The M. H. Ritzwoller Co.

In the Matter of THE Al. H. RITZWOLLER COMPANY and COOPERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL No. 28 Case No. C-643.-Decided September 1, 1939 Cooperage Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements ; unsolicited, general increase in wages upon inauguration of membership drive by union-Unit Appropriate for Collective Bargaining: pro- duction and maintenance employees , excluding executives , foremen, and super- visory and office employees ; stipulation as to-Representatives : proof of choice ; .applications for membership supported by testimony of union organizer; evi- dence not refuted by respondent-Collective Bargaining: refusal to bargain; avoidance and delay ; failure to reply to union 's demand for conference ; reopen- ing plant in face of recognition strike; failure to offer counterproposals; employer ordered upon request to enter into a written contract with union in the event an agreement is reached-Strike: prolonged by unfair labor practices; strikers entitled to reinstatement upon application-Discrimination: refusal to reinstate 7 strikers on individual application ; refusal of union's offer to call off strike in exchange for dismissal of strikebreakers and rehiring of strikers; discharges and irregular employment ; charges of, dismissed-Reinstatement: ordered-Back Pay: awarded. Mr. Herbert N. Shenkin, for the Board. Mr. Otto A. Jaburek, of Chicago, Ill., for the respondent. Mr. James J. Doyle, of Boston, Mass., for the Union. Mr. Walter T. Nolte, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Coopers' Inter- national Union of North America, Local, No. 28, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated March 7, 1938, against The M. H. Ritzwoller Company, Chicago, Illinois, 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), and (5) and Section 2 (6) and (7) of the National 15 N. L. R. B., No. 3. 15 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served uport the respondent and the Union.' With respect to the unfair labor practices the complaint, as amended, alleged in substance : ( 1) that on May 14, 1937 , and on a number of specified occasions thereafter the respondent refused to, bargain collectively with the Union as the representative of a mit- jority of its production . and maintenance employees, exclusive of supervisory and office employees ; (2) that, following a strike caused by its refusal to bargain with the Union , the respondent discour- aged membership in the Union by refusing to reemploy 28 named employees on certain specified dates because of their union activity; (3) that on September 24, 1937, the respondent refused the Union's. offer to call off the strike upon condition that the striking employees: be reinstated and strikebreakers discharged; (4) that the respondent discouraged membership in the Union by discharging Adam Repo- sky on May 22, 1937, and John Gillespie on July 1, 1937 , and by giv- ing irregular and discontinuous employment to McKinley Calhoun from April 17 to June 17, 1937, because of the union activities of these three employees ; and (5) that on and after April 1, 1937, the respondent urged, advised , and warned its employees to refrain from union activities, thereby, and by the foregoing acts, interfering with,, restraining , and coercing them in the exercise of the rights gilaran- teed in Section 7 of the Act . On March 14, 1938, the respondent filed. its answer to the complaint and on March 17, 1938, it filed an amended answer to the complaint as amended . In each it admitted the allegations concerning the nature of its business , denied the alleged unfair labor practices, and interposed several affirmative defenses to the allegations of unfair labor practices. Pursuant to notice , a hearing was held at Chicago, Illinois, from March 14 to March 22, 1938 , before R. N. Denham , the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hear - ing. Full opportunity to be heard , to examine and cross -exaniine• witnesses, and to introduce evidence bearing on the issues was afforded all parties . During the course of the hearing the Trial Examiner made numerous rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial' Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. 1 At the hearing, on March 14, 1938, counsel for the Board read into the record certain. proposed amendments to the complaint and moved that the complaint be amended accord- ingly. The motion was granted. Thereafter, upon request of counsel for the respondent, the hearing was continued to March 16 to allow the respondent time to prepare its. amended answer. THE M. H. RITZWOLLER COMPANY 17 On May 17, 1938, copies of the Trial Examiner's Intermediate report were.duly served on the parties. The Trial Examiner found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Sec- tion 2 (6) and (7) of the Act, substantially as alleged in the com- plaint. With respect to the alleged discrimination within the mean- ing of Section 8 (3) of the Act, he found that the evidence failed to establish that Adam Reposky and John Gillespie had been discharged and that McKinley Calhoun had been given irregular and discon- tinuous employment because of union activity. As to the 28 em- ployees alleged to have been refused reinstatement because of union activity, the Trial Examiner found that 21 had been so refused, that 1 had in fact been discharged for the same reason, and that 2, who were unwilling to accept reinstatement up to the date of the hearing, were nevertheless entitled to reinstatement thereafter. An additional finding was made to the effect that Reposky, although lawfully discharged, had been included in the Union's blanket request for reinstatement on September- 24, 1937, and had been refused reinstatement as of that date because of union activity. The Trial Examiner recommended that the respondent offer reinstate- ment to the 25 employees found to have been discriminated against and make them whole for losses of pay in amounts specified in the report, that it bargain collectively with the Union upon request, and that it take certain other action designed to effectuate the policies of the Act. Thereafter the respondent filed its Exceptions to the Record and the Intermediate Report and requested oral argument before the Board in support of such exceptions. Pursuant to notice duly served upon all parties, a hearing was held before the Board in Washington, D. C., on March 28, 1939, for the purpose of oral argument. The respondent and the Union were represented and participated in the argument. The Board has considered the exceptions and the arguments in support thereof and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The M. H. Ritzwoller Company, an Illinois corporation maintain- ing its principal office and place of business at 4800 South Hoyne Avenue, Chicago, Illinois, engages in the manufacture, sale, and dis- 