Arduini Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1965

153 N.L.R.B. 887 (N.L.R.B. 1965)

ARDUINI MANUFACTURING CORP. 887
those classified as drivers own their own trucks and are paid a fixed
amount for expenses in operating their vehicles. All in the driver
classification are paid a monthly salary. Those in the other classifi-
cations are paid an hourly rate, except when relieving a driver. Most
of the drivers reside in the areas they service. Some of them reside in
New Orleans and service the city and communities in immediately sur-
rounding areas. These drivers occasionally perform loading functions
at the central facility. The driver-loaders and driver-night dispatch-
loaders make deliveries and pickups in the New Orleans metropolitan
area and relieve or supplement the drivers when necessary because of
sickness, vacations, emergencies, overflow business, or for any other
reason. More than half of the drivers previously worked in other
driving and loading classifications.
In view of the foregoing and the entire record herein, especially the
fact that drivers and driver-loaders spend a substantial portion of their
time performing identical functions under common supervision and
the degree of integration existing in the Employer's distribution oper-
ations, we conclude that the drivers have such a close community of
interests with the other employees engaged in driving and loading
functions that they may not be excluded from a unit of the latter
employees. We find, therefore, contrary to the Regional Director, that
the drivers are included in the appropriate unit.
Although the unit found appropriate herein is larger than that
sought by the Petitioner, in accord with our practice, we shall not dis-
miss the petition but shall direct an election in the appropriate unit
conditioned upon the Petitioner's demonstrating, within 10 days from
the date of issuance, that it has made an adequate showing of interest
in such unit. In the event the Petitioner does not wish to participate
in an election in the unit found appropriate, we shall permit it to with-
draw its petition upon notice, in writing, to the Regional Director
within 5 days from the date of this Decision.
Accordingly, the matter is hereby remanded to the Regional Director
for Region 15 for the purpose of conducting an election pursuant to
his Decision and Direction of Election, as amended herein, except that
the payroll period for determining eligibility shall be that immedi-
ately preceding the date of issuance.
Arduini Manufacturing Corp. and Sheetmetal Workers Interna-
tional Association, AFL-CIO. Case No. 1-CA-4593. June 30,
1965
DECISION AND ORDER
On January 27, 1965, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that Respondent
153 NLRB No. 72.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. The Trial Exam-
iner further found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint, and recom-
mended that those allegations be dismissed. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's Decision and a brief
in support thereof. The Respondent filed exceptions to the Trial
Examiner's Decision together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Fanning 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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications.
1. THE STATUS OF THE SHOP COMMITTEE
The Charging Party, Sheetmetal Workers International Associa-
tion, AFL-CIO, herein called the Union, initiated an organizational
campaign at Respondent's plant in mid-April 1964. On May 5 the
Union's organizer, Dostoomian, distributed 80 to 85 leaflets at the plant
gate. These leaflets urged Respondent's employees to attend a union
meeting at 7 p.m. on May 7, and further stated that the employees
could then get answer to questions "regarding rates of pay, classifica-
tion, rules and regulations, union ship, hours of work, Saturdays, Sun-
days, holidays, overtime, stewards, seniority, vacations, insurance."
Andrew Arduini, Respondent's president, testified that he was aware of
the handbilling.
On the morning of May 7, leadman William Cloutier, while con-
versing with General Manager Grant, suggested that employees and
management get together and "hash this [union] thing out." 1 Grant
agreed and then discussed a proposed employee meeting with Andrew
Arduini, Respondent's president, who gave his permission. At 11:30,
a.m. that morning a notice appeared on the plant bulletin board. It
announced a meeting of all employees on company time and on com-
1 Contrary to the Trial Examiner , we find that Cloutier , rather than Berlanger, made
the suggestion . We base this finding on the uncontradicted testimony of Cloutier as
well as other record evidence.
ARDUINI MANUFACTURING CORP. 889
pany property and asked that the employees have a "spokesman to
answer all questions and bring forth ... problems." Of the 90-man
work force in the plant, 25 or 30 members met at noon; they chose
employee DeCouteau as their spokesman. DeCouteau compiled a list
of the matters the employees at the meeting indicated they wanted to
discuss with their Employer. The list included wage adjustments and
classifications, health insurance, overtime, paid holidays, sick pay, a
retirement system, and seniority.
All employees met in the plant at 4:30 p.m. on May 7 with General
Manager Grant and President Arduini. DeCouteau read the employee
demands from his written list and those items were discussed.
Respondent granted immediate demands for additional paid holidays,
paid holidays while on shop injuries, and additional notice prior to
discharge. Respondent subsequently announced the adoption of a
hospitalization plan and improved overtime for employees. Both
Sales Manager Raymond and Grant discussed a retirement plan, and
the employees were told for the first time that the Respondent had been
working on a profit-sharing plan for the prior 11/9 to 2 years.
Cloutier, who had suggested the original meeting, now suggested
that the employees have some kind of organization of employees to get
together with Grant or "the management." Grant agreed that it would
be a good idea if the employees elected a committee which would meet
with representatives of management. Harrison, a leadman, suggested
that the five existing safety committees be utilized as the basis for
selecting the committee to deal with management about grievances.
Within the next 2 or 3 days, a five-man grievance committee, called
the shop committee, was elected by the safety committees on company
time and property. Meetings of the shop committee were held in the
plant on company time, and involved safety committee matters, reas-
signment of work, and discharges. The last shop committee meeting
was held on June 10, 1964, less than 2 months after its formation, when
two of its members resigned. It has been defunct ever since. The
Trial Examiner found that the shop committee is a labor organization,
but that it was neither organized nor sponsored by Respondent. We
disagree with the latter finding.
Preliminary to any determination regarding the status and nature
of the shop committee there must be an examination of the status of
the two individuals who appeared to be most active in its formation,
Cloutier and Harrison. These two are classified as leadmen. Out of
the 90-odd employees in the plant, 10 have this classification. Lead-
men receive $3.30 to $3.40 per hour as contrasted with the $1.80 to $2.50
per hour received by other employees. Leadmen are just below Grant
in the supervisory chain in the shop. They receive instructions from
Grant in the form of purchase orders and blue prints, and it is their
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibility to see that the job is done . Each leadman has a regular
crew, but additional employees are used as needed. The leadmen direct
those working for them and also work themselves . Though the lead-
men have no authority to hire or fire or recommend such action, they
have the right to, and do, recommend that employees be rewarded or
punished, particularly with regard to raises in wages. Since only the
leadmen are aware of the quality of work performed by their crew
members, and wage raises are given on the basis of merit, the leadmen
clearly can, and do, effectively make wage recommendations with
respect to employees . If the leadmen are not supervisors , Grant would
be the only supervisor in a shop of 90 employees, a situation highly
unlikely in the Employer's "job shop" type of operation. On the basis
of the foregoing, we find that the leadmen responsibly direct the work
of their crews and effectively recommend wage increases for the
employees working under their direction. We find, therefore, that the
leadmen, including Cloutier and Harrison , are supervisors within the
meaning of Section 2 ( 11) of the Act.
The activities of Cloutier and Harrison in the formation and admin-
istration of the shop committee , together with Respondent 's entire
course of conduct in calling the May 7 meeting immediately upon
becoming aware of the Union's organizing activities, in announcing
previously undisclosed benefits and immediately granting other bene-
fits, in accepting the suggestion of its supervisors that the shop com-
mittee be formed, and in permitting and encouraging its formation on
company time and premises , disclose beyond any doubt that Respond-
ent assisted in the formation and administration of the shop committee
and did so for the purpose of combating the Union's organizational
campaign. Accordingly, we find that by such conduct, Respondent
violated Section 8 ( a) (1) and ( 2) of the Act.
