Bunte Brothers

In the Matter of BUNTE BROTHERS, A CORPORATION and GRACE ACCETTURA, STELLA BROCATO, EMILIA CIZMAR, FRANK COYNE, URSULA CRISCIONE, NORMAN DAVID, CHARLES DE CARO, NICHOLAS DUDAR, LUCY GUMPREYCHT, CHARLES KEATING, MICHAEL KOSO- WITZ, MAGDELENA KOUKOLA, KATHLEEN LYONS, GENE MARKIE- WICZ, ANGELINA MILLER TONY PERGL, JOE ROCCO, JOSEPH P. RODERFELD, SAM SCHILLACI, ADELINE SCHWAB, JAMES SLOAN, ELIZABETH VALCHAR, ROBERT WEGNER and BUNTS BROTHERS EMPLOYEES ASSOCIATION, PARTY TO THE CONTRACT Case No. C-1435.-Decided August ,26, 1940 Jurisdiction : candy and confection manufacturing industry. Unfair Labor Practices Company-Dominated Union: employer's sponsoring and participating in formation of; domination and interference with administration of; contribution of support to. Discrimination: discharge of employees and refusal to hire former employees because of their union membership and activities; charges of discrimination as to certain employees, dismissed. Remedial Orders : reinstatement and back pay awarded. Respondent directed to continue to refuse to recognize labor organization previously disestablished in accordance with Trial Examiner's recommenda- tions. Practice and Procedure : Trial Examiner's findings to which no exceptions were filed adopted by Board. Mr. Jack G. Evans, for the Board. Mr. Otto A. Jaburek, of Chicago, Ill., for the respondent. Mr. Charles Keating, of Chicago, Ill., for the charging parties. Mr. Patrick J. Taft and 112r. A. W. Myrup, of Washington, D. C., for the Union. Mr. Edward D. Markham, of Maywood, Ill., for the Association. Mr. Daniel J. Harrington, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges jointly filed by Charles Keating and by 22 other individuals acting through said Charles Keating, herein called 26 N. L. R. B., Nd. 131. 1419 1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the charging parties,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region, (Chicago, Illinois) issued its complaint dated June 16, 1939, against Bunte Brothers, a corporation, Chicago, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the mepning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent, upon Charles Keating for the charging parties,' and upon Bunte Brothers Employees Association, a labor organization mentioned in the complaint, herein called the Associa- tion. At the hearing the complaint was amended in certain respects. With respect to the unfair labor practices the complaint, as amended, alleged, in substance (1) that the respondent, on or about June 25, 1937, instigated the formation of the Association and thereafter in various ways actively fostered, promoted, and encouraged its forma- tion and growth, dominated and interfered with its administration, and on or about July 17, 1938, entered into an illegal collective bargain- ing contract with it as the exclusive bargaining agent of the re- spondent's employees providing for rates of pay, hours of employ- ment, and other conditions of employment; (2) that the respondent discharged 23 named employees, viz., the charging parties herein,' between February 25, 1938, and May 22, 1939; assigned two of them' less work, after reinstating them in November 1938, than it assigned other employees doing similar work, and in May 1939 again dis- charged said two employees; failed or refused to reinstate all of said. 23 employees, except as above mentioned; and did so discharge, assign less work to, or fail or refuse to reinstate said employees because they, and each of them, refused to cooperate with, pay dues to, join, or remain members, of the Association, and, further, with respect to 8 of said 23 employees,' because they, and each of them, joined and assisted a labor organization affiliated with American Federation of Labor or one affiliated with Congress of Industrial Organizations, and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection, the respondent thereby discriminating in regard to hire and tenure of employment, and terms and conditions of employment, discouraging membership in labor organizations affiliated with American Federation I These parties were all employees of the Company, and are the individuals whose names are set forth in the above caption of this case. 2 The service upon Keating was upon him as "agent." 3 See footnote 1, supra. 4 The names of these two employees are Nicholas Dudar and James Sloan. 5 The names of these 8 employees are: Frank Coyne , Chares De Caro, Nicholas Dudar, Gene Markiewicz, Tony Pergl, Joseph P . Roderfeld , Sam Schillaci , James Sloan. BUNTE BROTHERS 1421 of Labor or Congress of Industrial Organizations, and encouraging membership in- the Association; (3) that the respondent" from on or about September 24, 1935, urged and warned its employees to refrain from joining and/or retaining membership in any labor organization affiliated with American Federation of Labor or Congress of Industrial Organizations, endeavored to discredit labor organizations which were so affiliated and their respective leaders among its employees, and spied upon those of its employees suspected of being members of oroengaging in concerted activities in behalf of such labor organizations; and (4) that the respondent by all its aforesaid acts, and by other acts, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them in Section 7 of the Act. On June 21, 1939, the Regional Director denied a motion of the respondent for a continuance of the hearing, but granted it an extension of the time within which to file an answer to the complaint. These rulings are hereby affirmed. On June 26, 1939, the respondent filed an answer, wherein it denied having engaged in the unfair labor prac- tices alleged in the complaint, as amended. On the same clay the Association filed its answer, denying that the respondent engaged in unfair labor practices with respect to its formation and administration and with respect to the execution of the collective bargaining contract between it and the respondent. Pursuant to notice a hearing was held in Chicago, Illinois, on June 29 and 30, July 5, 6, 7, 8, 10, 11, 12, 13, 14, and 15, 1939, before Webster Powell, the Trial Examiner duly designated by the Board. The Board, the respondent, the Association, and the charging parties appeared and were represented by counsel or their representatives and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing counsel for the Board moved to dismiss the complaint without prejudice in so far as it alleged that Michael Kosowitz and Angelina Miller, two of the employees named in the complaint, as amended, had been discharged or otherwise discriminated against, in violation of the Act. The Trial Examiner in his Intermediate Report, mentioned below, granted this motion, however, with prejudice. At the close of the hearing counsel for the respondent moved that the complaint, as amended, be dismissed as to one of the employees therein named, for various reasons. This motion the Trial Examiner denied in his Intermediate Report, but dismissed" the allegations of the co.niplaint, as amended, in respect of this individual. At the conclusion of the hearing counsel for the Board moved to amend the complaint generally to conform to the proof, and the Trial Examiner granted the motion solely as to formal matters such as names and dates. