Aerovox Corp.

National Labor Relations Board - Board Decisions

Feb 19, 1953

102 N.L.R.B. 1526 (N.L.R.B. 1953)

1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AEROVOx CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA (UE)
AEROVOX CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA (UE)
AEROVOx CORPORATION and INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, CIO
AEROVOX CORPORATION and INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, CIO, PETITIONER. Cases Nos.
1-CA-1081,1-CA-1008,1-CA-1088, and 1-RC-2079. February 19,
1958
Decision and Order
On June 6, 1952, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief, and the
General Counsel filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Styles, and Peterson].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, the General
Counsel's brief, and the entire record in this case,' and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with the additions and modifications set forth below.
1. The Respondent in its exceptions alleges that the Trial Examiner
was biased and prejudiced, and that he displayed such bias and preju-
dice by statements 2 which seem to indicate that he had prejudged
1 The Respondent 's request for oral argument is hereby denied as the record , the excep-
tions, and the briefs, in our opinion , adequately present the issues and the positions of the
parties.
2 The two statements in question are set forth below in their immediate context, the
emphasis indicating the portions on which the Respondent bases its claim of bias and
prejudice . The first of the two statements was made in regard to the issue of whether
or not the Respondent had unilaterally determined the number and allocation of employee
members of an alleged company -dominated labor organization :
Tx LONDON : Do I understand , is it your contention , do you say the evidence
shows that the departments each one of whom had one representative on this com-
mittee were not necessarily manned by the same number of employees?
Mr. TITUS : I'm not quite sure I understood what you said.
102 NLRB No. 153.
AEROVOX CORPORATION 1527
certain issues. We have carefully considered the entire record and
find no basis for the Respondent's charge. With regard to the state-
ments in question, it is clear that they appear to be prejudicial because
of typographical errors. This conclusion is supported by the facts
that the Trial Examiner fully explored the issues involved after he
made the allegedly prejudicial statements, and otherwise conducted
the hearing in a scrupulously fair manner; that the Respondent did
not object to the statements at the time they were allegedly made or
at any time during the hearing; that the record contains several
obvious typographical errors throughout; and that it is clear, when
the statements are read in their context, that what the Trial Examiner
actually did say was not prejudicial. Accordingly, the Trial Exam-
iner's statement-"I'm going to find it was unilaterally fixed by the
Company."-is hereby corrected to read-"I'm going to find out if it
was unilaterally fixed by the Company."; and the statement-"Judg-
ing from my past experience in these cases I assume if there was such
Footnote 2-Continued
Tx LONDON : I will repeat it. Is it the position of the Company that the representa-
tives of the committee were not based necessarily on the number of employees in
each department ; In other words, you didn't give one representative for every 25 or
30 employees?
Mr. TITUS : I take exception . We didn't give , when you say "we" are you referring
to the-
Tx LONDON : I'm referring to the list that was presented by Mr. Mohel at that
meeting.
Mr. TITUS: Well
Tx LONDON : There is no Implication there that it was that. I'm going to find it
was unilaterally fixed by the Company. I'm asking for information how it was made
up, did each department regardless of its size , each department listed on General
Counsel's Exhibit 5 and there are 35 departments , did each representative of each
department on there represent the same number of employees?
Mr. TITUS : I would say no. I think I can clarify that with Mr. Mohel when he
will testify, and that is what I was trying to bring out with this witness, the Stock-
room had a representative even though It had a few employees and that another small
department had a representative, too.
Tx LONDON : That is what prompted my question because there was some implication
there was.
The second statement was made in regard to the issue of whether or not the Respondent
had discriminatorily applied a plant rule to an employee alleged to have been discrimina-
torily discharged :
Q [By Mr Coven] Just what do your records show with respect to excused
absences?
A. [By Mr. Mohell I don't think I can answer that.
Mr. TITUS : I object to the materiality of this. Where are we going? Here we
got two employees that do not appear anywhere in the Complaint . What does he
expect to prove here ? I think you ought to ask him to tell us what he intends to
prove.
Mr. COVEN : I expect to prove this rule, if there was such a rule, was never enforced
or, at least , wasn't enforced in those particular instances.
Tx LONDON : Judging from my past experience in these cases I assume if there was
such a rule that it was discriminatorily applied. In other words , one employee was
discharged for absence without permission and others weren 't, that is evidence to be
taken . Now, he Is inquiring as to what the records would show as to this. I presume
you have records for those two employees?
The WITNESS : We have.
Tx LONDON : With the same explanations that appear on those that you have
offered In evidence ; is that what you want?
Mr. CovEN : Yes.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a rule that it was discriminatorily applied."-is hereby corrected to
read-"Judging from my past experience in these cases I assume, if
there was such a rule, he claims that it was discriminatorily applied." 3
2. We agree with the Trial Examiner's finding that the Respondent
dominated and interfered with the administration of, and contributed
support to, the Aerovox Plant Committee. This finding of the Trial
Examiner is based, among other things, on the facts that the Respond-
ent's personnel manager, Mohel, attended all meetings of the Com-
mittee, and that employees attending were paid by the Respondent
for the time they lost from work because of such attendance. The
Respondent, however, claims that meetings of the Committee were
negotiation and grievance sessions which the Respondent's representa-
tives had to attend and for which it could legally compensate its
employees. While an employer may, without violating the Act, meet
with its employees on its property to negotiate agreements and to
settle grievances, and while it may compensate employees for time
spent on these matters,4 the record shows that the meetings of the
Committee went beyond this scope. All meetings of the Committee
were conducted on the Respondent's time and property in the presence
of representatives of management. Considerable time at these meet-
ings was devoted to discussion of such matters of internal committee
management as holding elections for committee members, election of
committee officers, and determination of the number of employees to
serve on the Committee. We therefore find that the Respondent, by
attending these meetings and by permitting the use of its facilities
for these discussions, dominated and interfered with the administra-
tion of the Committee,5 and contributed financial support to it, in
violation of Section 8 (a) (2) and (1) of the Act.
