Volney Felt Mills, Inc.

In the Matter of VOLNEY FELT MILLS, INC. and UNITED PAPER WORKERS OF AMERICA, C. I. O. Case No. 3-C--809.-Decided August ^9,6, 1946 Mr. Francis X. Helgesen, for the Board. Messrs. C. E. Dorr and John E. Lynch, of Syracuse, N. Y., and P. K. McGafgan, of Chicago, Ill., for the Respondent. Messrs. Frederick D. Sandner, Sr., of Fulton, N. Y., and John J. Maurillo, of Syracuse, N. Y., for the Union. Mr. David V. Easton, of counsel to the Board. DECISION AND ORDER On March 25, 1946, the Trial Examiner, Thomas S. Wilson, issued his Intermediate Report,in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent and coun- sel for the Board filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the ex- ceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions. 1. In Section III A 1, of the Intermediate Report, the Trial Exam- iner had inadvertently failed to mention Assistant Plant Superintend- ent Tom Ingersoll's denial of the statement attributed to him by em- ployee Obryan that "... if the union gets in here, Fry will close the plant down. You know, one of the other plants the union started to organize, he closed down." In view of Ingersoll's admission that he offered to bet employee Cocopoti that the Union would not succeed in its organizational campaign, as well as the Trial Examiner's refusal to credit denials by Ingersoll of other statements attributed to him, this denial is also discredited. 70 N. L. R. B., No 72. 908 VOLNEY FELT MILLS, INC. 909 2. We do not concur with the Trial Examiner's conclusion that the respondent's unilateral announcement of the plant-wide wage increase cn August 23, 1945, 3 days after the issuance of the Board's Direction of Election, was, in itself, violative of the Act. Uncontroverted asser- tions in the respondent's exceptions and brief indicate that the re- spondent had at this time granted a general wage increase to employees at all its plants, and that notice to this effect had been posted at each plant simultaneously. Under these circumstances, we are of the opinion that the record does not warrant a finding that the respondent intended by the mere posting of the notices announcing the general wage increase to under- mine the union and to circumvent its employees in the exercise of their statutory rights. However, like the Trial Examiner, we find that the respondent, through Foreman Cincotta's admonition to employee Endersbee to "keep your nose clean," after calling his attention to the posting, and Cincotta's suggestion to employee Sawyer, under similar circ instances, to "go around and get the boys not to join the C. I. 0. . . .," utilized the general wage increase in a manner calculated to interfere with its employees' exercise of their rights guaranteed by the Act' 3. The Trial Examiner recommended that Herbert Kerfien be made whole by the respondent for any loss of pay caused him by the re- sponc.ent's discrimination against him on August 21, 1945, in the same manner as the employees who were illegally discharged on September 4, 1945, despite the fact that an offer of reinstatement made by the respondent to Kerfien on September 7, 1945, was refused by Kerfien. Insofar as this would entitle Kerfien to back pay for the period fol- lowing the date of the respondent's offer of reinstatement, September 7, 1945, we do not agree. Although, as indicated in the Intermediate Report, the respondent's discrimination against Kerfien on August 21, 1945, led to the illegal discharges of September 4, the respondent on September 7, 1945, offered unconditionally to reinstate Kerfien. His refusal to accept reinstatement unless the respondent also rein- stated the employees who had been discharged on September 4, 1945, placed him in no better position than that of an employee who goes on strike because of the unfair labor practices of his employer. For the reasons stated in paragraph 4, below, we shall direct the respondent to reimburse Kerfien only for the period from August 21, 1945, to September 7, 1945. 'We note in this connection that, although the Trial Examiner relies in his concluding findings upon Cincotta 's conversations with both Endersbee and Sawyer, he specifically men- tions and discredits in the Intermediate Report only Cincotta 's denial of the above -quoted statement to Sawyer , but fails to indicate except by inference rejection of Cincotta 's denial of the statement to Endersbee . In view of the Trial Examiner 's refusal to credit other denials by Cincotta of statements attributed to him, it is also denied credence and Enders- bee's testimony is credited. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. In his exceptions and brief, counsel for the Board urges that back pay should be awarded to the respondent's employees who at/the time of the hearing were still engaged in the unfair labor practice strike which began on January 24, 1946. We do not agree. To award back pay to such strikers, no matter how flagrant an employer's unfair labor practices might be, would, in our opinion, not only encourage but also place a premium upon resort by employees to industrial strife and the interruption of commerce in order to obtain redress of wrongs, rather than promote recourse to the orderly administrative process established by the Act. Inasmuch as it is incumbent upon the Board to formulate and adopt such remedies as will effectuate the policies of the Act, we shall adhere to our practice of denying back pay to unfair labor practice strikers under circumstances such as those in this case. ORDER U Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations. Board hereby orders that the respondent, Volney Felt Mills, Inc., Fulton, New York, and its officers, agents, successors, and assigns shall : 1 Cease and desist from : (a) Discouraging membership in United Paper Workers of Amer- ica, C. I.0., or any other organization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b) Refusing to bargain collectively with United Paper Workers of America, C. I.0., as the exclusive representative of all production and maintenance employees of Volney Felt Mills, Inc., Fulton, New York, including watchmen, working foremen in the rag department, working foremen in the beater room, and machine tenders in the machine room, but excluding the boiler engineer and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, in regard to rates of pay, wages, hours of employment, and other conditions of employment; (c) In any'other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Paper Workers of Amer- ica, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : VOLNEY FELT MILLS, INC. 911 (a) Offer Sam Cocopoti, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, Sam Christoforo, Claude McCarty, Leon Dashnau, Clifford Green, George Libby; and Gerald Himes immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; ' (b) Make whole Sam Cocopoti, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, Sam Christoforo, Claude McCarty, Leon Dashnau, Clifford Green, George Libby, and Gerald Himes for any loss of pay they have suffered by reason of the respondent's dis- crimiliation against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period; (c) Make whole Herbert Kerfien for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from August 21, 1945, the date of the respondent's discrimination against him, to September 7, 1945, the date of the respondent's offer of reinstatement, less his net earnings during such period; (d) Upon request, offer to Herbert Kerfien, to the employees named in Appendix "A" attached to the Intermediate Report, and to any others who were engaged in the strike of January 24, 1946, immediate and full reinstatement to their former positions, without prejudice to their seniority or other rights and privileges; (e) Upon request, bargain collectively with United Paper Workers of America, C. I. 0., as the exclusive representative of all its employees in"the aforesaid appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment; (f) Post at its plant in Fulton, New York, copies of the notice at- tached to the Intermediate Report marked Appendix "B." 2 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the respondent's representa- tive, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the re- spondent to insure that such notices are not altered, defaced, or covered by any other material; 2 Said notice , however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words, "RECOMMENDATIONS OF A TRIAL EXAMINER" and substituting in lieu thereof the words , "DECISION AND ORDER," and by inserting the words "UPON REQUEST" in the paragraph providing for the reinstatement of the unfair labor practice strikers 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) Notify the Regional Director for the Third Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Francis X Flelgesen, for the Board. ' Messrs. C. E. Dorr and John E. Lynch, of Syracuse, N. Y., and