The Englander Co., Inc.

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Powolsky has no immediate supervision. He is paid $100 a week and works the same hours as the sales force except for the 1 night a week when the store , but not the repair depart- ment, is open. While the Employer contends that Powolsky has divergent skills and interests , it is clear that his duties and work are closely related to those of employees in the technical unit. Moreover , no other labor organization seeks his repre- sentation and, as there is only one employee in the repair de- partment, it could not , by well - established Board rules, com- prise a separate unit. Accordingly, we shall include Powolsky in the unit of selling and nonsales personnel. Upon the entire record, the Board finds that the following employees of the Employer constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: (1) All office employees at the Employer's New York City store, excluding the head bookkeeper and all other supervisors as defined in the amended Act (2) All full- and part-time sales, shipping department, cardex, stockroom, order department, repair department, and outside repair employees of the Employer's New York City store , excluding guards , watchmen , professional employees, and all supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Member Beeson took no part in the consideration of the above Decision and Direction of Elections. THE ENGLANDER COMPANY, INC. and MIROSLAWA POWCH and ANDREW POWCH LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO and MIROSLAWA POWCH and ANDREW POWCH. Cases Nos. 2-CA-2781 and 2-CB-858. March 25, 1954 DECISION AND ORDER On October 14, 1953, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled pro- ceeding , finding that the Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents each filed exceptions to the Inter- mediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was com- 108 NLRB No. 7. THE ENGLANDER COMPANY, INC. 39 mitted. The rulings are hereby affirmed . The Board has con- sidered the Intermediate Report , the exceptions andbriefs, and the entire record in the case , and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, with the following additions: We are in full agreement with the Trial Examiner that the Respondent Union violated Section 8 ( b) (1) (A) and 8 (b) (2), and that the Respondent Company violated Section 8 ( a) (3) of the Act , as alleged in the complaint. We agree that the Union was responsible for the conduct of Shop Chairman Alber and Union Steward Wright in instigating the walkout of employees on May 21, 1952 , to compel the Com- pany' s removal of Miroslawa Powch from her employment for reasons which are not valid under the Act. Like the Trial Exam- iner , we find not only that Alber and Wright had acted in these respects within the scope of their general authority , but that there was ratification of their conduct by the Union. Ratification is thus clearly established on the evidence , inter alia , that the Union , upon receiving the Company ' s notice and protestations concerning the work stoppage on May 21 , adopted the patently inaccurate position of Alber and Wright that the walkout was the result of spontaneous action by the employees ; failed to take immediate steps to return the employees to work; and took no action then or later to discipline the responsible persons within the Union's organization. The argument is made in the Union ' s exceptions and brief that it cannot in any event be held responsible under the Act for the discrimination against Andrew Powch . The Union , in urging this position , contends that the evidence fails to show that it ever discussed with the Company the subject of Andrew Powch's employment, that it was ever informed by the Company of the decision not to recall Andrew Powch , or that it ever made any request of the Company to refuse reemployment to this employee following the settlement of the Union' s earlier strike for con- tract benefits . However , this contention lacks merit in view of the statements of Alber and Wright to the Company ' s represent- ative on May 21 that the employees would not work with Mrs. Powch "because her husband is anti-Union that "[a]ctually, we are looking for Andrew Powch and that there were "a few people we will not work with, and Andrew Powch was one of them." These statements take on added significance in the light of other evidence , detailed in the Intermediate Report , showing, on the part of Andrew Powch , his open and frequent criticisms of the Union and his failure to participate fully in picketing activities, and on the part of the Union , its indicated animosity toward Andrew Powch , as in the instance of the physical assault upon this employee by agents of the Union during the course of the earlier strike ( which assault we have found independently vio- lative of Section 8 (b) (1) (A ) of the Act ). On the basis of the whole record , we arrive at the conclusion , like the Trial Exam- iner , that the Union responsibly caused the discrimination against Andrew Powch. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union notified the Company by letter , before the hearing herein, that it had " no objection whatsoever to the company em- ploying either Mr. or Mrs . Powch and suggests that you offer them employment." While there is no indication in the record that the Union sent copies of this letter to the discriminatees, we are in agreement with the finding of the Tri&l Examiner that the letter to the Company effectively operated to toll the Union's back -pay liability 5 days after the date of the letter. We also reject the contention of the Company that it should be completely absolved of liability for the discrimination against Miroslawa and Andrew Powch because it was coerced into such action by the Union. Ithas long been settled that the statute per- mits no such immunity because of economic pressure exerted on the employer to which the employer has submitted.' ORDER Upon the entire record inthecase , andpursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that: 1. Respondent Company, The Englander Company, Inc., Brooklyn, New