II. RESPONDENT 'S RESPONSIBILITY FOR CONDUCT OF RALPH RAYMOND
On May 22, Ralph Raymond, President Arduini's son-in-law, asked
employee Villa how many people had attended a union meeting. He
also asked employee Fournier how many people had attended two union
meetings and how many cards the Union had. On the day after the
Union's second organizational meeting, Raymond asked employee
DeCouteau how many men had attended that meeting, and commented
"they never give up, do they." Raymond is in charge of the Company's
sales, is unsupervised , has no other sales persons whom he supervises,
and is salaried. It was Raymond who, at the employee meeting of
May 7, joined with Grant in discussing Respondent's retirement or
profit-sharing plan with the employees-a fact about which the em-
ployees had been kept entirely unaware. The Trial Examiner found
that Raymond is not a supervisor within the meaning of the Act
ARDUINI MANUFACTURING CORP. 891
because he has no employees to supervise, and that, therefore Respond-
ent is not responsible for Raymond's interrogation of employees as to
the number of employees who had attended union meetings and had
signed authorization cards. We do not agree with his conclusion that
Respondent is not responsible for Raymond's conduct. Raymond is
the son-in-law of President Arduini and is in direct charge of the sales
of Respondent's products. Further, Raymond was present at the
May 7 meeting with employees and participated in explaining to em-
ployees the theretofore undisclosed retirement or profit-sharing plan.
On the basis of the foregoing, we find that Raymond is a managerial
employee, that he was held out to employees as a representative of
management, and that, therefore, Respondent is responsible for Ray-
mond's interrogations of employees. As the record discloses no legiti-
mate purpose to be served by Raymond's interrogations as to the
identity and number of union adherents, we find that his interro-
gations of employees constituted interference with, restraint, and co-
ercion of employees in the exercise of rights guaranteed by Section 7
of the Act, and hence violated Section 8(a) (1) of the Act.
III. RESPONDENT'S TREATMENT OF DECOUTEAU AND VILLA
As noted earlier, DeCouteau had been active in the shop committee.
He was the spokesman chosen by the employees to present grievances
at the May 7 meeting. He personally conducted the balloting in the
election of the shop committee by bringing the ballot box to each voter
and was himself an elected member of it. He signed a union card
shortly after the May 7 meeting and thereafter passed out cards to
other employees. The first meeting of the committee with Grant
involved DeCouteau's own grievance concerning the contracting out
of painting work normally performed by DeCouteau. Grant stated
that there was no sense in removing DeCouteau from the punch press
to do minor painting, in spite of the fact this had been done many times
in the past. This grievance was characterized by Grant as "trivial,"
and DeCouteau was assured by Grant that he would continue to do
painting.
At some date prior to June 9, on the day after the second union
organizational meeting, Ralph Raymond asked DeCouteau how many
men had attended the meeting. DeCouteau replied that he did not
know and Raymond stated "they never give up, do they?" Raymond's
interrogation of DeCouteau, just like his interrogation of employees
Villa and Fournier noted earlier, constitutes a violation of Section
8(a) (1) of the Act.
On the morning of June 11, the day after Cassanelli and Gibeault
were discharged, a, shop committee meeting was held to discuss the dis-
charges. During the meeting Grant told DeCouteau that he (DeCou-
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teau) had been "very wise" and that he was going to receive a warning
slip for being "wise." At the close of the meeting DeCouteau expressed
to Grant a desire to resign from the shop committee "because its the
same old stuff, one side, the shop side." Later that day DeCouteau
received an "Employee Warning Slip," signed by Grant, on which the
violation was described as "conduct" and "attitude," and contained a
statement that a second warning carried an automatic 3-day layoff.
After DeCouteau received the slip, he sought out Grant, who told him
that he was going to make DeCouteau "an example for the shop."
Sometime around July 30 DeCouteau received a second warning slip.
As noted by the Trial Examiner, Grant, prior to the lunch hour on
that day, told DeCouteau that his "friends," the union organizers,
were waiting in front of the shop and asked if DeCouteau was to meet
them. Thereafter DeCouteau and Villa met and had lunch with the
union organizer. They returned directly to the plant and Grant drove
down the ramp into the company parking lot just ahead of DeCouteau
and Villa. Grant waited for them to park and joined them as they
walked to the plant. Norman Boutelier, another employee, joined the
trio and the four entered the plant together. Grant told DeCouteau
that "the union organizer kept you out kind of late," and DeCouteau
replied that "we got served late." The group entered the plant 3 to 4
minutes late. That night DeCouteau received a warning slip in his pay
envelope, signed by Grant, describing the violation as "lateness," with
the remarks "Returned late from lunch because of meeting with union
organizer. Next warning discharge." Villa received a similar warn-
ing. Grant testified that the slips were given because DeCouteau and
Villa were late and by implication denied that the slips were handed
out because the employees had been with the union organizer. He
added, however that "I should think if they are going to be out with a
union organizer, the least they could do was to get back on time." He
then testified that slips were not given out for the first "late" offense,
but only when it gets to be a chronic offense. He admitted that he had
no knowledge that DeCouteau or Villa had been late before. Em-
ployee Boutelier, who was also 3 to 4 minutes late, received no such
warning slip.
Approximately 10 days later, on the afternoon of August 10, Grant
informed DeCouteau that the painting work normally done by him
was to be contracted out because DeCouteau had spent only 3 or 4 hours
during the past 2 weeks in painting duties. Grant testified that it
would be cheaper to contract out the painting work and that he had
discussed this matter with Arduini, but this cost factor was not made
known to DeCouteau. Grant also told DeCouteau that his pay would
be reduced from $2.10 to $1.90 per hour. DeCouteau was classified as
a painter. When not painting he worked on a punch press, and though
ARDUINI MANUFACTURING CORP . 893
the pay rate for punch-press work is lower than that for painting,
DeCouteau had been paid the painter's rate regardless of the work per-
formed. Further, it is uncontradicted that painting work came in
spurts, and that sometimes DeCouteau worked for 3 straight months
and at other times only a few days in painting duties, and that this
irregular scheduling of painting was a normal working procedure in
the plant.
Unlike the Trial Examiner, we find that Respondent violated See--
tion 8(a) (1) and (3) by its treatment of DeCouteau.
DeCouteau was an active, outspoken, and known union adherent.
Prior to the advent of the Union's organizational campaign, he had
never been disciplined, yet in a short period after his prounion senti-
ments became known he received two warning slips and was down-
graded. DeCouteau received his first warning slip the day after Cas-
sanelli and Gibeault were discharged, according to Grant's testimony,
because DeCouteau parked his auto in other people's spaces and because
he was talking to one Vinnie and not working on company time. Yet
the record shows that there were no assigned parking spaces for
employees in the parking lot, that Vinnie did not receive a warning
slip even though he, too, according to Respondent, was talking and
not working on company time, and that Grant had threatened DeCou-
teau with a warning slip at a shop committee meeting the day before,
for "being wise," and that Grant was going to make an example of him
for the entire shop. We find that the reasons given by Respondent for
the first warning slip were mere pretexts, and that the true reason for
that warning slip was, as Grant stated to DeCouteau, to make an exam-
ple of DeCouteau for the entire shop.