P. K. MoGafigan, of Chicago, Ill., for the Respondent. Messrs. Frederick D. Sandner, Sr., of Fulton, N. Y., and John J. Maurillo, of Syracuse, N. Y., for the Union. STATEMENT OF THE CASE Upon a first amended charge duly filed on January 11, 1946 by United Paper Workers of America, C. I. 0, herein called the Union, the National Labor Re- lations Board, herein called the Board, by its Regional Director for the Third Region (Buffalo, N. Y ), issued its complaint dated January 12, 1946, against Volney Felt Mills, Inc., 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), (3), (5), and Sections 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies pf the complaint and notice of the hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the compbuut alleges in sub'a.:nce that (1) an or about August 21, 1945, the Respondent discharged Herbert Kerfien and thereafter refused to reinstate him to his former position for the reason that he joined and assisted the Union in concerted activity with other employees; (2) on September 4, 1945, the Respondent discharged Sam Cocopoti, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, Sam Christo- foro, Claude McCarty, Leon Dashnau, Clifford Green, George Libby, and Gerald Himes,' and has since refused and failed to reinstate said employees to their former positions for the reason that they joined and assisted the Union ; (3) that the Respondent, on or about September 29, 1945, and at all times thereafter, including January 25, 26, 28, 29, 30, and 31, 1946,2 refused, and continues to refuse, to bargain collectively with the Union although the Union has been certi- fied as the exclusive representative of all the Respondent's production and main- tenance employees of Respondent's plant at Fulton, N. Y., in an appropriate unit; and (4) that since May 1, 1945, Respondent warned, discouraged, and coerced its employees to refrain from assisting, becoming, or remaining members of the Union or voting for said Uuion, by various activities including the grautug of a unilateral plant-wide wage increase on August 23, 1945. On or about January 22, 1946, the Respondent filed its answer, in which it admitted that it was engaged in commerce within the meaning of the Act, but denied that it had engaged in any of the unfair labor practices alleged. Pursuant to notice, the hearing was held in Fulton, New York, from January 30• to February 5, 1946, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondent were represented 1 Himes' name was added as a dischargee in the complaint upon motion of the Board- made at the hearing and without objection from Respondent. 2 During the hearing, and without objection, the Board moved and was allowed to amend its complaint to allege the above dates in January 1946, in its allegation regarding the refusal to bargain. VOLNEY FELT MILLS, INC. 913 by counsel, and the Union by union officials Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing, the Board was permitted, without objection, to amend its complaint to allege that the un- fair labor practices of Respondent set forth in the complaint caused a strike at the plant commencing on the 24th day of January 1946 and to add the name of Gerald Rimes as a dischargee. These allegations were deemed denied without amend- ment of the answer. The Respondent thereupon moved : (1) that the hearing be removed from Fulton because of the pendency of the strike; (2) that the com- plaint be made more definite and certain; and (3) that the allegation regarding the plant-wide increase as an unfair labor practice be striken from the complaint. The first and third motions above were denied, while the second was allowed in part.' At the close of the Board's case, Respondent's motion to dismiss for lack of proof was denied. The same motion was renewed by the Respondent at the close of the hearing, ruling theron was reserved. Except as hereinafter provided, that motion is hereby denied. At the close of the hearing, the Board moved to conform the pleadings to the proof with respect to dates, misspelling, names, and other minor variations. This motion was allowed without objection. The Respondent and Board argued orally at the close of the hearing and briefs filed by the parties thereafter have been duly considered. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes'the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Volney Felt Mills. Inc, is a Delaware corporation, having its principal office in the City of Chicago, Illinois, and operating, among other plants, a plant located in the City of Fulton, County of Oswego, State of New York, where is it engaged in the manufacture and sale of felt and asphalt roofing paper. This latter plant is the only plant involved in the present hearing. During the period from January 1, 1944 to January 1, 1945, the Respondent, in the course and conduct of its opei ations and in the operations of its plant in Fulton, New York, hereinafter referred to as the plant, caused to be purchased, transported, and delivered to its plant raw materials valued in excess of $600,000, of which 40 percent was trans- ported to said plant in interstate commerce from States of the United States other than the State of New York. Dv'ing the same period the Respondent caused to be manufactured at said plant products valued in excess of $1,000,000, of which SO percent was transported from said plant in interstate commerce into and through States of the United States other than the State of New York. The Respondent acknowledges that it is engaged in commerce within the meaning of the Act' Jr. THE OROANIZ_1T.ON INVOLVED United Paper Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent. It is the successor to the Paper Workers' Organizing Committee, C. I. 0., which filed the Petition for Certification in this matter.' I The Board was instructed to, and did, inform the Respondent of the names of its officers and agents who allegedly made coercive statements to the employees. 4 Based upon an admission by counsel on the record and An Respondent 's answer, the Board produced no testimony in support of the allegations respecting commerce. 5 This change was made about January 1, 1946 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Threats In the latter part of March 1945, the Union commenced a campaign to organize the employees in the Respondent's plant at Fulton, New York Herbert Kerheu, John Sawyer, Sam Cocopoti, and Harold Endersbee were among the first employees to become members. They became the union organizing committee which dis- tributed leaflets, urged organization, held meetings, and passed out membership cards and buttons. Without doubt, these men were the most active and influ- ential adherents of union organization. Their organizational campaign was carried on openly, both inside and outside the plant, without objection trom the Respondent. Union members wore their union buttons without comment from the Respondent. In April 1945, the local union elected the following temporary officers: Kerfien, President; Sawyer, Vice-President; Endersbee, Financial Secretary; and Coco- poti, Recording Secretary. The campaign for members progressed to the extent that on April 30, 1945, the Union filed a Petition for Certification with the Board On May 6, 1945, the local union received its charter. Following a hearing held on June 6 the Board, on August 20, 1945, ordered that a secret election be held to.determine the question of whether the majority of the employees in the appropriate unit desired to be represented by the Union After a majority of the employees in the appropriate unit had voted on September 13 in favor of representation by the Union, the Board, by order dated September 26, 1945,° certified the Union as the exclusive bargaining representative of the employees. Although the Respondent allowed the organizational campaign to be carried on without objection, it indicated its hostility towards the unionization of its employees in other ways. Sometime during the early organizational stages in April 1945, Tony Cincotta, plant superintendent, warned Cocopoti that if the Union managed to "get in" the plant, the plant would close down, be boarded up, and the machinery moved out. Cincotta added that while he would not like to work out of town, he could if he had to. In May 1945, a day or two after issuance of the local's charter, Cincotta again told Cocopoti that the Union would never enter the plant After inquiring of employee Worden what he thought of a union :uid receiving a favorable answer thereto, Cincotta stated that it made no difference to him, personally, whether the men wanted a union or not but that, if the Union "got in" to the plant, the mill would close down before the Company Mould accept the Union In August, Cincotta made similar threats to employees Green and Sawyer that the plant would close down if the Union was selected as the bargaining agent. In August, Tom Ingersoll, assistant