3. We agree with the Trial Examiner's finding that Manuel Cor-
deiro was discriminatorily discharged. Cordeiro, a vice president of
the UE and one of its most active supporters, was notified on Septem-
ber 19 that he had been selected as a delegate to attend the UE con-
vention in New York the next day. Cordeiro was unable to reach his
supervisor, Morse, personally, so he left a note stating that he was
going to New York the next day and would not be at work. At Cor-
deiro's request, his sister checked with Morse the next morning, before
Cordeiro left town. Morse told her it was "okay" when she asked
whether everything was all right. Nevertheless the Respondent dis-
charged Cordeiro, allegedly because he violated a company rule which
forbade absences without advance permission. No witness other than
United Mine Workers of America , et al., 92 NLRB 916.
4 Section 8 ( a) (2) of the Act as amended; Remington Rand Arms Company, Inc.,
62 NLRB 611.
5 Muriel H. Rehrig, d/b/a Rehrig Pacific Company, 99 NLRB 163.
AEROVOX CORPORATION 1529'
Mohel, whom the Trial Examiner specifically discredited, testified
that it was necessary for an employee to obtain permission before-
being absent. The most that was established was a general rule that
an employee who wished to be absent should notify his immediate
supervisor or the personnel department of his intention.6 Other
employees who had notified their supervisors or the personnel depart-
ment of an intention to be absent had not been discharged.7 ' It is
clear from the entire record that if a rule requiring an employee to
request permission before he could absent himself had ever existed, it
had been modified in practice to require an employee merely to give
notice of his intention to be absent, and that the stricter rule had been
applied only to Cordeiro. Moreover, Cordeiro's immediate super-
visor acquiesced to his absence in advance of his departure, when an
expression of disapproval could have caused Cordeiro to alter his
plans. In view of the Respondent's support of the Committee, and
of Cordeiro's militant advocacy of the UE, we find the conclusion
inescapable that Cordeiro was discharged because of his activities on
behalf of the UE, and not because he violated a company rule against
unexcused absences. Under all the circumstances, therefore, we find
that Cordeiro was discharged in violation of Section 8 (a) (3) and
(1) of the Act.
4. We agree with the Respondent's contention in Case No. 1-RC-
2079 that the Trial Examiner erred when, in upholding the objections
of the UE, he set aside the election because of the Respondent's support
of the Committee. The Board has recently held that conduct occur-
ring prior to the issuance of the notice of hearing may not be urged
as the basis for objections to the election.8 As the conduct here
occurred prior to issuance of the notice of hearing in 1-RC-2079, we
hereby dismiss the UE's objections to the election. As the results of
the election showed that no collective-bargaining representative had
been selected by a majority of the employees in the unit found appro-
priate by the Board,9 we shall dismiss the petition filed in Case No.
1-RC--2079.
"Although the Respondent discharged three employees for attending a baseball game,
these employees , in the course of the working day, informed an individual , whose super-
visory status is in doubt, of their intention to attend a baseball game that day, and were
told not to go. If the individual to whom they addressed these remarks was a supervisor,
they absented themselves against the express wishes of their supervisor; if he was not a
supervisor, there is no evidence in the record that the proper authorities were notified.
In either event , that situation is readily distinguishable from the one involving Cordeiro,
whose supervisor was not only notified but acquiesced in his proposed absence from work.
' While some of these employees may not have been so inactive in UE affairs as the
Trial Examiner suggests, he correctly points out that regardless of the extent of tpeir
union activities, the Respondent 's failure to discriminate against these employees does not
warrant an inference that Cordeiro 's discharge was not discriminatory . W. C. Nabors
Company, 89 NLRB 538 , enforced 196 F. 2d 272 ( C. A. 5, 1952).
6 Great Atlantic ,& Pacific Tea Company , 101 NLRB 1118.
Aerovoz Corporation , 1-RC-2079 , unpublished.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Aerovox Cor-
poration of New Bedford, Massachusetts, its officers, agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Aerovox
Plant Committee, or any other labor organization of its employees and
from contributing support to it or any other labor organization of its
employees.
(b) Giving effect to any contracts or agreements with the aforesaid
Committee.
(c) Discouraging membership in United Electrical, Radio and
Machine Workers of America, UE, International Union of Electrical,
Radio and Machine Workers of America, CIO, or any other labor or-
ganization of its employees, by discriminating in regard to their hire
or tenure of employment or any term or condition of employment.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Electrical, Radio and
Machine Workers of America, UE, International Union of Electrical,
Radio and Machine Workers, CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which we find will effectu-
ate the policies of the Act :
(a) Withdraw all recognition from Aerovox Plant Committee as a
representative of any of its employees for the purpose of dealing with
Respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, and com-
pletely disestablish said organization as such representative.