The second warning slip was supposedly given to DeCouteau for
being late. Yet another employee returned at the same time and did
not receive a, warning slip and Grant admitted that warning slips were
not handed out for first offenses and that he had no knowledge that
DeCouteau and Villa had been late before. We can only infer that
DeCouteau and Villa received warning slips and Boutelier did not
because DeCouteau and Villa met with the union organizer, as the
second slip so precisely stated.
Contrary to the Trial Examiner, we find that the warning slips
issued to DeCouteau and Villa were issued to them not for any real
or imagined breach of plant rules but because DeCouteau and Villa
were active in the Union's organizational campaign, and were part
of Respondent's campaign of harassment and intimidation of union
supporters. We find that by such conduct, Respondent restrained,
coerced, and interfered with its employees' exercise of rights guaran-
teed by Section 7 of the Act in violation of Section 8 (a) (1) of the Act_
We also find, contrary to the Trial Examiner, that in downgrading
DeCouteau from painter to punch-press operator and in reducing his
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage rate from $2.10 an hour to $1.90 an hour, Respondent discrimi-
nated against him because of his union activities in violation of Sec-
tion 8(a) (3). Respondent defends such action on the ground that the
painting work was subcontracted out for economic reasons. Yet it
introduced no evidence whatsoever to show either that subcontracting
of the painting work had been under active consideration prior to
Grant's announcement to DeCouteau that it was to take place, or that
the painting work could be done more economically by subcontracting
the work out. It is undisputed that the painting work was to be done
in Respondent's shop. Respondent also argues in support of its deci-
sion that DeCouteau had only performed 2 or 3 hours of painting work
=during the 2-week period immediately preceding the announcement to
DeCouteau. It is uncontradicted that painting work normally came in
:spurts and it was not unusual for DeCouteau to spend little time paint-
ing during a given 2-week period. We find therefore that the reasons
given for this action were pretexts chosen to disguise Respondent's true
motivation of penalizing DeCouteau for his union activities. We
reject the Trial Examiner's conclusion that there was no discrimina-
tion against DeCouteau because the $1.90 rate of pay was the normal
rate of pay for punch-press work. However that may be, the record is
clear that DeCouteau had been raised to $2.10 an hour for both paint-
ing and punch-press work and his rate of pay was in fact reduced by
Grant when Grant announced that he would no longer do the paint-
ing, but would be confined to punch-press work.
IV. THE DISCHARGE OF GIBEAULT
Ernest Gibeault worked as a grinder until the late summer of 1963
when his physician advised him temporarily to stop grinding. He
requested, and received, a temporary transfer to maintenance or floor-
work specifically with employee Cassanelli. He was a personal friend
of Cassanelli and became Cassanelli's helper. Gibeault signed a union
card on or about May 7, 1964. After Gibeault's transfer to floor work,
he continued to work periodically in the grinding room. Four or five
months after his transfer, Gibeault asked that the transfer be made
permanent. Grant agreed, but told Gibeault that a permanent trans-
fer would result in a 25-cent-per-hour decrease in pay and a "cut" in
bonus. Rather than accept the decrease, Gibeault threatened to quit.
Apparently nothing developed from this conversation, for Gibeault
continued to work with Cassanelli at his then current rate. Approxi-
mately 4 to 5 weeks prior to June 9, Grant told Gibeault that he would
have to return to grinding. Gibeault replied that he would when he
felt good, and Grant agreed. Approximately 2 weeks before June 9,
^Gibeault was given a 10-cent-per-hour increase in pay. On June 9 he
-was'discharged, under the following circumstances.
ARDUINI MANUFACTURING CORP . 895
Late in the day Grant called Gibeault from his work station and
the two went "upstairs," where Grant told Gibeault that he would be
"let go." When Gibeault asked the reason for his discharge, he was
told by Grant that Arduini "told me we have to let you go," and that
Arduini had given no reason. At this meeting and after he had been
informed that he was discharged, Gibeault was also told by Grant that
he would have to go back to grinding, and Gibeault replied that he
would, after his vacation, if he were paid more money. In fact, how-
ever, according to Grant's testimony, he had made the decision to dis-
charge Gibeault at 2 p.m. that day, during a meeting with Arduini
when he allegedly told Arduini that he had no need for Gibeault
because Gibeault would not go back to grinding. It was at that meet-
ing that the decision was made to discharge Cassanelli, which the Trial
Examiner found violated Section 8(a) (3). Unlike the Trial Exam-
iner, we find that the discharge of Gibeault also violated Section
8(a) (3).
At the shop committee meeting held the day after Gibeault's dis-
charge, Grant told the committee that Gibeault was discharged for
stealing. In agreement with the Trial Examiner, we find that
Gibeault's discharge was not based on theft. Arduini testified that
Gibeault was discharged because of his refusal to go back to the grind-
ing room and because Cassanelli, with whom Gibeault worked, was
also being discharged. Grant testified that Gibeault was discharged
because he refused to return to grinding. Yet Gibeault never refused
to work in the grinding room-he merely postponed the date for health
reasons, in which Grant acquiesced. Though Gibeault told Grant, at
their late afternoon meeting on June 9, that he would go back to grind-
ing only if he could get a raise, this factor is of no relevance, for the
decision to discharge him had already been made. Thus the reasons
for Gibeault's discharge, other than his being discharged because Cas-
sanelli was discharged, appear to lack substance. This, coupled with
the facts that Gibeault was a close friend and associate of Cassanelli,
a known union advocate, the knowledge by Respondent of Gibeault's
union adherence, and the spurious reason based on an alleged theft
given by Grant to the shop committee, persuades us that Gibeault's
discharge was unlawfully motivated in violation of Section 8(a) (3).
V. REMEDY
In addition to the unfair labor practices found by the Trial Exam-
iner which we have affirmed herein, we have found that Respondent
violated the Act by unlawfully assisting in the formation and opera-
tion of the shop committee, by issuing "warning slips" to Edward
DeCouteau and John Villa, by discriminatorily reducing Edward
DeCouteau's wages from $2.10 an hour to $1.90 an hour, by discharg-
ing Ernest Gibeault, and by unlawfully interrogating employees as to
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their union activities. Accordingly, and in order to effectuate the poli-
cies of the Act, we shall amend the Order recommended by the Trial
Examiner in such a manner as will remedy these additional violations.
As the unfair labor practices of the Respondent reveal a hostility on
Respondent's part to its employees' exercise of rights guaranteed by
Section 7 of the Act, we shall further amend the Trial Examiner's
Recommended Order so as to order Respondent to cease from engaging
in the unfair labor practices found, or in any other manner from inter-
fering with, restraining, or coercing its employees in the exercise of
such rights.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
the Respondent, Arduini Manufacturing Corp., Worcester, Massachu-
setts, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, with the fol-
lowing additions :
1. Add the following as paragraphs 1(a) and (b) to section 1 of
the Recommended Order, and reletter the present paragraphs accord-
ingly : 2
"(a) Recognizing the shop committee as the exclusive representa-
tive of any of its employees for the purpose of collective bargaining,
unless and until the said labor organization has been duly certified by
the National Labor Relations Board as the exclusive representative of
such employees.
"(b) Unlawfully interrogating its employees as to their interest in,
or activities on behalf of, the Union, Sheetmetal Workers Interna-
tional Association, AFL-CIO, or any other labor organization."
2. Substitute the following for paragraphs 2(a) and (b) of the
Recommended Order.
