subsidiaries. During, that period he performed work
of an accounting nature, made special studies, visited branch offices
in connection with the application of standard office practices, and
served on the staff of the vice president in charge of operations. Part
of his experience with the American Telephone and Telegraph was
in the credit department. Later he was employed by the Home Own-
ers Loan Corporation, made-credit ,investigations, and ultimately was
sent to Honolulu as office manager in that area.
Until August 1941 Swanson supervised F. H. A. loan applications
for the respondent. For a period of 3 months in 1940 he also per-
formed the duties of the credit manager, Stiefel, who, was then ill. On
other occasions when Stiefel was on vacation or out of the city
Swanson was always asked to -perform Stiefel's work. During the
latter part of July 1941 Vigne offered Swanson the position of credit
manager, and on August 1, when Stiefel was again absent, Swanson
took active charge of that department and moved into Stiefel's office.
When Stiefel returned in September Stiefel moved into Swanson's
former office and began to do personnel work for Vigne. Swanson
1016 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
remained in Stiefel's position until October 17, 1941, when he was
discharged. He was frequently complimented by Vigne, who stated
that he preferred Swanson's methods to those of Swanson's prede-
cessorin the; position.
Swanson joined the Union during the latter part of September,
and on September 29 began wearing the union button at his work.
Vigne's attitude immediately changed from cordiality to coolness and
evasiveness. As noted above, on September 29, Banker came to
Swanson and said that he had heard that Swanson had joined the
Union the day before. When Swanson admitted the fact, Banker
declared "it's just going to be too bad for you fellows." Just before
5 o'clock on October 17. Reading informed Swanson that lie was dis-
charged as of that day, but gave no reason for the action.
At the time of his discharge Swanson was being assisted by, -Fore-
shee, who was not employed by the respondent until 1939. Forshee
was still in 'the respondent's employ on March 31, 1942. Although
Forshee had joined the Union, Swanson testified that he did hot see
him wear the union button, or attend union meetings, and there is no
evidence in the record to the contrary.38
Reading testified, that he had recommended the dismissal of Swan-
son to Vigne, had been requested. to, and did discharge him. He
stated that Swanson had "formerly", headed the- respondent's finance
department, but that when Stiefel "was removed from the office"
because of illness Swanson was given the, duties of credit manager in
addition to those of finance manager, and that. during this.'period
banks took over most of the finance work. With the recovery of
Stiefel, according to Reading, it was decided to consolidate the posi-
tions of credit and collection manager and the job was given to Stiefel,
thus releasing Swanson. Reading further stated that Swanson, had
had no previous credit experience;-and that.while acting,in the place
of Stiefel he "was never considered a credit man," but "was a gap
filler in that particular position, and Mr. Vigne was actually the
credit manager." During his examination Reading read from Swan-
son's employment card the following reason for the, employee's
dismissal :
Part of program of general reduction of personnel due- to re-
duced volume of business and immediate prospects. - Former
credit manager has regained health and is able to resume' his
former duties and is more capable.
He later repeated that Swanson had had- no previous credit experi-
ence, but testified that he had done the work in the credit department
88 Forshee was not a witness. The respondent did not offer evidence that, it knew of
Forshee's membership in the Union.
WHITING-MEAD CO. 1017
for "somewhere around a year to eighteen months." Thereafter, he
testified that Swanson had not been doing the work previously done
by Stiefel-, but "was carrying the papers back and forth between his
desk and Mr. Vigne's office, chiefly because the finance business had
practically gone by the boards and there was no other job for -him."
He also testified that Swanson was not performing Stiefel's duties,
but that Vigne was performing them, and that Swanson was "more
or less a glorified messenger boy back and forth." He also testified
that, although Forshee was assisting Swanson, Swanson submitted
information as to credits to Forshee 'for the latter's approval.