plant superintendent, offered to bet Cocopoti, in front of a group of employees, a quart of whiskey that the Union would never "get into" the plant Ingersoll added, for the benefit of the on- lookers, that it made no difference to Cocopoti if the Union succeeded or not, for Cocopoti had other means of support in that his wite was employed. Inger- soll further stated that if the Union did get in, Lloyd A. Fry z would close the O At the hearing the parties stipulated that this Certification was dated September 28, 1945. The Board's records and the respondent 's brief both show the correct date of this Certification to have been September 26, 1945. The stipulation is considered amended to accord with the fact. I Fry is President of the Respondent VOLNEY FELT MILLS, INC. 915 plant. Foreman Barbera remarked to Kerfien in August that "if the union gets in, I am done-I am going to quit" Also during August, Barbera told M. Trynoski, who worked under Barbera's supervision, "don't join the union. That is bad." 8 Soon after employing Crego in August, 1945, Cincotta inquired of him whether anyone had spoken to him about joining the Union and then stated that Crego did not have to join the Union and that, if lie did join, his "time will be short here." When Crego, who was not wearing a union button due to a shortage thereof, acknowledged that he had already joined the Union, Cincotta added "your time here will be short. You can look for it anytime now." e Even after the election of September 13, the Respondent's anti-union campaign continued. 'Thus, Ingersoll told employee Obryan "you know as well as I do if the union gets in here, Pry will close the plant down. You know, one of the other plants the union started to organize, he closed down " The threats contained in the above statements were obi ious and were clearly intended to coerce the employees, to refrain from exercising their right to self- organization Although unsuccessful, the timing of the statements shows the Respondent's intent to interfere with the free choice of the employees at the election of September 13 and thereafter. These statements of the Respondent' clearly violated Section 8 (1) of the Act. 2 The pay raise of August 23, 1945 On August 18, 1945, President Truman issued Executive Order 9599 wherein, in substance, the National War Laboi Board was authorized to allow employers in plants where there was no recognized or certified bargaining agent to grant, by unilateral action, wage increases to their employees without first obtaining War Labor Board approval where suck increases would not be used as the basis for increasing prices On August 20, 1945, two days thereafter, the Board ordered its election among the Respondent's employees in the appropriate unit at the Respondent's plant to determine whether or not they desired the Union as their bargaining representative On August 23, 1945, Respondent caused the following notice to be posted at the Fulton plant without notice to or consultation with the Union: August 23, 1945 AS YOU WELL KNOW VOLNEY HAS HAD TO OBEY THE WAGE STA- BILIZATION ACT. THIS LAW PREVENTED US FROM MAKING ANY IN- CREASE IN LABOR RATES DESPITE ANY OPINION OR STATEMENTS TO THE CONTRARY VOLNEY ON SEVERAL OCCASIONS FILED AP- PLICATIONS TO INCREASE RATES DURING THE WAR YEARS AND MAKE (SIC) EVERY POSSIBLE EFFORT IN BEHALF OF OUR EM- PLOYEES THE WAR LABOR BOARD REFUSED TO GRANT ANY IN- CREASES ON THE BASIS OUR RATES WERE COMPARABLE AND WOULD EXCEED LITTLE STEEL FORMULA PROVISION. WITH THE END OF THE WAR AUGUST 14 THE WAR LABOR BOARD ANNOUNCED AS OF AUGUST 18 THAT RATES COULD BE INCREASED PROVIDED PRICES WERE NOT INCREASED ABOVE OPA ESTABLISHED CEIL- ING AND OTHER MINOR REQUIREMENTS VOLNEY IMMEDIATELY 8 Each of the above incidents was denied by the supervisor involved The undersigned, after due consideration of the testimony of the supervisors and of their appearance on the stand , does not credit these denials 8 Cincotta 's denial is not credited. 712344-47-vol. 70-59 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TOOK THE NECESSARY STEPS TO COMPLY WITH REQUIREMENTS. I AM HAPPY TO INFORM OUR LOYAL PRODUCTION EMPLOYEES THAT EFFECTIVE WITH WEEK BEGINNING AUGUST 26 HOURLY RATES ARE INCREASED -TEN (10 CENTS) CENTS PER HOUR WITH THE USUAL OVERTIME PROVISION APPLYING. IT HAS BEEN AND WILL CONTINUE TO BE OUR POLICY TO PAY ALL OUR EMPLOYEES THE MAXIMUM AMOUNT POSSIBLE CONSISTENT WITH PRODUC- TION, EFFICIENCY, AND LOYAL COOPERATION TO MAKE OUR BUSI- NESS PROGRESSIVE AND POSSIBLE AND WITHOUT WHICH WE CANNOT OPERATE. I SINCERELY APPRECIATE THE LOYAL SUP- PORT OF EACH INDIVIDUAL WHO REMAINED STEADFAST DURING THE TRYING WAR YEARS LET'S GO FORWARD AND -WIN THE PEACE. LLOYD A FRY PRESIDENT -VOLNEY FELT MILLS Soon after the posting, Superintendent Cincotta took occasion to call End( rs- bee's attention to the notice. After Endersbee had finished reading the notice Cincotta remarked "keep your nose c'ean." Thereupon Endersbee replied "that is fish bait. After this thing is over, they are going to take ten cents away from us again " At or about the same time,'Cincotta asked Sawyer, union vice president, how he liked the raise. Sawyer said he thought that it was good bat that the em- ployees should have-received it earlier. Thereupon Cincotta remarked "You ought to hold your head now because that makes a pretty good paying job " Then Sawyer said "but after this thing is over, they will take the ten cents away," to which Cincotta replied "I don't think so. If anything, now or later, any com- pany would give more money " Cincotta then suggested to Sawyer "why don't you go around and get the boys not to join the C. I 0 f 10 The board alleged in its complaint, and contended at the hearing, that this wage increase was granted unilaterally three days after the Board's Direction of Election in order to discourage support for the Union in that election and thus -to frustrate self-organization among its employees. The Respondent argued that it was merely granting the wage increase as promptly as possible after the relaxation' of the Wage Stabilization Order and that the fact that a Board elec- tion was pending at that time was merely a fortuitous circumstance The Respondent offered no evidence that it had made a similar increase at this time to the employees of its other plants Respondent's superintendent attempted to use the increase to undermine union support and to disrupt the Uiuo,i itself. Further, it is clear that some of the employees, at least, in the granting of the increase as an anti-union move This was a natural assumption for the employees to make because of the many threats made by the Respondent about this time to close the plant if the Union were successful The undersigned finds that the Respondent announced the plant-wide wage increase of August 23, 1045, and used said increase in an effort to deprive the Union of support in the election already scheduled, by the Board and to thwart the employees in the exercise of the right to self-organization in violation of Section 8 (1) of the Act u "Cincotta denied making the last statement because, as he put it, "the union was not involved at all " This denial the undersigned does not credit because the last statement is merely the expression of the whole pui pose of having called Sawyer's attention to the in- crease It is clear from Sawyer's comment in Cincotta 's version of the testimony that he so understood the purpose of the raise. - '1 Roots-Connersville Blower Corp., 64 N L. R B 855 , A J Showalter Company, 64 N. L. R. B. 573. VOLNEY FELT MILLS, INC. 917 B. The discharges 1. Herbert Kerflen Herbert Kerfien was first employed by the Respondent in June 1940 as a beater-helper at $90 00 a month . Six months thereafter he was promoted to a back tender at $115.00, and two years later to the key position of machine tender at $175.00 per month. He held this latter position on August 9, 1945 when he left Respondent's em- ploy for a few days' rest prior to reporting for induction in the Armed Services of the United States on August 18. When Kerfien reported for induction as ordered, his military career was terminated within 15 minutes as the Armed Services were then not inducting men over the age of 28. At 9: 00 a. in., Tuesday, August 21, Kerfien reported back to Superintendent Cincotta, who was in charge of personnel as well as of general operations at the Fulton plant, and asked when he could return to work.12 Cincotta answered that he did not know as he had already filled Kerfien's position. Kerfien then stated that it looked like he did not have a job and reminded Cincotta of the rights to reemployment which inductees were supposed to enjoy. According to the testimony of Kerfien, Cincotta then replied "I don't know, I will let you know" and added that "you fellows kind of put me on the spot " According to the version of Cincotta, the conversation ended when Cincotta told'Kerfien that lie should report back in a few days while Cincotta made the necessary arrangements to have Kerfien take over from his replacement. The undersigned accepts Kerhen's version of the conversation because it was proved by Respond- ent's own records that the facts as alleged by Cincotta were not true. The fact was, however, that no one had replaced Kerfien as the other machine tenders split shifts in order to carry on Kerfien's work until August 27, 1945, when Cincotta finally replaced Kerfien with employee Green -This replacement of Kerfien 6 days after Kerfien's request for reinstatement proves conclusively that the reason assigned by Cincotta for not promptly reinstating Kerfien was not made in good faith and that Cincotta did not intend to reinstate one of the most ardent union supporters and its first president after having once been rid of him through the war emergency. On September 7, 1945, 3 days after there had been labor troubles in the plant caused, in part at least, by Respondent' s treatment of Kerfien , Respondent offered Kerfien reinstatement. The bona /ides of this offer will be considered herein- after. 