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to 1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the admission of evidence. The Board has reviewed the afore- mentioned rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Trial Examiner filed his Intermediate Report, dated November 25, 1939, copies of which were duly served upon the respond- ent, the Association, and upon Charles Keating,' wherein he found that the respondent had engaged in and was engaging in certain unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recom- mended that the respondent cease and desist therefrom and that it take certain affirmative action to remedy the situation. He recom- mended that the complaint, as amended, be dismissed in so far as it alleged that the respondent had spied upon its employees and that it engaged in unfair labor practices in regard to 18 of the employees therein named.7 No exceptions to the Intermediate Report or to the record were filed by the respondent or by the Association. On January 6, 1940, Bakery and Confectionery Workers Inter- national Union of America, a labor organization herein called the Union, lodged with the Board for and in behalf of the charging parties exceptions to the portion of the Intermediate Report wherein the Trial Examiner found that the respondent had not engaged in unfair labor practices with respect to the 18 above-mentioned employees, as alleged in the complaint, as amended, and requested permission to present oral argument before the Board upon the issues raised by such excep- tions. The Board granted the Union leave to appear solely for the purpose of filing said exceptions and presenting oral argument. Pursuant to notice a hearing was held before the Board on June 11, 1940, in Washington, D. C., for the purpose of oral argument. The respondent and the Union were represented by counsel and participated in the hearing. The Association did not appear at this hearing. The Board has considered the exceptions°tovthe Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, or otherwise incorporated herein, 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 respondent is an. Illinois corporation, having its only factory in Chicago, Illinois. It is engaged in the manufacture, sale, and 6 See footnote 2, supra. 7 The names of these 18 employees are: Grace Accettura , incorrectly spelled Accetura in the complaint; Stella Brocato , incorrectly spelled Brocate in the complaint ; Emilia Cizmar, incorrectly spelled Cizman in the complaint ; Ursula Criscione ; Norman David; Nicholas Dudar; Lucy Gumpreycht, incorrectly spelled Gumprecht in the complaint ; Charles Keating; Michael Kosowitz ; Magdelena Koukola; Kathleen Lyons; Angelina Miller ; Joe Rocco ; Sam Schillaci ; Adeline Schwab ; James Sloan; Elizabeth Valchar; Robert Wegner. BUNTE BROTHERS 1423 distribution of various candies , confections, and other similar products. From June 1, 1938, to June 1, 1939, the respondent purchased for use in manufacturing at its factory approximately 15,000 tons or more than $2,000,000 worth of raw materials , including sugar, corn syrup, cocoa beans , starch, flavors , flavoring extracts , nuts, glycerin, gum arabic, and egg albumen, 99 per cent of which raw materials, valued at more than $2,000,000, were shipped to the factory from States other than Illinois and from foreign countries . During this period the respondent shipped from the factory approximately 16,000 tons of finished products, about 75 per cent of which, having a value of $3,407,000, were shipped from the factory to destinations outside the State of Illinois. Also during this period the respondent used at its factory for packing and shipping purposes approximately $575,000 worth of packing materials , including boxes, cases , cartons, pails, barrels , sealing tape , string, gum , and wire, about $460,000 worth of which materials were shipped to the factory from outside the State of Illinois; and used about 15,000 tons of coal, 50 per cent of which was shipped to the factory from the State of Indiana. 11. THE LABOR ORGANIZATIONS INVOLVED Bakery and Confectionery Workers International Union of America is a labor organization affiliated with the American Federation of Labor, admitting to its membership employees of the respondent. Congress of Industrial Organizations , formerly known as Committee for Industrial Organization , is a labor organization admitting and having an affiliate or affiliates which admit to membership employees of the respondent.' Bunte Brothers Employees Association is an unaffiliated labor organization, admitting to its membership employees of the respondent III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion and Company formation and sponsorship q f and support to the Association In his Intermediate Report the Trial Examiner , upon the subsidiary or evidential findings of fact which he there made , found and concluded that the respondent through various specified activities in which it engaged, interfered with, restrained , and coerced its employees at the Chicago factory in the exercise of the rights guaranteed in Section 7 of the Act and discouraged membership in the Union and in the Con- gress of Industrial Organizations ; and that the respondent formed and sponsored the Association as a labor organization of its factory employ- ees and was dominating and interfering with its administration and 8 At times referred to in the record as the CIO. 1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contributing support to it. He also found that on July 1.7, 1937, and on July 10, 1938, the respondent and the Association entered into col- lective agreements covering working conditions of the factory employ- ees and extending to the Association exclusive recognition as their col- lective bargaining representative; that the contractual relationship thus entered into between the Association and the respondent on July 17, 1937, and on July 10, 1938, was'a means by which the respond- entutilized an employer-dominated labor organization, viz., the Associ- ation, to frustrate self-organization among, and defeat collective bargaining by, its employees in the Chicago. factory; and that any continuation, renewal, or modification of said contract of July 10, 1938, was a violation of the rights guaranteed its employees under the Act. As stated above, no exceptions to the Intermediate Report or to the record were filed by the respondent or by the Association, and the exceptions of the Union filed in behalf of the charging parties did not relate to the above findings of fact or conclusions or to the recommen- dations based thereon, of the Trial Examiner. The Association did not appear at the hearing held before the Board for purposes of oral argument. At this hearing counsel for the respondent stated that he was appearing "as a representative of the [respondent] ... trying to convince [the Board] ... that the Trial