York, its officers , agents , successors, and assigns , shall: a. Cease and desist from: (1) Encouraging membership in Local 140, Bedding , Curtain & Drapery Workers Union ; United Furniture Workers ofAmer- ica, CIO, or in any other labor organization of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of their employment , except to the ex- tent permitted by the proviso to Section 8 (a) (3) of the Act. (2) In any like or related 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 any labor organization, to bargain collectively through represent- atives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or, other mutual aid or protection , or to refrain from any or all such activities, except to the extentthat such rightmaybe affected by an agree- ment requiring membership in a labor organization as a con- dition of employment as authorized in Section 8 (a.) (3) of the Act. b. Take the following affirmative action , which the Board finds will effectuate the policies of the Act: (1) Post at its operations at Brooklyn, New York, copies of the notice attached to the Intermediate Reportandmarked "Ap- pendix A".' Copies of said notice , to be furnished by the Region- iE g., Oertel Brewing Co , et al, v N. L. R. B., 197 F. 2d 59, 62 (C. A. 6); Lloyd A. Fry Roofing Co. v. N L. R B., 193 F. 2d 324, 327 (C A 9). 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner " the words "A Decision and Order ." In the event that this Order is enforced THE ENGLANDER COMPANY, INC, 41 al Director for the Second Region , shall, after being duly signed by the Company ' s representative , be posted by it immediately upon receipt thereof , and be maintained by it for a period of at least sixty ( 60) consecutive days thereafter , in conspicuous places , including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered , defaced, or covered by any other material. (2) Notify the Regional Director for the Second Region in writing, within ten (10 ) days from the date of this Order what steps the Company has taken to comply herewith. 2. Respondent Union , Local 140, Bedding , Curtain & Drapery Workers Union, United Furniture Workers of America, CIO, its officers , representatives , agents , and trustees , shall: a. Cease and desist from: (1) In any manner causing or attempting to cause The Englander Company , Inc., its officers , agents , successors, or assigns , to discriminate against its employees in violation of Section 8 (a) (3) of the Act. (2) Restraining or coercing employees of The Englander Company, Inc ., its successors , or assigns , in the exercise of their rights to self-organization, to form labor organizations, to join or assist any labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or, to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8 (a) (3) of the Act. b. Take the following affirmative action , which the Board finds will effectuate the policies of the Act: (1) Post in conspicuous places in its business office and wherever notices to its members are customarily posted, copies of the notice attached to the Intermediate Report and marked "Appendix B."3 Copies of said notice , to be furnished by the Regional Director for the Second Region , shall, after being duly signed by an official representative of the Union , be posted by it immediately upon receipt thereof and maintained by it for a period of at least sixty ( 60) days thereafter . Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order," 3This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is en- forced by a decree of the United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order," 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Mail to the Regional Director for the SecondRegion signed copies of the said notice for posting, if the Company is willing, at its plant in Brooklyn, New York, in places where notices to employees are customarily posted. Copies of said notice, to-be furnished by the Regional Director for the Second Region, shall, after being signed as provided above, be forthwith returned to the Regional Director for posting. (3) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the Union has taken to comply herewith. 3. The Respondent Company and the Respondent Union shall jointly and severally make whole Miroslawa PowchandAndrew Powch for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." Chairman Farmer and Member Beeson took no part in the consideration of the above Decision and Order. Intermediate Report STATEMENT OF THE CASE Upon chargeg duly filed by MiroslawaPbwch and Andrew Powch, herein called the Complain- ants, the General Counsel of the National Labor Relations Board, by the Regional Director of the Second Region (New York, New York), issued his consolidated complaint dated March 23, 1953, against The Englander Company, Inc., Brooklyn, New York, herein called the Company, and against Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, CIO, herein called the Union, alleging that the Company and the Union had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3). Section 8 (b) (1) (A) and 8 (b) (2), and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and order consolidating cases and notice of hearing were duly served upon the Company, the Union, and the Complainants. With respect to the unfair labor practices, the complaint alleged in substance that: (1) The Company (a) about May 21, 1952, laid off and denied further employment to Miroslawa Powch, (b) about May 21, 1952, failed to recall to work and/or denied further employment to Andrew Powch, and (c) thereafter failed and refused to reinstate them because the Union did not desire or approve of their continued employment with the Company as a punishment for their failure or refusal to assist or support the Union in strike or picketing activities which had previously been conducted by the Union against the Company; (2) the Union caused or attempted to cause the Company to discriminate against its employees since on or about May 21, 1952, by (a) requiring the layoff and/or denial of further employment to, and other discriminatory treat- ment of, Miroslawa Powch on or about May 21, 