Applied Research, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1962

138 N.L.R.B. 870 (N.L.R.B. 1962)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges, and make them whole for any loss of pay suffered by reason of their
discriminatory discharge.
All our employees are free to become or remain , and to refrain from becoming
or remaining , members of said United Steelworkers of America , AFL-CIO, or any
other labor organization.
WENDT-SONIS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material
Employees may communicate directly with the Board 's Regional Office, 714 Falls
Building, 22 North Front Street, Memphis , Tennessee , Telephone Number , Jackson
7-5451, if they have any question concerning this notice or compliance with its
provisions.
Applied Research , Inc. and George W. Frangos. Case No. 2-CA-
8273. September 25, 1962
DECISION AND ORDER
On April 24, 1962, Trial Examiner Harold X. Summers issued his.
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair-
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices. Thereafter,.
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and briefs in support thereof.i
Pursuant to the provisions of Section 3(b) of the National Labor-
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members.
Leedom and Brown].
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 exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and'
modifications 2
'The Respondent 's request for oral argument is hereby denied as the record in this-
proceeding , including the exceptions and briefs of the parties , adequately presents the'
issues and positions of the parties.
2 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's find-
ings that Leadman Epanimondo ' s conversation with employee AhIf on November 8, 1961,
138 NLRB No. 109.
APPLIED RESEARCH, INC. 871
1. We find, in agreement with the Trial Examiner, that by Leadman
Kellerman's interrogation of employee Garafalo sometime between
November 3 and 8, 1961, and by Leadman Corso's interrogation of
employee TenBroeck on November 8, 1961, the Respondent violated
Section 8 (a) (1) of the Act.
The Trial Examiner found, and we agree, that the Respondent's
leadman are supervisors within the meaning of the Act, and, there-
fore, their conduct, violative of Section 8(a) (1), was attributable to
the Respondent. We rely particularly on the following facts. As
found by the Trial Examiner, the Respondent employs 40 produc-
tion workers, who are divided among 6 departments, each of which
is headed by a leadman. Henrich, the Respondent's production man-
ager, is generally in charge of hiring, discharge, discipline of em-
ployees, and the handling of personnel problems.3 However, Henrich's
personal contact with production workers is not great and the lead-
men are the primary means by which he maintains supervisory contact
with employees. Thus, the leadmen are responsible for transmitting
work orders to production employees and for making certain that
these orders are fulfilled. The leadmen also instruct employees and
inspect their work. Employees are encouraged to bring their per-
sonnel problems to leadmen and leadmen are expected to "ferret out"
any problems that may exist among the employees. Henrich holds
frequent meetings with the leadmen to discuss personnel and produc-
tion matters and company policy. In connection with the Respond-
ent's semiannual wage increase, each leadman fills out an evaluation
sheet for the employees in his department, rating them as to the quality
and speed of their work and as to their relationship with other em-
ployees. Because of the limited contact between Henrich and em-
ployees, Henrich, in making recommendations to top management
officials concerning wage increases, relies in large measure on these
evaluation sheets, as well as on his other discussions with the leadmen 4
Leadmen receive more pay than the employees whom they supervise,
they interview job applicants, and they make recommendations with
respect to hire and discharge. In view of the foregoing, including the
abnormally high ratio of employees to supervisors that would exist
if the leadmen were not found to be supervisors,' we find that leadmen
responsibly direct employees and effectively recommend action respect-
that Production Manager Henrich's conversation with employee Garafalo on November 9,
1961, that the calling of the department meetings on November 10, 1961, and that the
timing of the November wage increases by the Respondent , did not violate Section 8(a) (1)
.of the Act.
3 Grimmelbein , Henrich ' s assistant , is primarily in charge of production and handles
personnel problems only in Henrich's absence.
4 The final decision concerning wage increases are made by the Respondent ' s top officials.
e Thus, if the leadmen were not found to be supervisors, 13enrich would supervise 40
employees
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing their wages. We accordingly find that leadmen are supervisors
within the meaning of the Act.'
2. We find, in agreement with the Trial Examiner, and for the
reasons stated by him, that by discharging employees Frangos and
LeCocq of November 10, 1961, the Respondent violated Section
8(a) (3) and (1) of the Act. We agree with the Trial Examiner that
Frangos and LeCocq, employees in the sheetmetal department, were
discharged for union activity and that the Respondent's skill-dilution
program in the sheetmetal department was utilized as a pretext for
the discharges. In rejecting the Respondent's explanation for the dis-
charges, we rely, in addition to the reasons stated by the Trial Ex-
aminer, on the following considerations. According to the Respondent,
the Company was changing certain production methods in order to
make it possible for it to utilize unskilled lower-paid workers in its
sheetmetal department, and in implementing this skill-dilution pro-
gram, the Respondent had hired one unskilled sheetmetal trainee in
the early part of August. The Respondent contends that the success
of this first trainee made it possible for it to discharge Frangos and
LeCocq, who were its skilled sheetmetal employees with lowest sen-
iority. While the unskilled trainee completed his trial period near the
end of October, and Frangos and LeCocq were not discharged until
November 10, the Respondent contends that this delay was necessary
because the sheetmetal department was shorthanded during that pe-
riod. Thus, according to the Respondent, Tinney, leadman in the
sheetmetal department, was on vacation until November 10, and
Anselmo, top sheetmetal mechanic, who was on medical leave, was
not expected to return until November 13. However, the record es-
tablishes that Tinney returned to work on November 10 only because
of the Respondent's special request that he end his vacation on that
day. Moreover, the record makes it clear that when the Respondent
discharged Frangos and LeCocq, it could not have been certain that
Anselmo was going to return to work on November 13.7 In view of
these circumstances, we are unable to accept the Respondent's explana-
tion as to the timing of the discharges of Frangos and LeCocq. We
accordingly find that they were discharged for union activity, in viola-
tion of Section 8(a) (3) and (1) of the Act.'