Examiner's report should be followed," and that "the Trial Examiner's Intermediate Report should be affirmed." He represented that the respondent has complied with the recommendations of the Trial Examiner as to action it should take to remedy the unfair labor practices which he found. We have considered the record and find that the subsidiary or evidential findings of fact, the ultimate findings of fact, and the conclu- sions of the Trial Examiner contained in his Intermediate Report, in so far as they relate to the respondent's engaging in activities interfering with, restraining and coercing its employees in the exercise of rights guaranteed under Section 7 of the Act; to its discouraging membership in the Union and in the Congress of Industrial Organizations; to its formation and sponsorship of the Association, its domination and inter- ference with the administration of the Association, and its contributing support to the Association; and to the above-mentioned contracts of July 17, 1937, July 10, 1938, and any continuation, renewal, or modifi- cation thereof, are, and each of said findings and conclusions is, sup- ported by the weight of the evidence and correct. Accordingly, we approve said findings of fact and conclusions, and each of them, adopt them as the findings of fact and conclusions of the Board for purposes hereof, and hereby incorporate by reference into this Decision and Order said findings of fact and conclusions, and each of them, to the same extent as if they were here physically set forth. Upon the findings of fact and conclusions incorporated herein, and BUNTE BROTHERS 1425 otherwise set forth herein, and upon the entire record in the case, we find that the respondent dominated and interfered with the formation and administration of the Association and contributed support to it; that by said acts and other specified acts and conduct including discouragement of membership in the Union and the Congress of Indus- trial Organizations and its making of the above-mentioned contracts, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act; that the Association is not nor has it ever been the factory employees' genuine choice of a collective bargaining representative; that the Association is incapable of serving as a true collective bargaining agency of these employees, and its existence does and-will constitute a continuing obstacle to the exercise by these employees of the rights guaranteed them in - th e Act. B. The discriminatory discharges of Roderfeld, De Caro, Coyne, Alark- iewicz, Pergl, and Sloan; and the allegedly discriminatory dismissals Q f other employees The Trial Examiner, upon subsidiary or evidential findings of fact, found and concluded in his Intermediate Report that the respondent on February 25, 1938, severed the employment of Joseph P. Roderfeld and discharged Charles De Caro, employees of the respondent, because they participated in activities of the Congress of Industrial Organizations and vigorously opposed the Association; that the respondent discriminatorily discharged Frank Coyne, Gene Markie- wicz, and Tony Pergl on May 4, 8, and 22, 1939, respectively, because of union activities; and that by said acts the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, and. engaged in unfair labor practices within the meaning of Sections 8 (3). As already indicated, neither the respondent, the Association, nor the Union has excepted to the findings of fact or conclusions of the Trial Examiner relating to the above-mentioned five employees. The respondent requests affirmance of the Intermediate Report, and represented at the oral argument before the Board that the recommendations of the Trial Examiner for remedying the situation involved in the discharges of these employees, both as regards reinstatement and back pay, have been followed. We have considered the record and find that the subsidiary or evidential findings of fact, the ultimate findings of fact, and the conclusions of the Trial Examiner contained in his Intermediate Report, in so far as they relate to the respondent's aforesaid discrimi- nation against the hire and tenure of employment of Joseph P. Roder- feld, Charles De Caro, Frank Coyne, Gene Markiewicz, and Tony Pergl are, and each of said findings and conclusions is, supported by 1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the weight of the evidence and correct. We approve said findings of fact and conclusions, and each of them, adopt them as the findings of fact and conclusions of the Board for purposes hereof, and hereby incorporate by reference into this Decision and Order said findings of fact and conclusions, and each of them, to the same extent as if they were here physically set forth. Upon the findings of fact and conclusions incorporated and other- wise set forth herein, and upon the entire record in the case, we find that the respondent discharged the following employees: On. February 25, 1938, Joseph P. Roderfeld and Charles De Caro; on May 4, 1939, Frank Coyne; on May 8, 1939, Gene Markiewicz; and on May 22, 1939, Tony Pergl, because of union activities and/or opposition to the Association, thereby discriminating in regard to the hire and tenure, of employment of each of said employees, discouraging membership in the American Federation of Labor, Congress of Industrial Organiza- tions, and affiliates thereof, and encouraging membership in the Association; that by said acts the respondent interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed under Section 7 of the Act. James Sloan was dismissed by-the respondent on August 4, 1938, was reinstated on November 29, 1938, and was dismissed again on May 2, 1939. The Trial Examiner in his Intermediate Report reached the conclusion that insufficient proof had been adduced at the hearing to warrant 4 finding that the two dismissals of Sloan were discriminatory, within the meaning of Section 8 (3) of the Act.9 He, accordingly, recommended that the allegations of the complaint, as amended, relevant thereto, be dismissed. As heretofore stated, the Union acting in behalf of the charging parties, filed exceptions to the Intermediate Report, wherein it excepted, in part, to this conclusion and recommendation of the Trial Examiner., We are of the opinion, upon the facts which we find below, and upon the entire, record, that this conclusion of the Trial Examiner was erroneous, that his recom- mendation in this regard should not be followed., and, therefore, that the exceptions of the Union with respect to Sloan should be sustained. Prior to his first dismissal Sloan had been employed about 4 years by the respondent in the shipping department of the factory. He became interested in unionization in March or April 1937. In that period certain of the factory employees circulated for execution among their fellow workers a petition to the effect that the signers thereof favored establishing the Union as a labor organization for employees at the factory. Sloan signed the petition. A few days following circulation of the petition six employees, who had been engaged there- in, were dismissed by the respondent, and, in