1952, because she refused or failed to assist or support the Union in strike or picketing activities which had previously been conducted by the Union, against the Company, (b) compelling the Company to fail and/or refuse to recall to work, and/or requiring the denial of employment to, and other discriminatory treatment of, Andrew Powch because he refused or failed to assist or support the Union in strike and picketing activities which had previously been conducted by the Union against the Company, and (c) thereafter compelling and continuing to compel the Company to deny employment to and/or refuse to reinstate Andrew Powch and Miroslawa Powch to their former or substan- tially equivalent positions or employment; and (3) from on or about May 8, 1952, the Union has restrained and coerced employees of the Company in the exercise of rights guaranteed in Section 7 of the Act by (a) threatening to inflict and inflicting bodily injury to Andrew Powch because he failed or refused to assist the Union in strike and picketing activities being conducted by the Union against the Company, (b) inducing, encouraging, ratifying, and supporting a work stoppage or concerted refusal of the Company's employees to work, en- THE ENGLANDER COMPANY, INC. 43 gaged in for the purpose of preventing the continued employment of Miroslawa Powch because she and her husband, Andrew Powch, failed or refused to assist or support the Union in strike and picketing activities previously conducted by the Union against the Company, (c) requiring the Company, to cease giving employment to Miroslawa Powch and Andrew Powch as a penalty for their failure or refusal to assist or support the Union in strike or picketing activities previously engaged in by the Union against the Company. The complaint further alleged that by the foregoing conduct the Company engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act, and the Union engaged in un- fair labor practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. On April 9 and 12, 1953, respectively, the Union and the Company each filed an answer, admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held from June 8 to 19, 1953, inclusive, at New York, New York, before Frederick B. Parkes, 2nd, the undersigned trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Company, the Union, and the Complainants were represented by counsel and participated in the hearing. Full opportu- nity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the General Counsel's case-in-chief, motions made by the Company and the Union for the dismissal of the complaint were denied. During the course of the hearing, ruling was reserved upon the offer into evidence of the Company's Exhibit No. 3 for identification, pending further identification. The document was not further identified thereafter. So that the record may be clear, Company's Exhibit No. 3 is hereby rejected. At the conclusion of the hearing, the Union renewed its motion that the complaint be dismissed and ruling thereon was reserved. The motion is disposed of in accordance with the findings of fact and conclusions of law made below. Upon the conclusion of the hearing, the undersigned advised the parties that they might argue orally before, and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner. The General Counsel participated in oral argument. Thereafter, counsel for the Complainants, submitted memoranda setting forth his arguments as to certain issues. 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 COMPANY The Englander Company, Inc., a Delaware corporation with its principal office and place of business in Chicago, Illinois, is engaged in the manufacture, sale, and distribution of beds, bedding, and related products. The Company maintains and operates 16 plants and subsidiary offices in the States of Illinois, Massachusetts, Maryland, Pennsylvania, Texas, North Carolina, Alabama, Georgia, Missouri, California, and Oregon. The instant proceeding is concerned with its plant in Brooklyn, New York. In the course and conduct of its business operations during the year 1952, the Company manufactured at its plants products valued in excess of $1,000,000, of which approximately 25 percent was transported from its plants in interstate commerce to States of the United States in which the recited plants are located. During the same period, the Company purchased, transferred, and delivered to its plant in the Brooklyn, New York, wire, steel, Cotton, linters, foam rubber, and other materials valued in excess of $1,000,000, of which approximately 90 percent was transported to such plant in interstate commerce from States of the United States other than the State of New York. The Company admits and it is found that the Company is engaged in commerce with- in the meaning of the Act. II. THE ORGANIZATION INVOLVED Local 140, Bedding , Curtain & Drapery Workers Union , United Furniture Workers of America , CIO, is a labor organization admitting employees of the Company to membership. III. THE UNFAIR LABOR PRACTICES A. Sequence of events Since 1946 the Company has entered into oral collective-bargaining agreements with the Union each year. These contracts have been negotiated annually around March and the early 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part of April. Discussion for the 1952 agreement commenced about March 1, and the represent- atives of the Company and the Union held several conferences. Representing the Union were its officers and a negotiating committee of 15 or 20 employees. Included in the latter com- mittee was the shop committee which was comprised of 9 departmental stewards and the shop chairman. It appears that the parties were unable to achieve agreement on the terms of the 1952 contract and the Union launched a strike on April 1, 1952, in support of its economic demands. During the course of the strike, the Company's operations ceased. Andrew Powch and his wife, Miroslawa Powch, entered the Company's employ in August 1949 and joined the Union the following month. From 1950 to 1952, in conversations with employees and stewards of the Union, Andrew Powch expressed opposition to the