e General Telephone Company of California (formerly Associated Telephone Company,
Ltd.), 106 NLRB 413; General Telephone Company of Michigan , 112 NLRE 46, 48-50;
see also Northrop Aircraft, Inc., 120 NLRB 227; Monarch Rubber Company, Inc., 129
NLRB 482, 483; The Illinois Canning Co , 120 NLRB 669, 674.
'Production Manager Henrich testified without contradiction that Anselmo had called
him on November 8 or 9, saying that his doctor said he could return on November 13
if he felt well enough, and that, in fact, Anselmo did not actually return until a week
later.
e we also note that, according to the Respondent , it was possible for one unskilled
sheetmetal employee to take the place of two of its most skilled employees . ( The second
sheetmetal trainee was not hired until several weeks later .) We find it difficult to under-
stand how the Respondent could have "diluted" the skill and manpower requirements of
its sheetmetal department to such an extent so as to make this possible.
APPLIED RESEARCH, INC. 873
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
(1) The backpay obligation of the Respondent shall include the
payment of interest at the rate of 6 percent to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.'
(2) The following note shall be added to the notice immediately
below the signature :
NoTE.-We will notify any of the above-named employees
presently serving in the Armed Forces of the United States of
their right to full reinstatement upon application in accordance
with the Selective Service Act after discharge from the Armed
Forces.
(3) The following sentence shall be substituted for the present
first sentence appearing at the bottom of the notice :
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material.
6 Member Leedom dissents from the inclusion of interest in the backpay obligaion for
the reasons stated in the dissent in the Ilia Plumbing case
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon unfair labor practice charges filed on November 14, 1961 , by George W.
Frangos, an individual , against Applied Research , Inc., the General Counsel of
the National Labor Relations Board issued a complaint on December 27, 1961, al-
leging that Respondent had engaged in unfair labor practices in violation of Section
8(a) (1) and ( 3) of the National Labor Relations Act, herein called the Act. Re-
spondent 's answer admitted some allegations of the complaint, denied others, and
denied the commission of any unfair labor practices . Pursuant to notice, a hearing
was held before Trial Examiner Harold X. Summers at New York, New York, on
March 7 and 8, 1962. All parties were afforded full opportunity to present evidence,
to examine and cross-examine witnesses , to argue orally , and to submit briefs. A
brief has been filed by Respondent , which brief has been fully considered.
Upon the entire record in the case, including my evaluation of the credibility
of the witnesses based upon the evidence and upon my observation of their de-
meanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
Applied Research , Inc., hereinafter called Respondent , is a corporation organized
and existing under the laws of the State of New York. Its principal office and plant
are located at Port Washington , New York, where it is engaged in the manufacture,
sale, and distribution of electronic equipment and related products. In the course
of its operations during the year ending December 27, 1961 , a period which is
representative of its annual operations , it manufactured, sold, and distributed prod-
ucts valued at in excess of $50,000, of which products valued at in excess of $50,000
were shipped from its plant directly to points in the United States outside the State
of New York.
Respondent admits, and I find , that it is engaged in commerce within the meaning
of the Act.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNION
The parties stipulated, and I find, that District 15 of the International Association
of Machinists , AFL-CIO, hereinafter called IAM , is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology of events
Respondent, operating a plant engaged in the manufacture of electronic equip-
ment and related products, employs 40 production workers divided among 6
departments.
Three officers of Respondent are active in its operation: its president, Scandurra,
who concerns himself mainly with the sales end; its vice president, Dolin, who acts
as chief engineer; and its secretary-treasurer, Poulos, who deals with sales repre-
sentatives and establishes company fiscal policies. Of the three, Poulos is closest
to the production program, but all three, concertedly, make decisions on problems
of substance, including problems connected with production.
Francis Henrich is production manager. He is responsible for the plant's output,
from the purchase of raw materials and component parts to the shipment of the
finished articles. He hires, discharges, and disciplines employees and handles per-
sonnel problems generally. He refers problems of substance to top management-
Scandurra, Dolin, and Poulos-in which case he is normally asked for recom-
mendations. In the performance of his duties, he exercises considerable discretion
and independent judgment. It is conceded, and I find, that he is a supervisor within
the meaning of the Act
Willie Grimmelbein is Henrich's assistant. Although his supervisory status is
not an issue in this matter, the scope of his duties and responsibilities, and the mere
existence of his position, may have a bearing on the disputed status of the leadmen;
details are, therefore, set out here. Grimmelbein's title is foreman On occasion,
Henrich asks him for personnel recommendations; also during Henrich's short and
occasional absences, he assumes the latter 's duties and authority But his basic
responsibility is production as opposed to personnel; acting through the leadmen, he
accumulates production information and concerns himself with output.