2. Other discharges Sam Cocopoti replaced Kerfien as president of the local union soon after Ker- fien received notice that he would be called for induction. The presidency of Cocopoti and Kerfien were facts well known to the Respondent's officers and agents. On September 3, having learned of Cincotta's refusal to reinstate Kerfien from fellow employees. Cocopoti and Endersbee, the local union's financial secretary, visited Kerfien and learned his side of the story. Although this matter was never presented for union action, apparently some few union members knew that the question of Kerfien's reinstatement was to be presented to the Respondent by Cocopoti. The following day, September 4, about 1: 30 p. in., Cocopoti called Cincotta over to the winder in the machine room where Cocopoti was working and, asked if he would reinstate Kerfien because the union members were dis- satisfied about the incident, believing that Cincotta was thereby putting pressure 12 Kerfien had regularly been working the shift from 11 : 00 p. in. to 7 : 00 a. in. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the Union Cincotta answered that it was none of Cocopoti's business whom lie hired and fired and that he did not want to discuss the matter. Cocopoti then threatened that the plant would be closed down at 3: 00 p in. Thereupon Cincotta told him that he (Cincotta ) was still giving the orders in the plant, that it was-not going to close down, and that if Cocopoti did not like the, way lie was running the plant, he could go get his money and go out with Kerfien.. Cocopoti started back to his machine Cincotta followed and said "You are trying to run the plant so you are fired, get right the hell out of there." " Cocopoti immediately left his work, went to the wash room, where he told fellow employees that he had been discharged, changed his clothes, and went to the timekeeper's office where he punched his time card out at 1: 48 p m., and made arrangements to secure his pay. He then left the plant. The news of Cocopoti's discharge spread rapidly through the plant. The men began to discuss the fact that their second local union president had also been discharged. Sawyer and his fellow employees in the beater room, Libby and Crego, decided to strike at the end of their shift at 3: 00 p. m. in protest. Ernest Dashnau and his fellow employees, Christoforo and Martin, came to the same conclusion in the rag room In that department employee Claude McCarty could not come to'a decision Otherwise these two departments were almost unanimous in their decision Both departments, thereupon , began cleaning up instead of continuing production. About 15 or 20 minutes after his conversation with Cocopoti, Cincotta walked into the rag room where the men were cleaning up and the machines were not running Cincotta asked Dashnau what was the matter with the machines. Dashnau answered that he had orders from Sawyer not to cut any more rags.'4 Immediately thereafter, Cincotta went downstairs where he saw Sawyer, who stated that they were pumping-out the beaters and preparing for a shutdown at 3: 00 p. in because Cincotta had refused to reinstate Kerfien and had discharged Cocopoti Cincotta told Sawyer that the employees had better get those-ideas out of their heads for Cincotta was going to keep the plant operating. After learning of the threatened strike, Cincotta conferred with his superior, Plant Manager Chesbro, and told him that there was "difficulty in the plant, a lot of fellows striking " After telephoning the Chicago office they determined to "tell the men either to go to work or get out of the plant" and, if the men left the plant, to pay them off. Cincotta then instructed the timekeeper that he was to "pull" the time cards u and to pay off the men who refused to work. Cincotta also instructed the timekeeper as to the time that the time cards should be marked "out." Sometime about 2:30 p M, Cincotta returned to the production department and asked the employees in the rag room and the beater room if they were going to work. He inquired of some of them if they were going to work or to "hang out" with Cocopoti. Many of these inquii ies were made in the wash room as the employees were cleaning up to leave the plant as usual at the end of their shift. Some employees merely answered that they were not going to work a second shift or beyond the end of their present shift while some merely said is Cincotta insisted throughout his testimony , which changed in various other respects at different times when he testified during the hearing , that he gave Cocopoti the option of going to work or quitting The undersigned believes the testimony of Cocopoti that lie was "fired" for the reasons that it is more in keeping with the character of Cincotta, as displayed upon the stand, that it was corroborated by other witnesses to the event, and because of his belief that when a man is told to "get the hell out " of the plant, a man is discharged and is not given the option of working or quitting 14 Actually, it appears that the chest and the beaters were full of material at this time This is confirmed by the fact that the paper machines continued to operate all day 11 Remove the caids from the rack , indicating that the individual no longer was employed. I VOLNEY FELT MILLS, INC. 919 that they were not going to work. Irrespective of which answer he received, Cincotta told the employee to get his pay and get out of the plant. Upon direct orders from Cincotta, the timekeeper had the time cards of George Libby, Ernest Dashnau, and William Crego marked as having quit work at 1: 30 p. m.10 Claude McCarty told Cincotta, in answer to his question, that he was going to continue to work. At 3: 02 p. in , when McCarty punched his card out, the time- keeper inquired if he "was with the boys " McCarty answered "yes" and was informed that his pay checks would be ready in a short time. Clifford Green, an oiler working in the cellar by himself, heard about the dis- charge of Cocopoti about 2 00 p in He completed his shift and, as lie was punch- ing his card out at 3: 02 p in., the timekeeper inquired "are you going to stick with the other fellows?" When Green answered in the affirmative, he was asked if he wanted both pay checks When he answered "yes," he was told he was "fired " As Green approached the timekeeper's window, he heard Cincotta tell the timekeeper to give the men their pay and to keep them out of the mill. When Cincotta asked Crego if he was going to continue to work, Crego an- swered that he was not going to continue after the shift was over. Cincotta then stated that if Crego wanted it that way he might just as well get his check and go home Cincotta added, "You know what has happened here ... I am firing anybody I know who joined the union. I got rid of the leader [Cocopoti] now.714 On orders from Cincotta, Crego's card was marked out as of 1: 30 p. in. About 2: 55 p. in., Cincotta again returned to the beater room where Sawyer was still busy and said, "You might as well get your clothes on- and get out of here and go home." When Sawyer inquired if he was being fired Cincotta answered, "Yes," and added, "Go get your money." About, the same time, Cincotta approached Gerald Hinges, who was at work on the No. 1 machine, and asked him if he was "going to work " Humes, who knew that Cocopoti has been discharged, answered-that he was going home at the end of the shift. Cincotta then stated, "You can stop at the office and get your pay." At the timekeeper's office Himes was asked if he was "with the boys" and, after answering in the affirmative, was told that his checks would be ready soon. Leon Dashnau went to the plant about 1: 30 p in to see if he could work two shifts.18 His regular shift did not begin until 11: 00 p. in After he had learned about the