(b) Offer Manuel Cordeiro, Jr., immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to seniority or other rights and privileges, and make him whole, all
in the manner set forth in the section entitled "The Remedy" in the
Intermediate Report attached hereto.
(c) Upon request, made available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
AEROVOX CORPORATION 1531
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay and the right of
reinstatement under the terms of this Order.
(d) Post at its plant in New Bedford, Massachusetts, copies of the
notice attached to the Intermediate Report as Appendix A.10 Copies
of such notice, to be furnished by the Regional Director for the First
Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt
thereof and maintained for 60 days in conspicuous places, including all
places where notices are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Decision and Order what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the allegations of the complaint charg-
ing that Respondent discriminatorily reduced Cordeiro's rate of pay,
be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the petition in Case No. 1-RC-2079, be,
and it hereby is, dismissed.
10 This notice, however, shall be and it hereby is amended by striking from the first
paragraph thereof the words "The recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Pursuant to a decision and direction of election issued by the National Labor
Relations Board, herein called the Board , in Case No. 1-RC-2079 initiated
February 7, 1951, by the petition of International Union of Electrical, Radio
and Machine Workers, CIO, herein called the CIO, an election to determine a
bargaining representative was conducted on October 25, 1951, among designated
employees of the Aerovox Corporation, herein called Respondent. By the
Board's direction, as amended , the said employees were given the opportunity
to determine whether they desired to be represented by the CIO, or by United
Electrical, Radio and Machine Workers of America (UE), herein called the
UE, or by International Brotherhood of Electrical Workers, AFL, or by none of
them. The tally of ballots cast at the election aforementioned disclosed that a
substantial majority of employees who cast ballots therein voted to be repre-
sented by none of the three participating labor organizations . On October 31,
1951, UE filed objections to both the conduct of that election and to conduct
affecting the result thereof. On January 16, 1J52, the Board adopted the recom-
mendations of its Regional Director for the First Region issued on December 28,
1951, and accordingly dismissed UE's Objections Numbers 1 (b), (d), (f), 2,
and 3. With respect to Objections 1 (a), (c), and (e), hereafter described at
greater length, the Board ordered that a hearing be held thereon.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the aforementioned petition for representation in 1-RC-2079 was pend-
ing, the UE and the CIO filed charges and amended charges in Cases Nos.
1-CA-1031, 1-CA-1068, and 1-CA-1088, charging that Respondent violated Sec-
tion 8 (a) (1), (2), and (3) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Pursuant thereto, the General Counsel
of the Board , on February 14, 1952, filed a complaint against Respondent alleging
that the latter had violated the sections of the Act last aforementioned. The
complaint alleged, in substance, that on or about September 14, 1951, Respondent
decreased the rate of pay of Manuel Cordeiro, Jr., and on or about September 22,
1951, discharged him, and that both actions were taken for the reason that
Cordeiro joined or assisted the UE or engaged in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection. The
complaint further alleged that from and since about May 27, 1951, Respondent
sponsored, promoted, assisted, dominated, and contributed to the support of, and
interefered with, the administration of the Plant Committee, a labor organiza-
tion of Respondent 's employees . By its answer , Respondent admitted that on
or about September 17, 1951, it reduced Cordeiro 's rate of pay, and that on or
about September 22, 1951 , it discharged him, but denied that it had committed
any unfair labor practices. On February 15, 1952, the Regional Director ordered
that all the cases aforementioned be consolidated , and that a hearing thereon be
held commencing March 10 , 1952 . Copies of the complaint , charges and amended
charges, notice of consolidated hearing, were duly served upon the appropriate
parties. Pursuant to said notice, a hearing was held at New Bedford, Massa-
chusetts, on March 10, 11, and 12, 1952, before the undersigned Trial Examiner.
The General Counsel, Respondent, and the UE were represented by counsel, par-
ticipated in the hearing, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to present testimony bearing upon
the issues . Respondent 's prehearing motion to sever Case No. 1-CA-1031 from
the consolidation ordered by the Regional Director was denied by Trial Exam-
iner Whittemore on February 28, 1952, and adhered to by me at the hearing.'
On or about April 30, 1952, briefs were received from Respondent and the UE.
Upon the entire record in these proceedings and from my observation of the
witnesses , I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Massachusetts corporation engaged in the manufacture, sale,
and distribution of capacitors at its plant in New Bedford, Massachusetts. Its
sales and purchases each exceed $6,000,000 per annum . With respect to each,
75 percent thereof is transported in interstate commerce from and through
various States of the United States other than the Commonwealth of Massa-
chusetts . Respondent admits and I find that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Electrical, Radio and Machine Workers of America (UE), hereinafter
referred to as UE, International Union of Electrical, Radio and Machine Workers
of America, CIO, hereinafter referred to as CIO, and Aerovox Plant Committee,
also known and hereafter referred to as the Plant Committee , are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
1N. L. R. B . v. American Laundry Machinery Company , 152 F. 2d 400 (C. A. 2) ;
Arkport Dairies , Inc., 95 NLRB 1342.
AEROVOX CORPORATION 1533
III. THE UNFAIR LABOR PRACTICES
A. Respondent 's domination of, interference with, and contribution to the Plant
Committee
After having previously carried on its manufacturing operations in Brooklyn,
New York, Respondent in 1938, moved its plant to New Bedford, Massachusetts.'