"(a) Offer Leo J. Cassanelli and Ernest Gibeault immediate and full
reinstatement to their former or substantially equivalent position with-
out prejudice to their seniority and other rights and privileges enjoyed,
and make them whole for any loss of pay they may have suffered by
reason of the discrimination against them, with interest at the rate of
6 percent per annum.
"(b) Notify Leo J. Cassanelli and Ernest Gibeault if presently serv-
ing in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
2 Substitute the word "other " for the words "like or related" appearing in paragraph
1(d), to be relettered 1(f), of the Recommended Order, and in the fourth indented para-
graph of the Appendix attached to the Trial Examiner 's Decision.
ARDUINI MANUFACTURING CORP. 897
3. Add the following as paragraphs 2(c), (d), and (e), the present
paragraphs 2(c), (d), and ( e) being relettered accordingly.
"(c) Restore Edward DeCouteau's wage rate of $2.10 per hour and
make him whole for any loss of earnings suffered by him by reason of
the discrimination practiced against him, with interest at the rate of
6 percent per annum.
"(d) Notify Edward DeCouteau and John Villa that the warning
slips issued to them on July 30, 1964, have been revoked.
"(e) Withdraw and withhold all recognition from the shop commit-
tee as the exclusive representative of its employees for the purposes of
collective bargaining -unless and until the said labor organization has
been duly certified by the National Labor Relations Board as the exclu-
sive representative of such employees."
4. Substitute the following paragraph for the last indented para-
graph of the Appendix to the Trial Examiner's Decision.
WE WILL offer to Leo J. Cassanelli and Ernest Gilbeault imme-
diate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination against them, with
interest thereon at 6 percent per annum.
5. Add the following after the last indented paragraph of the
Appendix to the Trial Examiner's Decision.
WE WILL restore Edward DeCouteau's wage rate of $2.10 per
hour and make him whole for any loss of earnings suffered by him
as the result of our discrimination against him with interest at the
rate of 6 percent per annum.
WE WILL notify Edward DeCouteau and John Villa that the
warning slips issued them on July 30, 1964, have been revoked.
WE WILL withdraw and withhold all recognition from the shop
committee as the exclusive representative of our employees for the
purposes of collective bargaining unless and until the said labor
organization has been duly certified by the National Labor Rela-
tions Board as the exclusive representative of such employees.
WE WILL not unlawfully interrogate our employees as to their
interest in, or activities on behalf of , the Union , or any other labor
organization.
6. Amend the following note below the signature line of the Appen-
dix to read :
NoTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the
790-027-66-vol. 153-58
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case is before a Trial Examiner of the National Labor Relations Board upon
a complaint issued on June 25, 1964, by the General Counsel of the Board, through
the Regional Director for Region 1 (Boston, Massachusetts). The complaint, based
upon a charge and an amended charge filed on May 12 and June 19, 1964, respec-
tively, by Sheetmetal Workers International Association, AFL-CIO, names Ardumi
Manufacturing Corp. as Respondent. In substance, the complaint, as amended at the
hearing, alleges that Respondent has violated Section 8(a) (1), (2), and (3), and that
such conduct affects commerce within the meaning of Section 2(6) and (7), of the
National Labor Relations Act, herein called the Act. Respondent has answered
admitting some facts, but putting in issue the commission of the unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner James V. Con-
stantine on August 12, 13, and 17, 1964, at Worcester, Massachusetts. All parties
were represented at and participated in the hearing, and were granted full oppor-
tunity to offer evidence, examine and cross-examine witnesses, present oral argument,
and submit briefs. Respondent and the General Counsel have submitted briefs.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Massachusetts corporation, is engaged at Worcester, in said Com-
monwealth, in the business of manufacturing, selling, and distributing sheet metal
fabrications and related products. Annually it receives metal products valued in
excess of $50,000 directly from, and ships fabricated sheet metal products valued in
excess of $50,000 directly to, points outside the Commonwealth of Massachusetts.
I find that Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdic-
tion over Respondent in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
Sheetmetal Workers International Association, AFL-CIO, and the shop committee
(also known as grievance committee) are each labor organizations within the mean-
ing of Section 2(5) of the Act. The latter, I find, is a committee in which employees
participate and which deals with Respondent concerning grievances, wages, rates of
pay, and conditions of work. American President Lines, Ltd., 146 NLRB 487;
Lawson Milk Company, 136 NLRB 538, 545.
III. THE UNFAIR LABOR PRACTICES
On or about April 16,1 Bedros Dostoomian, International organizer for the Sheet-
metal Workers International Association, AFL-CIO, started a drive to organize
Respondent's employees. Among othei things, Dostoomian distributed handbills at
the plant gates. On May 5, he handed out 80 to 85 of such pamphlets. This case
relates to conduct of Respondent alleged to have occurred in connection with the
above organizational efforts of the Sheetmetal Workers.
A. The shop committee
On May 7 employee Bellanger suggested to Joseph J. Grant, Respondent's general
manager (whom I find to be a supervisor and agent under Section 2(11) and (13) of
the Act), that "they have a meeting," and Grant, in turn, asked Andrew Arduini,
Respondent's president, whether Arduini was agreeable. Upon receiving a favorable
reply from Arduini (whom I find to be a supervisor under the Act) to hold the meet-
ing on company time, Grant put up a notice on the bulletin board calling for a
meeting of employees at 4:30 p.m. on May 7.
1 All dates mentioned herein refer to 1964 unless otherwise specified.
ARDUINI MANUFACTURING CORP. 899
At noon of May 7, a meeting of employees was held in front of the paint shop.
Twenty-five or thirty attended. It was decided to have a spokesman to represent
employees. Edward DeCouteau was so elected. A number of grievances expressed
at this meeting was jotted down by DeCouteau on a piece of paper. (General Coun-
sel's Exhibit No. 4.) At the 4:30 p.m. meeting that afternoon, DeCouteau presented
these grievances to Plant Manager Grant.
The notice on the bulletin board mentioned in the preceding paragraph (General
Counsel's Exhibit No. 3) bears the legend
ATTENTION
There will be a meeting of all employees of the ARDUINI MANUFACTUR-
ING CORP., at 4.30 in the new high building.
Pays will be given out at 4.20.
We would appreciate it if you would have a spokesman to answer all questions
and bring forth your problems.
J.J.G.
General Manager
It was this notice which led to DeCouteau's election as spokesman.
At the time this notice was posted, President Ardumi knew that union representa-
tives were handbillmg employees 2 at the gate. Both Ardumi and Grant attended the
meeting. Grant announced that there was to be a hospital benefit plan and a pension
plan for employees. Although the pension plan had been discussed by Arduini with
Respondent's directors for over 2 years prior to this, no mention of the plan had been
made to employees until this announcement by Grant. At this meeting, employee
Cloutier suggested to those assembled that they pick "a group of men [to] represent
us" in dealing with Grant or management. Grant, who was present, said it would be
a good idea and that "we would meet with you and talk things over." Grant further
said that he would "take a member from each safety department." However, this
latter idea had been previously suggested by employee John Harrison 3 at the noon
meeting of May 7 in front of the paint shop. Actually the employees elected the
members of this committee, which they called the grievance or shop committee. Five
were elected, one from each safety department. The grievance committee held
three meetings with management . The record is silent as to whether the committee
ever met alone as such. It has been "practically defunct" for some time. Its last
meeting was held on June 10, when it discussed Cassanelli's discharge with
management.