Cocopoti incident, Cincotta inquired of him if he was going to work and, when he answered in the negative, he was told "go get your pay then " The Respondent, on the afternoon of September 4, paid off George Libby, Gerald Himes, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, - Sam Christoforo, Clifford Green, Leon Dashnau, and Claude McCarty, all of whom were members of the Union. • On September 5, all of the above-listed employees, plus Cocopoti, applied to the Respondent for reinstatement. They were all told either by Cincotta that they had been paid off the day before and were therefore "all done" or by the timekeeper that their cards had been "pulled," which meant that they were no longer in the Respondent's employ. None of these employees have been since reinstated or-offered reinstatement by the Respondent. Two days later, General Superintendent Charles E. Stevens made an offer of reinstatement to Kerfien During this conference Stevens said that Kerfieu's "This time obviously is ern oneous for Cocopoti , whose discharge instigated all the sub- sequent activity, punched his card out at 1 48 p in 17 Cincotta in effect denied having made the quoted statement above by denying that he had talked to Crego that day at all. Cincotta admittedly inquired of each of the men dis- charged. The undersigned does not credit this denial. 18 The record shows that En nest Dashnau sometimes worked two shifts. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work had been unsatisfactory and, when pressed for an explanation, men- tioned Kerfien's "attitude" towards his work Although Kerfien stated that he would think the matter over he has not reported.for work. ' 3. Conclusions Respondent, and especially Cincotta, knew-Kerfien to be one of the first mem- bers and most influential advocates of the Union in the plant, as well as its titular head. His departure for induction on August 9 necessarily weakened the organizational effort The day following,the Board's Direction of Election, and when the question of how each individual employee would vote at that elec- tion had become an important matter, Kerfien applied for reinstatement: The Respondent refused to reinstate this union leader and gave as its reason there- for an untrue excuse, i e., that his position had been filled. The filling of this position approximately a week after Kerfien's application removes any doubt that Respondent never intended to reemploy Kerfien, despite the fact that his promotions with Respondent proved,him to have been a satisfactory workman. Only one of Respondent's witnesses indicated any reason why Kerfien was not reinstated and, in that instance, -General Superintendent Stevens complained about Kerfien's "attitude" toward his work. There were no complaints from anyone else regarding Kerfien's work. Foreman Ingersoll,' under whom Kerfien worked part time, testified that his work was satisfactory. Kerfien's attitude toward unionization, however, was clearly not that of the Respondent. The Respondent's refusal to reinstate Kerfien after the election had been scheduled was intended to, and actually did, indicate to the employees who were eligible to vote in that election "that the Union was powerless to assist them. The under- signed finds that the Respondent discriminated in regard to the hire and tenure of employment of Herbert Kerfien in order to discourage membership in the Union and to weaken the Union's support prior to the Board election Two days prior to its offer of September 7, 1945, to reinstate Kerfien to his former position, the Respondent had discharged Sand, then after application, had refused reinstatement to 11 union members because they had threatened to engage in concerted activity to assist Kerfien. This offer also was made just one week prior to the time the employees were to vote on whether or not they desired the Union as their bargaining representative The offer therefore necessarily forced Kerfien to choose whether to refuse reinstatement until the other 11 union members were also reinstated, or to accept employment thereby necessarily deserting the` concerted effort on his behalf and proving the futility and ineffectiveness of concerted action and organization to all the rest of Re- spondent's employees just before the election. In a somewhat analogous situa- tion the Board stated in the D9 aper Corporation case : 19 To permit the respond- ent to single out a select number of a group.of employees for reinstatement and unlawfully to deny reinstatement to others in the same group, acting in concert with them, is discrimination in its purest form against the entire group, for if denies to each member of the group the very protection the Act seeks to afford " Because of the illegal condition necessarily attached to the acceptance of this offer of reinstatement by the circumstances. created by the Respondent and existing at the time of the offer, the undersigned believes, and therefore finds, that the offer of reinstatement made by Respondent to Kerfien on Sep- tember 7, 1945, was not a bona fide unconditional offer of reinstatement 10 On September 4, the Respondent discharged Cocopoti because he complained about the discriminatory treatment afforded Kerfien by the Respondent and 19 52 N. L R. B. 1477, 1479, reversed on other grounds 145 F. (2d) 199 (C. C. A. 4) 20 Matter of The Good Coal Company, 12 N. L. R. B. 136. 1 VOLNEY FELT MILLS, INC. 921 because he threatened to engage in concerted activity in order to rectify that discrimination as well as, incidentally, because he was the then leader of the Union Even in the absence of the admission made by Cincotta to Crego that he had discharged the Union's leader, it is evident that the Respondent dis- charged Cocopoti on September 4 in order to discourage membership in the Union, to prevent concerted activity by the employees, and to attempt to dis- sipate union support prior to the Board election. It is therefore found that the Respondent discriminated in regard to the hire and tenure of employment of Cocopoti in order to discourage membership in the Union Following the discharge of Cocopoti, a number of union members decided to close the plant down at 3: 00 p in. in order to protest Respondent's discrimina- tory treatment of Kerfien and Cocopoti. The first time that Cincotta noticed any slackening in production by the employees was 15 or 20 minutes, according to his own estimation, after the Cocopoti incident." It was during this period- of time that some of the employees decided to close down at the conclusion of that shift No official union action regarding a strike was ever taken. As soon as Cincotta, who told Chesbro that "a lot of men were striking," discovered the possibility of there being a strike, he asked each individual employee if he was going to continue to work. As a negative answer was received from that em- ployee, even though clearly stated that the employee did not intend to work beyond that shift or to work a second straight shift, Cincotta sent that individ- ual to get his pay and had his card removed from the rack, indicating that he was no longer employed by the Respondent. Cincotta obviously feared a strike and determined to prevent it by discharging those employees indicating their approval of a concerted move to protest the Respondent's unfair practices towards Kerfien and Cocopoti. The employees were discharged before they were able to engage in a strike The Respondent argues that the employees quit and voluntarily severed their employment with the Respondent. This contention does not conform with the ,facts. The men whose employment was severed on September 4 were discharged by the Respondent in order to prevent the occurrence of a strike then under con- sideration by the men because of the Respondent's own unfair labor practices prior to the time they were to go on strike. Even it the discharged employees had succeeded in going on strike, the cause of that strike would clearly have been the Respondent's own unfair labor practices, and, the strikers would have been entitled to reinstatement upon application All the employees actually applied for reinstatement the following day but the Respondent refused them reinstatement. Leon Dashnau testified at the hearing that he would riot have accepted reinstatement even if it had been ottered-unless Cocopoti had been reinstated. The Respondent, of course, refused reinstatement to Leon Dashnau without knowing his state of mind. This is no defense for Respondent's refusal. At the hearing, and in its brief, the Respondent stressed the fact that at the time of these discharges the Union had not yet become the certified bargaining agent for the employees This fact is true but the Act still prevents any discharge by an employer intended to encourage or discourage membership in a union and grants no "open season" for such discharges prior to the certification of a union. The undersigned concludes