Each of the six production departments is headed by a leadman. Since the
supervisory status of certain leadmen is an issue herein, their position will be
treated in some detail.
The leadman 1 is in charge of production in his department He receives work
orders, transmits them to his department's employees, and sees that they are fulfilled.
The orders, worked up by the engineering department, require some interpretation,
but there is little room for the exercise of independent judgment and discretion in
such interpretation. The leadman instructs, inspects, and helps out on problems.
In addition, he will do some production work himself; however, his production work
occupies a minority of his time-for example, 25 to 50 percent in engraving and
finishing, 25 percent in sheet metal, and. 2 to 3 hours per week in wiring.
The leadman cannot hire or discharge, and there is no evidence that he takes
disciplinary measures on his own. He makes recommendations with respect to
hire and discharge, but the record is unclear as to the weight given his recom-
mendation On the other hand, he conducts interviews of job applicants, on occasion
the sole interview on which the decision to hire is based.
Since Henrich is occupied with many matters, he keeps abreast of personnel mat-
ters basically through the leadman, who is expected to "ferret out" all personnel
problems and to transmit personnel information on the basis of which Henrich
can make decisions. (He holds leadmen's meetings once or twice per month ) In
fact, the leadman is considered, both by management and by the rank-and-file, the
sole channel through which personnel Problems and "gripes" are conveyed to man-
agement. Finally, in connection with Resnondent's Practice of granting semiannual
wage increases, discussed in greater detail below, the leadman fills out evaluation
sheets for each of his departmental employees, rating him on performance, quality,
3 Some of the testimony bearing on the status of leadmen was tied to one or another
specifically named leadman ; other such testimony related to all of them It appears,
from the totality of the evidence that all six leadmen stand on an equal footing in arriv-
ing at my conclusion, infra, I have, in the absence of testimony to the contrary concidorad
testimony applicable to a named leadman as generally applicable to all leadmen unless it
is patently peculiar to the leadman named
APPLIED RESEARCH, INC. 875
and speed and on such personal traits as the type of employee he is and how he
gets along with others?
I find that the leadmen are supervisors within the meaning of the Act.
Until several years ago, Respondent maintained a policy of giving individual wage
increases on a mass basis four times per year. Because of the problem of so fre-
quently assemblying the three top officers (who make the final decision on wage
increases), the policy was changed 2 years ago; since that time, the raises have come
twice a year 3 The last such increase had been effectuated in mid-April 1961.
Toward the end of October 1961, Respondent's rank-and-file employees became
restless. The record is replete with testimony of "gripes" and problems, but it is
apparent, and I find, that the main cause of discontent was the lack of action on the
semiannual wage increase 4
,On Friday, November 3, 1961,5 George Frangos, a sheet metal mechanic in Re-
spondent's sheet metal department, called IAM.e Finding the LAM representative
out, he left word that he had called. Organizer Frank Alexander returned the call
on Sunday, November 5, and Frangos told him that he believed most of Respond-
ent's employees wanted a union and he asked for help in organizing. Alexander
said he would send some organizing literature and a sample authorization card.
Meanwhile, on Friday the 3d, Frangos passed around word that the following
Wednesday evening should be held open by employees for a meeting and that he
was trying to establish contact with a union representative. Among those to whom
he spoke, other than those in his own department, was Richard Garafalo of the
machine shop, whom he asked to pass on the word. Assisting Frangos in publicizing
the meeting was Calvin Le Cocq, a sheet metal layout man; Le Cocq spoke to em-
ployees both inside and outside his department, and, for example, he asked James
TenBroeck of the engraving and finishing department to let the people there know.
Both Garafalo and TenBroeck spoke to employees in their respective departments.
On Tuesday, November 6, Frangos again spoke to Alexander. He told Alexander,
for the first time, that there was now some difference of opinion among the em-
ployees as to whether they wanted to affiliate with an established union or to form a
union of their own, and he asked whether Alexander could attend an employees'
meeting to be held the next day. Alexander said that, because of his involvement
in a labor dispute, he could not attend, and he asked if the meeting could not be
rescheduled Frangos said that since the meeting was scheduled, they would go
through with it; if there was a need for another meeting, he would communicate with
Alexander.
The time, but not the place, of the Wednesday meeting had been circulated. At
noon on that day, Le Cocq made arrangements with the operator of a restaurant-
bar for the use of the backroom after work During the afternoon, employees were
notified of the meeting place by word of mouth
The meeting was held. Present were approximately 20 persons, including Frangos,
Le Cocq, Garafalo, and TenBroeck.7 There was no chairman, but Frangos and
Le Cocq attempted to maintain some order. Frangos explained the purpose of the
meeting-to discuss the formation of a union. There was a discussion of personnel
problems existing in the plant, including the delay in the currently expected wage
increase. Frangos said he had contacted an IAM representative, and he and Le Cocq
advocated joining the IAM, but it soon became apparent that there was a sizable
sentiment for an "employees' committee" or "association" rather than "outside" af-
filiation In fact, by a show of hands, this approach was adopted. at least for the
time being. It was tentatively decided that another meeting would be held during
the following week, and, by informal suggestion. Frangos was designated as its
chairman. Before the meeting ended, Le Cocq said that Frangos and he had "stuck
their necks out," and they were assured of support by the others.