In 1941, when Respondent was engaged in so-called "defense work," Federal
government agencies urged Respondent to take precautionary measures against
espionage and sabotage. Management enlisted the cooperation of its employees
by means of a national defense committee, the membership of which was elected
by the employees, by departments. One of the principal causes of concern was
the danger of fire in the plant and among the first tasks to which the committee
devoted itself was the strict observance of smoking rules. Thereafter, other
safety measures were suggested and received appropriate attention. Gradually,
however, matters other than of the nature above-described crept into the periodic
meetings of management and the committee. Included in this latter category
were such subjects as wages, rest periods, cafeteria for employees, and the
disposition of grievances. The transition became so prominent that from and
after 1943 or 1944 the committee became known as the Aerovox Plant Committee,
and Respondent has ever since recognized and dealt with it as the bargaining
representative for its production and shop clerical employees on all matters
appropriately the subject of collective bargaining between employer and
employees.
Though its tenure is of long standing, the Committee never adopted a constitu-
tion or bylaws, nor, except for minutes of meetings kept by a secretary, is there
any written memorial defining its "functions, duties and prerogatives." The
organization has no requirement for dues and has no treasurer . More startling
is the undenied fact that it has "no contract with the Company."
Cordeiro testified, without contradiction, that at the first meeting after he was
elected to the Committee in 1947, Mohel, Respondent's personnel director for the
last 10 or 11 years, told those in attendance "what the Plant Committee was,
what they were supposed to do, and how [they] would work together." Annual
Plant Committee elections were held in October of each year. Notices specifying
the exact date of the election and the manner in which they were to be con-
ducted were prepared under the direction of and by Mohel's office, and were
posted pursuant to his "orders." Notice of the election was also published in the
Aerovox News, a publication printed and circulated by Respondent and which
likewise contained comment extolling the work of the Committee.
At the election held October 31, 1950, 20 committee members were elected from
9 voting units. Prior to the October 1951 election, at committee meetings in which
Mohel participated, informal discussions were had concerning enlargement of the
2 At the bearing, the Geneial Counsel asked me to take official notice of a Board order
and decree (28 NLRB 727) entered on December 20, 1940, by which Respondent was
restrained from dominating or interfering with the formation or administration of any
labor organization. including Aerovox Employees' Association, or contributing any sup-
port thereto. While I have examined the decision aforementioned , I have concluded that
because of its remoteness it can have no probative value here. Accordingly, It has played
no part in the findings and conclusions that follow.
8 This finding is based on the testimony of August Bonito, chairman of the Committee,
and Mohel , Respondent's personnel manager. In view of the undisputed evidence that
Respondent established wage rates after bargaining with the committee, and bargained
with it with respect to other conditions of employment , the testimony he referred to cannot
be given its literal meaning . The only conclusion that can be drawn from it is that there
is no written contract It suggests, however, that all agreements with the Committee have
no definite duration and are terminable at the will of either party.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Committee due to the increased number of employees. Committee minutes do not
disclose any such discussions or what action, if any, was taken by the Committee
authorizing such enlargement. Bonito, the committee chairman, testified that
though "not sure, [he thought] Mr. Mohel brought this up. He (Mr. Mohel)
thought [they] should have more" committee members. Mohel at that time
brought before the Committee and "read off" a list of the departments, broken
down into sections. Mohel testified that while no formal vote was taken, there
was "no disagreement" to the suggestion that the Committee should be enlarged.
Thereafter, Mohel prepared and caused a notice to be posted, over his typewritten
signature, advising that "the annual Plant Committee election" was to be held
during the week of October 9, 1951, and listing 35 departments or sections each
of which would be entitled as a single unit, to elect 1 representative. Though
there was no testimony that the Committee had authorized any variation in the
method of conducting nominations and final election from that prevailing in
1949 and 1950, apart from the increase in size, Mohel's October 1951 notice varied
substantially in that respect. Mohel admitted he was "partly responsible" for
earlier removing office employees from membership on the Committee.
The Committee held meetings every Wednesday, except as hereafter noted,
and more frequently when necessary. Bonito, who had been on the Committee
since October 1950 and its chairman after the October 1951 election, testified,
without contradiction, that Mohel was present at every meeting. It was also
undenied that Bill Ohms, Mohel's assistant, was also present at "these meetings."
While Mohel testified that on several occasions at the Committee's request, he
left the room while the Committee engaged in discussion of a proposal, Bonito,
who attended every meeting of the Committee since October 1950, did not re-
member any occasion when Mohel was asked to leave the meeting room. Fur-
thermore, according to Bonito, the Committee never had "a meeting of its own
[to] decide what demands they should make of Mr. Mohel or the Company." Foi
3 or 4 meetings after the committee elections in October, it functioned without
an elected presiding officer. This came about after discussion in which Mohel
participated. During such period Mohel acted as chairman. All members of the
Committee were paid for the time devoted to meetings of the Committee which
generally lasted 60 to 90 minutes.
Since 1947, Mohel's secretary, though not a member of the Committee, acted
as its secretary and kept the transcribed minutes in her office. All committee
meetings were held in Respondent's training room, located approximately 15 or
20 feet from Mohel's office, and permission to hold special meetings in that room
had to be obtained from Mohel's office.
The foregoing findings lead only to the conclusion that Respondent has domi-
nated, interfered with the administration of, and contributed support to the
Committee, all of which activities are proscribed by Section 8 (a) (2) of the Act.