consequence, organiza- 9 The Trial Examiner also expressed the opinion that "grave doubts [were ] cast upon the respondent's 'motive in laying off Sloan." BUNTE BROTHERS 1427 tional activities on behalf of the Union abruptly terminated."' In June 1937 the Congress of Industrial Organizations 11 attempted to unionize the factory employees, but this attempt likewise proved abortive upon the formation in that month of the Association. As already found, the respondent formed the Association as a labor organization for its factory employees and in various ways dominated and interfered with the administration of that organization, sponsored it, and contributed support to it. Sloan was opposed from the outset to the existence of this employer-formed and dominated organization as a labor organization and collective bargaining agency for the factory employees. In June 1937 he refused to sign a petition calling for the formation of the Association, which was circulated in the factory, and expressed. in no uncertain terms to the employee soliciting his signa- ture the hostility which he felt toward a"company union." Although told in that month by one of the foremen that the Association "was a good thing" and that "all the employees ought to sign up," Sloan did not join the Association until August 1937, and then did so only after being informed by one McKenzie, the president of the Associa- tion, that he, Sloan, had "better sign up in the Association" and that there were only one or two employees on his floor in the factory who had not joined and he was one of them. On that occasion Sloan told McKenzie that he did not believe in "company unions." McKenzie replied, "You know the Old Man [the president of the respondent] won't stand for any union coming in here." In December 1937 Sloan stopped paying his dues to the Association. The following January or February, upon being assigned to work in the stockroom of the shipping department, Sloan was told by the foreman of the stockroom, Janouskeovec, "We don't want no men that don't pay their dues. I want 100 per cent men in the Association." Sloan did not pay dues to the Association either then or thereafter. In June 1938 Sloan had a conversation with Janouskeovec in which the foreman stated that he, the foreman, was the individual who had "sold Bunte the Association union." Sloan replied, "You didn't sell them a heck of a lot when you sold them that," and then informed Jariouskeovec, "We [Sloan and other employees] are trying now to see if we can get enough [employees] together by the busy season [about September] to start the A. F. of L. in here." Janouskeovec said, "You will never get away with any kind of an outside union in here." About the same period Janouskeovec told Sloan, "It is too bad they [the respondent] didn't let you go when they let that other bundle go that were trying to talk about union in here [the six em- ployees who in March or April 1937 circulated the petition in behalf of the Union and thereafter were discharged, as above-mentioned]. 10 No charges were filed herein with respect to the dismissals of these six individuals. 11 Then known as Committee for Industrial Organization. 1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You just hung on by the skin of your teeth, but you are",going soon and you will be gone for good." On August 4, 1938, Sloan was dismissed by the manager of the shipping department, one O'Brien. He was told that he was being laid off "for a little while until things pick up," that he would be re- called to work "as soon as the season picks up, probably a week or 'so." In September 1938, when the respondent's busy season began, Sloan returned to the plant seeking work. The record shows that the preceding August one new employee was hired in the shipping depart- ment, in which Sloan worked, and in September 1938, 18 new employees were hired in that department. It also is shown that at that time the respondent followed a departmental seniority system in connec- tion with employment whereby employees laid off in slack seasons were recalled for available work in their respective departments upon a basis of length of service with the respondent, and in preference to applicants for employment. Sloan approached O'Brien about work, stating that he had heard that the respondent had recently put some men to work. O'Brien replied that the factory was not yet busy, that Sloan would be recalled when needed, and that, "In the mean- time, if you [Sloan] can get a job you better get it." Thereafter, twice in September 1938 Sloan asked the respondent for work, but without success. On November 2, 1938, the original charges were filed herein alleging, among other things, that the respondent laid off Sloan and refused to rehire him because he refused to retain his membership in the Association. On November 14, 1938, at a con- ference with Sloan, with certain other persons, and an agent of the Board, respecting the charges, the respondent's president said that if Sloan had not been recalled to work, although work to which he had a "priority" right was being assigned to other persons, the employ- ment department at the factory "must have slipped up on notifying" him, and Sloan would be recalled to work. In accordance with this assurance the respondent recalled Sloan to work and on November 29, 1938, reinstated him to the same position which he held at the time of his dismissal. The respondent contends that it "did not discharge James Sloan on or about August 4, 1938, but laid him off for lack of work and re- instated him on November 29, 1938, when respondent's business im- proved." The record shows that Sloan's dismissal on August 4, 1938, occurred during the usual slack period in the shipping department, which lasted from about Easter time until shortly after Labor Day each year. There is no showing that the dismissal was not in ac- cordance with the respondent's seniority practice. However, the mere fact that Sloan's dismissal would have occurred when it did because of slack business, and would not have been in derogation of BUNTE BROTHERS 1429 his seniority rights, does not necessarily establish that the dismissal was not discriminatory within the meaning of Section 8 (3) of the Act. We are convinced from the foregoing facts, considered in the light of the facts found by the Trial Examiner and found herein, and we find, that the respondent on August 4, 1938, did not merely lay off Sloan pending the resumption of increased operations in the fac- tory and in his department, but severed in its entirety the employ- ment relation which existed with Sloan,12 and so terminated that re- lation because of Sloan's opposition to the Association and his assist- ance to the Union and his intention to reestablish it as a labor. organi- zation for the factory employees. A period of normal seasonal lay-offs was utilized by the respondent for effectuating a discharge of Sloan. That Sloan was discharged, and. not given leave temporarily until work again became available in the shipping department, is shown by the following, among other, circumstances. Although