Reading further testified that he "spent some two weeks" with
Swanson in September and reported back to management that Swan-
son was not capable of handling the job. He stated that Swanson
"didn't know what procedure to use and couldn't follow written
instructions." He also testified that "Swanson never attempted in
any way to supervise Mr. Forshee."
As ,in the other cases, Reading's testimony with respect to Swan-
son is'self -contradictory; disputed by-the employee himself, and con-
tradicted by 'other 'facts in the record. Although Reading stated
flatly that ' Swanson had no previous 'credit experience, Swanson tes-
tified that he -had'been a member -of the Colorado Retail Creditmen's
Association, and -had had credit experience with the American Tele-
phone and Telegraph Company. Furthermore, according to Read-
ing's'own testimony, it is =clear that Swanson had 'had credit experi-
ence with-the respondent for a year and a half before his dismissal,
as-well as in his previous'employment. Like the Trial Examiner, we
are unable to reconcile Reading's contradictory statements that
Swanson was, and was not, filling Stiefel's position during the latter's
absences, and -must accept Swanson's undisputed testimony that in
August 1941 he was assigned to the credit manager's position by
Vigne, while still performing his duties as finance manager. Nor is
Reading's testimony that the finance department was discontinued
at the'time of Swanson's dismissal borne out by records submitted ,by
himself. Entered upon a pay-roll list, submitted by Reading, is the
notation, with respect to Louise Fitzjarrald, who had worked under
Swanson, "Finance department-resigned 3-31-42. Replaced by
Roxey R. Davis."
Furthermore, -we credit, as did the Trial Examiner, Swanson's un-
contradicted testimony that Stiefel returned to work on September
1, 6 weeks before Swanson was discharged, and that Stiefel was then
assigned to personnel work fdr Vigne. These facts clearly refute
Reading's testimony and the respondent's contention that Swanson
was released upon Stiefel's recovery from his illness and return to
the office. -
0
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is unreasonable to believe that, had Swanson not been performing
the duties of the credit manager satisfactorily for the year or more
before, Vigne would have assigned him definitely to that position in
1941. Reading's apparent effort to belittle Swanson and to portray
him as a "glorified messenger boy," when considered in the light of his
contradictory statement as to the facts of Swanson's employment,.. as
the Trial Examiner found, discredits his testimony as to why Swanson
was dismissed.
While both Stiefel and Forshee had been employed in the, credit
section, longer than Swanson, Swanson was employed by the respond-
ent about 2 years before Forshee. As found above, the respondent's
contention that its seniority policy was departmental, is not supported
by the record. Furthermore, Reading did not, upon questioning by
the respondent as to why Swanson was laid off, offer departmental
seniority as a reason. It is therefore apparent that that factor played
no part in Swanson's dismissal.
Reading's conflicting testimony concerning Swanson and the failure
of Vigne, Swanson's immediate superior, to testify deprive the re-
spondent's, case, of weight necessary to,offset the undisputed evidence
of the respondent's resentment toward the Union in general and toward
Swanson, specifically, for his activity in it. Banker's warning, "It's
just going to be too bad for you fellows," and Vigne's coolness toward
Swanson immediately after he started to wear the union button, were
clear indications to Swanson that he might expect discriminatory
action from the respondent. It is unnecessary to speculate as to which
of the other employees, if any, would have been laid off when Stiefel
resumed his active service, had Swanson not been discriminatorily
selected. It is significant, however, that Swanson, and not Forshee;
had been assigned by Vigne in August to. fill Stiefel's job.
Upon the entire record, including the circumstances surrounding
the discharge of other union members and the meeting of employees
called by the management, on the same day, we conclude and find,
as did the'Trial Examiner, that Swanson was discharged, on October
17, and thereafter was refused reinstatement, because of his member-
ship in and activity on behalf of the Union.33a ,
5. Helen B. Woods: Helen B. Woods was first employed by the re-
spondent from 1929 to 1934. She was reemployed in November 1937
and remained on the pay roll until dismissed on April 2, 1942. During
38a In connection with the observation of the dissenting opinion, it may be noted that
the Board has consistently held that although a supervisory employee may not under
given circumstances be appropriately grouped in a unit with subordinate employees for
the purposes of collective'bargaining, such employee is, nevertheless, within the protectibri
afforded by the Act against inhibited employer discrimination See N. L R B v. Skinner
6 Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A 8) ; Cf Matter of Unsogt
Collieries Coal Company, Oakmont, Pennsylvania and Mine Officials' Union of America
(Ind.), 41 N. L. R . B. 961.