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tribution of "tight cooperage," i. e., barrels designed as containers: for liquid and semi-liquid products. During the year 1936, the respondent received raw materials, such as staves, heading, unfinished lumber, hoops , and rivets , to the value of approximately $60,000.00 per month. During the first 5 months of 1937, its raw-material receipts averaged approximately $70,000.04 per month. Almost all such raw materials are shipped to the respondent from States other than the State of Illinois. During the year 1936, the approximate average value of the re- spondent's finished products was $85 ,000.00 per month. During the first 5 months of the year 1937 , the approximate average value of such products was $95,000.00 per month . Sixty to seventy per cent of such finished products were sold and transported to cus- tomers located outside of the State of Illinois. In a field of eight tight-cooperage establishments in Illinois, the respondent is the third or fourth largest. It manufactures approxi- mately 20 per cent of the tight-cooperage output within the State of Illinois and approximately 2 to 5 per cent of the Nation -wide output.. II. THE UNION Coopers' International Union of North America, Local No. 28, is- a labor organization affiliated with the American Federation of Labor, admitting to its membership all employees in the respondent's plant with the exception of office and supervisory employees , fore-- men, and executives. III. THE UNFAIR LABOR PRACTICES A. The chronology of events In April 1937 Melton, one of the respondent 's employees, told Con-- way, the plant superintendent, that he intended to circulate a peti - tion among the employees to determine whether or not they wanted to join the Union. Conway replied, "Do as you please ," and Melton. thereafter prepared a petition reading substantially as follows : We, the employees of the M. H. Ritzwoller Cooperage Com- pany, pledge ourselves to join the Coopers International Union. After circulation throughout the plant among the respondent's non supervisory employees, who at the time numbered about 150, the. petition contained 136 names. During the time when the petition was being examined and signed by the employees it was often left in a small room known as the "hoop-room." Conway discovered the petition there, read it, and reported the matter to William Nuss- baum, general manager. Later the same day, Nussbaum called to his THE Al. H. RITZWOLLER COMPANY 19) office a selected group of employees and told them that, "although he could not afford it," he would give all the employees a raise of 21/2 cents an hour. Nussbaum denied statements derogatory to the- Union attributed to him by several of the employees who attended: this meeting in his office, insisting that the Union was neither men- tioned nor discussed, but admitted that his knowledge of the petition had prompted him to call in the group of employees, an unprece- dented move on his part. He also testified, and was corroborated by Conway's testimony, that the raise was given to quiet the "un- easiness" then prevalent among the employees. Three of the em- ployees who were called to Nussbaum's office testified that he had told them that the Union would do them no good and that he would not recognize it but would close the plant up and let them starve to, death before he would do so. In spite of Nussbaum's denial, we believe that he made such statements because of the uniformity and clarity of the testimony of the three employees. In coming to this. conclusion, we are. also persuaded by the fact that the incident which admittedly prompted Nussbaum to call the employees to his office was the circulation of a petition evidencing employee support of the Union. Except for three occasions in May 1937 when William G. Tate, organizer. for the Union, met with Nussbaum to discuss the circum- stances surrounding the lay-off of individual employees, the record does not disclose any further incident with respect to the Union until June 10, 1937. On that day Tate and Poidl, an international representative of the Union, met Nussbaum in 'front of the plant and. gave him a copy of a proposed contract with the Union which they asked him to discuss with them. On this occasion the union repre- sentatives claimed' to represent a majority of the employees and indicated that they wished to open negotiations immediately. Nuss- baum told them, however, that he was leaving the city for 2 or 3, days and suggested that they call him after his return. The union representatives thereupon suggested that he keep the copy of the proposed contract and read it over before their next meeting. Al- though Nussbaum was back at his desk on June 14 and 15, Tate was told that he was out when attempting to reach him on each of those days. At a meeting of the Union on June 16, Tate reported to the respondent's employees who were present concerning his efforts to, negotiate with Nussbaum. At this meeting a committee consisting of Tate and Poidl, and two employees, Melton and Gwynne, was instructed to make a further attempt to negotiate with Nussbaum and was authorized to call a strike if he refused. On the following day, June 17, this committee appeared at the plant office and asked for Nussbaum. Because Nussbaum was at 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time on a trip to Baltimore, Philadelphia, and New York, the committee was met by his brother, Bertram Nussbaum. The com- mnittee told Bertram Nussbaum that unless a conference with respect to their proposed agreement was arranged within 24 hours there would be a strike. Bertram Nussbaum agreed to telephone his brother in New York City and give the committee an answer with respect to a conference within the 24-hour period. When Melton returned to work after this conference, he observed what he termed unusual activity with respect to the loading of barrels for shipment and noticed that bourbon barrels were being loaded "hot," that is directly after assembly without being allowed to cool and without having been reset, a practice which he had never before observed during his 12 years with the respondent. Melton thereupon discussed the situation with several other employees and discovered that they were of the opinion that, if a strike was to have any chance of success, it should be called before the respondent had time to "gut the warehouse." In response to a predetermined signal by Melton, the employees walked out at 2 o'clock that afternoon. Participation in the strike was so widespread that operations ceased almost im- mediately. It was not until, after the strike was in progress that Bertram Nussbaum reached his brother in New York City. When informed of the situation William Nussbaum decided to return to Chicago the following morning. No reply was given, however, to the Union's request that a date for a conference be set within 24 