operations ordinarily increase at the respondent's factory during the first week in September, and although the respondent in September 1938 hired 18 new employees in the shipping department, Sloan was not notified to return to work and his repeated requests that month for work were refused. While there is no showing as to the nature of the work assigned to the 18 new employees, the respondent does not claim nor does the evidence establish that Sloan was not qualified to perform any of such work. He had spent his 4 years with the respondent at various jobs in the shipping department. Moreover, when reinstated after the respondent's statement in the conference of November 14, 1938, that the' employment department "must have slipped up on notifying" Sloan, Sloan was given the same work which he had per- formed on August 4, 1938. Under these circumstances, we are of the opinion, and find, that Sloan's seniority was ignored in the assignment of available work in September and that, had his seniority been respected, he would have been recalled to work in that month. We do not believe that this failure to recall Sloan resulted from an oversight u In North Whittier Heights Citrus Association v. N. L. R. B., 109 F. (2d) 76 (C. C. A. 9) enf'g Matter of North Whittier Heights Citrus Association and Citrus Packing House -Workers Union , Local No. 21091, 10 N. L. R. B. 1269, the employer shut down its fruit packing house because of the condition of the fruit on the trees. In holding that the resulting cessation of work did not disturb the employer -employee relation, the Court said: "This shut down and lay off was no more than a suspension of work. It was not a termination of work . It was in accordance with long established custom . The relation of employer and employee does not always depend upon continuity of actual every day work. In the instant suspension of actual operation, the employees of long standing and experience were `laid off until work is resumed ' on account of a condition of fruit . The notice itself holds out a 'notice to return ' when conditions have become right, which came about 10 days later . In the circumstances, we see no reason for differing with the Board in its holding that the lay-off because of the temporary shut -down did not sever the relation of employer and employee." See also Phelps Dodge Corporation v. N. L. R. B., 113 F. (2d) 202 (C. C. A. 2) enforcing as modified, Matter of Phelps Dodge Corporation , a corporation , and International Union of Aline , Mill and Smelter Workers, Local No. 30, 19 N. L. R. B., 547 where the court, in referring to a person who was employed on June 7, 1935, to begin work on June 10, the day on which a strike at the employer 's business began, and who failed to report to work on that day and joined the striking employees, held that he was a striking employee in spite of his failure to work . See also Matter of Knoxville Publishing Company and American Newspaper Guild, The Knoxville Newspaper Guild , 12 N. L . R. B. 1209, 1217-1222. 323429-42-91 1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of persons in the respondent's employment department. We think it was deliberate, and reflected the respondent's determination of August 4, 1938, to be rid permanently'of Sloan. As heretofore set forth, about a month or two previous to August 4 Sloan's foreman, Janouskeovec, told Sloan in connection with Sloan's reference to his intention to help establish in September the Union among the factory employees, "You are going soon and you will be gone for good." It is equally apparent to us, and we find, that the respondent was determined to discharge Sloan because of his opposition to the Asso- ciation as a labor organization and collective bargaining agency for the factory employees, and his intention, along with that of other employees, to establish the Union as such organization and agency in the stead of the Association. The -facts heretofore set forth show that Sloan strongly opposed the organization which the respondent had set up to defeat unionization by a labor organization affiliated either with American Federation of Labor or Congress of Industrial Organizations. We are convinced that the respondent was well aware of this opposition. Sloan had openly made it known by his refusal to pay dues and by statements to leaders of the Association, to his foreman, and to others. Sloan also was a strong adherent of the Union, and a forceful protagonist of free unionization unfettered by the employer's will. In 1937 he signed the petition expressing favor toward establishment of the Union as a labor organization for the factory employees. Despite the failure of that effort because of the respondent's action, in June 1938 he announced to his foreman the intention of himself and others to reestablish the Union. The attitude of the respondent toward Sloan's promotion of the interests of the Union was disclosed in Foreman Janouskeovec's statement, above mentioned, that it was "too bad" the respondent in 1937 had not let Sloan "go when they let that other bundle go that were trying to talk about union in here." We have heretofore found that on February 25, 1938, the respondent discharged Joseph P. Roderfeld and Charles De Caro because they participated in activities of the Congress of Industrial Organizations and opposed the Association. We find that the respondent on August 4, 1938, discharged James Sloan because he refused to cooperate with, pay dues to, and remain a member of the Association and because he assisted the Union and engaged in concerted activities with other employees in the factory for the purposes of collective bargaining and other mutual aid and protection, the respondent thereby discriminating in regard to the hire ,and tenure of employment of Sloan, discouraging membership in labor organizations affiliated with American Federation of Labor and Congress of Industrial Organizations, including the Union, and encouraging membership, in the Association; and that by such dis- BUNTE BROTHERS 1431 charge the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act.13 In December 1938 Sloan communicated with the Union. In the following February he applied. for membership in a local of the Union interested in organizing the respondent's employees, and designated the local his collective bargaining agency. He also made plans to solicit applications for memberships in the local among the factory employees. A few clays later the respondent posted a notice in its factory forbidding the "passing or giving away," on company premises of "pamphlets, circulars, or printed matter." Sloan asked O'Brien, the manager of the shipping department, whether he could. solicit memberships for the local during working hours or during the lunch hour, and. showed him certain union applications and authorization cards which he had for such purpose. Previously, as well as there- after, the Association enrolled employees as members and collected dues during working hours inside the factory. O'Brien stated that the rule which had been posted prohibited any solicitation by Sloan. Sloan