0
WHITING-MEAD CO. 1019
the first period of her employment she served as a statistical typist,
pay-roll clerk, bookkeeper, and invoice clerk. She also served as.
stenographer for the respondent's officials. In 1937 she was hired as
file clerk and later was transferred to her former position as pay-roll
and accounts-payable clerk. In January 1942 she was transferred to
the order department, where she maintained the perpetual inventory.
Woods joined, the Union- in - September'1941 and; as found above,-
the respondent was notified that she had been elected assistant steward.
Jn March 1942 she became chief steward.
On February 10, 1942, Woods received from Selleck, as president
of the Association, written notice that unless she joined the Associa-
tion, in accordance with the closed-shop provision of the Association's
contract, management would be notified of her refusal on February
16.3° On the latter date Selleck informed Reading, by letter, of the
names of 20 employees, including Woods, who had failed to join the
Association. Thereafter Woods, together with other employees cited
in the list, were summoned to Reading's office. The general manager
told them that it was necessary for him to carry out the terms of the
contract, but that so long. as he had his sway none of the-employees-
would be discharged. Reading asked Woods directly if she "would
want to join the- Association," and when she declined to answer, he
asked, "What will 'you do in case they come to me and request that I lei
you go and give you-your check?" She replied that she would prob-'
.ably take,it 40 0
On April 2 Woods was informed by the head of her department,
Adams, that the -perpetual inventory department was to be discon-
tinued, and that he had been instructed to tell her that she was dis-
charged that night. As she was leaving late that afternoon she met
Vigne, who expressed surprise at her dismissal, said that he could not
understand it, and promised to consult Mead about it. She has not
been reinstated.
At the time of her dismissal, Woods had company-wide seniority
,over at least two employees in the same department. Mary Johnson,
who was employed in 1941, and Dorothy Frickle, who was employed
in 1940. Frickle had been named on the list of employees who had
not joined the Association, which had been submitted to Reading;
Johnson'si name did not appear on the list. At the time of her dis-
missal Woods was receiving about $110 a month.
Reading testified that Woods was "one of the finest clerks we ever
had." He stated that, with the loss of sales, it was necessary to reduce
89 Selleck testified that he duplicated these notices on the respondent 's mimeographing
machine and distributed them to the employees at the store.
69 The findings as to the meeting in Reading 's office are based upon the credible testimony
of Woods. Reading's testimony as to what he said to the employees generally is in sub-
stantial agreement with that of Woods. He was not examined as to his conversation
with Woods.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the number of employees in Woods'-department by one, and•that she
was laid off because she had less seniority in that department than the
others. He stated that Woods .had more company-wide seniority
than a number of other employees holding positions for which she
was qualified. During the hearing Reading offered to employ her at
reduced salary, and stated : "Helen Woods is one of the most capable
employees that -I have ever worked with, and I believe • that she can -
make a lot more money than we can pay her, and if -1 had, thought we
had a chance of having Helen Woods at $85 a month, I would even go
higher than some of the other-jobs pay, or $90, starting today I would
be tickled to death to have Helen come out and go to work for me."
He testified that at the time of her- discharge he had protested - to ,the
department head that someone -else should be let go in her -place, -but
that'he was told this was impossible, without, "retraining.", Reading
denied knowing, until the hearing, that Mrs. Woods was the union +
steward.