The shop committee was elected as follows. On May 7 or 8, the members of each
of the safety department teams 4 wrote names on a slip "and deposited these slips in a
box." This box was circulated by employee DeCouteau. Then "one guy would count
them [while] a couple of the guys stood around." All this was accomplished during
working hours on company premises with permission of Respondent.
At the May 7 meeting held at 4.30 p.m., a list of items which the committee should
take up with management was presented to management by DeCouteau. A wage
increase was included in the list. When a request was made to Respondent by
DeCouteau for such an increase, the former replied it would be granted "according
to merit." When "other things" were mentioned by DeCouteau to Respondent, Grant
told them that the Company had been working on a profit-sharing plan and a Blue
Cross and Blue Shield plan, and agreed to some and denied others, including
seniority.
At the first grievance meeting the committee met with management to present a
claim of employee DeCouteau, a painter, that he was being deprived of painting work
that he thought belonged to him.
Concluding Findings as to the Shop Committee
Although I am of the opinion, and find, that the shop committee is a labor organi-
zation, I do not find that it was organized or sponsored by the Respondent Rather,
I find that this committee was conceived at the noon meeting of May 7, called by the
employees themselves, when it was proposed by an employee attending that meeting,
2 Arduini saw a handbill, he testified
3 1 find that Cloutier and Harrison are not supervisors under Section 2(11) of the
Act Cf The General Tire & Rubber Company , Chemical Plastics Division , 149 NLRB
474; Plastics Industrial Products, Inc, 139 NLRB 1066, 1068; Higgins Industries, Inc,
150 NLRB 106
f There were five safety departments , each with a team of four. Thus 20 persons
participated in the election of 5 members of the grievance committee.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it crystallized at the 4:30 p.m. meeting that day. The fact that Respondent
was agreeable to dealing with such a committee does not alter this conclusion. Nor-
is it of significant consequence that Plant Manager Grant suggested that the com-
mittee be composed of one person from each safety team , for this occurred after the
employees had aheady decided to have such a committee . Cf. Mid-west Towel &
Linen Service, Inc., 143 NLRB 744, 751.
Moreover I find that Respondent did not unlawfully assist the committee by allow-
ing the members thereof to be elected on company time. Higgins Industries, Inc.,
150 NLRB 106, is distinguishable . Although the committee has met only in joint
sessions with management , the record is clear that ( 1) the committee was elected
without employer interference , and (2 ) the committee did take the initiative in pre-
senting grievances . See Chicago Rawhide Manufacturing Company v. N.L.R.B., 221
F. 2d 165, 168 (C.A 7). "It is one thing [ presumably lawful] to allow a labor orga-
nization to conduct elections on company time and company property . . . and quite
another [and unlawful ] thing for the Company to hold the elections for the labor-
organizations ." N.L.R.B. v. Prince Macaroni Manufacturing Co., 329 F. 2d 803, 811
(C.A. 1)
Accordingly, I shall recommend that this segment of the complaint be dismissed.
B. Interference , restraint, and coercion
About 9:30 or 10 a.m. on May 7, Supervisor Grant spoke to employee William
Cloutier, a sheet metal mechanic. In the course of their talk Cloutier asked "what
are they doing about this union business-the guys are talking about the union."
Grant replied, "What do you want me to say?" When Cloutier said "I should think
that we could get together and hash this thing out with them ," Grant answered
"maybe that is a good idea."
Shortly after the noon meeting of May 7, Joseph Arduini spoke to employees Wil-
liam G Bear, a welder , and John Villa. During the conversation Arduini told them
that if the Union got in the shop there would be no more overtime . Neither employee-
replied to this. Joseph Arduini is a director of Respondent . Hence I find that he is.
an officer and agent of Respondent under Section 2(13) of the Act.
Grant's above remarks are not coercive . Cf. Blue Flash Express, Inc., 109 NLRB
591. Accordingly, I find that they do not contravene Section 8(a)(1) of the Act.
However, Joseph Arduini's statement is coercive as it amounts to a threat of reprisal
not protected by Section 8(c) of the Act . Bilton Insulation , Inc. v. N.L.R .B., 297 F..
2d 141 (C.A. 4), relied upon by Respondent , is distinguishable.
Joseph Arduini also told employee John Villa that if the Union got in Villa could
no longer go to the shearer to cut his own stock . But I find this is not coercive
because, as Villa testified , the cutting of the stock did not benefit him economically
or otherwise , and it was a convenience to Respondent only.
On May 22 Ralph Raymond , President Arduini 's son-in-law, asked John Villa how
many people attended the union meeting. I am unable to find that Raymond is a
supervisor under Section 2(11) of the Act on the record herein. If material, I find'
that his inquiry , under the circumstances , is sufficiently coercive as to violate Section
8(a)(1) of the Act if made by a supervisor . Cf. Willard Bronze Company, 148"
NLRB 1686. See Blue Flash Express, Inc., supra , 593. Raymond also asked
employee Fournier how many people attended two union meetings and how many
cards the Union had. Since Raymond is not a supervisor , I find that Respondent is
not accountable for these interrogatories , which I find are otherwise coercive.
Employee Fournier testified to a conversation with Plant Manager Grant the day
after the shop or grievance committee meeting of June 10 with Grant . I do not
credit that portion of it relating to the Union because I consider Fournier as an unre-
liable witness . I have credited Fournier in his other testimony only to the extent
that it has been corroborated by other witnesses of the General Counsel or admitted
by Respondent 's evidence . Hence it is not necessary to recite the above conversation,
of June 11, or the conversations Fournier claims he had with Ralph Raymond con-
cerning unions.
As found above in connection with the shop committee , Respondent announced to,
the employees at the 4:30 p.m. meeting of May 7 that it was instituting a hospitaliza-
tion and profit-sharing plan, and liberalizing paid holiday and overtime provisions.
Ordinarily an employer may grant benefits to employees at his discretion , absent a
bargaining representative which he must recognize under Section 8(a) (5) of the Act.
But when such benefits are conferred at a time when a union is organizing employ-
ees, their inauguration becomes unlawful if adopted by a desire to undermine the
Union. I find that the above -mentioned hospitalization and profit -sharing plans were
ARDUINI MANUFACTURING CORP. 901
consciously timed to counteract the Union's organizing efforts, that they were moti-
vated by antiunion considerations, and that, therefore, their institution under these
circumstances violates Section 8(a)(1) of the Act.
The conclusion adopted in the preceding paragraphs is based upon two factors, both
of which I find as facts. (1) Respondent at no time prior to May 7, informed employ-
ees that it was contemplating the institution of a hospitalization or profit-sharing plan,
although both had been under consideration by management for over a year. Grant
first discussed hospitalization benefits with Metropolitan Life Insurance Company
"sometime in 1963." He first "heard" of pension or profit-sharing plans for employ-
ees of Respondent in or about 1962. In September or October 1963, President Ardu-
ini gave Grant a thick folder on a profit-sharing plan to examine. Thereafter Grant
twice discussed profit-sharing plans with Ardumi, but employees were not told that
such plans were under review. Hence, it is reasonable to infer that the relationship
between the granting of these benefits and the advent of the Union is more than tem-
poral coincidence but rather that instituting the benefits is reasonably calculated to
persuade employees to reject union representation. Cf. United Screw & Bolt Cor-
poration, 91 NLRB 916, 918, 919; The Great Atlantic and Pacific Tea Company, 101
NLRB 1118, 1121; Bata Shoe Company, Inc., 116 NLRB 1239, 1240, 1241. See
N.L K.B. v Exchange Parts Company, 375 U S. 405, 409; Indiana Metal Products
Corporation v. N L R.B., 202 F. 2d 613, 620 (C.A. 7), N.L.R.B. v. Pyne Molding
,Corporation, 226 F. 2d 818, 820 (C.A. 2). (2) Nothing in the record indicates that
Respondent had a customary time or a past practice for announcing benefits or that
such benefits were proclaimed at such customary time or pursuant to past practice. In
fact, it is clear, and I find, that the announcement was made only after employees were
assembled by Respondent almost immediately following its acquiring knowledge of
the Union's distribution of handbills and then only after employee DeCouteau
'requested they be granted.