and finds that Sam Cocopoti, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, Sam Christoforo, Claude McCarty, Leon Dashnau, Clifford Green, George Libby, and Gerald Himes, were "Prom the fact that Cincotta conferred with both Chesbro and the timekeeper between the Cocopoti incident and his noticing that the machines were down, it is likely that Cur cotta's estimate of the time lapse was conservative 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all discharged by the Respondent in order to discourage membership in the Union. C. The refusal to bargain 1. The appropriate unit In accordance with the findings of the Board in its Decision and Direction of Election dated August 20, 1945,22 the undersigned finds that all production and maintenance employees of Volney Felt Mills, Inc, Fulton, New York, including watchmen, working foremen in the rag department, working foremen in the beater room, and machine tenders in the machine room, but excluding the boiler engineer and all other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of the employees, or effectively recommend such action, constitute it unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act zS 2. The majority repd•esentation'of the Union In accordance with the Certification of Representatives issued by the Board on September 26, 1945, following the election of September 13, 1945, among the employees in the above found appropriate unit, the undersigned finds that on September 26, 1945, and at all times thereafter, the Union was the duly desig- nated bargaining representative of the majority of the employees in the afore- said bargaining unit and that, pursuant to the provisions of Section 9 (a) of the Act, the Union was, on September 26, and at all times thereafter has been, the exclusive representative of all employees in the aforesaid unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.24 3. The refusal to bargain On or about September 15, following the election, Frederick Sandner, field representative of the Union, telephoned Chesbro, asking for in appointment with the Respondent for the purpose of negotiating an agreement. Cliesbro requested that the Union wait--until,after formal certification of the Union, to which Sandner agreed On October 4, 1945, Sandner, together with the local union's negotiating com- mittee composed of Cocopoti, Sawyer, and Endersbee, met with Chesbro and Stevens, representing the Respondent, for the purpose of negotiating The Union presented the Respondent with a proposed agreement In answer to Sandner's question whether Chesbro had authority to negotiate with the Union, Chesbro acknowledged that he had no such authority and that President Lloyd A Fry, of the Respondent, was the only individual so authorized The Union requested that a meeting be held with Fry at the earliest possible moment so that nego- tiations could proceed Chesbro objected to the Union's suggestion of a meeting, with Fry a week hence as being too short a period in which to send Fry the Union's proposed agreement and for him to reach Fulton The Union thereupon requested that the meeting be held on October 15 and Chesbro agreed to attempt to have Fry present at that time. = 63 N. L R B. 423 23 At the present hearing the Respondent made no objection to the Board' s finding nor did it introduce any evidence in respect thereto. 24 See footnote 23. VOLNEY FELT MILLS, INC. 923 The Union received the following letter from Fry dated October 11, 1945: DEAR MR. SANDNER: This will acknowledge receipt of the proposed contract to apply at our Fulton Mill , which you presented to our Messrs Stevens and Chesbro, at our Fulton Offices, as of October 4th. This contract was promptly forwarded to us, here in Chicago , and was held for the personal attention of the writer, inasmuch as I handle , entirely, all matters pertaining to any labor relations. - I sincerely regret that an unavoidable absence from the city, for the past two weeks , prevented my replying sooner , and in view of previous engage- ments, one of which is in connection with my job with the War Production Board, 1 will be unable to meet with you at Fulton , as of October 15th, 10: 00 A. M, as you suggested I Meantime, a hurried review of the contract would indicate you have not considered our position as comparable with those you have elsewhere, and which, of course , requires considerable thought and further investigation before preliminary conversations begin. I hope to be free to arrange a meeting with you on or about October 25th, and am hopeful you can be available about that time. Please advise. Meantime, I will appreciate your cooperation , and to save time, again review your proposals in the light of existing contracts and conditions, advising me further, and oblige. Yours very truly, LLOYD A. FRY, President Volney Felt Hills, Die. Following receipt of this letter , the Union unsuccessfully tried to learn from other representatives of the Respondent when Fry would be in Fulton for the purpose of negotiating an agreement . On October 15, the Union wired Fry as follows : I AM URGING YOU TO REARRANGE YOUR SCHEDULE SO THAT A MEETING CAN BE HELD IN FULTON FRIDAY OCT 19, 1945 IT IS IMPI]RATIVE THAT YOU OR YOUR REPRESENTATIVE HAVING THE AUTHORITY TO MAKE DECISIONS MEET WITH THE UNION AT THE EARLIEST DATE POSSIBLE THE FUTURE RELATIONS BETWEEN VOLNEY FELT MILLS AND THE WORKERS IN THE FULTON PLANT ARE BEING JEOPARDIZED BY SUCH HARMFUL DELAY. I AGAIN URGE YOU TO REARRANGE YOUR SCHEDULE SO THAT THESE MATTERS SO VITAL TO THE WELFARE OF YOUR WORKERS MAY BE DISPOSED OF. Fry replied on October 16 by wire as follows: AS ADVISED IN MY LETTER OCTOBER ELEVENTH PREVIOUS DEFI- NITE IMPORTANT ENGAGEMENTS MAKES IMPOSSIBLE EFFECT MEETING FULTON NINETEENTH AS SUGGESTED YOUR WIRE DATE OR TO ARRANGE BEFORE OCTOBER TWENTY FIFTH MEANTIME PLEASE REVIEW PROPOSALS AS REQUESTED BEFORE PRELIMI- NARIES ASSURE YOU NO INTENTION TO PURPOSELY DELAY. Prior to the proposed meeting, Fry, on October 22, again wired the Union as follows : SUPPLEMENTING MY WIRE SIXTEENTH RELATIVE MEETING HAD ALL PLANS MADE SEE YOU FULTON AS SCHEDULED BUT IN- 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STRUCTED TODAY ATTEND PRELIMINARY HEARING WASHINGTON ON LABOR MANAGEMENT CONFERENCE TO BE HELD NOVEMBER FIFTH I AM SURE YOU APPRECIATE THE NECESSITY OF FOLLOW- ING THESE INSTRUCTIONS AND THEREFORE WILL OF NECESSITY ASK YOUR PATIENCE UNTIL CAN MEET YOU AND ASSURE YOU I WILL ADVISE EARLIEST POSSIBLE DATE. This telegram of October 22 was the last word the Union ever received from Fry or the Respondent regarding the proposed negotiations. Beginning October 26, the Union requested assistance from the United States Conciliation Service to secure the Respondent 's presence at a negotiation meet- ing. Despite the efforts of the United States Conciliation Service, no meeting was ever arranged. Thereafter the union representatives requested, assistance in this matter of the New York State Department of Mediation Its efforts , likewise, proved unavailing. On December 3, the situation at the plant had become so tense'that the Union ' filed a strike notice with the proper federal agencies in compliance with the Smith-Connally Act. Respondent received advice that such notice had been filed The Respondent continued to refuse to negotiate. As heretofore related, the Union filed its first amended charge with the Board on January 11 , 1946,' and the Board issued its complaint on January 12 The Respondent still failed to sit down at a bargaining conference. Up to January 24, 1946, all efforts of the Union , the United States Conciliation Service, the New York State Mediation Board, and the National Labor Relations Board to persuade the Respondent to bargain with the duly designated repre- sentative of its Fulton employees had failed . So far as the record indicates, the Respondent had not even replied to many of the requests addressed to it The Respondent adopted, and studiously maintained , a "do nothing" technique which - proved impenetrable to all these governmental agencies Fry, the only individual in the Respondent's hierarchy of executives who was authorized to negotiate, proved impervious to requests , demands or threats, and could not be persuaded or forced to acknowledge his obligation to bargain with the representative of his employees, nor even to grant to any of his fellow executives the necessary authority to act for and on behalf of the Respondent . For almost 4 months the Respondent deliberately evaded its statutory obligation to bargain with the Union. With this condition existing, the Union on January 24 decided upon direct action to compel the Respondent to abide by its legal obligation and on that (lay struck and picketed the plant . The Respondent continued operations be- hind the picket line of employees , reinforced by unionists from Syracuse Two instances of violence occurred. On January 25, Mayor Rowlee, of Fulton , intervened