Union. Thus, in 1950, he told Frank Rawa, who was then the shop chairman, "Frank, how could it be that our Union looks like Communist one? " Rawa replied, "Don't worry about that. I know that our Union is Communist. Don't worry about that. We should have our own mind. This is not our method." In 1951 Andrew Powch voiced criticism, in a conversation with employees, as to the Union's sending an employee of the Company to "Moscow as delegate of Local 140" to a labor conference. According to the credible testimony of Andrew Powch, he had the following conversation with Charles Wright, a department steward, in 1950 or 1951: Charlie Wright came to me and told me, "Andrew, we are making a collection for people. Won't you give me some money for that? " I asked him, "What - - who are these people , striking people? " He gave me answer , "Those are the striking people of the' other union." I said, "I'm sorry, I think you're making collection for Communist action. I don't give you any money for that." Andrew Powch participated in the picketing activities of the Union from April 1 until April 25, 1952. Miroslawa Powch picketed for about 2 weeks until she became ill and she was con- fined to her home. During the course of the strike, the Company sent the following telegram to its employees, including Andrew Powch, on May 5, 1952: WE INTEND TO RESUME OPERATIONS AT OUR BROOKLYN PLANT TUESDAY MAY SIXTH. YOU ARE REQUESTED TO REPORT FOR WORK AT EIGHT A.M. ON THAT DAY. Andrew Powch arrived at the plant about 8 a. m. on May 6, 1952, and found a large picket line in front of the plant. He encountered Otto Alber, who was shop chairman, and said, "Otto, I have received a telegram." Alber replied, "Everybody have telegrams." Immedi- ately thereafter, Sol Tishler, president of the Union, approached Powch and asked, "What are you doing here ... why don't you" picket. Tishler grabbed Powch's coat and shoved him away from the gathering in front of the plant toward the truck entrance to the plant on another street. powch inquired, "What you want, Mr. Tishler? What you want from me? " Tishler answered, "I show you what I want from you." At that point, Powch saw Alex Sirota, an official of the Union, and asked, "Mr. Sirota, what he wants from me? " Sirota replied, "Don't worry, don't worry. You know me, who I am. Go this way," pointing to the truck entrance. Powch walked toward the truck entrance slowly, followed by Tishler and by a "white man whom I didn't recognize ...and one colored man." When they neared the truck entrance, Tishler ordered the latter and some pickets stationed at that point to depart the scene, leaving Powch "along with Mr. Tishler and the other white man." Powch ran across the street to- ward a subway entrance but was pursued and caught by Tishler and the unidentified man who hit Powch on the head and nose with their fists. At the conclusion of the beating, Tishler said to Powch, "I show you to say something about the Communists. If I see you one more time at the plant, I show you." About May 16, 1952, the Company and the Union reached agreement upon terms to settle the strike, including a wage increase. They discussed the recalling of the strikers to work and the Company pointed out that it would take a few days before the Company could recall all employees. It was decided that the Company would send telegrams to employees as they were needed and that the strikers would be recalled by departments. The Union did not ask the Company to deny employment to any of the strikers. On May 21, 1952, employees of the sewing department resumed work on the first time after the strike, having been notified by telegram a day or two earlier that the department would reopen on that day. Miroslawa Powch arrived at the plant on May 21, a few mututes before the start of the work day at 8 a. m. As she entered the plant, she encountered Shop THE ENGLANDER COMPANY, INC. 45 Chairman Alber , who failed to respond to her salutation of "Good morning ." She went to the sewing department, after changing to her work clothes , and oiled her sewing machine. After the ringing of a bell signifying the beginning of the work day at 8 a. m., the sewing department employees sat at their machines for 15 or 20 minutes awaiting work to be de- livered to them from the cutting department. During this interval , Departmental Steward Charles Wright came to Miroslawa Powch, according to her credited testimony, and said, "Mira , you can't work. You stop working. You must go into Union " Mrs. Powch answered, "Why? Everybody working. I work, too." Wright insisted, "No; you must stop. You must go to Union." However, Mrs. Powch replied, "No; I can't stop, because it is now work time." Wright left her at this point and work was distributed to the employees of the sewing depart- ment. A few minutes later, Wright returned with Otto Alber , who was shop chairman, and the latter said to Mrs . Powch, as shown by her credible and uncontroverted testimony , "Mira, you can't work. You must go to Union." Mrs. Powch asked, "Why? I got telegram with everybody. I work with everybody. Why? What you want from me?." Alber responded, "You know Andrew [Powch , husband of Miroslawa Powch ] talk too much. You know what happened." Mrs. Powch queried, "What happened? " Alber replied , "You know, you know. " Alber and Wright left and did not return for an hour or an hour and a half. It appears that they went to the office of Plant Manager Robert Ferdinand but the latter had not yet arrived at the plant. When Plant Manager Ferdinand came to the plant around 9 a. m., he found a message that Wright and Alber wished to see him and he summoned them to his office around 9:15 a. m. They told Ferdinand that the "temper of the people" was such that they could not control the employees and , according to the credible testimony of Ferdinand, the following occurred: A. Otto [Alber] said that unless Mira Powch leaves the job, the people will not con- tinue to work. And I asked why? So, he told me that because her husband is anti-Union. I told Otto and Charlie that we have a grievance procedure , and that he should follow that; that I sent a telegram to