The high praise of Woods by Reading, at-the hearing, and-his•offer
to reemploy`her in a number of jobs, cast serious doubt upon the merit
of4he respondent's contention-that, she was .dis"missed• simply ' because
of a necessary reduction•in force. Reading permitted -her discharge
at the time, and as general manager plainly had,,authority to place
her elsewhere 'then as well -as during +the diearing . Furthermore, if
departmental seniority was a 'valid reason for Woods'.separation •in
April it is not apparent why it should be any less sound a month later,
at the,time of the hearing.
'As 'the Trial-,Examiner found,•the reasons advanced.-by Reading for
Woods''discharge do not bear scrutiny in-the light.of his other.testi-
mony. The abruptness of the discharge, Vigne's expression of sur-
prise -at her dismissal, the respondent's failure to attempt to =fit so
capable and experienced an employee into another -position, -and the
existence of factors indicating other more likely motives, make unrea-
sonable -the conclusion that Woods was discharged for reasons of
efficiency or because of seniority.
After the discharge of Cowan, Woods, as steward, became•the active
leader of the respondent's union employees. She was thus logically
the next likely victim-of the -respondent's hostility toward that organi-
zation. A short time before her dismissal she was warned that if she
did not join the Association she might be discharged. Under the
circumstances the lapse of time between the October discharges and
that of Woods-is -not significant. The respondent's conduct in October,
while it did reduce the Union to virtual impotence, had not destroyed
it entirely. The discharge of Woods accomplished the removal.of a
remaining leader of the organization and a potential source of
resistance.
WHITING=MEAD CO. 1021
Upon the entire record, including the respondent's. active, opposi-
tion to the Union and support of the Association, we find, as did the
,Trial, Examiner, that Woods was discharged on April 2, 1942, and,
thereafter was refused reinstatement, because,of her membership in,
and activity on behalf of, the Union.
We conclude and find that by its discharge and refusal to reinstate
James Cowan, W.-R. Greenwood, August Scheiffele, Jr.,.C. P. Swanson,
and Helen Woods-the respondent discriminated in regard to their hire
and tenure of employment, thereby discouraging membership in the
Union, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent; set forth in Section III, above,
occurring in connection with the operations of the respondent de=
scribed in Section I, above, have a- close, intimate,, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing, commerce
and the free flow of commerce.
V. THE' REMEDY
Having,found, that the.respondent has engaged in unfair labor prac-
tices, within the meaning of the Act, we must= order. the, respondent,
pursuant.to,the mandate of Section 10 (c), to cease, and, desist.there-
from. We shall also order the respondent to take. certain- affirmative
action designed to effectuate'the policies of the Act.
It, has been found that.the respondent has dominated and` interfered
with the formation and administration of the Association and has
contributed support thereto. The effect and consequences, of -the re-
spondent's domination of, interference with, and support, of'the.Asso-
ciation, as well as the continued recognition of the Association-as the
bargaining representative of`.its employees, constitute a continuing
'obstacle to the free exercise-by its employees of the rights•guaranteed in
Section 7 of the Act.. In order to remedy the respondent's unlawful
conduct and restore to the employees the full measure of their rights,
we shall accordingly order the respondent. to withdraw all recognition
from the Association and completely, disestablish it as the representa-
tive of its employees for the, purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
work, or other conditions of employment. It has also been found that
the agreement of October 22, 1941, is not the result of bona fide collec-
tive bargaining between the respondent and the freely designated
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of its employees but was executed in furtherance of the,
respondent's program to foster the Association, and to thwart the
exercise by its employees of their rights under Section 7 of the Act.
Since this contract represents the fruit of the respondent's unfair
labor practices and a device by which to perpetuate their effect,._we
shall order the respondent to cease and desist from giving effect to
this or any other agreement with that organization in respect to rates
of pay, wages, hours of work, or other conditions of employment.
Nothing in this order, however, shall be taken to require the respondent
to vary any non-discriminatory wage, seniority, or other substantive
features of its relations with the employees themselves which the
respondent may have established in conformity, with this contract as
extended, renewed, modified, supplemented, or superseded.