at the request of the Union and telephoned the plant to request that the Respondent bargain with the Union Chesbro informed him that the only person with authority to bargain was Fry, who was in Chicago The Mayor thereupon telephoned Fry in Chicago, but due to Fry's absence from the office , talked with Vice President McGaffigan who stated that he realized that a difficult situation existed in Fulton and that he was sorry that he could not come and negotiate , but that he had no authority to do so . He agreed to endeavor to get in touch with Fry. On. January 28, having heard nothing from Fry or the Respondent in the meantime , the Mayor telegraphed Fry as follows : SITUATION IN FULTON BECOMING CRITICAL . SEVERAL INCIDENTS OF VIOLENCE AND RESULTING INJURIES. SYMPATHY STRIKES VOLNEY FELT MILLS, INC. 925 THREATENED IN SUPPORT OF VOLNEY PLANT. CAN'T YOU COME AND OPEN NEGOTIATIONS OR SEND SOME AUTHORIZED AGENT? PUBLIC SYMPATHY AROUSED BY YOUR ALLEGED CONTINUED RE- FUSAL TO ENTER INTO NEGOTIATIONS. At the same time he telegraphed in similar vein to the Department of Labor requesting assistance When his telegram to-Fry brought no answer by January 30, the Mayor again telephoned Fry in Chicago. He was again informed that Fry was out of the office and that Fry alone had authority to negotiate . The Mayor requested a reply to his telegram. On January 30 the Mayor received the following telegram, signed "Volney Felt Mills Co.": RETEL TANUARY 28TH WE HAVE NEVER REFUSED TO BARGAIN WITH UNION AS ALLEGED. UNION FAILED TO REPLY TO COM- MUNICATIONS CONCERNING NEGOTIATIONS OF CONTRACT. FALSE CHARGES FILED BY UNION WITH NATIONAL LABOR RELATIONS BOARD AND ILLEGAL PICKETING WITH MOB VIOLENCE REPORT- ED CLEARLY ESTABLISHED TOTAL LACK OF UNION RESPONSI- BILITY. INFORMED THEY IMPORTED PICKETS FROM SYRACUSE TO USE TERRORIZING METHODS IN AN ATTEMPT TO COERCE AND INTIMIDATE OUR EMPLOYEES. THANK YOU FOR YOUR IN- TEREST AND ASSURE YOU WE REGRET AND WILL DO ALL IN OUR POWER TO PREVENT FURTHER VIOLENCE. EXPECT PUBLIC AUTHORITIES TO DO LIKEWISE On the evening of February 2, McGaffigan, who was at that time in Fulton for this hearing, again told the Mayor that he was sorry about the situa- tion and would try to persuade Fry to come to Fulton to bargain with the Union. On February 3, 1946 the Respondent and the Union signed a statement ad- dressed to the Mayor, agreeing to end the strike in which it was agreed that (1) Fry would meet with the union representatives in Fulton no later than Feb- ruary 21 "for bargaining purposes"; (2) that any wage rates agreed upon at the negotiations would be considered as retroactive to February 1, 1946; and (3) that all striking employees except the men whose discharges are involved in the present hearing would be permitted to return to work without prejudice or discrimination. On and after September 26, 1945, the Respondent was obligated by statute to bargain, upon request, with the Union after its selection as the bargaining representative of the Respondent's employees in the appropriate unit at the Fulton plant Despite the request for negotiation conferences made by the Union on September 26,5 October 4, 15, and 19, and despite the efforts of the United States Conciliation Service and the New York State Mediation Board made at the behest of the Union at various times thereafter, as well as the ef- forts made by Mayor Rowlee from January 25 to February 3, 1946, the Respond- ent's technique of passively doing nothing prevented the occurrence of any negotiating meeting. at all times up to the date when the hearing herein closed. Respondent's only defense to the charge of refusing to bargain with the Union was that Fry was a "very busy man." This is no doubt true, although the only proof thereof was the self-serving statement contained in Fry's tele- s" On this date Sandner arranged the October 4 meeting with Chesbro. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gram of Ocober 22, 1945. However, this constitutes no defense under the Act. If Fry was too busy to negotiate he could, and should, have delegated that authority to some other executive of the Respondent. In the Fulton plant alone there were at least two officials who could have represented the Respondent in these negotiations. The sole cause of the strike of January 24, 1946, was the refusal of Fry and of the Respondent to sit down at a bargaining table with the Union as re- quired by law. His refusal to sit either in person or by authorized agent was the only reason for the existence of labor troubles at the Fulton plant on and after January 24, 1946. The undersigned finds that the Respondent, on October 4, 1945, and at all times thereafter, has refused to bargain collectively with the Union as the exclusive representative of an appropriate unit, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed 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 described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several dates, and have led and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY _Having found that the Respondent has engaged in unfair labor practices which individually violate Section 8 (1), (3), and (5) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent, in the instant case, not only orally coerced and intimidated its employees by threatening economic reprisals against those who desired rep- resentation in matters of collective bargaining with the Respondent, but later executed those threats as against, 12 individual employees by actually depriving them of their economic livelihood by discharging theni from its employ because of their union membership anil because of threatening to engage in concerted activities guaranteed by the Act. The ,many coercive statements found above, plus the subsequent execution of those threats conclusively prove the Respond- ent's fixed intent to defeat self-organization and to deprive its employees of all the rights guaranteed by the Act. The past violations of the Act by the Re- spondent indicate its intention to deprive its employees of those rights by any means available to it. Such disregard for the fundamental rights of employees as evidenced by the threats and discharges mentioned above, as well as by the policy adopted thereafter to prevent the employees from the enjoyment of the right to bargain collectively, convinces the undersigned of the ever present danger of the commission by the Respondent of other types of unfair labor prac- tices in the future It is therefore recommended, in order to effectuate the policies of the Act, in order to deter the Respondent from future violations thereof, and in order to make effective the interdependent guarantees of Section 7 of the Act, thereby preventing a recurrence of unfair labor practices and min- imizing industrial strife, that the Respondent be ordered to cease and desist" from infringing in any manner upon the rights guaranteed in Section 7 of the Act. It will also be recommended that the Respondent make Sam Cocopoti, Ernest Dashnau, William' Crego, John Sawyer, Mannister Martin, Sam Christoforo, Claude McCarty, Leon Dashnau, Clifford Green, George Libby, and Gerald Himes VOLNEY FELT MILLS, INC. 927 whole for losses incurred because of Respondent's discrimination against each of them by payment to each of a sum of money equal to that which each would normally have earned from September 4, 1945, the date of the discriminatory discharges, to the date of Respondent's offer of reinstatement less his net earn- ings ze during said period. It will further be recommended that the Respondent make whole Herbert Kerfien for losses incurred because of Respondent's discrimination against him on August 21, 1945, in the same manner as provided for the men listed above. This recommendation is made despite the offer of reinstatement which the under- signed has heretofore found to have been conditioned illegally upon his desertion of his fellow unionists. This conditioned offer of reinstatement will not stop back pay as to Herbert Kerfien. Having further found that the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, the undersigned will recommend that the Respondent, upon request, bargain col- lectively with the Union. It is well recognized that the Board is empowered in its discretion to order an employer found guilty of engaging in unfair labor practices to take such affirma- tive action including the reinstatement of employees "with or without back pay" as the Board finds will effectuate the policies of the Act which, in substance, are to encourage the practice and procedure of collective bargaining and thereby to, mitigate and eliminate the causes of strikes and industrial strife and turmoil III the instant proceeding it is clear that the sole cause of the strike of January 24, 1946. was the continued refusal of the Respondent from September 26, 1945, to bargain with the duly certified bargaining representative of its Fulton