2 The final determination as to the recipients of the semiannual wage increase is made
by top management. In making his recommendation to them in this area, Henrich uses
the leadmen's evaluation sheets, along with whatever other sources of information he
has-including discussions with leadmen
3 As indicated, the increases are considered merit, not general increases In the past,
on each such occasion, at least 50 percent, and usually from 60 to 75 percent, of the
production workers received increases
4 Thus, I attribute no significance to undetailed testimony that, 1 or 2 months before
this, employees had been "talking union "
6 Unless otherwise indicated, all dates mentioned herein are for the year 1961
e Frangos had previously been a member of TAM
7 No leadmen were present
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Next morning, Richard Garafalo spoke to Le Cocq. He said, in effect, that he
was going to tell Production Manager Henrich what was going on. (The record
contains no satisfactory explanation of his motivation,8 but, under all the circum-
stances, I find that he felt that his disclosure would be a spur to the effectuation of the
delayed wage increase.) Le Cocq voiced no objection, except that he expressed
concern about Frangos' reaction; he cautioned Garafalo not to tell Frangos,
and he promised that he also would keep the secret.
Garafalo asked Henrich for a meeting that day (November 9). At Garafalo's
suggestion, they met in the conference room, an enclosed space off the production
floor. Garafalo told Henrich of the employees' meeting of the previous evening.
Without mentioning names, he said that employees had aired grievances; that they
expressed an interest in organizing themselves; that some of them wanted affiliation
with a union but that most of them wanted an employees' committee; and that
they felt this action necessary in order to bring their problems to management.
When Henrich suggested that the leadmen were the proper channels of communi-
cation with management, Garafalo said that the people could not get straight answers
from the leadmen-in effect, that they did not fill the need. Henrich assured Gara-
falo that he would see that the employees would be effectively heard.
At this meeting, Henrich did not ask for, and Garafalo did not volunteer, the
names of those who had attended the employees' meeting, or of those who had ad-
vocated one method of organization or the other.
Next day (Friday, November 10), Henrich called the leadmen together. Without
specific allusion to the "union movement" or to Garafalo's conversation with him,
he said it had come to his attention that there was employee unrest and that .the lead-
men were falling down on their obligation to keep management informed of per-
sonnel problems. He instructed them to hold departmental meetings to ferret out
grievances and to report to him at a leadmen's meeting to be held Monday. He told
them to take written notes of the problems but said that, except for personal items,
he was more interested in the problems than in names of peopel voicing them.
That afternoon, at 3 p in., each leadman conducted a meeting among the employees
of his department. (These were the first such meetings ever held.) They asked
for and received employee complaints and wrote them down. The most universal
problem voiced: lack of knowledge as to company policy, specifically in connection
with wage increases. In the sheet metal department meeting, Frangos and Le Cocq
spoke up most frequently; and Le Cocq publicly expressed puzzlement that their
leadman should be asking about the eery things which had been the reason for their
employees' meeting 2 nights earlier.
The departmental meetings ended between 4 and 4:15 p.m.
At approximately 4:25 p.m., quitting time, Frangos' and Le Cocq's employment
was terminated.
,On or about November 17, the semiannual wage increases were approved by man-
agement, effective November 13. Meanwhile, on November 14, the instant charge
was filed.
The meeting of employees tentatively scheduled to be held during the week follow-
ing November 8 was not held. In fact, there have been no further meetings, and
the "employees' committee" discussed on November 8 was never formed.
B. Independent interference, restraint, or coercion
The complaint alleges, and the answer denies, that, on various dates during the
month of November 1961, Respondent, by its leadmen Kenneth Kellerman and
Joseph Corso, and by other agents and supervisors presently unknown, interrogated
employees as to their membership in, activities on behalf of, and sympathy with the
IAM or an "employees' committee."
Between November 3 and 8, 1961, Kellerman, leadman in the machine shop,
asked Richard Garafalo what was going on and if there was going to be a meeting.
Garafalo told him that a meeting was going to be held; be said nothing else-except
that Kellerman should "stay out of it." 9
James TenBroeck was one of those who spread word of the employees' meeting
in his department, engraving and finishing. Among those to whom he spoke were the
women in his department. On the afternoon of November 8, on which the employees'
meeting was later to be held, TenBroeck's leadman, Joseph Corso, asked him, "What
8 Le Cocq testified that Garafalo explained to him that he was going to Henrich because
he felt that Le Cocq and Frangos would be fired, but this makes no sense as a reason for
going to Henrich. Because of its implausibility, I do not credit this testimony.
9 This is based on Garafalo's credited testimony. Kellerman did not testify.
APPLIED RESEARCH, INC. 877
are you trying to do, organize the girls?" la He also asked the purpose of the sched-
uled meeting.
I find that the questions put to Garafalo and TenBroeck, in context-oocurring just
prior to a self-organizational meeting and followed within days by the employment-
terminations discussed infra-exhibited the coercive thrust prohibited by the Act and
were violative of Section 8 (a)( 1 ).