made a similar inquiry of the timekeeper and received the same reply. A couple of weeks later Sloan asked the respondent's vice president if he could solicit in the factory, during his spare. time, applications for membership in the local, and showed him the form application cards. The respondent's vice president refused to grant permission, saying, "We [have] been in business sixty years. We will run this place as we like and you or nobody else is going to tell us how to run this place. We never had a union in here and we don't want any." He then adverted to the charges filed herein by Sloan and others then pending before the Board, and said, "You ain't got a foot to stand on." Sloan acknowledged that he had helped prepare the charges, and the respondent's vice president said with an intim- idatory gesture, "You will be sorry too . . . You will see. You will suffer." At the hearing the respondent's vice president denied having made certain of the foregoing statements. The Trial Examiner in his Intermediate Report refused to credit this denial. In view of the respondent's manifest antipathy toward outside unions, the fact that the respondent's vice president made similar remarks on other occasions, and the case presented, we are of the opinion that the Trial Examiner's refusal to give weight to the denial is right. About is The respondent does not contend that its reinstatement of Sloan on November 29,1938, was in pursuance of a representation, express or implied , made by an agent of the Board at the November 14, 1938 , conference, or at any other time and place. However, had such a representation been made on November 14, 1938, it would not be controlling here , because of the respondent's continuation of its unfair labor practices. In Godchaux Sugars, Inc. and Sugar Mill Workers' Union, Locals No. 21177 and No. 2188 affiliated with the Ameri- can Federation of Labor, 12 N. L. R. B . 568, 578, the Board said of reliance by the employer upon such a representation where the employer is charged with unfair labor practices occurring . subsequent to the representation: Plainly were such charges and allegations proved , we should have little hesitancy in disregarding the representation . . . Conduct of such character by the respondent would vitiate any claim to exonera- tion. 1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this same time the shipping department manager warned Sloan against talking with any employees in the department, and if .he observed Sloan talking with an employee on a business matter would interrogate Sloan as to the subject of the conversation. Although O'Brien testified at the hearing that employees were prohibited from talking during working hours, the evidence fails to establish, as the Trial Examiner in his Intermediate Report concluded, any such prohibition. In March 1939, McKenzie, the president of the Association, ap- proached an employee,, one Coyne, and asked him if he had seen the membership application cards which Sloan carried. Upon Coyne's replying that he had,- McKenzie said that he, McKenzie, desired Coyne to procure one from Sloan. Later in March one of the foremen in the. shipping department, Foreman Kane,, requested Coyne to obtain for him one of the cards, and asked, "Are any of our boys going along with Sloan." A similar request was made of Coyne by Fried- man, an official of the Association, who said that if a card could be obtained that was all he "would need to take care of Sloan." Coyne did not accede to these requests In April 1939, two meetings, the second on April 25, were held under the auspices of the Union for the purpose of organizing the respondent's employees. Sloan attended both meetings and was active in persuading other employees to attend. After the April 25 meeting, Friedman, the Association official, told another employee that those who attended that meeting "were all known and would all be taken care of." On May 2, 1939, the respondent dis- missed Sloan. He was told that he would be recalled when needed. There is no showing that Sloan had been recalled prior to the date of the oral argument before the Board, June 11, 1940. The respondent contends that subsequent to its reinstatement of Sloan in November 1938, it "continued him in its employment until about May 2, 1939, when said Sloan was again laid off for lack of work and will be reinstated when respondent's business again improves." We are satisfied that-the respondent's dismissal of Sloan on May 2, 1939, like its dismissal of him on August 4, 1938, was not a mere lay-off because of business `conditions but a termination of Sloan' s status as an employee for union activities. Whether or not Sloan would have been laid off on May 2 in the ordinary course of operations, Sloan was discriminatorily discharged on that date, within the meaning of Sec- tion 8 (3).14 As shown above, Sloan did not cease his activities in behalf of the Union upon securing his reinstatement in November. He 14 While Sloan was laid off during the Christmas season from December 16, 1938, to January 5, 1939,: and because of slow business conditions did not have full weekly employment thereafter , it was not until May 2, 1939, that he was dismissed for a substantial period. As stated above, he had not been recalled to work by June 16, 1939, when the complaint was issued or by July 15, 1939 , when the hearing was had. BTNTE BROTHERS 1433 assumed leadership in the second attempt of the Union to organize the factory employees. His activities were not concealed, but disclosed to the respondent. In turn, the respondent, by various acts and statements set forth above, and otherwise, manifested its antipathy to Sloan and his proposal to assist the Union. Among other things its vice president in March 1939 threatened Sloan under circumstances which clearly showed that the threat had reference to Sloan's union activities, saying that he, Sloan, would "be sorry too," that he would "suffer." About that time the shipping-department manager, O'Brien, prohibited Sloan from engaging in any talk with other em- ployees. Foreman Kane sought to obtain one of the cards which Sloan carried and which Friedman, the Association official, said was all that was needed "to take care of Sloan." In view of the respond- ent's formation and support of the Association, and the cooperation which existed between the respondent and the officials of the Associa- tion, we have no doubt, and we find, that the respondent and the Association collaborated in plans to get rid of Sloan. Finally, as the Trial Examiner and we have found, 2 days after Sloan's second dis- charge, the respondent discharged Coyne because of union activities in connection with the Union; 6 days thereafter it discharged another employee, for the same reason; and at the end of the month, another employee, for that same reason. We find that the respondent on May 2, 1939, discharged James Sloan because he refused to cooperate with the Association and be- cause he sought membership in and assisted the Union, and a local thereof, and engaged in concerted activities with other employees in the factory