C. The discharge of Leo J. Cassanelli
1. General Counsel's version
Leo Cassanelli was employed by Respondent as a maintenance man. Employee
,Gibeault was his permanent helper. Cassanelli joined the Union and passed out
flyers or handbills for it. He also discussed the Union with fellow employees in the
shop.
Cassanelli and Gibeault each also owned a farm near Worcester. About August
1963, Cassanelli asked one Robert O'Keefe to report any 4-inch I-beams he located
as they were needed for Cassanelli's farm. O'Keefe promised to do so. Not long
thereafter O'Keefe told Cassanelli that he had "obtained" some 4-inch beams and
had them delivered to the rear of Respondent's factory for Cassanelli There were
about 56 feet of usable beams Cassanelli thereupon informed Plant Manager Grant
that Cassanelli had some 4-inch I-beams in Respondent's backyard and asked Grant
to make sure that no one used them. However, two of Respondent's employees cut
these beams to make legs for welding tables used at the shop. When Cassanelli dis-
covered this "quite awhile after", he told Plant Manager Grant that employees Bear
and Rocky had cut up his beams. Grant replied that he was aware of the situation
and assured Cassanelli that he could have some of Respondent's 4-inch I-beams, if
any were available in the shack, or he would be reimbursed. Having found a 10-inch
by 23-foot beam in the "backyard rubble," Cassanelli asked Grant for it, offering to
pay for the difference, if any, and insisting that Grant so inform President Arduini.
Grant agreed to this arrangement.
In February or March 1964, Cassanelli told Grant that he was borrowing a friend's
truck and would use it to take away the 23-foot I-beam. Grant said "Sure. O.K.
Great." Later Cassanelli loaded the beam on the truck intending to drive it to his
farm. When President Ardurni, who happened to be in the yard, saw this he asked
Cassanelli for an explanation. Cassanelli did explain and asked if Grant had told
Ardumi about the situation. Arduini replied that Grant had told him nothing. The
next day Arduini told Cassanelli that Grant "told him the situation. It's O.K."
Thereupon Cassanelli took the I-beam to his farm
On June 9 President Ardumm accused Cassanelli of "causing a lot of trouble around
here" and of being unable to get along with any of the men. Then Ardumi accused
Cassanelli of taking the 23-foot I-beam without permission Cassanelli protested that
both Ardumi and Grant had sanctioned him to remove it Then Cassanelli stated
that O'Keefe, the welder who used to work at Harry Friedburg's, gave him the beam
Following this Arduini accused Cassanelli of taking 200 feet of welding leads or cable
out of the stockroom. Cassanelli defended this by stating that, with Grant's leave,
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he gave them to a contractor working on a construction job at the plant .5 Then
Arduini asked about a cardboard box which Cassanelli took from the paintshed.
Cassanelli replied it contained stale bread for his cows. Following a short discussion
Arduini fired Cassanelli. The latter insisted to Arduini that he was fired "because
some stool pigeon told you I was active in the Union." But, instead of replying to
this Arduini proceeded to discuss the company tools which Cassanelli should turn in.
Sometime in 1963 employee Bear cut up about 50 feet of 4-inch I-beam, which he
found in Respondent's yard, for use in making benches. Later Cassanelli claimed
it was his but Bear thought Cassanelli was joking.
Robert O'Keefe, a welder, testified that late in 1963 Cassanelli asked him to report
any used I-beams for sale as Cassanelli needed some on the latter's farm. O'Keefe
promised to do so. A month or two later O'Keefe found several pieces of beams in a
Pullman Standard dump where they had been discarded. O'Keefe then hauled it in
Grenier's truck from the dump to the Respondent's premises. (O'Keefe works part
time for Grenier and thus had use of the truck ) Then O'Keefe took it to Respond-
ent's yard, where he left it for Cassanelli. However, O'Keefe forgot to tell Cassanelli
about it until several weeks later. By that time Respondent had used it.
About April 1964, Cassanelli told O'Keefe that Casanelli was "going to get a piece
of I-beam to replace that which they cut up on him." About 2 weeks before June 9,
Cassanelli pointed out to O'Keefe an I-beam as the replacement Cassanelli also told
O'Keefe at this latter time that President Arduini had accused Cassanelli of stealing
an I-beam. O'Keefe replied that he thought "that was in return for the one that was
cut up." At this point Plant Manager Grant joined them. Cassanelli then asked'
Grant if Grant had informed President Arduini that Cassanelli was taking the I-beam
as a "replacement of the one that was cut up." O'Keefe then said, "I thought Joe,
[Joe is Grant's first name] that was in replacement of the I-beam that they cut up which
Cassanelli had told me about, and that I took for granted." Grant replied, "I thought
I told Mr. Arduini, but I don't want to say anything positive because Mr. Arduini has-
been awfully good to me, so this is hard for me."
2. Respondent's version
President Arduini testified that he discharged employee Leo J. Cassanelli on June 9,
for stealing a 10-inch I-beam about 22 to 25 feet long. About 4 or 5 weeks before
June 9, Arduini noticed this beam c on a truck (owned by Grenier Construction Co.)
in the Company's backyard. When Arduini asked Cassanelli why it was on the truck,
Cassanelli replied that it was his and that Plant Manager Grant had authorized him
to take it because Respondent had been using some (about 50 feet) of Cassanelli's
4-inch I-beams which Cassanelli bought at Bennie Cotton's Upon inquiring of
Grant about this, Arduini learned that Grant allowed Cassanelli to take a piece, only
7 or 8 feet long,7 that Cassanelli had been doing peisonal work on company time,8
and that Cassanelli had taken 200 feet of welding cable from the stockroom.
As a result of acquiring the above information about Cassanelli, Arduini "began
to investigate." As part of the investigation, Arduini directed Herman, Respondent's
purchasing agent, to ascertain from Bennie Cotton whether any 4-inch I-beams were
sold to Cassanelli. No other aspect of the investigation is disclosed in the record.
For example, nothing was done to check with Grenier as to the use of the truck.
Cotton telephoned Respondent's Purchasing Agent Herman 4 or 5 weeks later that
no record of any transaction with Cassanelli could be found. Two or three days later
Arduini discharged Cassanelli. After that Arduini asked Cotton to confirm the tele-
phone call. Cotton then mailed a confirming letter dated June 16. (Respondent's
Exhibit No. 1.)
6I find that Arduini did not mention the cable until later in the day, but after Cas-
sanelli's discharge.
6 It was not a new beam, but, rather, as Arduini described it, a used beam Arduini
was unable to estimate its value but did testify that it weighed 25.4 pounds per foot and
that it cost from 8 to 10 cents a pound
7 This Is Arduini's direct testimony. On cross-examination Arduini testified that Grant
told him that Grant informed Cassanelli that Grant would take up the matter with
Arduini, that Grant forgot to do so, and that he did not again discuss it with Cassanelli.