Mira, the same as I sent telegrams to the rest of the people in that department, and nobody from the Union at any time told us that we were not supposed to send a telegram to anybody for any particular reason; therefore, she is to continue to work for the rest of the day. He says , "Well, there's going to be a stoppage." Q. Was this Otto speaking? A. Otto; right. So , I said, "Let me call Mr. Minter."i I put in a call for Mr. Minter, and he wasn't there. Q. Did you, yourself, call? A. I called. Q. Where did you call? A. The Union office. Q. And you spoke to whom? A. A young lady. Q. You don't know her name? A. I don't know her name; no. Q. She told you Mr. Minter was not in? A. Mr. Minter wasn 't in. And I asked for Mr. Sirota , and she told me that he wasn't in. I left a message for them to call me; that it was very important. Q. At this time, Otto and Charlie were in your office; is that right? A. Yes. Q. Then what happened? A. So, I said, "Don't you want to wait until I hear from Mr. Minter? " He said, "No; no. We can't wait." So I said , "Remember , then, Otto, that we are holding you responsible; that you are acting for the Union." He says , "Well, there are certain people that we just can't work with," and he says, "Actually, we are looking for Andrew Powch." I again told them about the responsibility ; and he and Charlie walked out of the office.... About 20 minutes later, as shown by the credible testimony of Plant Manager Ferdinand, Alber, and Wright , accompanied by 3 other committeemen , returned to Ferdinand's office and Alber , as spokesman for the group, "gave us another warning .... He said, 'The people iMinter was a representative of the Union. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are going to walk off the job, unless you qend Mira home .' Again, I called to his attention that he is acting in the capacity as agent for the Union .... And that the least he could do is wait until we heard from the Union directly , or handle it as a grievance procedure ." They left his office and shortly thereafter most of the employees throughout the plant punched out their timecards and left the plant. Meanwhile, Wright had gone to Mrs . Powch 1 or 2 more times and attempted to make her stop working. Around 9:15 a. m. Inspector Marie Kul man overheard Wrigot tell the employee who distributed work to the sewing machine department employees , "Don't give [Miroslawa Powch] no more work; she ain 't supposed to be working." About 9:30 a. m. Wright and Alber, accompanied by a member of the Union 's strike committee and "another two or three people" returned to Mrs . Powch's machine and Wright told her that she must "stop work." When Mrs. Powch inquired , "Why? What happened? I don't understand what the Union want of me," Wright replied , "You know, you know." Mrs. Powch countered , " I got telegram , like every- body. I work like everybody." When she remained adamant in refusing to cease her work, Wright told her she should telephone Frank Yuchek at the Union's office. A few minutes later Wright walked down theaisle among the sewing machine operators and, as revealed by the credible testimony of marie Kuhlman , "told the girls that the Union told them to stop working , because Mira was working in the plant .... I remember Charlie walking around , waving his arms , saying,'We have got to stop work The Union says, "'Stop work."'" The sewing department employees , all of whom were women , went to the dressing room. A few minutes later Wright told them , "Don't go back to work until I tell you to ." Employee Margaret Buxton testified that not long thereafter "Otto and Charlie Wright came into the dressing-room .... And they said , ' Everybody out; we can 't work with"' Miroslawa Powch. Thereupon nearly all of the employees punched out their timecards and left the plant. Mrs. Powch went to Ferdinand 's office and discussed the events of the morning with him. After Mrs. Powch waited an hour or so in Ferdinand 's office, she was told by him to-go home that he would "try to straighten everything out, and contact her," but that the Union "pro- hibits you working here. You must go home now." 2 Around noon on May 21 Bernard Minter, a representative of the Union , telephoned Plant Manager Ferdinand. The latter informed him of the work stoppage which had occurred that morning and said , " This is the first time that I have ever known Mr . Alber to act on his own ... in anything as serious as this ." When informed that the employees were outside the plant, Minter asked Ferdinand to relay a message for Shop Chairman Alber to call Minter. Not long thereafter , Minter telephoned Ferdinand again and said "something to the effect that the people wouldn't work with " Miroslawa Powch and would not return if she were there. Ferdinand said, "Well, that puts us in a pretty awkward position," and suggested that the matter should be taken up under the grievance procedure and resolved . Minter replied, with a chuckle , "You're a big boy" and something "to the effect that ... there 's nothing he can do, because of the fact that the people refused to work with " Mrs. Powch "if she's going to 2 The above findings as to these occurrences on May 21, 1952, are based upon the testnnony of Mrs. Powch, Plant Manager Ferdinand, and employees Kuhlman and Buxton. Portions of the testimony of Mrs Powch were in large measure corroborated by that of employees Kuhlman, Buxton, and Pauline Zukowski. These witnesses appeared to be sincere and forth- right and much of their testimony was mutually corroborative Departmental Steward Wright's testimonial version of the events on May 21 was at variance with the credited version in numerous respects. In brief, Wright would have it that the work stoppage on May 21 was spontaneous in nature because of the employees' resentment agwinst Mrs Powch's failure to support the strike throughout its duration and that rather than work with her, they concertedly walked out, despite the efforts of Wright and Alber to avoid the work stoppage. Wright also denied that he or Alber told Ferdinand that the employees were looking for Andrew Powch. Wright's testimony in this