Since we have found that the respondent has discriminated in re-
gard to the hire and tenure of employment of James W. Cowan, W. R.
Greenwood, C. P. Swanson, August Scheiffele, Jr., and Mrs. Helen
Woods, because of their membership in and activities on behalf of the
Union, we shall order that said employees be reinstated to their former
or'substantially equivalent,positions. without prejudice to their, sen-
iority and other rights and privileges.' We shall also order the re-
spondent to make whole each of the afore-mentioned employees for
any loss of pay he has suffered by reason of the respondent's discrimi-
nation by payment to him of a sum of money equal to the amount he
normally would have earned as wages from the date of the discrimina-
tion to the date of the offer of reinstatement, less his net earnings 41
during that period.42
We have also found that the respondent has refused to bargain
collectively with the Union. In order to effectuate the policies of the
Act we shall order the respondent, upon request, to bargain collec-
tively with the UrTion`'a's the`exclusive'represelmtative of the respond-
ent's employees within the appropriate unit.
41 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and Una.teil Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L. It. 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
49 The respondent stated at the hearing , through Reading and its counsel , that it was
willing to reemploy any of the discharged employees. except Cowan,, if-,there were ,jobs.
which the employees would be willink ' t6,take and ' for which -they -were .qualifled.-Similar
statements were made in the respondent 's brief and exceptions and at the oral argument.
The respondent urges that this constitutes an oger of reinstatement. Since the state-
ments are not unconditional offers of reinstatement to the same or substantially equiva-
lent employment, the respondent 's contention is without, merit. .
WHITING-MEAD CO. 1023
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAw
1:Office•Employees Union-Local'No: 20798 (A. F. L.), and- Whiting-
Mead Employees Mutual Benefit Association are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. All office, sales, and clerical employees of the respondent at its
main and branch stores in Los Angeles, California, excluding execu-
tives, Leo Charlebois, J. R. Dillon, C. P. Swanson, J. W. Cozby, and
O. E. Selleck, constitute a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (b) of the Act.,
3. Office Employees Union Local No. 20798 (A. F. L.) was on Sep-
tember 29, 1941, and at all times thereafter has been, the exclusive
representative of all the employees in such unit- for the purposes of
collective bargaining, within the meaning of Section 9 • (a) of the
Act.
4. By refusing on October 3, 1941, and at all times thereafter; to
bargain collectively with Office Employees Union, Local No. 20798
(A. F. L'.) as the exclusive representative of its employees in the ap-
propriate unit, the respondent has engaged in and is engaging in-
unfair labor practices, within the meaning of Section 8 (5) of the
Act.
5. By dominating and interfering with the formation and,adminis-
tration of Whiting-Mead Employees Mutual Benefit Association, and
by contributing support to it, the respondent has engaged in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
6.; By discriminating,in-,regard to the hire and tenure_of-employ -
ment of James W. Cowan, W. R. Greenwood, C. P. Swanson, August
Scheiffele, Jr., and Mrs. Helen Woods, thereby discouraging member=
ship in Office Employees Union, Local No. 20798 (A. F. L.), the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
7. By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1)_ofthe Act. _
8. The: aforesaid unfair labor practices=are unfair Tabor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Whiting-Mead Co., Los. Angeles, California, and' its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from : - '
(a) Dominating or interfering with the administration of Whiting-
Mead Employees Mutual Benefit Association or with the formation
or administration of any other labor organization of its employees,
and from contributing, financial or other support to Whiting-Mead
Employees Mutual Benefit Association or to any other labor -organi-
zation of its employees;
(b) Recognizing Whiting-Mead Employees Mutual Benefit Associa-
tion as the representative of any of its employees for the purposes
of dealing with the respondent concerning•grievances, labor- disputes,
wages, rates of pay, hours of work, or other conditions of employment;