If the guarantees contained in Section 7 thereof' are to have any value, em-
ployees must be free of employer influence in the administration of their labor
organization. Here, by contributing meeting and secreterial facilities, by par-
ticipating in and presiding over meetings of the Committee, by suggesting, if
indeed not by prescribing, how nominations and elections to the Committee were
to be conducted, and by paying committee members for attendance at committee
meetings, Respondent dominated, interfered with, and contributed support to
the Committee, a labor organization of its employees. By such conduct, Respond-
ent also interfered with, restrained, and coerced employees in the exercise of
* "Employees shall have the right to self-organization , to form , join, or assist labor
11organizations , to bargain collectively through representatives of their own choosing . . .
AEROVOX CORPORATION 1535
rights guaranteed in Section 7 of the Act, all in violation of Section 8 (a) (1) and
(2) thereof.' Bryan Manufacturing Co., 94 NLRB 1331, enforced 196 F. 2d 477
(C. A. 7) ; Harrison Sheet Steel Co. v. N. L. R. B., 194 F. 2d 407 (C. A. 7) ; Su-
perior Engraving Co., 83 NLRB 215, enforced 183 F. 2d 783 (C. A. 7) ; General
Shoe Corporation, 90 NLRB 1330; Sun Oil Company, 89 NLRB 833.
B. The violation of Section 8 (a) (8)
Manuel Cordeiro, Jr., was first employed by Respondent as a benchhand in
the motor starting department on July 24, 1946, at 68 cents an hour. In Jan-
uary or February 1947, Aural, the supervisor of that department, was taken to
the hospital and Cordeiro was placed in charge. His pay was raised to 81 cents.
When Aural returned, Cordeiro was kept in the motor starting department and
Aural was transferred to another department. Several months later, Cordeiro
was transferred as a group leader to the P. R. department and several months
thereafter to the final test department. After another interval of several months
in 1948, he was put in "complete charge of the line" in that department. In 1951,
the exact date not being disclosed, when Cordeiro was receiving $1.111 an hour,
he was "taken off being supervisor and put on as a bench hand, testing," and
continued in that capacity until he was discharged on September 22, 1951. Not-
withstanding this change in work, he continued to receive the $1111 an hour
until September 17, when his hourly rate was reduced to $1.034.
Cordeiro joined the UE in March 1951 and became extremely active in its
affairs. He was vice president of its plant organizing committee, wrote articles
for the Aerovox UE News which received wide distribution in the plant, passed
out UE leaflets at the gate, and twice a week in the summer of 1951 was intro-
duced by name and spoke over the local radio station in behalf of UE. Mohel
admitted he had knowledge of most of these activities carried on by Cordeiro in
behalf of UE. In May 1951, Cordeiro and four others acting as a committee,
protested the discharge of one Pearl Martin to Mohel.6 In August or September
1951, Cordeiro and several others circulated a petition among employees de-
manding a pay raise and presented it to Mohel who was then engaged in a
meeting with the Committee. During the same summer, Cordeiro was one
member of a UE delegation that went to the offices of the Board in Boston "to
inquire about an election," of which fact Mohel had knowledge. About 8 weeks
before he was discharged, Mr. Cameron, superintendent in charge of production,
asked Cordeiro why he was trying to get the plant "organized."
Early in September 1951, copies of the September 3 issue of "UE News" were
distributed in the plant. It contained a picture of Cordeiro and a comment that
5 No finding of violation is made herein prior to May 27, 1951 , the date alleged in the
complaint , which date is less than 6 months prior to the filing of the original charge
herein. Nevertheless , all relevant facts concerning Respondent's participation in the
affairs of the Committee occurring more than 6 months before the filing of the charge may
be used as background evidence to cast light upon conduct occurring within the 6 months'
period and thereafter. Federal Trade Commission v. Cement Institute , 333 U. S. 683,
705; N. L. R. B. v. Clausen, 188 F. 2d 439 , 443 (C . A. 3), cert. den . 342 U. S. 868;
Superior Engraving Company v. N. L. It. B., 183 F. 2d 783, 791 (C. A. 7), cert. den. 340
U. S. 930. This is especially true in cases of employer support or domination of a labor
organization where the taint or disability found to have occurred within the 6 months'
period and thereafter is but the continuance of domination and assistance indulged in
earlier. Cf. General Shoe Corporation, 90 NLRB 1330 ; Duro Teat Corporation, 81
NLRB 976.
0On November 21, 1951, in a preceding instituted by UE (1-CA-944), Trial Examiner
Winkler issued his Intermediate Report finding that Respondent had discriminatorily dis-
charged Martin in May 1951 and recommended an order directing her reinstatement with
back pay. Respondent filed no exceptions to that report. On December 17, 1951, the
Board adopted the Trial Examiner ' s report and recommendations.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was then receiving a $1.111 an hour. At the September 12 meeting of the
Committee, Albert Cyr, one of its members, reported that a complaint had been
entered that Cordeiro was still receiving $1.111 an hour after he had been de-
moted from his supervisory post. Mohel stated he knew nothing about the
matter but would investigate. On September 15, Cordeiro's foreman and super-
visor came to him and told him that they had just discovered that he was still
receiving $1.111 per hour, the supervisory rate of pay, although it was months
since he had been reduced to a benchhand. They further informed him that
the failure to reduce his pay when he was reduced in rank was an oversight, and
that on the following paycheck he would receive a cut of approximately 10 cents
an hour. Cordeiro did not remonstrate or protest. On the following payroll,
his rate was reduced to $1.034, the highest rate then paid to benchhands.