for the purposes of collective bargaining and other mutual aid and protection, the respondent thereby discriminating in regard to Sloan's hire and tenure of employment and discouraging member- ship in the Union and its local and encouraging membership in the Association; that by said discharge the respondent interfered. with, restrained, and coerced its employees in the exercise of rights guaran- teed in Seotion"7 of the Act. As heretofore stated, the Trial Examiner recommended that the complaint, as amended, be dismissed in so far as it alleged that the respondent engaged in unfair labor practices with respect to Charles Keating, Joe Rocco, Michael Kosowitz, Nicholas Dudar, Sam Schil- laci, Stella Brocato, Grace Accettura, Emilia Cizmar, Ursula Criscione, Lucy Gumpreycht, Magdalena Koukola, Kathleen Lyons, Angelina Miller, Adeline Schwab, Elizabeth Valchar, Norman David, and Robert Wegner. We have considered the record and find that the subsidiary or evidential findings of fact, ultimate findings of fact, and conclusions of the Trial Examiner set forth in his Intermediate Report, upon which his said recommendation . for dismissal of allegations of 1434 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint, as amended, was based, are, and each of them is, supported by the record and correct. We hereby affirm and adopt said findings of fact and conclusions, and accept said recommendation. We shall dismiss the allegations of the complaint , as amended, in this respect. 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 commerce and the free flow of commerce. V. THE REMEDY As stated above, the Trial Examiner in his Intermediate Report recommended that the respondent cease and desist from the unfair labor practices in which he found it to have engaged, and that it take certain affirmative action to effectuate the policies of the Act and remedy the situation brought about by these unfair labor prac- tices. Also, as above mentioned, the respondent at the oral argu- ment before the Board represented, in substance, that it had complied with the recommendations of the Trial Examiner, at least to the extent that such recommendations required a cessation or performance of acts by the respondent prior to that tine. It indicated that it had reinstated Joseph P. Roderfeld; Charles De Caro, Frank Coyne, Gene Markiewicz, and Tony Pergl to employment and work at the Chicago factory and made them whole for all loss of pay they sustained by virtue of their having been discriminatorily discharged; that it had disestablished the Association as a collective bargaining representa- tive of its employees; and that it had posted certain notices to its employees in. form and manner as recommended in the Intermediate Report. From an investigation made by the Regional Director since issuance of the Intermediate Report, it appears that the respondent has reinstated with back pay the five above-named employees; reim- bused the Works Progress Administration on account of certain pay- ments to these employees , in accordance with a recommendation of the Trial Examiner that such reimbursement be made; withdrawn recognition from the Association as collective bargaining representa- tive of its employees; placed Nicholas Dudar, Sam Schillaci, and Stella Brocato on a preferential list to be offered employment as the occasion arises on the basis of seniority before any other persons are hired for any work in which they have had experience, in accordance with another recommendation of the Trial Examiner ; and on December 9, BUNTE BROTHERS 1435 1939, posted and maintained an appropriate notice to its employees in conformity with the recommendations of the Trial Examiner. We are of the opinion, and find, that a cessation of the acts and conduct from which the Trial Examiner in his Intermediate Report recommended the respondent should cease and desist, and its taking of the affirmative action which he recommended it should take, were and are essential to an effectuation of the purposes and policy of the Act and constitute an appropriate means of removing and avoiding the consequences of the respondent's unfair labor practices, as found in the Intermediate Report and herein. For the same reasons, we are of the opinion that the respondent should immediately reinstate James Sloan, above found to have been twice discriminatorily dis- charged by the respondent, and make him whole for any loss of pay lie may have suffered'by reason of such discrimination. We hereby approve the recommendations of the Trial Examiner and shall make our Order in accordance therewith, save for certain additional require- ments necessitated by our findings and determinations in connection with James Sloan, and for certain modifications of said recommenda- tions in view of the respondent's compliance as of the time of the oral argument with the recommendations of the Trial Examiner. Upon the basis of the above findings of fact incorporated and other- wise set forth herein and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Bakery and Confectionery Workers International Union of America, Congress of Industrial Organizations, and Bunte Brothers Employees Association , are labor organizations , within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Bunte Brothers Employees Association and contributing support to it, the respondent has engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Joseph P. Roderfeld, Charles De Caro, Frank Coyne, Gene Markiewicz, and Tony Pergl, thereby discouraging membership in labor organizations and encouraging membership in Btmte Brothers Employees Association , the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By discriminating in regard to the hire and tenure of employ- ment of James Sloan, thereby discouraging membership in labor organizations and. encouraging membership in Bunte Brothers Em- ployees Association , the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not engaged in unfair labor practices with respect to Charles Keating, Joe Rocco, Michael Kosowitz, Nicholas Dudar, Sam Schillaci, Stella Brocato, Grace Accettura, Emilia Cizmar, Ursula Criscione, Lucy Gumpreycht, Magdelena Koukola, Kathleen Lyons, Angelina Miller, Adeline Schwab, Elizabeth Valchar, Norman David, and Robert Wegner, or any of them, as alleged in the complaint, as amended. 8. The respondent did not engage in unfair labor practices by allegedly assigning James Sloan less work than it assigned other employees doing similar work, as alleged in the complaint, as amended. 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 respond- ent, Bunte Brothers, a corporation, Chicago, Illinois, and its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in Bakery and Confectionery Workers International Union of America, affiliated with American Federation of Labor, Congress of Industrial Organizations, or any other labor organization of its employees, by discrimination in regard to hire or tenure of employment or any term or condition of employment; (b) Dominating or interfering with the administration of Bunte Brothers -.Employees Association or with the formation or adminis- tration of any other labor organization of its employees, and from contributing financial or other support to said Bunte Brothers Employees Association or any other labor organization of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. . 