(c) Giving effect to or performing any contract. or arrangement
between the' respondent and the Whiting-Mead Employees Mutual
Benefit Association; respecting' its employees, or any extension, re-
newal, or. modification thereof;
(d) Refusing'io bargain collectively with Office Employees Union,
Local No. 20798 (A. F. L.), as the exclusive representative of all
office, sales and clerical employees, excluding- executives; Iieo Char-
lebois, J. R. Dillon, C. P. Swanson, J. W. Cozby, and- 'O! E.- Selleck,
employed at the respondent's main and. branch stores in Los' Angeles,
California ;
(e) Discouraging membership in Office Employees Union, Local
No. 20798 (A. Y: L.), or any other labor. organization of.its'employees
by 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;
(f) In any manner interfering' with, restraining; or coercing its
employees in the- exercise of the right to self'-organization, 'to -form,
join, or assist labor organizations, to bargain collectively through
representatives of their own' choosing, and to engage- in concerted
activities for the purposes of collective bargaining 'or-other.'muitual aid
or protection; as guaranteed in' Section 7 of the Nationa'l' Labor' Rela-
tions Act ; ' '
WHITING-MEAD CO., 1025
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Whiting-Mead Employees Mu-
tual Benefit Association as the representative of any of its employees
for the purpose of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment, and completely disestablish Whiting-Mead
Employees Mutual Benefit Association as such representative;
(b) Upon request, bargain collectively with Office Employees Union,
Local No. 20798 (A. F. L.) as the exclusive representative of all office,
sales, and clerical employees at its main and branch stores in Los
Angeles, California, excluding executives, Leo Charlebois, J. R. Dillon,
C. P. Swanson, J. W. Cozby, and O. E. Selleck;
(c) Offer to James W. Cowan, W.,R. Greenwood, C. P. Swanson,
August Scheiffele, Jr., and Helen Woods immediate and full rein-
statement to their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges;
(d) Make whole said James W. Cowan, W. R. Greenwood, C. P.
Swanson, August Scheiffele, Jr., and Helen Woods for any loss of
pay they may have suffered by reason of the respondent's discrimina-
tion against them by payment to each of them of a sum of money
equal to that which he normally would have earned as wages from the
date of the respondent's discrimination against him to the date of
such offer of reinstatement, less his net earnings 43 during said period;
(e) Post immediately in conspicuous places throughout its main
and branch stores in Los Angeles, California, and maintain for a
period of at least sixty (60) days from the date of posting, notices to
its employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs 1
(a), (b), (c), (d), (e) and (f) of this Order; (2) that it will,take
the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d)
of this Order; and (3) that its employees are free to become or remain
members of Office Employees Union, Local No. 20798 (A. F. L.), and
that it will not discriminate against any employee because of member-
ship in or activity on behalf of said labor organization;
(f) Notify the Regional Director for the Twenty-first Region (Los
Angeles, California) in writing within ten (10) days from the date
of receipt of this Order what steps the respondent has taken to comply
therewith.
MR. GERARD D. REILLY, concurring, but dissenting in part :
I confess to a logical difficulty in reconciling the diverse treatment
this decision accords to employee Swanson. Over the objection of
t
43 See footnote 42, supra.
493508-43-vol 45-65
1026 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
the union , Swanson is held to be a supervisory employee and hence his
inclusion in a bargaining unit composed of subordinate employees is
regarded as inappropriate . The same opinion holds his discharge . a
violation of the Act. If the majority is correct in deeming him a
supervisor , his exclusion from the bargaining unit must rest on the
theory that his relationship to the management was so close and inti-
mate that his participation in the concerted activities of the employees
would in effect amount to employer encouragement of union member-
ship. - Such encouragement is, of course, forbidden by the Act. Yet,
when the Board finds that Swanson's dismissal was due to engaging
in the very activities deemed inconsistent with his position, it never-
theless orders his reinstatement. I do not think the language of the
statute requires any such incongruous result.
With the rest of the decision , I concur.