hours. On the following morning, June 18, William Nussbaum returned to the plant and received the union committee in his office. There is a conflict in the evidence as to whether the committeemen . asked that Nussbaum negotiate in an attempt to settle the strike at that time or whether they indicated that they would return when he was more disposed to talk with them. The evidence is clear, however, that Nussbaum made no offer to negotiate and showed no desire to settle the strike at that time. Thereafter, although Tate was at the plant daily to consult with the strikers, and on at least one occasion, July 7, called at the office for an interview with Nussbaum, the respondent indicted no' willingness to confer. About the middle of July, the Union enlisted the services of a Federal conciliator who, after talking with Nussbaum on the telephone, informed Tate and Poidl that there was no indication that. Nussbaum intended to negotiate with them. On July 22 the Union filed a charge with the Board, alleging inter alia that the respondent had refused and was continu- ing to refuse to bargain with the Union. THE M. H. RITZWOLLER COMPANY 21 On Friday, July 23, the respondent posted the following notice on the door of the employees' entrance to the plant where it could be seen by all pickets and others passingby on the street: This plant will resume operations on Monday-July 26 under the same terms and conditions as the plant has run in the past. THE M. H. RITZWOLLER COMPANY. At the same time the respondent caused a number of individuals not formerly employed by it to be brought through the picket line in taxicabs and put to work in the plant preparing for the resumption of operations. After thus making plain its resolve to reopen the plant without settling the strike, the respondent also began the indi- vidual solicitation of strikers to return to work by means of letters, phone calls, and messages relayed through fellow employees. Pro- duction was begun on July 26 on a limited basis with a crew consisting of a number of new employees and some old employees who had accepted the terms laid down by the respondent for reinstatement. Many of the strikers, however, refused the respondent's offer of re- instatement on the ground that they did not intend to return to work until a settlement was reached with the Union. Throughout August the volume of production was gradually increased, additional new employees were hired, and more strikers returned to work. Tate told the strikers at this time that the Union would not object to their returning to work in view of the hardship they were undergoing and also in view of the fact that there was no immediate prospect of settling the difficulty between the respondent and the Union. Picket- ing was continued, however, until February 1938, during which time a substantial number of strikers continued without employment. On September 24, 1937, Tate, accompanied by several strikers, met with Nussbaum in a further attempt to reach an understanding. There is a direct conflict in the evidence as to what took place at this conference. Tate and two of the strikers who accompanied him to the conference testified that the Union offered to call off the strike if the respondent would agree to rehire all the strikers remaining out of work and to discharge the strikebreakers who had been engaged by the respondent since operations were resumed but that the respond- ent refused the offer. Nussbaum and Basketfield, the respondent's chief clerk, insisted on the other hand that the conference was con- fined to a. discussion of the terms of the contract proposed by the Union on June 10 and that calling off the strike and return of all strikers to work was not mentioned. The Union's account of this conference is entirely plausible in the light of the return to work of a number of strikers during August and of Tate's statement to the men that the Union would not object to any effort they might make 199549-39-vol. 15-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to return. The testimony that the respondent refused the offer is also in accord with the respondent's refusal on prior and subsequent occa- sions to replace new employees with strikers applying for reinstate- ment. We therefore accept as true the account of the September 24 conference given by the union men. No further negotiations took place until November, when the parties met in the Board's Regional Office. Nussbaum explained on this oc- casion that he had always given the Union a "hearing" and agreed to meet again with the union representatives in an attempt to reach an understanding. Two conferences were subsequently held in Nuss- baum's office, one late in November and another in December. The two strikers who were present with Tate at the September 24 confer- ence and testified as to what occurred at that time were also present. at the December conference. Both testified that Nussbaum had said again that he could not get rid of the new employees and replace them with strikers. Testimony of both Tate and Nussbaum establishes that the chief item under discussion at the November and December conferences was the contract proposed by the Union and more particularly the closed- shop and wage provisions of that agreement to which the respondent strenuously objected. Tate also testified that during these confer- ences Nussbaum gave evidence of an aversion to reaching an agree- ment with the Union by saying, "I am not going to sign anything- with the Union. I don't agree to anything with the Union." Nuss- baum denied having made any such broad, general statement. He testified, however, that he was uncertain as to whether or not he would be required to enter into a written agreement with the Union, in the event that terms were agreed upon during negotiations. He admitted, furthermore, that he had made no attempt to reach an agreement by advancing counterproposals. We are of the opinion from the record that Nussbaum, in addition to stating his fundamental disagreement with the Union over the terms of its proposed contract, also made. plain the fact that he was not disposed to embody any terms or con- ditions with the Union in a written agreement. Up to the date of the hearing in this proceeding the situation re- mained relatively the same; no further conferences were held, new employees continued upon the respondent's pay roll, and a number of the strikers continued to be without employment. B. Interference, restraint, and coercion As we have previously stated, the circulation of the union petition in April 1937 was followed almost immediately after discovery by Conway by an act which was without precedent, the calling in by the respondent of a selected group of employees to receive a statement THE M. H. 