On November 8, the day of the meeting, Ruth Ahlf of the wiring department
told Alfonso Epanimondo, her leadman, about the coming meeting. He had not
asked for the information and, when he received it, he told Ahlf he wanted nothing
to do with the matter. I do not find this to be interference, restraint, or coercion."
In the conversation of November 9 between Richard Garafalo and Francis Henrich
about the previous day's employees' meeting, the latter made a remark which
requires evaluation. Told that the employees were planning to act collectively in
solving personnel problems, he said that the "proper" way to go about this was for
individuals to go directly to their leadmen with the problems. Thus:
A. (By HENRICH, completing account of what Garafalo had told him.) He
said that out of the meeting it seemed most people favored an employees' com-
-mittee at least for the present time. I informed him that the proper method of
handling their grievances would be for each individual to take them to their
leadman . . .
and
TRIAL EXAMINER: Would you repeat to me what you told Mr. Garafalo when
he reported to you about the meeting of the day before?
The WITNESS (Henrich) : He told me there had been a meeting and some
people were interested in forming a committee, an employees' committee and
others were interested in ... [interruption]. I stated that the people should deal
with the leadmen if they have personal problems or any grievances ...
and
Q. (By GENERAL COUNSEL.) Didn't you, in fact, tell [Garafalo] after he
told you [about the employees' meeting] that "my reply was to air their griev-
ances with their supervisors because because I said this was the purpose of
supervisors?"
A. (By HENRICH.) Yes.
I have considered whether this suggestion that employees resort to individual
rather than collective bargaining constitutes an improper interference with their
Section 7 rights.12 I accept Respondent's explanation that the remark was evoked
by Garafalo's questioning of the effectiveness of the leadmen as lines of communica-
tion and was not of itself intereference, restraint, or coercion.
There remains the question of whether the calling of the departmental meetings on
November 10 and the granting of the delayed wage increases during the following
week were triggered by and intended to discourage collective action by the employ-
ees.13 As for the departmental meetings, they were the natural response, Respond-
ent claims, of an employer's discovery that uncommunicated personnel problems
existed in his plant; he was merely revitalizing the lines of communication. I find
the General Counsel's case insufficient to rebut this explanation.
10In this respect, I credit the testimony of TenBroeck and discredit Corso's direct
denial. I carefully observed TenBroeck 's demeanor and have carefully scrutinized his
testimony in view of his self-admitted poor memory. In my view, he was as personally
close to Corso as he was to Frangos, and, as a result, he scrupulously avoided overpainting
the picture . Corso, on the other hand , after denying making any such statement to
TenBroeck , progressively admitted that ( 1) he asked TenBroeck about the purpose of
the meeting , ( 2) he had done so because he wanted to find out what grievance caused
discontent among the employees, and (3) he was aware TenBroeck had spoken to the
girls. In view of the entire conversation , I do not accept TenBroeck 's characterization of
the remark as "Jocular"
u At the hearing, the General Counsel disclaimed any contention that Epanimondo had
engaged In unfair labor practices.
as This was not alleged as an unfair labor practice as In the complaint , but it was
thoroughly aired at the hearing.
13 Neither was alleged in the complaint . At the hearing, the General Counsel conceded
that the grant of the increase was not unlawful.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for the wage increases ,14 I find that it was put in effect , pursuant to an estab-
lished company policy, as soon as action could be taken. The leadmen had made their
evaluations in early October (before there was any organizing activity), Henrich
had completed his recommendations by the end of the month, and only the absence
of one or another of Respondent's top officers until the week of November 13
prevented earlier effectuation . Finally, the retroactivity of the increases (for 1
week) was in line with the past practices of Respondent. I read nothing into the
granting of the November wage increase which is supportive of the General Counsel's
case.
C. The employment-termination of George Frangos and Calvin Le Cocq
On Friday , November 10, 1961, at approximately 4:25 p.m ., George Frangos
and Calvin Le Cocq, sheet metal mechanic and sheet metal layout man, respectively,
were told by Francis Henrich that their services were no longer required by Re-
spondent . The complaint alleges, and the answer denies , that they were discharged
because they engaged in organizational activities on behalf of and assisted IAM and
the "employees ' committee" described above 15
On Friday , November 10, 1961, between 4 and 4:15 p.m , at the conclusion of
the departmental meetings referred to in the chronology recited above , Frangos and
Le Cocq were informed that Henrich wanted to see them in the conference room.
The three assembled there at or about 4:25 , which was the normal quitting time.