On Wednesday, September 19, between 12: 30 and 1 p. in., Cordeiro was noti-
fied that he was to go as a delegate to the UE convention then in session in
New York. His shift at that time concluded work at 2: 30 p. m. At about 1: 45
p. m. he unsuccessfully looked for Albert Morse, his supervisor, to inform him
that he wouldn't report for work the following days and was informed that
Morse was then in attendance at a meeting of foremen. Cordeiro then wrote
the following note and handed it to David Cobb, the material handler, with
instructions to deliver the same to Morse:
Al-I came back to tell you I'm taking a plane to New York tomorrow.
I'll be gone Thursday and Friday and Saturday. I forgot to tell you.
/s/ Manny Cordeiro
During the same day, Cordeiro instructed his sister, Juliet, who works in Re-
spondent's office as a file clerk, to go to his department and make sure that his
supervisor received the note and to verify the information contained therein.
On the following morning, Juliet sought out Morse and asked him whether he
had received her brother's note. When he answered affirmatively, she asked
him "if everything was all right and he said okay."' Cordeiro left for New
York the same morning, Thursday, and returned to his home on Saturday, Sep-
tember 22, at about 10 p. in. At that time he found awaiting him the following
telegram signed by Mohel: "Your services are terminated. You may call at
the personnel office Monday for your final check." Cordeiro saw Mohel on the
following Monday and asked him why he had been fired. Mohel answered that
it was for violating a company rule, that he had been absent without proper
notification. Cordeiro denied this and informed Mohel that he had taken steps
to "cover his absence."
It is the position of the General Counsel that Respondent violated Section
S (a) (3) of the Act8 in two respects: (1) By reducing Cordeiro's rate of pay
on or about September 17, and (2) by discharging him on September 22.
On the entire record I find that the General Counsel has not sustained the
burden resting on him to establish by preponderance of the evidence that Cor-
deiro's rate of pay was reduced on or about September 17 for the purpose of
encouraging or discouraging membership in any labor organization. On this
phase of the case, it must be remembered that Respondent is not charged with
discrimination because it had, months earlier, reduced Cordeiro from the rank
of supervisor to a rank-and-file bench job. Here, it is only contended that by
reducing Cordeiro's rate of pay months later, from the prevailing supervisory
scale for work he was no longer performing to the highest prevailing rate for
Morse was not called as a witness.
8 By that section it is made "an unfair labor practice for an employer-by discrimina-
tion in regard to hire or tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization."
AEROVOX CORPORATION 1537
the rank-and-file work he was then performing, that Respondent did so to dis-
courage membership in, or activities on behalf of, the UE. I cannot sustain
such a contention. It was undisputed, indeed, established by Cordeiro's own
testimony, that for months preceding September 17, he was not doing super-
visory work but instead was engaged in a rank-and-file bench job. Why he
should receive pay for work in which he was not engaged was not explained. It
was undisputed that on or about September 15 management's attention was
first called to its oversight in not reducing Cordeiro's rate of pay when he was
reduced in rank, an oversight which had occurred in other cases and had
similarly been corrected after the event of reduction in rank. Significant, too,
is the fact that when Cordeiro was told of the oversight and that his rate would
be reduced, he offered no protest and apparently accepted the explanation given
him. I shall therefore recommend that the allegation charging that Respondent
violated Section 8 (a) (3) of the Act by this reduction in Cordeiro's rate of
pay be dismissed.
There remains for consideration on this portion of the case the question of
whether the General Counsel has sustained the burden of establishing by a pre-
ponderance of the evidence that Cordeiro was discharged on September 22 be--
cause of his UE activities.
Respondent's admitted knowledge of Cordeiro's UE activities has already
been pointed out. Nor was it denied that he had rendered highly competent
and faithful service for more than 5 years, for which he was promoted to a
supervisory position and received 3 merit increases. Indeed, when Cordeiro pro-
tested his discharge to Mohel and spoke of his "near perfect record," Mohel ad-
mitted that Cordeiro had "a good record, [one] that he (Mohel) was proud of."
During the first 3 years of his employment Cordeiro missed not a single day's
work ; "a couple of times" he was ill, but reported for work the following morn-
ing. He had never been warned against unexcused absences from work, ap-
parently, because there was no occasion to do so.
The foregoing facts, when viewed in the light of Cordeiro's activity in behalf
of the UE, coupled with Respondent's illegal activity to keep the Committee
as a bargaining agent of its employees, made it incumbent on Respondent to
come forward with a reasonable explanation for Cordeiro's discharge.' This
it attempted to do, almost exclusively, by the testimony of Mohel. Morse,
Cordeiro's supervisor, was not called as a witness, nor was any attempt made
to attack Cordeiro's ability and conduct as a faithful employee. It was through
Mohel's testimony alone that Respondent sought to establish that Cordeiro, in
violation of its rules or practice, had absented himself from the plant on Thurs-
day and Friday, September 20 and 21, without permission or explanation.