'RITZWOLLER COMPANY 23 from the management. In spite of Nussbaum's denial, we have stated that we believe from the testimony of the employees that he made statements on this occasion which conveyed the impression that the Union would not be recognized by the respondent and that the em- ployees had no need for an organization. This impression was rein- forced by the granting of the unsolicited, general increase in wages. Conway also told employees at this time that the respondent would not recognize the Union. A number of the employees testified that subsequent to the calling of the strike Nussbaum made remarks to them which indicated that he would never recognize the Union and that their picketing was useless. These remarks, which occurred on occasions when Nuss- baum passed the men while they were picketing the plant, were severally and categorically denied by Nussbaum. All of the remarks a.re, however, typical of Nussbaum's general attitude as revealed in the record. One in particular was repeated by three different wit- nesses, each of whom testified that Nussbaum had said to him, "You can picket until doom's day but I will never recognize your Union." We are, therefore, of the opinion that Nussbaum made statements to individual employees during the course of the strike to the effect that he would not recognize the Union and that their picketing was useless. We find that the respondent, by the remarks of its officers and agents to individual employees, indicating that the respondent would not recognize the Union and emphasizing that adherence to the Union cause would be fruitless, and by announcing an unsolicited, general increase in wages at a time when the organization of its employees had just been inaugurated, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to bargain collectively 1. The appropriate unit It was alleged in the complaint that the production and mainte- nance employees of the respondent, exclusive of supervisory and office employees, constituted a unit appropriate for the purposes of collec- tive bargaining. This definition corresponds with the Union's mem- bership which includes all of the respondent's employees with the exception of executives, foremen, and supervisory and office em- ployees. A stipulation was entered into at the hearing by all parties to the effect that the unit as alleged was an appropriate unit. The respondent, however, reserved the exception that night watchmen should be excluded. The Trial Examiner found that the night watch- men should be included in the appropriate unit and the respondent 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made no exception to such finding. We find, therefore, that the watchmen should be included within the unit. We find that the production and maintenance employees, exclusive of executives, foremen, and supervisory and office employees, em- ployed by The M. H. Ritzwoller Company, Chicago, Illinois, consti- tute a unit appropriate for the purposes of collective bargaining and that such unit insures to employees of the respondent the full benefit of their right to bargain collectively and otherwise effectuates the policies of the Act. 2. The representation by the Union of a majority in the appropriate unit The record discloses that on June 17, 1937, there were 154 employees on the respondent's pay roll within the unit found to be appropriate. At the hearing the Union submitted 125 applications for membership' which were checked by the respondent but, by agreement of the parties, were not introduced in evidence. Counsel for the respondent admitted, after the check of the applications, that 120 bore the names of persons employed by the respondent on June 17, 1937. The record also discloses that at least 95 of these 120 applications bear dates ranging from April 17 to June 16, 1937. Tate testified that the appli- cations were signed by employees or for them at their request at meetings of the Union during that period. The respondent offered no proof to refute this evidence of representation. Moreover, it is corroborated by the fact that the employees supported the Union on June 17 by striking for its recognition. We find that on June 17, 1937, the Union was the duly designated representative of a majority of the employees in the unit hereinabove found to be appropriate for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, it is, therefore, the exclusive representative of all of the employees in such unit' for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain The Union's position was clearly enunciated to the respondent at the meeting between Nussbaum and the representatives of the Union in front of the plant on June 10. It claimed to represent a majority of the respondent's employees and requested an immediate confer- ence for the consideration of its proposed agreement. Although Nussbaum did not at this time unequivocally refuse to negotiate with the Union, he failed to extend to its representatives the friendly courtesy of fixing a definite time for a conference when he should THE M. H. RITZWOLLER COMPANY 25 return to the city. He was content to suggest that they get in touch with him. It is reasonable to believe that thereafter the Union would make every effort possible to confer with Nussbaum. It had nothing to gain from delaying the negotiations. We therefore accept as true Tate's testimony that he made several unsuccessful attempts to reach Nussbaum prior to June 16. Furthermore, although Nuss- baum claims he received no message from the Union while in the office from June 12 to 15, he made no effort to communicate with the Union's representatives and left no message for them when he again departed from the city.' Such circumstances indicate a disposition on the part of the respondent to avoid or delay a conference with the Union. When the strike was called on June 17 the respondent had before it the Union's demand that a conference date be set within 24 hours. It then became apparent that the employees would continue the strike until the respondent should recognize and negotiate with the Union. In spite of this situation, however, Nussbaum failed to refer to the Union's demand for a conference and made no offer to negotiate when he and other representatives of the respondent met with the representatives of the Union on June 18. In our view this constituted refusal on the respondent's part to bargain collectively .