Henrich told Frangos and Le Cocq that he was sorry but he would have to let
them go. He said that the Company was "going into large-scale production" and
would be cutting overhead . He explained that they had been selected for layoff
because of their high pay and high skills . Frangos pointed out that he was receiving
only $4 16 per week more than less skilled men who were being retained, and he
questioned that the Company could not afford to pay this for the extra skill; Hen-
rich refused comment. Then Frangos mentioned that one man received a higher
rate per hour than either of them-why hadn 't he been selected? Henrich declined
to go into this ; he said, in effect, that "this is the way it is-this is the way it will be "
Le Cocq questioned a policy of having a man rise in the employ of the Company
and then letting him go because he had risen; further, he pointed out that persons
were being hired in another department at higher starting wages than those received
by old employees . Henrich said , in effect, that that was solely the Company's con-
cern . Their final paychecks , which were already prepared , were given to them, and
Frangos said to Le Cocq , "Come on , Cal, we know why we were fired ." During
the conversation , Henrich did not ask them if they would work for a lower wage,
did not mention their seniority or lack thereof, said nothing about their being
recalled if circumstances warranted , and said nothing about union or concerted
activity.17
In further explication of the reasons given to Frangos and Le Cocq for the termi-
nations , Respondent , at the hearing, offered testimony by Henrich . According to
him, Respondent had instituted a program designed to cut labor costs, a program
made possible by the changing nature of its production requirements . In brief,
because the number of units ordered had been and was increasing , a growing amount
of production work in the sheet metal department-e.g., bending and drilling-
could be done on a repetitive basis by comparatively unskilled personnel , attended
by a relatively smaller core of skilled workers who would, for example, set up
machines . prepare bending fixtures, prepare templates , make test runs, and trouble-
shoot . Henrich had , in general terms , brought the idea to the attention of man-
agement late in July or early in August 1961, and had received permission to try
it out. Early in August, having apprised Conrad Tinney, sheet metal leadman, of
14 Strictly speaking, a discussion of this point is unnecessary in view of the General
Counsel's concession noted earlier In making the concession , however , lie urged that the
wage increase might be evidence of an unfair labor practice : therefore , T set forth here
my findings in this respect
1G There is some question as to whether this was a discharge , as claimed by the General
Counsel , or a layoff , as claimed by Respondent I find it to have been an indefinite layoff,
but within the framework of this case resolution of the issue is immaterial
10 In point of fact , he received $ 2 per week more than the next two journeymen
17 In arriving at my findings as to what was said and what was not said , I am aware
that they do not fully accord with the version of any one of the three participants, all of
whom testified In addition to observing their demeanor in testifying , I have made due
allowances for their self-interest and I have considered the incident , from the standpoint
of plausibility , in the light of all the surrounding circumstances
APPLIED RESEARCH, INC. 879
his plans, Henrich added an unskilled employee, referred to at the hearing as a
trainee, to the sheet metal department.
I credit Henrich's testimony to the extent above detailed, and my factual findings
herein accord therewith. Counsel for the General Counsel, in oral aigument,18
questioned the existence of any such program, basically because it had been applied
to no other department but sheet metal. I find an adequate and plausible explana-
tion of the singling out of the sheet metal department-that its operation was the
only one, to date, which lent itself to a dilution of skills and that the other depart-
ments were being studied.
But the findings just recited are not dispositive of the case. The question im-
mediately at hand is whether the layoffs of Frangos and Le Cocq, occurring as and
when they did, were a part of the company program which I have found had been
instituted. I find that they were not.
Henrich testified at length with respect to the program. I am certain that he
recognized its importance in this matter and that he would not, by inadvertance,
have omitted any detail which would support Respondent's defense. I find highly
significant that, in his original and repeated descriptions of the plan and its incep-
tion, he refrained from mentioning that layoffs or discharges were contemplated.
He spoke only of the future hiring of unskilled or less skilled personnel. The
original idea for the program-and there is no evidence of a change of circum-
stances-was that there had been and would continue to be a growth in orders.
It was contemplated at all times that skilled journeymen would be required, albeit
that they would constitute a relatively smaller proportion of a growing work force.
In other words, I find that the program, as devised, contemplated future hires in
the sheet metal department, whether necessitated by a growth of business or by
attrition among the existing employees, of relatively unskilled applicants, but that
it did not contemplate layoffs of present skilled personnel.19
This finding is based upon a number of factors in addition to 'Henrich's significant
omission noted above. (1) When he told Sheet Metal Leadman Tinney of the
plan in August, he only spoke of "the introduction of less skilled people to do
repetitive work." He failed to mention that any layoffs would be made; specifically,
he gave Tinney the idea that there would be "helpers for everybody." (2) Tinney,
who recommends hires and discharges in his department, did not even learn of
the discharge of two of his able journeymen until after it was effectuated. (3) The
layoffs here had no numerical relationship to current additions to the work force;
one trainee had been hired 3 months earlier and the next trainee was not hired until
almost 3 weeks later. (4) Additional overtime work-the record lacks specific
details as to its extent-was required during the period following the terminations.
It follows, and I find, that Frangos and Le Cocq were not laid off pursuant to
a skill-dilution program, as contended by Respondent. Why, then, were they laid
off?
I have earlier found that Respondent, through its supervisors, Kellerman and
Corso, interfered with, restrained, or coerced employees in the exercise of rights
guaranteed them in Section 7 of the Act. In addition, certain other conduct (which,
I have found, fell short of constituting interference, restraint, or coercion) demon-
strates Respondent's attitude toward the collective action being taken by its em-
ployees. Henrich, in his conversation with employee Garafalo, made it clear that,
in his opinion, the existing method of communication between employees and man-
anement was the preferable method and he promised to take steps to make it more
effective. He did take steps; he set into motion the departmental meetings. I find
that, by its conduct in these respects, Respondent demonstrated its desire to maintain
the status quo insofar as its management-employee relations were concerned.