In this connection, it becomes appropriate to record the poor impression made
by Mohel on the witness stand, both by his general demeanor and the vague
and generalized tenor of his testimony. Illustrative only of the evidence offered
by him, is his testimony concerning an alleged company rule governing absence
from work. Having taken the position that Cordeiro's services had been ter-
minated because of a violation of company rules or practice, it was to be ex-
pected that the personnel manager of a staff of more than 3,000 employees would
give an explicit and direct statement of that rule or practice. Mohel's en-
deavors to establish such facts failed dismally . Thus, he testified he didn't
know whether there was such an express rule or not ; when asked to point out
where it was expressed, he testified he didn't "know whether it is expressed
anywhere." Though he asserted there was a "handbook of rules," he admitted
• Pacifo XBie, 91 NLRB 60; Somereet Claaaioa , 90 NLRB 1675. -nforeed 193 F. 2d 613
(G A. 2).
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it had not been "given out in recent years." When questioned whether "there
is something in that rule book about absences," his answer was "I don't recall,
there probably is." He was next asked whether a copy of the book was available
and answered he might have a copy in his office ; when however, a few sentences
later, the General Counsel asked whether he could "bring that list of rules"
to the hearing, he answered he didn't "know if [he had] one available or not."
No attempt was made to show that Cordeiro's absence interfered with plant
production. Furthermore, Mohel testified that Respondent did not discharge
every employee who absented himself without permission or proper notice-
that its action "would depend on circumstances." One set of circumstances,
he testified, which would prompt him to condone an unexcused absence, would
be if the employee gave a satisfactory explanation for his absence upon his
return. In the instant case, however, Mohel acted without giving Cordeiro such
an opportunity, for his telegram summarily discharging Cordeiro, admittedly
a most unusual procedure in itself, was sent on Saturday while Cordeiro was
still in New York. Furthermore, though Cordeiro's note was brought to Mohel's
attention on the first day of the former's absence from the plant, and though
Mohel was aware that Cordeiro' s sister saw Morse on the same day, he made no
"check with Al Morse as to what he had to say about it." If, therefore, there was
any disposition on the part of Mohel to act without discrimination, and to ac-
cord Cordeiro the same opportunity he apparently extended other employees,
why did he not, on the following Monday, ask Cordeiro to explain his absence.
The answer was supplied by Mohel himself ; he had unalterably made up his
mind to discharge Cordeiro on the previous Friday.
There is evidence of further disparate treatment accorded Cordeiro in con-
nection with his absence. The record establishes conclusively that a number of
other employees had absented themselves from work under circumstances similar
to those existing in Cordeiro's case. Included in this group were Julio Cruz,
Maura Cruz, and Rosalind Swartz. All of them were absent from work and
merely sent messages, after the absence began, that they were going out of town.
None of them were discharged io
In any event, I find that Cordeiro was not discharged for "taking time off
without permission," as claimed by Mohel. It was undisputed that about 7: 30
a. in. of September 20, Cordeiro's sister talked to Al Morse, the supervisor, and
received not only an acknowledgement that he had received Cordeiro' s note of
the day before, but in addition, an affirmative assurance that "everything was
alright." Accordingly, I cannot find that Cordeiro was guilty of "taking time off
without permission." On the contrary, I find that Respondent gave its consent to
his absence over the ensuing weekend.
On the entire record, and in view of Respondent's failure satisfactorily to
explain its discharge of Cordeiro, the only reasonable inference to be drawn is
-"Even if it be assumed , as Respondent asserts in its brief , that all three of these
employees were "also active in organizing for the union " but were nevertheless not dis-
charged, that fact "is not, as Respondent contends , a basis for inferring that [Cordeiro's]
discharge was nondiscriminatory ." Brophy Engraving Company , 94 NLRB 719, citing
N. L. it. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261. Furthermore, the findings
heretofore made, describing the multitudinous UE activities in which Cordeiro was engaged,
demonstrate that he was one of its most militant leaders. On the other hand, with
respect to Rosalind Swartz, the record merely shows that she was secretary of the UR
organizing committee, that her name appeared on its publication, and that she passed out
pamphlets . No credible testimony was offered that Julio Cruz or Maura Cruz played any
active part in labor organization activities. In any event, it was not necessary to dis-
charge other leaders or adherents in order to discourage outside union activities. Such
discouragement may be effected by making "an example" (N. L. it. B. v. Link-Belt Co., 311
U. S. 584 , 602) of one of its outstanding leaders . See also footnote 6, supra.
AEROVOX CORPORATION 1539
that Respondent discharged him because of his UE activities which, if success-
ful, would remove the company-dominated Committee as the bargaining repre-
senative of its employees. Accordingly, I find that Respondent discharged
Cordeiro on September 22, 1951, because of his UE activities. By such conduct,
Respondent violated Section 8 (a) (1) and (3) of the Act.
IV. DISPOSITION OF OBJECTIONS TO ELECTION
As mentioned in "Statement of the Case," supra, this proceeding served also
as a hearing on UE 's Objections 1 (a), (c), and (e) to the conduct of the Board
election of October 25, 1951, and conduct affecting the result thereof.
Objection 1 (a), as Respondent correctly states in its brief , is, in substance,
a duplication of the allegations of the complaint charging that Respondent has
"assisted , dominated , contributed to the support of, and interfered with, the
administration of the - Committee." Objection 1 (c) charges that on the day
before said election , Respondent 's supervisors arranged for the manufacture and
distribution of "election campaign" hats, on company property and during
working hours, bearing the injunction "Vote No." Objection 1 (e) charges
that Respondent , shortly before the election , caused to be posted a giant bill-
board sign directly opposite the door through which practically all employees
entered the plant, which sign extolled the work of the Committee, and which
sign was posted for the purpose of influencing , intimidating, and coercing Its
employees "not to vote for a legitimate labor organization."