regard was not corroborated by any employee witness and Alber was not called as a witness. Statements attributed by Wright to employees Kuhlman and Zukowski were credibly and effectively denied by them Wright did not impress the under- signed as a reliable witness, As the record shows, Wright was extremely evasive in respond- ing to questions , and his testimony was at odds in several respects with statements contained in his sworn affidavit given a field examiner of the Board Moreover, portions of Wright's testimony were self-contradictory. In view of these considerations and upon the entire record and the undersigned's impression of the witnesses, Wright's testimony is found unentitled to credence except to the extent that it was in accord with the credited testimony set forth in the text. THE ENGLANDER COMPANY, INC. 47 remain." Minter alsosaid, however, that "ifshe wasn't there, they'd come back immediately," that day. With the understanding that Mrs. Powch would not be at work in the plant, Ferdinand agreed that the employees should return to work that afternoon pending a resolution of the dispute . Minter then consulted with the employees by telephone and a few minutes later in- formed Ferdinand that most of them had gone home. Rerdinand and Minter agreed that Ferdinand would inform Mrs. Powch not to come to work and that the employees should re- port to work the next morning pending resolution of the matter.3 Thereafter, Ferdinand had no conversations with Minter, Alber, or Wright concerning Mr. or Mrs. Powch.4 Plant Manager Ferdinand further testified credibly that under the schedule for resumption of plant operations, Andrew Powch would have been recalled to work on May 22, 1952, but that Ferdinand did not recall him because on May 21 Alber had told Ferdinand that there were "a few people they will not work with, and Andrew Powch was one of them." During the week following May 21, 1952, another employee was assigned to Andrew Powch's job as a cutter of air-foam rubber. A few days after May 21, 1952, Mrs. Powch telephoned Ferdinand and inquired when she and her husband might resume their employment with the Company. According to Mrs. Powch's credible testimony, admitted by Ferdinand, the latter told her, "I'm sorry, I can't help it now, because Union prohibits you and Andrew ... coming back to work." Later, Mrs. Powch telephoned Ferdinand 2 or 3 times seeking information about the possibility of her reinstate- ment and each time was told that there was no change in the situation- -that the "Union pro- hibit you coming back to work." According to Andrew Powch's credited testimony, he tele- phoned the plant, spoke to an office employee about May 23 or 24, 1952, and inquired when he would be recalled to work. He was informed, "Sorry, we cannot let you go back to work, be- cause the Union prohibited" work "for you." Later on, he had a similar conversation by telephone with an unidentified office employee of the Company. On October 29, 1952, the Complainants filed their initial charges in the instant proceeding. On November 5, 1952, counsel for the Union sent the following letter to counsel for the Company and a copy thereof to the Board- I have your letter of October3lstenclosinga photostatic copy of the charge filed against the company alleging the unlawful discharge of Miroslawa Powch and Andrew Pouch [sica. The union has received a copy of a similar charge filed against it. I have discussed the matter with representatives of the union who advised me that to the best of their knowledge both of the complaining parties quit their jobs and that neither was fired. Certainly the union never caused a termination of employment of either of the employees in violation of the law and we do not understand that the company did either. In any event, I have been requested by the union to advise you that Local 140 has no objection whatsoever to the company employing either Mr. or Mrs. Powch and suggest- that you offer them re-employment. If they actually want their jobs back, there is no reason why they should suffer any losses in addition to those which they may have already suffered. By separate letters, dated March 10, 1953, to each of the Complainants, the company of- fered them "immediate unconditional reinstatement to your former position with full seniority rights and all other benefits." Under date of March 18, 1953, counsel for the Complainants wrote the Company as follows: I have the copies of your letters dated March 10, 1953, addressed to my clients, Andrew and Miroslawa Powch, in which you state that you offer them reinstatement to their former positions. 3 The findings in this paragraph are based upon the credible testimony of Ferdinand. 4 Minter's testimony was not fatally irreconcilable with that of Ferdinand except as to the findings in this sentence. Minter testified that within the week following May 21 he asked Ferdinand, "'What do you want to do about this stuff?' . meaning the discussion, and what was supposed to take place. And he said, 'There's nothing to talk about,' and there was no discussion" about the incident relating to the employment of Mrs. Powch. However, a sworn affidavit given by Minter to a field examiner of the Board contains the following statement relating to the sequence of events following the work stoppage on May 21, "After this, I never mentioned the incident again to Mr. Ferdinand except after the charge was filed." In view of the obvious inconsistency between Minter's testimony and the above-quoted statement in his affidavit, as well as the undersigned's impression of the witnesses, Allnter's testimony in this regard is not credited and the testimony of Ferdinand, set forth in the text, is accepted. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From my conversations with them. I know that they will expect, as they are entitled, to be made whole for their lost earnings and out-of- pocket expenses incurred as a result of their discharge and/or refusal of employment. They are entitled also to reasonable assurances against a recurrence of the acts complained of, either by way of an order of the National Labor Relations Board, or a stipulation to be posted in the plant guaranteeing them against discriminatory practices. If you advise me as to what you are prepared to do with regard to these two points, I will advise you further as to my clients ' reaction to your letter. B. Conclusions 1. As to the Union's responsibility for the activities of Alber and Wright As mentioned previously, Wright was 1 of the 9 departmental stewards of the Union in the Company's plant, representing about 44 employees ; and Alber was the shop chairman of the stewards. These 10 employees constituted the shop committee. By virtue of their offices in the Union they were members of the Union's strike committee and also of its contract-nego- tiating committee and participated in collective -bargaining negotiations for contracts. Despite Wright's unconvincing testimony seeking to minimize his duties, it is clear from Ferdinand's credible testimony that both Wright and Alber participated in the settlement of employee grievances with the Company. The Constitution of the Union contained the following provisions regarding the duties of the shop chairman and the shop committee: (a) The Shop Chairman, together with the Committee, shall enforce the Laws of the Union, carry out the decisions of the general membership meeting, pertaining to the general affairs of the Union, and the decisions reached at the trade department and shop meetings. (b) The Shop Chairman and the representative of the Union shall adjust the grievances which may arise between the employees and the employer. (c) The Shop Chairman shall be responsible for seeing to it that all members are paid up in dues, and in good standing with the union. (d) During the absence of the Union representative, the Shop Chairman and the Shop Committee shall see to it that the Union discipline prevails among the members. (e) The Shop Chairman and the Shop Committee have no authority to stop a member, a department, or the entire crew from work, in case of a dispute or grievance with the employer or foreman, unless so authorized by the representative of the Union. (f) The Shop Chairman and Committeemen have no power to stop any member of the Union from work on account of arrears in dues, undisciplined action, or violation of Union Laws, unless so authorized by the Union officials or the Executive Board. (g) In the event of a dispute between a member of the Union and the employer, or violation of our Union's Laws and Regulations, the Shop Chairman shall report same to the office of the Union immediately. (h) In the event that the Shop Chairman refuses to execute the decisions of the Shop crew or the membership, or violates the laws of the Union, he shall be removed by the Executive Board and replaced by another worker at a regular or special shop meeting. This also applies to Shop Committeemen. From the foregoing, it is clear and it is found that the Union is responsible for the conduct of Alber and Wright as shop chairman and departmental steward, respectively, since they had been empowered by the Union to represent it in the general area-within which they, as Union representatives, acted, even though they may have acted without express authority.5 More- over, their conduct on May 21, was subsequently ratified by Union Representative Minter. At the time of the hearing, they continued to hold the same offices on the shop committee. 5 Shen-Valley Meat Packers, Incorporated, 105 NLRB 491; Anniston Yarn Mills, Inc., 103 NLRB 1495; Local 57, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, 102 NLRB 111; Local Union No. 2681, United Mine Workers of America, 100 NLRB 392; Local #1150, United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, et al. (Cory Corporation), 84 NLRB 972; United Furniture Workers of America, Local 309, CIO, et al. (Smith Cabinet Manufac- turing Company, Inc.), 81 NLRB 886; International Longshoremen's and Warehousemen's Union, CIO, et al. (Sunset Line and Twine Company), 79 NLRB 1487, 1507-9. THE ENGLANDER COMPANY, INC. 49 2. As to the termination of employment of Miroslawa Powch It is too clear for extended argument that by assenting to the Union's demands for the ter- mination of Miroslawa Powch's employment because of her husband's opposition to the Union (or, as testified by Wright, because of her failure to participate fully in the Union's strike activities), the Company "permitted the Union to arrogate to itself the Company's control over employment, and to use such control to accomplish discharges which were clearly dis- crimmatory."6 The undersigned concludes and finds that by terminating the employment of Miroslawa Powch and by refusing her reinstatement until March 10, 1953, the Company has discriminated in regard to her hire and tenure of employment, thereby encouraging member- ship in, adherence to, and participation in activities of, the Union, in violation of Section 8 (a) (3) of the Act and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 7 As the Union caused the Company to effect the discriminatory discharge of Miroslawa Powch for reasons other than those condoned by the Act, the Union's conduct violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 3. As to the termination of employment of Andrew Powch Since the Company's failure to recall Powch to work on May 22, 1952, and thereafter was based upon the statement of Shop Chairman Alber on May 21 that there were "a few people they will not work with and Andrew Powchwas one of them," it is also clear that the Company likewise surrendered control over employment to the Union and discriminated in regard to the hire and tenure of employment of Andrew Powch, thereby encouraging membership in, ad- herence to, and participation in activities of, the Union in violation of Section 8 (a) (3) and (1) of the Act. Since the Union caused the Company to deny Powch reinstatement, and/or to discharge him constructively, the Union's conduct was violative of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 6It is further found that by the assault of Powch by President Tishler and another individual on May 6, 1952, caused by Powch's failure to participate fully in the strike