8 Cassanelli admitted he did some work for himself on company time but that Grant or
Arduini had given him permission therefor. I find that Grant and Arduini gave such
permission. I further find that Cassanelli did personal work for both Grant and Arduini
on company time by direction of Grant or Arduini, as the case may be.
ARDUINI MANUFACTURING CORP. 903
After speaking to Grant and after discharging Cassanelli, Arduini again talked to
Cassanelli on June 9. This time, Arduim (1) told Cassanelli that Grant gave author-
ity to take an I-beam only 7 or 8 feet long, (2) also asked Cassanelli to account for
the cable taken out of the stockroom, and (3) asked Cassanelli again where he
obtained the 4-inch I-beam. This time Cassanelli replied he bought it from "R & H
Machine." 0 According to Arduini, Cassanelli blew up. Then Arduini asked Cas-
sanelli what was in the box which Cassanelli took out of the company paintshed.
Cassanelli replied that it contained some bread for cows in his farm.
Arduini also claimed that he told Cassanelli at the time of his discharge that Cas-
sanelli often argued with people and could not get along with anyone in the plant.
Cassanelli, prior to June 9, was a trusted employee and had keys both to Arduini's
home, where he performed work on company time, and to the shop. However, on
June 8, Arduinl requested Cassanelli to surrender these keys to him because a new
lock was being made for the home. They were actually given to Ardumi on June 9,
immediately following Cassanelli's discharge.
Respondent also found a cupola in its boilerroom which Cassanelli admittedly con-
structed on company time for his farm.
Concluding Findings as to the Discharge of Cassanelli
It is desirable to point out that I have born in mind certain principles of law to guide
me in assessing the whole record in arriving at the findings which follow. In nonjury
cases, when a trier of facts makes findings the parties are entitled to know to what
extent he has been guided by basic rules of law and whether the governing law applied
is correct. Ashapa v. Reed, 280 Mass. 514, 182 N.E 859.
It is axiomatic that the General Counsel has the burden of proving that Cassanelli
was illegally discharged. Rubin Bios. Footwear, Inc., etc., 99 NLRB 610, 611,10 set
aside on other grounds, 203 F. 2d 486 (C.A. 5); N.L.R.B. v. Murray Ohio Manufac-
turing Co., 326 F. 2d 509, 513 (C.A. 6). Secondly, union activity neither confers
immunity from discipline by the employer (Metals Engineering Corporation, 148
NLRB 88), nor guarantees the union member immunity from discharge for cause
(Rubin Bros. Footwear, Inc., etc. v. N.L.R.B., supra, at 488). On the other hand, the
"mere existence of valid grounds for discharge is no defense to a charge that the dis-
charge was unlawful." N.L.R B. v. Symons Manufacturing Co., 328 F. 2d 835, 837
(C.A. 7).11 I am not bound to accept a Respondent's alleged lawful juistification for
a discharge merely because it has been put forward with supporting evidence. N.L.R.B.
v. Texas Bolt Company, 313 F. 2d 761, 763 (C.A. 5). But rejection of a defense, with-
out more, is insufficient to sustain the General Counsel's burden of proof as it does
not constitute affirmative evidence. Guinan v. Famous Players, 167 N.E. 235, 243
(Mass.); N.L.R.B. v. Audio Industries, Inc, 313 F. 2d 858, 863 (C.A. 7), Portable
Elect, is Tools, Inc. v N L.R.B., 309 F 2d 423, 426 (C.A 7).
It is my opinion, and I find, that Cassanelli was discharged for his union activity
and that the reasons assigned by President Arduini were pretexts to cloak the real
reason. In this connection it is important to point out that the record is bare of direct
evidence that Respondent knew or was aware of Cassanelli's union activities. The
fact that he passed out union literature "affords no basis for an inference that Respond-
ent had the essential knowledge." Portable Electric Tools, Inc. v. N.L.R.B, supra,
427. But Respondent's President Ardumi testified that he knew of the Union's presence
at the plant gates and that he had in his possession some union literature; and Plant
Manager Grant testified not only that he knew of and saw some of the Union's activity
at the plant, but also that he knew Dusty Dostoomian to be the union organizer, that
he saw Dusty outside the plant at least once, and that he disciplined employees
DeCouteau and Villa for "returning late from lunch because of meeting with union
organizer." Since Grant did not disclose how he knew Dusty was a union organizer,
it is reasonable to infer that he acquired this knowledge at least by observing persons
at the plant gates and inquiring as to their identity. However, such observation should
also disclose that Cassanelli distributed union literature at the plant gates. It follows
e Arduint "investigated" this claim and learned that R & H never sold Cassanelli any
I-beans This was on June 10, the day after Cassanelli isas discharged. By letter dated
June 18 , Harry Friedburg of R & H wrote to Respondent that it never had a transaction
of any kind with Cassanelli. Respondent's Exhibit No. 2.
>.0 "At all times , the burden of proving discrimination is that of the General Counsel."
n "The fact that a solid basis for the discharge . . . for cause exists would not, stand-
ing alone , prevent the Board from finding that [the] discharge was motivated by [the
employee's ] union activity . . . Portable Electric Tools , Inc. v . N.L R.B. , supra,
426.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, in view of the foregoing and the further fact that Respondent has a small 12 com-
plement of employees , I infer (Allied Disti ibuting Corporation , and Standard Optical
Company, 130 NLRB 1348, 1350 ) that Respondent "knew which of its employees
favored the union." New French Benzol Cleaners and Laundry, Inc., 139 NLRB
1176, 1179. I do not credit Respondent 's evidence that it had no knowledge of Cas-
sanelli's union membership and activities prior to his discharge . Hence I do not
credit Plant Manager Grant 's testimony that he did not acquire such knowledge until
June 10, when employee Fournier volunteered it. This is based upon ( 1) Grant's
demeanor on the stand , ( 2) Grant first flatly denying having such knowledge "at any
time," and later admitting that he had such information on June 10 when some "active"
union "people ," including employee Fournier , told him about Cassanelli , and (3) since
Grant knew that Fournier and others belonged to and were active for the Union, it is
reasonable to infer that Grant knew of Cassanelli 's union activities also.
As narrated above, I have found that Cassanelli was discharged for union activity
and not for the reasons advanced by Respondent at the hearing . This finding , includ-
ing the finding of pretext , is based upon the entire record and the following subsidiary
findings:
1. At the hearing , President Arduini contradicted himself as to why he discharged
Cassanelli . First Arduini said it was solely for stealing I-beams. Then he added other
reasons, one of which involved the disappearance of 200 feet of cable. But the cable
incident could not have entered into the decision to terminate because Arduini was
not told of it until after he had discharged Cassanelli . Nor is it necessary to recite
and resolve conflicting evidence regarding incidents in the toolroom as described by
toolcrib attendant Keicer and explained by Cassanelli . This is so because I find that,
upon Respondent 's own evidence , President Arduini and Plant Manager Grant were
not aware of these incidents until after Cassanelli was discharged . Hence he could
not have been terminated therefor.
2. I credit Cassanelli that O'Keefe obtained the 4-inch I-beams for him, that they
were the property of Cassanelli while on Respondent 's premises , that Respondent used
them, and that Plant Manager Grant told Cassanelli to take the 23-foot by 10-inch
I-beam as compensation therefor . To the extent that Respondent 's evidence is incon-
sistent therewith , I do not credit it. It is "unnecessary ... to mention in detail all of
Respondent 's contrary testimony ." N.L.R.B. v. Cooke & Jones, Inc., 339 F. 2d 580
(C A. 1).