$ Subsequently, with the Union's representatives within easy reach, the respondent showed no desire to attempt to compose its differences with the Union by means of negotiation. By Nussbaum's admission, Tate made an attempt to confer with him on July 7, but was told that he was out. Nussbaum claims that he waited in the office on July 8, but again he made no attempt to get in touch with Tate. The Union further manifested its desire to negotiate with the respondent when it called in the Federal conciliator about the middle of July. Nussbaum's testimony shows that he turned down a request from the conciliator, whom he erroneously believed to be a repre- sentative of "The Federation of Labor," for a conference in the fol- lowing language.: "Well, I said, Mr. O'Connor, I feel very badly that you waited until such a late date to call me up for the Union, because here we had such a shabby deal from your union. I can't understand it . . . I am not in a frame of mind to come down- town, it is not agreeable to me, but you might call on me at your leisure." We interpret this statement by Nussbaum as a further 2 See ' Matter of Suburban Lumber Co ., 3 N. L. R . B. 194; and Matter of National Motor Bearing Co., 5 N. L. R. B. 409, enforced as modified , National Labor Relations Board v. National Motor Bearing Company, 102 F. (2d) 652 , C. C. A. 9th, June 2, 1939. 8 For cases in which failures to reply to requests for bargaining conferences have been held to constitute refusals to bargain see: Matter of C. A. Lund Co., 6 N. L. R. B. 423, pertinent sections of which were affirmed in National Labor Relations Board v. Christian A. Lund, 103 F. (2d) 815, C. C. A. 8th, May 1.0, 1939; Matter of the Triplett Electrical Instrument Co., 5 N. L. R. B. 8335 ; and Matter of Somerset Shoe Co., 5 N. L. R. B. 486. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manifestation of his reluctance to comply with the Union's request for negotiations. By announcing that it would reopen its plant on July 26, "on the same terms and conditions as the plant has run in the past," and by soliciting individual strikers to return to work without first nego- tiating with the Union, the respondent gave to its employees and to the Union further and unmistakable evidence of its determination to refuse the Union's pending request for collective bargaining. We are of the opinion that this action by the respondent amounted to a further refusal to recognize the Union as the representative of its employees and to bargain collectively. At the conferences which took place thereafter, the respondent made no sincere attempt to bargain collectively. When Nussbaum had occasion to define collective bargaining in his testimony, he stated that it involved the giving of counterproposals for unaccept- able propositions advanced by the other party. His own account of the conference of September 24 indicates, however, that, during a discussion of the Union's proposed contract, he characterized the con- tract as unacceptable because of its closed-shop and wage provisions but made no counterproposals whatsoever. Furthermore, according to his own testimony, the same process was repeated at the conferences with the Union late in November and in December. Nussbaum, therefore, failed in the conferences of September 24, November, and December to meet the obligations imposed upon him by his own definition of collective bargaining, a definition which is in accord with settled principles.4 In its dealings with the Union on the subject of recognition and collective bargaining, the respondent adopted, from the outset, tac- tics of evasion and indirection. By such tactics, Nussbaum succeeded in avoiding a conference with the Union's representatives during the period from June 10 to 17 and, thereby, in convincing the employees that he did not intend to negotiate. On June 18 this policy of evasion was continued, even though the respondent was confronted with a strike of its employees in protest against its prior failure to negotiate with the Union as their representative, and manifested itself in Nussbaum's failure to reply to the Union's demand of June -17 that a conference date be set. As indicated above, we view this as *a refusal to bargain. By failing to communicate with Tate follow- ing the latter's call on July 7 and by refusing the Federal _ copcilia- tor's proposal of a meeting, Nussbaum further exhibited his determi- nation to avoid a conference. When, on July 23, the respondent an- 4 See National Labor Relations Board v. Globe Cotton Mills, C. C. A. 5th , March 30, 1939, affirming refusal to bargain , 6 N. L. R. B. 461; and Matter of Newark Rivet Works and Unity Lodge No. 420, United Electrical & Radio' Workers of America, C. I. 0., 9'N. L. R. B. 498. THE M. H. RITZWOLLER COMPANY 27 pounced the reopening of its plant and began soliciting individuals to return to work and when, on July 26, it effected that reopening with- out offering to negotiate with the Union, it again refused to bargain collectively. Although, after having succeeded in reopening its plant, the respondent was willing to confer with the Union, it was not ready to accede to the Union's demand for bona fide collective bargaining. It then withheld such bargaining from the Union by refusing, at the conference of September 24 and at the conferences in November and December 1937, to offer any counterproposals when it voiced unalterable objection to provisions of the Union's proposed contract. We find that the respondent refused on June 18, July 23, July 26, September 24, and at the conferences in November and December, 1937, and at all times thereafter has continued to refuse, to bargain collectively with the Union as the representative of its employees .with respect to wages, rates of pay, hours of employment, and other conditions of employment, thereby prolonging the strike instituted by its employees on June 17, 1937. . We further find that the respondent, by its refusal to bargain with the Union, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. D. Discrimination with regard to tenure of employment 1. The refusals to reinstate The complaint, as amended, alleged that 28 named employees made application for reinstatement subsequent to the reopening of the plant on July 26 and were refused such reinstatement because of their union activities. During the hearing, on motion of Board's counsel, the names of two 5 of the 28 were withdrawn from the com- plaint. Two women named in the complaint 8 were admitted by the respondent to have been refused reinstatement upon individual appli- cation. In explanation of these two refusals the respondent adduced evidence to show that prior to the dates in August 1937 on which the two women applied the respondent had decided to dispense with the services of all women employees because of an 8-hour day law for women which became effective in Illinois on July 1, 1937, during the course of the strike. The Trial Examiner found that neither of these two refusals to reinstate was discriminatory. We are of the opinion and we find that his finding was proper. As to the 24 re- maining employees named in the complaint, the respondent either admitted or failed to deny that 7 had been refused reinstatement 5 Wilbur Springer and Joseph Williams. 6 Corrine Ford and Pearl Franklin. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon individual application.' We find that the 7 employees were refused reinstatement upon individual application. The evidence with! respect to the individual applications for reinstatement of the other 17 named employees is conflicting and uncertain and we are unable to find that such employees made individual applications for reinstatement. It was further alleged in the complaint, as amended, that on September 24, 1937, the Union applied for reinstatement on behalf of all the striking employees and that this application was refused by the respondent. We have found, for the reasons hereinbefore indicated, that the record supports this allegation of the complaint. This application by the Union covered 13 8 of the 17 ° employees for whom no individual applications for reinstatement. were found in the preceding paragraph. Having found that the respondent refused certain individual ap- plications for reinstatement and the blanket application of the Union, we shall consider whether such refusals were made in violation of a duty to reinstate the striking employees. We have previously found that the strike was prolonged after June 18 by the respondent's refusal to recognize and bargain collectively with the Union. More- over, the strike was further prolonged and continued because of subsequent refusals by the respondent to recognize and bargain with the Union. The employees were, therefore, without work as the result of a labor dispute prolonged by the respondent's unfair labor practices and were entitled to reinstatement upon application,10 in so far as employment was available. The failure of strikers to respond to the respondent's notice of the reopening of the plant, posted on July 23, and to its subsequent solici- tation of individual employees to return to work did not, as contended by the respondent, operate to deprive them of their right to subse- quent reinstatement upon application, when the basis of their action was the respondent's refusal to comply with the Act by recognizing the Union and bargaining collectively. When many strikers refused 7 The names of the seven employees and the dates on which they were refused reinstate- ment appear in Appendix A. 8 The 13 are listed in Appendix B. e The record discloses that, 4 of the 17 could not or would not have accepted reinstate- ment had it been offered on September 24, 1937. (1) Percy Marsh testified that he was ill and unable to work from September 1, 1.937, to the date of the hearing; ( 2) Eunich Washington testified that he was incapacitated from August 21, 1937, to February 1938; (3) Andrew Scola and (4 ) Alfred H. Reynders , engineers , both admitted that they refused offers of reinstatement about August 21, 1937, not because of any unfair labor practice of the respondent but because their own demand for a 6-day week was refused. '°National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2d, 1938 ) ; aff'g. 2 N. L. It. B . 626; cert. denied , 304 U. S. 576 and 585 ; National Labor Relations Board v. Black Diamond Steamship Corp., 94 F. (2d) 875 ( C. C. A. 2d, 1938) ; aff'g. 3 N. L. It. B . 84; cert. denied , 304 U. S. 579 ; Matter of Los Angeles Brick & Clay Products Co., 11 N. L. It. B. 750; and Matter of Stehli and Co., Inc., 11 N. L. It. B. 1397, and cases cited therein. THE M. H. RITZWOLLER COMPANY 29 to return to work on July 26, or shortly thereafter, the respondent hired new employees. The respondent admits and the Trial Ex- aminer found, that from' the reopening of its plant on July 26 to the date of the hearing in this proceeding it had in its employ a total of 76 men who were not on its pay roll on June 17, 1937, and who per- formed work previously done by striking employees not reinstated. Twenty-three such employees were on the pay roll continuously from the first week in August to November 9, 1937, a period covering the dates on which the seven strikers listed in Appendix A applied individually for reinstatement. Still others were employed for fractions of that period. On the date of the Union's blanket appli- cation for reinstatement of strikers, September 24, 1937, there were 43 such employees on the pay roll. At the time of the hearing, the respondent had on its pay roll 21 such employees. The respondent, however, permitted this situation to bar the reinstatement of strik- ers. When individual strikers applied for reinstatement, the new employees were retained, and when the Union requested that the respondent replace these new employees by rehiring the strikers, it refused. At as late a date as the hearing, it showed no disposition to displace employees hired after the strike began upon the appli- cation of strikers for reinstatement.h1 Such action by the respondent was contrary to its obligation to reinstate strikers upon application, dismissing if necessary employees newly hired since June 18, when the strike was prolonged by its unfair labor practices.12 The re- spondent's refusal to replace the strikebreakers upon application by the strikers for reinstatement was, therefore, a discrimination, within the meaning of Section 8 (3) of the Act.13 We find that by refusing the individual applications for reinstate- ment of the employees listed in Appendix A and by refusing the Union's application for the reinstatement of the employees listed in Appendix B, the respondent discriminated in regard to the tenure of employment of such employees, thereby discouraging membership in the Union, and that, by said acts, it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 11 Although the Trial Examiner interpreted statements made on the witness stand by the respondent' s officers ' and agents as amounting to an offer of reinstatement, we can find in such statements only a declared intention to reinstate strikers on application whenever jobs become available in the ordinary course of business. 'Matter o f American Manufacturing Company, 5 N. L. R . B. 443, order enforced in National Labor Relations Board v. American Manufacturing Company and Nu-Art Em- ployees, Inc., Internenor, 106 F. (2) 61, C. C. A. 2d, July 26 , 1939; Matter of Aluminum Products Company, 7 N. L. R. B. 1219; and Matter of Acme Air Appliance Company, Inc., 10 N. L. R. B. 1385. - 18 Cf. Matter of MoKaig-Hatch, Inc., 10 N. L. R. B. 33, and Matter of Western Felt Works, 10 N. L. R. B. 407. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The allegations of the complaint that Corrine Ford, Pearl Frank- lin, Percy Marsh, Eunich Washington, Andrew Scola, and Alfred H. Reynders were discriminatorily refused reinstatement upon application will be dismissed. 