activities of the Union and by his criticism of the Union; by President Tishler's threats to Powch on May 6, 1952; by inducing, encouraging, ratifying, and supporting a work stoppage of the Company's employees on May 21 for the purpose of preventing the continued employment of Miroslawa Powch; and by requiring the Company to cease giving employment to Miroslawa Powch and Andrew Powch, the Union restrained and coerced employees of the Company in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company and the Union set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company and the Union engaged in unfair labor practices, the under- signed will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Company has discriminated in regard to the hire and tenure of employment of Miroslawa Powch and Andrew Powch and that the Union caused the Company to discriminate against these employees. However, on November 5, 1952, the Union notified the Company and the Board that the Union had no objection to the Company's employing Miroslawa or Andrew Powch and suggested that the Company offer them reemployment. By letter dated March 10, 1953, the Company offered them "immediate unconditional reinstatement to your 6Air Products, incorporated, 91 NLRB 1381, 1383 7See J. E. McCatron et al., 106 NLRB 26, and cases cited therein Cf. Mexia Textile Mills, 11 NLRB 1167, 1174-5. 8Cf. Bell Aircraft Corporation, 105 NLRB 755; Randolph Corporation, 89 NLRB 1490. 339676 0 - 55 - 5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former position with full seniority rights and all other benefits." The Complainants did not refuse the offer, but raised a question as to backpay. At the hearing both stated that they de- sired reinstatement. It is found that the Company's offer of reinstatement was bona fide and accordingly that it will be unnecessary for the Company again to offer reinstatement to the Complainants. 9 Since it has been found that the Company and the Union are responsible for the discrimination suffered by the Complainants, it will be recommended that the Company and the Union jointly and severally make the Complainants whole, in accordance with the Woolworth formula,10 for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination against him to March 10, 1953, the date of the Company's offer of reinstatement, less his net earnings during said period." It is recom- mended further that the Company make available to the Board upon request payroll and other records, m order to facilitate the checking of the amount of back pay due.' However, the Union shall not be liable for any back pay accruing after 5 days from November 5, 1952, when it notified the Company that it had no objection to the reinstatement of the Complainants.i3 Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The Englander Company, Inc., a Delaware corporation, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 140, Bedding, Curtain & Drapery Workers Union, United Furniture Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Miroslawa Powch and Andrew Powch, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, theCompany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing the Company to discriminate in regard to the hire and tenure of employment of Miroslawa Powch and Andrew Powch, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing employees of the Company in the exercise of the rights guaranteed by Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce with- in the meaning of Section 2 (6) and (7) of the Act. [ Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT encourage membership in Local 140 , Bedding, Curtain & Drapery Workers Union , United Furniture Workers of America , CIO, or in any other labor organ- ization of our employees , by discriminating in regard to their hire or tenure of employment or any term or condition of employment. 9The L. B. Hosiery Co., Incorporated, 99 NLRB 630. 1O F. W. Woolworth Company, 90 NLRB 289. "Crossett Lumber Co., 8 NLRB 440; Republic Steel Corpotation v. N. L R. B , 311 U. S 7. Q F. W Woolworth Company, 90 NLRB 289. 13Mundet Cork Corporation, 96 NLRB 1142; Air Products, incorporated, 91 NLRB 1381 THE ENGLANDER COMPANY, INC. 51 WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees m the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE HAVE offered Miroslawa Powch and Andrew Powch immediate and full reinstate- ment to their former or substantially equivalent positions , and will make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. THE ENGLANDER COMPANY, INC., Employer. Dated ................ By............................................................. .......................... (Representative) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B TO ALL MEMBERS OF LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO AND TO ALL EMPLOYEES OF THE ENGLANDER COMPANY, INC., ITS SUCCESSORS OR ASSIGNS Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT in any manner cause or attempt to cause The Englander Company, Inc., its officers, agents, successors, or assigns, to discriminate against its employees because of employees' criticism of our Union or because of their failure to support activities of our organization or cause or attempt to cause the said Company to discrimi- nate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of The Englander Company, Inc., its successors, or assigns, in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL make Miroslawa Powch and Andrew Powch whole for any loss of pay they may have suffered because of the discrimination against them. WE HAVE no objection to the employment of Miroslawa Powch and Andrew Powch by The Englander Company, Inc., its successors, or assigns, without prejudice to their seniority or other rights and privileges. We have given The Englander Company, Inc., notice to this effect. LOCAL 140, BEDDING, CURTAIN & DRAPERY WORKERS UNION, UNITED FURNITURE WORKERS OF AMERICA, CIO, Labor Organization. Dated ................ By.................. .................... .................. •• .. .. ..................... (Representative) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material.