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: BUNTE BROTHERS 1437 (a) Offer to James Sloan immediate and full reinstatement to his former position or to a position substantially equivalent thereto, without prejudice to his seniority or other rights or privileges; and make whole said James Sloan for any loss of pay he has suffered by reason of his discriminatory discharges by the respondent by payment to him of a sum of money equal to that which lie normally 15 would have earned as wages during the periods from August 4 to November 29, 1938,16 from May 2 to November 25, 1939,17 and from the date of this Order 18 to the date of the offer of reinstatement, less his net earnings 19 for work performed in and during said periods; deducting, however, from the amount otherwise due him hereunder, monies received by him for work performed in and during said periods upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, 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; (b) Place Nicholas Dudar, Sam Schillaci, and Stella Brocato on a preferential list to be offered employment as it arises on the basis of seniority before any other persons are hired for any work for which said Nicholas Dudar, Sam Schillaci, and Stella Brocato may respec- tively be qualified, and maintain each of said persons upon such list until he is employed in his former or substantially equivalent position; (c) Continue to withhold all recognition from Bunte Brothers Employees Association as representative of its employees for the purpose of dealing with the respondent concerning grievances, labor 15 We have heretofore made no finding with respect to whether Sloan would have been laid off in the ordinary course of events on August 4, 1938, and May 2, 1939, for we found that he was discriminatorily discharged on those dates. However, in computing the sum of money to be paid him under this Order, allowance may be made for such period or periods, if any, of lay-offs. See National Labor Relations Board v. Planters Mfg. Co. Inc., 106 F (2d) 524, enf'g .Matter of Planters Manufacturing Company, Inc. and United Veneer Box and Barrel Workers Union, C. I. 0., 10 N. L. R. B. 735. 16 As heretofore found, the respondent twice discriminatorily discharged Sloan, once on August 4, 1938, and again on May 2, 1939. Following the first discharge he was reinstated on November 29, 1938. 17 See footnote 16, supra . In accordance with our usual practice, we have relieved the respondent from paying Sloan back pay for the period from November 25, 1939, to the date of this Order, in view of the Trial Examiner's finding in the Intermediate Report issued on November 25, 1939, that Sloan was not discrimi- natorily discharged on May 2, 1939. See Matter ofE. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760, 767; Matter of Williams Coal Company and United Mine Workers of America, District No. 23, 11 N. L. R. B. 579, 667; Phelps Dodge Corporation v. N. L. R. B., 113 F. (2d) 202 (C. C. A. 2), enf'g as mod. Matter of Phelps Dodge Corporation, a corporation , and Inter- national Union of Mine, Mill and Smelter Workers, Local No. 30, 19 N. L. R. B. 547. 10 See footnote 17, supra. 10 By "net earnings" is meant earnings less expenses, such as for transportation, room and board incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the unlawful termination of his employment and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440, enf'd N. L. R. B. v. Crossett Lumber Company, 102 F. (2d) 1003 (C. C. A. 8). Monies received for work performed upon Federal, State, county, municipal or other work-relief projects are not considered as earnings , but, as provided, are to be deducted from the sum due the employee, and the amount thereof 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. See Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), enf'g as mod. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219. 1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disputes, wages, rates of pay, hours of employment, and other con- ditions of employment, and maintain its disestablishment of said Bunte Brothers Employees Association as such representative; (d) Post immediately in conspicuous places in its plant at Chicago, Illinois, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees, stating (1) that the respondent will take the. affirmative action set forth in para- graph 2 (a) of this Order, (2) that the respondent will not discriminate against said James Sloan or any other employee because of member- ship or activity in Bakery and Confectionery Workers International Union of America, Congress of Industrial Organizations, or any other labor organization, and (3) that the respondent's employees are free to become or remain members of Bakery and Confectionery Workers International Union of America, Congress of Industrial Organizations, or any other labor organization; and (e) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent engaged in un- fair labor practices with respect to Charles Keating, Joe Rocco, Michael Kosowitz, Nicholas Dudar, Sam Schillaci, Stella, Brocato, Grace Accettura, Emilia Cizmar, Ursula Criscione, Lucy Gumpreycht, Magdelena Koukola, Kathleen Lyons, Angelina Miller, Adeline Schwab, Elizabeth Valcbar, Norman David, and Robert Wegner; and that it engaged in unfair labor practices by assigning James Sloan less work that it assigned other employees doing similar work and by spying upon those of its employees suspected of being members of or engaging in concerted activities in behalf of labor organizations. MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part: I concur in the Decision and Order of the Board except with respect to certain of the findings and conclusions concerning the dismissals of Sloan, and with respect to the provisions of the Order in so far as they rest upon such findings and conclusions. I am of the opinion that Sloan was first discriminatorily refused re- employment, in contravention of the Act, on September 8, 1938, when a new employee was hired in his department and he was not recalled to work. To remedy that unfair labor practice, I should provide in addition to the usual'cease and desist order, a direction that the re- spondent make Sloan whole for any loss of wages he sustained by virtue of such discrimination from that date to November 29, 1938, the date he was reinstated by the respondent. However, I am in .BUNTE BROTHERS 1439 accord with the Trial Examiner that the evidence is insufficient to establish that the lay off of Sloan on May 2, 1939, was in violation of the Act. In view of the discrimination previously practiced by the respondent with respect to Sloan's reinstatement, as well as its other unfair labor practices which we have found, I should adopt the recom- mendation of the Trial Examiner that Sloan be placed upon a pref- erential hiring list.