Without doubt, the credible testimony demonstrates, and I find, that Frangos
and Le Cocq. in that order, were the most active of Respondent's employees in the
November 1961 effort to organize the employees. Frangos originated the idea and
established contact with a union. He set up a meeting of employees to discuss the
matter. Directly and through others, he spread word of the meeting among the
employees. Le Cocq, himself, and through others, helped to spread the word; and
Le Cocq made arrangements for the meeting place. Although the meeting had no
chairman, both attempted to maintain order, and Frangos explained the purpose
of the meeting. Both were active advocates of a cause which eventually lost out-
"He did not file a brief.
191 stress here that I do not, and would not if I could, substitute my business judgment
for Respondent's. I am merely finding , on the evidence in this case , what Respondent's
business judgment was.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate affiliation with IAM-and, at meeting 's end , Frangos was selected to
chair the next meeting 2e
Respondent denies knowledge of Frangos' and Le Cocq 's organizational activities
and, alternatively, points out that, as far as it was aware, others were just as active.
In his testimony, Henrich, who made the decision to lay Frangos and Le Cocq
off, denied hearing of their organizational activity before their layoff.21 He con-
ceded that he had heard about the employees ' meeting of November 8 from Garafalo
on November 9.
Joseph Corso, leadman in the engraving and finishing department, testified that,
after his conversation of November 8 with James TenBroeck about the employee
meeting scheduled to be held,that day-see supra-he told Henrich about the
meeting.
Alfonso Epanimondo, leadman in the wiring department, testified that, on the day
after the employees' meeting, he was aware-"through general talking throughout
the shop and so forth"-that Frangos and Le Cocq were "behind the union committee
and forming the meeting." Subsequently, he testified (1) that, through talk in the
shop, he heard the names of others who were active in the meeting , and (2) that
he did not talk to Henrich or top management about any of the names.
I take note of the inconsistency between the testimony of Henrich and Corso with
respect to the former's receipt of information about the meeting; I take note of
Epanimondo's testimony about the "general talking" throughout the shop, by means
of which he became aware of the activities of Frangos and Le Cocq and of others;
I take note of the fact, as found above, that Frangos and Le Cocq were the most ac-
tive; and I take note of the leadmen's obligation to "ferret out" personnel problems
and keep Henrich informed. Under the circumstances, I find that Henrich was
made aware of the part played in the organizing movement by Frangos and Le Cocq,
at least as early as November 9 .22
Le Cocq and Frangos were, respectively, the second and third highest paid among
the sheet metal department's nonsupervisory employees.23 Although their leadman,
Tinney, testified that "in our operation" he would have rated them below other jour-
neymen,24 he voiced no complaints about their work. For example, in comparing an-
other journeyman with Le Cocq, he testified:
I'm not saying [D'Amato] is a more skilled operator. In our way of
doing things, D'Amato is more accustomed to it. It makes him a little better
operator. Le Cocq can do the work. He does excellent work.
No complaints had been made to Frangos or Le Cocq about their work; they were,
on the contrary, highly regarded and had been the recipients of compliments and of
merit increases. Henrich, on the witness stand, was unaware of the evaluation rat-
ings recently given them,25 a fact which I regard as incredible in view of the alleged
part play by "capability" 26 in the selection for layoff.
20I attach no significance to Le Cocq' s self-serving announcement to his fellow-
employees that Frangos and he had "stuck their necks out."
21 Nor could he "recall" hearing of their activity after the layoff, prior to receiving
notification of the instant charge.
22 The principle that knowledge of union activities , no less than discriminatory motives,
may, and often of necessity must, be based upon reasonable inference drawn from circum-
stantial evidence, is one firmly established by judicial precedent See, e g., NLRB. v.
Link-Belt Company, 311 U.S. 584, 602; F. W. Woolworth Company v N L R B., 121 F. 2d
658, 660 (C.A. 2). Moreover, an employer is chargeable with knowledge of union activities
acquired by a supervisor . Montgomery Ward & Company, Incorporated , 115 NLRB
645, 647.
2J Weekly wages as of November 10, 1961: Tinney (leadman), $115; Anselmo, $102,
Le Cocq, $96; Frangos, $92; Sucilsky and D'Amato, $90 each, Downes, $88; Marklin,
$ 86; and Vincent Garafalo ( trainee), $70.
24 His order of rating: Anselmo, Downes , D'Amato, Sucilsky , Le Cocq, and Frangos
2 As noted earlier, the leadmen, early in October , rated each rank-and -file production
worker in preparation of the semiannual wage review . The rating sheets, in the possession
of Respondent , were not produced at the hearing.