employees despite all efforts made by the Union and various governmental agencies to remedy the Respondent's attitude. As a matter of first instance, especially under the facts of the instant case, it might seem, as contended by counsel for the Board at the hearing and in his brief that the policies of the Act would be better served by ordering the Respondent to make whole the employees listed in Appendix A for their loss of wages during the strike directly attributable to Respondent's, failure to abide by the Act However, the Board has already determined under similar facts that, when employees voluntarily resort to the use of economic power by withdrawing their services concertedly from an employer, albeit because of that employer's unfair labor practices, such employees are not entitled to be made whole for loss of wages during the strike 27 Accordingly the undersigned will recommend that Respondent offer to each of the employees listed in Appendix A and to any others who engaged in said strike of January 24, 1946, immediate and full reinstatement to their former positions without prejudice to their seniority or other rights and privileges Upon the basis of the above findings of fact and upon the entire record ill the case, the undersigned makes the following: CONCLUSIONS OF LAW 1 United Paper Workers of America, C. I 0., is a labor organization within the meaning of Section 2 (5) of the Act. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connectioir 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, 8 N L. R B 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as- earnings See Republic Steel Corporatiote v N. L. R. B , 311 U. S. 7. 27 American Manufacturing Company, 58 N. L. R. B. 443. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed- in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By discharging and discriminating in regard to the hire and tenure of employment of Heibert Iierfien, Sam Cocopoti, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, Sam Christoforo, Claude McCarty, Leon Dash- nau, Clifford Green, George Libby, and Gerald Himes, thereby discouraging membership in United Paper Workers of America, C. I 0, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. All the production and maintenance employees of Volney Felt Mills, Inc., Fulton, New York, including watchmen, working foremen in the rag department, working foremen in the beater room, and machine tenders in the machine room, but excluding the boiler engineer and all other supervisory employees with author- ity-to hire, promote, discharge, discipline, or otherwise effect changes in the status of the employees, or to recommend such action, constitute an appropriate unit for the purpose of collective bargaining, within the meaning of Section 9 (b) of the Act. 5. United Paper Workers of America, C I. O , was, on September 26, 1945, and at all times thereafter has been, the exclusive representative of all employees in the aforesaid unit for purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. By refusing, on October 4, 1945, and at all times thereafter, to bargain col- lectively with United Paper Workers of America, C. I. 0., as the exclusive repre- sentative of all its employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6), and (7) of the Act RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the Respondent, Volney Felt Mills, Inc., Fulton, New York, its officers, agents, successors, and assigns shall. 1 Cease and desist from : - (a) Discouraging membership in United Paper Workers of America, C. I. 0., or any- other labor organization of its employees, by discharging or refusing to reinstate any of its employees, by discriminating'in any other manner in regard to their hire and tenure of employment or any term or condition of their employment ; (b) Refusing to bargain collectively with the United Paper Workers of America, C. I. 0., as the exclusive representative of all production and main- tenance employees of Volney Felt Mills, Inc, Fulton, New York, including watch- men, working foremen in the rag department, working foremen in the beater room, and machine tenders in the machine room, but excluding the boiler engi- neer and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of the employees, or effectively recommend such action ; (c) In any other manner interfering with, restraining or coercing its em-' ployees in the exercise of the rights to self-organization, to form, join or assist- United Paper Workers of America, C 1 0.. or any other labor organization, to VOLNEY FELT MILLS, INC. 929 bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer Herbert Kerfien, Sam Cocopoti, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, Sam Christoforo, Claude McCarty, Leon Dashnau, Clifford Green, George Libby, and Gerald Himes immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; (b) Make whole Herbert Kerfien, Sam Cocopoti, Ernest Dashnau, William Crego, John Sawyer, Mannister Martin, Sam Christoforo, Claude McCarty, Leon Dashnau, Clifford Green, George Libby, and Gerald Himes for any loss of pay each may have suffered by reason of the Respondent' s discrimination against him by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period ; (c) Upon request offer to the employees named in Appendix A and any others who engaged in the strike of January 24, 1946, immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges ; (d) Upon request, bargain collectively with United Paper Workers of America, C. I. 0., as the exclusive representative of,all its employees in the aforesaid appropriate unit; (e) Post at its plant at Fulton, New York, copies of the notice attached to the Intermediate Report, herein marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by other material; (f) Notify the Regional Director for the Third Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions , the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid As provided in Section 33• of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the (late of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same shall serve a copy thereof upon each of the parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of, the order transferring the case to the Board. Dated March 25, 1946. APPENDIX A TI-IOMAS S. WILSON, Trial Examiner. Harold Endersbee Ara Endersbee Raymond Stoughtenger John Ford John Green Robert Ash John Trynoski Ceylon Parrow John Darin C'hatles Vickery Kenneth King Merrill Guinup David House Earl Shell Richard Obryan Ralph Sylvester Bert Flett J Clarence Hines Ernest Noel Glenn Davis Frank Malanibori James Stacy Eritest Avery Samuel Virgil John Bowley Michael Riviezzo Aldis Risley John Talamo Michael Trynoski Donionic Ferro Fay Warren Edward Trynoski Jesse Lagodich Louis Worden Paul Gaines Merna Rowe William P Dwyer David McEwen Harry McCarty Wilber Everson Merald Parrow Frank Izyk Phillip Vescio Fred Chesbro (?) APPENDIX B NOTICE To ALL EMPLOYEES Pursuant to recommendations of r Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist UNITED PAPER WORKERS OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the dis- crimination Herbert Kerfien S,iniuel Charles Cocopoti John Sawyer Ernest L Dashnau William Crego George Libby Claude McCarty Leon Alexander Dashnau Mannister Martin Sam Christoforo William Green Gerald Himes WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining VOLNEY FELT MILLS, INC. 931 unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of Volney Felt Mills, Inc Fulton, N. Y, including watchmen, working foremen in the rag department, working foiemen'in the beater room and machine tenders in the machine room, but excluding the boiler engineer and all other supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. WE WILL reinstate each of the employees listed below and any others who went on strike beginning January 24, 1946, to their former positions: Harold Endersbee John Ford John Green Robert Ash John Trynoski Ceylon Parrow John Darin Charles Vickery Kenneth King Merrill Guinup David House Earl Shell Richard Obryan Ralph Sylvester Bert Flett Ara Endersbee Clarence Hines Ernest Noel Glenn Davis - Frank Malambori James Stacy Ernest Avery Samuel Virgil John Bowley Michael Riviezzo Aldis Risley John Talamo Michael Trynoski Domonic Ferro Fay Warren Raymond Stoughtenger Edward Trynoski (?) Jesse Lagodich Louis Worden Paul Gaines Merna Rowe William P. Dwyer David McEwen Harry McCarty Wilber Everson Phillip Vescio herald Parrow Fred Chesbro Frank Izyk All our employees are free to become or remain members of the above-named union or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. Dated -------------------- VOLNEY FELT Miir s, INC. Employer. By ------------------------------- (Representative ) (Title) NoTn-Any of the above-named employees presently serving in the Armed Forces of the United States will be otfered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 712344-47-vol. 70-60