2. The alleged discharges and the alleged discrimination with regard to tenure and terms and conditions of employment Adam Reposky was laid off by the respondent, along with four other employees, on April 17, 1937. Prior to that date he had signed a, petition supporting the Union but had not applied for member- ship. Subsequently Tate conferred with Nussbaum with respect to Reposky's lay-off and accepted Nussbaum's explanation that the lay- off was caused by lack of work. There is nothing in the record to support the allegation that Reposky's discharge was discriminatory, within the meaning of Section 8 (3) of the Act. The allegations of the complaint, in so far as they relate to the discharge of Adam Reposky, will, therefore, be dismissed. John Gillespie, a watchman employed by the respondent, was dis- charged on July 1, 1937. By agreement with the Union, he con- tinued his duties after the strike began on June 17. From that date to the date of his discharge, nine reports of neglect of duty were issued to the respondent by the Illinois District Telegraph Company, whose automatic recording service the respondent utilized. No like number of reports had ever before been issued against this employee in so short a period of time. Furthermore, Gillespie's duties at the plant were less numerous after the strike began than at any previous time. The respondent's chief engineer testified that he had dis- charged Gillespie on July 1 because of these reports against him and that no other consideration had entered into the matter. We find that the record fails to sustain the allegation that Gillespie's discharge was discriminatory, within the meaning of Section 8 (3) of the Act, but, on the contrary, establishes affirmatively that such discharge resulted from neglect of duty. The allegations of the complaint, in so far as they relate to the discharge of John Gillespie, will, therefore, be dismissed. McKinley Cal/wun complained of a temporary lay-off and irregu- lar and discontinuous employment during the period from April 17 to June 17, 1937. On the witness stand, however, he admitted the substantial accuracy of pay-roll reports submitted in evidence by the respondent, indicating that his average weekly earnings from April 17 to June 17, 1937, were greater than. they had been for a 10-weeks period preceding April 17, 1937. The record fails to sup- port the allegation that McKinley Calhoun was discriminated against THE M. H. RITZWOLLER COMPANY . 31 during the period from April 17 to June 17, 1937, within the meaning of Section 8 (3) of the Act. The allegations of the complaint, in so far as they relate to the alleged temporary lay-off of and the irregular and discontinuous employment alleged to have been given to McKinley Calhoun, will, therefore, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent, set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing.com- merce and the free flow of commerce. THE REMmy We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall order the respondent to cease aid desist from such interference, restraint, and coercion. We have also found that the respondent has refused and continues to refuse to bargain collectively with the Union as the representative of its employees with respect to wages, rates of pay, hours of employ- ment, and other conditions of employment. We shall order the re- spondent to bargain collectively with the Union, upon request. In view of the fact that the respondent has expressed uncertainty as to its duty to enter into a written agreement with the Union, we shall also include in our order a direction that it embody mutually accept- able propositions in a written contract, if requested to do so 14 We have further found that the respondent discriminated against the employees listed in Appendices A and B in regard to their tenure of employment. We shall, therefore, order the respondent to offer all such employees, except Simon P. Calhoun, who admitted at the hearing that he had refused an offer of reinstatement made by Nuss- baum in February 1938, reinstatement to their former or substan- tially equivalent positions.15 Such reinstatement shall be effected in the following manner : All persons employed by the respondent since June 18, 1937, and who were not on its pay roll as of that date, shall, if necessary to provide employment for those to be offered reinstatement, be dis- 14 Cf. Matter of Federal Carton Corporation, 5 N. L. R . B. 879 ; Matter of Sunshine Mining Company, 7 N. L. R. B. 1252; and Matter of Highland Park Manufacturing Co., 12 N. L. R. B. 1238 , and cases cited therein. 17 A similar remedy may be found in Matter of Western Felt Works, supra, footnote 13. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD missed. If, thereupon, by reason of a reduction in the force since June 18, 1937, there is not sufficient employment immediately avail- able for the remaining employees, including those to be offered re- instatement, all available positions shall be distributed among such remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any em- ployee because of his affiliation with the Union or activity on its behalf. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and in accordance with such list, be offered employment in their former or substantially equivalent posi- tions as such employment becomes available and before other persons are hired for such work. The loss of pay resulting from the discriminations is measured by the amount received by employees continued upon the pay roll in preference to the strikers after applications for reinstatement by or on behalf of the latter. We shall, therefore, order the respondent to pay to each of the employees listed in Appendices A and B an amount equal to that which he would have earned as wages during the period from the date of the respondent's refusal of his application for rein- statement to the date of the offer of reinstatement or placement on the preferential list pursuant to the terms of our Order herein,16 less his net earnings,'' if any, during that period, had the respondent, at the time of his application reinstated such employee in accordance with the principles set forth in the preceding paragraph .18 The record establishes that Percy Marsh and Eunich Washington participated in the strike but made no individual applications for reinstatement and, because of incapacity at the time, were not in- cluded in the Union's blanket application of September 24, 1937. "With respect to Simon P. Calhoun, the amount of his back pay shall be computed in the same manner as that of other employees but shall be limited to the period from September 24, 1937, to February 1, 1938, since, as stated above, he admittedly rejected an offer of reinstatement sometime during the latter month . Sidney Thomas , who was found to have applied in person for reinstatement late in October 1937, had been, prior to that date, included in the Union's blanket application. His back pay should, therefore, be computed from September 24, 1937, rather than from the date of his individual application. 17 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with seeking work or working elsewhere than for the respondent, which would not have been incurred but for his unlawful dis- charge 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 are not considered as earnings, but shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work- relief projects. 