26 Henrich testified that Frangos and Le Cocq were selected on the basis of their wage
rates relative to others, his impression of their capabilities, their lack of seniority, and
"how they fit into a group " Except for a prior 4-month stint by Frangos, the two were
the journeymen last hired by Respondent; one other journeyman had a 2-day edge, another
3 months. Henrich explained the factor , "fitting into our group," as meaning the ability
to interpret their engineering department's information, admittedly skimpy because Re-
spondent ( as opposed to other firms ) took on orders which required quick delivery ; in
APPLIED RESEARCH, INC. 881
Upon the entire record, and on the basis of what I am convinced is a fair
preponderance of credible evidence, taking into consideration my rejection of the
reasons assigned by Respondent, the awareness of union or concerted activity as found
by me, the fact that the two most active persons were the ones involved, and the
timing of the actions 27 I conclude that Respondent's underlying motivation in laying
off Frangos and Le Cocq was their activity on behalf of IAM or an unaffiliated, un-
formed labor organization; that, by laying them off on November 10, 1961, and
thereafter failing and refusing to reinstate them, Respondent discriminated in regard
to hire and tenure of employment; and that, thereby, Respondent not only inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
them in Section 7 of the Act, but discouraged membership in IAM, or any other
labor organization, in violation of Section 8(a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations described in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the hire and tenure
of employment of George W. Frangos and Calvin Le Cocq. I shall recommend that
Respondent offer them full and immediate reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earnings suffered by them
because of the discrimination, by payment to each of them of a sum of money
equal to the amount he would have earned from the date of his discharge to the date
of Respondent's offer of reinstatement, less his net earnings during said period.
Backpay shall be computed on a quarterly basis in the manner prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, 291-29428
As the unfair labor practices committed by the Respondent are of a character
striking at the roots of employee rights safeguarded by the Act, it will also 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 foregoing factual findings and conclusions, and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and '7) of the Act.
2. IAI is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of George W. Frangos and
Calvin Le Cocq because of their activity on behalf of JAM or an unaffiliated, un-
formed labor organization , Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) and (3) of the Act.
4. By the foregoing conduct, and by interrogating employees as to their concerted
activities, Respondent has interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed them in Section 7, in violation of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
view of this , allegedly , interpreting skills gained by service with Respondent outweighed
general interpreting skills.
21 In view of the uncontradicted testimony as to Respondent 's manner of effecting lay-
offs in the past, I place no significance in the fact that Frangos and Le Cocq had received
no advance notice of their layoffs
"General Counsel urges that the Recommended Order include an award of Interest on
backpay ; Respondent objects to any such award I believe that whether or not interest
should be included in backpay awards is a matter to be decided by the Board as a matter
of overall policy. To date , no Board Order has awarded interest in a situation com-
parable to this I shall, therefore , make no provision for interest.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Applied Research,
Inc., of Port Washington, New York, its officers, agents, successors, and assigns,
shall.
1. Cease and desist from:
(a) Discouraging membership in any labor organization of its employees by dis-
criminating in regard to their hire, tenure, or any other terms or conditions of
employment.
(b) Interrogating employees as to their concerted activities.
(c) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist any labor organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and to refrain from any and all such activities
except to the extent that such right may be affected by an agreement requiring mem-
bership 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 I find will effectuate the policies
of the Act:
(a) Offer George W. Frangos and Calvin Le Cocq immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make each of them whole for any loss
of earnings suffered by reason of the discrimination against him, in the manner set
forth in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the right to reinstatement.
(c) Post at its plant at Port Washington, New York, copies of the notice attached
marked "Appendix A." 29 Copies of such notice, to be furnished by the Regional
Director for the Second Region, shall. after being duly signed by an authorized rep-
resentative of Respondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(d) Notify ,the Regional Director for the Second Region, in writing, within 20
days from the date of the receipt of this Intermediate Report, what steps the Re-
spondent has taken to comply herewith.30
=B If this Recommended Order is adopted by the Board, the words "A Decision and
'Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice In the event that the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will be further amended by the substitution of the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
for the words "Pursuant to a Decision and Order "
so If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Second Region, in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in District 15 of the International As-
sociation of Machinists, AFL-CIO, or any other labor organization, by discrim-
inating as to the hire, tenure, or any other term or condition of employment
of any of our employees.
WE WILL NOT ask employees about their concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to organize, to form, join, or assist a labor
organization, to bargain collectively through a bargaining agent chosen by them-
selves, to engage in other concerted activities for the purpose of collective bar-
NELSON MANUFACTURING COMPANY 883
gaining or other mutual aid or protection , or to refrain from any such activities,
except to the extent that the right to refrain is limited by the lawful enforce-
ment of a lawful union-security requirement.
WE WILL offer George W. Frangos and Calvin Le Cocq their former or sub-
stantially equivalent jobs, without prejudice to seniority or other employment
rights and privileges, and pay each of them for any loss suffered because of our
discrimination against him.
APPLIED RESEARCH, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone Number, Plaza 1-5500, if they have any
question concerning this notice or compliance with its provisions.
Nelson Manufacturing Company and International Union , Allied
Industrial Workers of America, AFL-CIO. Case No. 8-CA-
P3569. September 25, 1962
DECISION AND ORDER
On April 9,1962, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that Nelson
Manufacturing Company, herein called the Respondent, had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Intermediate Report. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a brief in
support thereof. The General Counsel and the Charging Party filed
no exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except as modified herein.
1. We agree with the Trial Examiner that the Respondent discrimi-
natorily suspended Gerald Meyer on October 17,1961. The suspension
was limited to 30 days and Meyer, at the time of the suspension, was
so informed. However, he admittedly never returned to Respondent's
employ. The General Counsel has not established that Respondent
138 NLRB No. 107.
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