Having previously found , section III A, supra, that Respondent , from and
after May 27 , 1951, was guilty of the conduct complained of in Objection 1 (a),
it is further found that the election of October 25, 1951 , was not an expression
of the employees ' free choice and did not represent their free , untrammelled, and
uncoerced wishes as to collective-bargaining representation. It will, there-
fore, be recommended that UE's Objection 1 (a) to the election be sustained,
that the results of the election be set aside , and that the Board direct a new
election to be held when the Regional Director advises that the time therefor
is appropriate.
I further find that it has not been established by a preponderance of the
evidence that Respondent engaged in the illegal conduct described in UE Ob-
jections 1 (c) and (e), and therefore recommend that those objections be over-
ruled.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce, and the
free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set
forth above, the undersigned will recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that Respondent dominated and interfered with the ad-
ministration of, and contributed support to, the Aerovox Plant Committee.
It will therefore be recommended that Respondent withdraw all recognition
from that Committee as representative of its employees for the purpose of deal-
ing with Respondent concerning grievances, labor disputes, wages, rates of pay,
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours of employment, or other conditions of employment, and completely dis-
establish it as such representative. Carpenter Steel Company, 76 NLRB 670. It is
also recommended that Respondent cease giving effect to any contracts or agree-
ments with the Committee. This last recommendation, however, shall not be
construed to require Respondent to vary the wages, hours, or other conditions
of employment heretofore established.
It is also recommended that Respondent remedy its discrimination against
Cordeiro by offering him immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights
and privileges. At the time of the hearing, Cordeiro was in the service of the
United States Marine Corps. If, therefore, at the time of the issuance of this
report he is still so engaged, it is recommended that Respondent immediately
notify him in writing, by registered mail addressed to his last known address,
that said offer of reinstatement is continued until 90 days after his discharge
from active military service. It will be recommended further that Respondent
make whole Cordeiro for any loss of pay he may have suffered by reason of
Respondent's discrimination against him, by payment to him of a sum of money
equal to the amount he normally would have earned as wages during the periods
(1) between the date of his discharge by Respondent and the date of his in-
duction into the active Armed Forces of the United States, less his net earnings
during said period; 'I and (2) between the date 5 days after his timely applica-
tion for reinstatement and the date of Respondent's offer of reinstatement less
his net earnings during said period. All of said back pay shall be computed in
the manner established by the Board in P. W. Woolworth Company, 90 NLRB
289, and Respondent shall, upon request, make available to agents of the Board
payroll and other records to facilitate checking of the amounts due.
Respondent's violations of the Act are persuasively related to other unfair
Libor practices proscribed thereby, and the danger of the commission in the
future of other unfair labor practices is to be anticipated from Respondent's
conduct in the past. The preventive purposes of the Act will be thwarted unless
the order is coextensive with the threat. In order, therefore to make more
effective the interdependent guarantees of Section 7, to prevent a recurrence
of unfair labor practices, and thereby minimize industrial strife which burdens
and obstructs commerce, and thus effectuate the policies of the Act, it will be
recommended that Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record of
the case, I make the following :
CONCLUSIONS OF LAW
1. The operations of Aerovox Corporation occur in commerce, within the
meaning of Section 2 (6) of the Act.
2. United Electrical, Radio and Machine Workers of America (UE), Inter-
national Union of Electrical, Radio and Machine Workers of America, CIO,
and Aerovox Plant Committee are labor organizations within the meaning of
Section 2 (5) of the Act.
3. By dominating and interfering with the administration of, and by con-
tributing support to, the Aerovox Plant Committee, Respondent has engaged
and is engaging in violation of Section 8 (a) (2) and 8 (a) (1) of the Act.
"'The payment of this amount shall be made immediately, without awaiting a final
determination of the full amount of the award . Vail Manufacturing Company, 61
NLRB 181.
AEROVOX CORPORATION 1541
4. By discriminating in regard to the hire and tenure of employment of
Manuel Cordeiro, Jr., Respondent has engaged and is engaging in violation of
Section 8 (a) (3) and 8 (a) (1) of the Act.
5. Respondent did not engage in any unfair labor practice by reducing Cor-
deiro's rate of pay on or about September 17, 1951.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF
AMERICA (UE), INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE
WORKERS, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer to Manuel Cordeiro, Jr., immediate and full reinstatement
to his former or substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed, and make him
whole for any loss of pay suffered as a result of the discrimination.
WE HEREBY DISESTABLISH Aerovox Plant Committee as the representative
of any of our employees for the purposes of dealing with us concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, and we will not recognize it or any succes-
sors thereto for any of the above purposes.
WE WILL NOT dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it.
All our employees are free to become or remain members of UNITED ELECTRICAL,
RADIO AND MACHINE WORKERS OF AMERICA (UE), INTERNATIONAL UNION OF
ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, or any labor organization. We
will not discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of membership in or
activity on behalf of any such labor organization.
AEROVOY CORPORATION
By --------------------------------
(Representative) (Title)
Dated------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
250983-vol. 102-53-98