18 For a substantially similar remedy see : Matter of Mclaig-Ilatch, Inc., supra; and Matter of Western Felt Works , supra. THE M. H. RITZWOLLER COMPANY 33 They, nevertheless, desire reinstatement. Inasmuch as Marsh and Washington occupy the status of participants in a strike which was prolonged by the respondent's unfair labor practices, we shall order the respondent, upon application, to offer them reinstatement or placement upon a preferential list, in the manner set forth above for employees ordered to be offered reinstatement without application. Other strikers, not specifically named in 'the record, are undoubtedly in a position similar to that of Marsh and Washington. We shall, therefore, not confine this provision of our order to Marsh and Wash- ington but shall include in it all strikers similarly situated. We shall also order the respondent to make whole Percy Marsh and Eunich Washington and all other strikers similarly situated for any loss of pay they will have suffered by reason of the respondent's re- fusal to reinstate them or place them upon a preferential list, upon application, following the issuance of our Order, by payment to each of them of a sum of money equal to that which each would normally have earned as wages during the period from 5 days after the date of his application for reinstatement to the date of the offer of employ- ment or placement upon a preferential list as required by the pre- ceding paragraph, less his net earnings,"' if any, during that period. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Coopers' International Union of North America, Local No. 28, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent, excluding executives, foremen, and supervisory and office employees, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the Act. 3. Coopers' International Union of North America, Local No. 28, was on June 17, 1938, and at all subsequent times has been the ex- clusive representative of all the employees in the above unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing, on June 18, July 23, July 26, September 24, and in November and December, 1937, and thereafter, to bargain collectively with the Union as the exclusive representative of the employees in the above stated unit the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. '- See footnote 17, supra. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By discriminating in regard to the tenure of employment of the employees listed in Appendices A and B, thereby discouraging mem- bership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, by discharging Adam Re- posky .and John Gillespie, by temporarily laying off and affording irregular and discontinuous employment to McKinley Calhoun, or by refusing reinstatement upon application to Corrine Ford, Pearl Franklin, Percy Marsh, Eunich Washington, Andrew Scola, and Alfred II. Reynders. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The M. H. Ritzwoller Company, Chicago, Illinois, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the exclusive representa- tive of its production and maintenance employees, excluding execu- tives, foremen, and supervisory and office employees; (b) Discouraging membership in Coopers' International Union of North America,'Local No. 28, or any other labor organization of its employees, by refusing to reinstate any of its employees, including those who went on strike on June 17, 1937, or in any other manner dis- criminating, in. regard to their hire or tenure of employment or any terms or conditions of their employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities 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 : THE M. H. RITZWOLLER COMPANY 35 (a) Upon request, bargain collectively with Coopers' International Union of North America, Local No. 28, as the exclusive representa- tive of its production and maintenance employees, excluding execu- tives, foremen, and supervisory and- office employees, and, in the event that an agreement is reached, execute a written contract with the Union, embodying the terms of such agreement, if requested to do so ; (b) Offer to the employees listed in Appendices A and B, except Simon P. Calhoun, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their senior- ity and other rights and privileges, in the manner set forth in the section entitled "The Remedy" above, dismissing, to the extent neces- sary, all persons hired since June 18, 1937, and not on the respond- ent's pay roll as of that date, and placing employees, including those ordered to be reinstated, for whom employment is not immediately available upon a preferential list in the manner set forth in said sec- tion, and thereafter, in said manner, offering them 'employment as it becomes available ; (c) Make whole, pursuant to the section entitled "The Remedy" above, the persons listed in Appendices A and B ; (d) Upon application, offer to Percy Marsh and Eunich Wash- ington and all other strikers similarly situated immediate and full reinstatement or placement upon a preferential list, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The Remedy" above; (e) Make whole Percy Marsh and Eunich Washington and all other strikers similarly situated, in the manner set forth in the section entitled "The Remedy" above; (f) Immediately post notices in conspicuous places in its plant and maintain such notices for a period of at least sixty (60) con- secutive days, stating (1) that the respondent will cease and desist in the manner aforesaid and (2) that the respondent will take the affirma- tive action set forth in 2 (a), (b), (c), (d), and (e) of this Order; (g) Notify the Regional Director for the Thirteenth Region, Chi- cago, Illinois, in writing within ten (10) days from the date of-this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, by discharging Adam Reposky and John Gillespie, by temporar- ily laying off and affording irregular and discontinuous employment to McKinley Calhoun, and by refusing reinstatement upon applica- tion to Corrine Ford, Pearl Franklin, Percy Marsh, Eunich Wash- ington, Andrew Scola, and Alfred H. Reynders. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A 1. Arthur Jones______________________ November 9, 1937. 2. John Hollins ----------------------- September 15, 1937. 3. Gust McDonald____________________ August 2, 1937. 4. Charles Martin --------------------- September 15, 1937. 5. Pearl Rogers ------------------------ August 15, 1937. 6. Columbus Franklin_________________ First week in August 1937. 7. Sidney Thomas____________________ Late in October 1937. APPENDIX B 1. McKinley Calhoun 2. Peter J. Calhoun 3. Simon P. Calhoun 4. B. W. Ford 5. James Ford 6. Jerry Gray 7. Leslie Hill 8. William Henry Taylor 9. Fred Tyree 10. Blane Young 11. Simon Andrews 12. George Dennis 13. George Gunthrop MR. WILLIAM M. LEISERSON took no part in the consideration of the' above Decison and Order. Q