3 President Arduini made no serious effort to ascertain whether Respondent had
mistakenly appropriated Cassanelli's 4-inch I beams or that such beams did not belong
to Cassanelli At most, Respondent inquired of Bennie Cotton and Harry Friedburg
whether Cassanelli bought I beams off them. This is not much of an investigation
when title to property is involved . Moreover , I expressly find, contrary to Respond-
ent's evidence , that Cassanelli told Arduini that O'Keefe, a former employee of Harry
Friedburg 's 13 had obtained the 4-inch I-beams for him, and that Cassanelli did not
say he bought them from Cotton or R. & H Moreover , Respondent introduced no
evidence to contradict Cassanelli that the 4 - inch I -beams belonged to him or to prove
that Respondent owned the 4-mch beams . Nor did Respondent seek to ascertain why
Grenier's truck was used to transport the beams
4. Timing is significant . Although President Arduini learned of the 4-inch I-beam
situation before he had knowledge of the advent of the Sheetmetal Workers Union, he
did nothing about disciplining Cassanelli therefor until after Cassanelli became a
union adherent and worker for the Union 's cause. It is true that Arduini testified
that he desired to investigate before taking action against Cassanelli, but Respondent
offered no evidence to corroborate Arduini's investigation .14 Thus Arduini testified
that he told Purchasing Agent Herman to get in touch with Bennie Cotton, that
Herman did so, and that Herman told Ardumi of Cotton 's reply. But neither Herman
nor Cotton testified , so that Arduini has not been corroborated on his hearsay state-
12 Angwell Curtain Company, Inc., 192 F. 2d 899, 903 (C A. 7). But see NLRB. V.
Falls City Creamery Company, 207 F. 2d 820 (C A 8). The small plant rule (New French
Bengal Cleaners and Laundry , Inc., supra ) is binding upon me. Insurance Agents' In-
ternational Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB
768, 772-773; Iowa Beef Packers, Inc., 144 NLRB 615, 616 If the small plant rule
were not operative I would have difficulty in finding employer knowledge of Cassanelli's
union activity.
11 This may account for Arduini's inquiring of Friedburg whether Friedburg sold Cas-
sanelli any beams
14 Moreover, as found, Plant Manager Grant told Arduini that Cassanelli had permis-
sion to take some I -beams.
ARDUINI MANUFACTURING CORP. 905
ments. Moreover no reason has been adduced why it took Bennie Cotton 4 or 5
weeks to reply to an inquiry when Harry Friedburg answered the identical question
in a few days.
5. 1 do not credit Respondent that Cassanelli was discharged for stealing the I-
beams, taking 200 feet of cable, doing personal work without permission on company
time, and erecting a cupola with company materials on company time.15 The I-beams
were given to Cassanelli in exchange for his beams; the cable was not stolen, but given
to a contractor with Plant Manager Grant's permission; 16 although Cassanelli did
personal work on company time, he had permission therefor from both Arduini and
Grant. Also I find the cupola was built by Cassanelli with company materials on
company time. But he had received permission in the past to use unwanted materials
for personal use on company time. Hence I find he was justified in assuming that the
past permission applied to the cupola.
6. Respondent opposed unionization of its plant.
7. Finally, I find it significant that, although President Arduini knew that Cas-
sanelli had 1-beams on the truck about 4 or 5 weeks before June 9, Ardumi neither
forbade their removal pending an investigation nor scolded Cassanelli for taking them
to the farm during the investigation. If Ardumi believed that the beams belonged to
Respondent he would not have been complacent about their removal. Nor has he
since made any effort to repossess the beams.
D. The discharge of Ernest Gibeault
Gibeault was employed by Respondent as a finish grinder until about late summer
of 1963, when he developed stomach trouble. Because his physician recommended
nongrinding work, Gibeault asked Plant Manager Grant about Labor Day 1963, if
Gibeault could be transferred to the floor and, in particular, to work with Cassanelli.
Grant consented to this.
As a result Gibeault worked with Cassanelli, but also did grinding "off and on."
His health having improved under this arrangement, Gibeault requested that Grant
assign him permanently to the floor with Cassanelli. Grant was willing but reminded
Gibeault that floorwork entailed a 25-cent-an-hour decrease in pay. Thereupon
Gibeault threatened to quit. This caused Grant to withhold the cut in pay, although
Gibeault continued to work with Cassanelli on the floor. A few weeks preceding
June 9, 1964, Grant informed Gibeault that the latter had to go back on the grinder.
Gibeault replied, "When I feel good, I will go back on the grinder." This was agree-
able to Grant. About 2 weeks before June 9 Gibeault's pay was increased 10 cents an
hour. At this time Gibeault was still working with Cassanelli on the floor.
About May 7, 1964, Gibeault signed a union card. Later he attended union meet-
ings,17 and talked about the Union in the shop, but he never distributed union cards.
His union activity, therefore, was minor.
During the time Gibeault was helping Cassanelli, Grant asked Gibeault several
times, including late in the day of June 9, to return to grinding, but Gibeault refused
unless he received "more money " This occurred notwithstanding that (1) Gibeault
claimed grinding affected his stomach and (2) Gibeault's rate of pay had not been
reduced when he was transferred to the floor.
About 4.55 p.m. on June 9, Plant Manager Grant told Gibeault that he was being
let go When Gibeault asked for the reason, Grant replied that President Ardumi had
given him none. Thereupon Gibeault asked if it was because he did not get along with
the fellows, or unsatisfactory work, or being a union man. Grant assured him it was
not because of any of these reasons, however, he did say there was not very much
work to do in the grinding room, and asked Gibeault to telephone him the next day
to be informed of President Arduini's decision on whether to recall Gibeault "after
the vacation." But Gibeault never telephoned or otherwise communicated with
Respondent In the past, such "vacation" usually lasted 4 or 5 weeks, beginning about
June 15, to let Gibeault do haying on his farm.
About 7 or 8 weeks before August 17, 1964, employee Paul Thomas happened to
be in an area where Gibeault and Cassanelli were working together However,
Thomas could not be seen because he was behind a partition. As Gibeault was
15 The cupola could not have been a factor prompting Cassanelli's discharge because
Plant Manager Grant did not learn about it until after the discharge, and I so find.
16 Moreover, as found above, Arduini did not learn of the cable incident until after
Cassanelli 's discharge.
17 The first union meeting which Gibeault attended was on June 18. Since he was dis-
charged on June 9 , this particular union activity , i e , attending union meetings, could
not have prompted his discharge, and I so find.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
throwing fittings in a burlap bag he said to Cassanelli , "Can you use one?" Soon
Cassanelli said, "Leave a few." Although he overheard the above conversation,
Thomas did not report it to anyone . Hence I find that Gibeault was not discharged
for this incident , assuming that it involved misappropriation of company property.
A hint lurks in the record that Gibeault , according to Plant Manager Grant, may
have stolen some angle irons from Respondent about 4 years before his discharge.
But I find that Gibeault did not engage in such theft and that his discharge was not
based thereon.
Concluding Findings as to the Discharge of Gibeault
Initially, Respondent contends that Gibeault was not discharged . But its answer
admits that he was discharged . Moreover , on the evidence unfolded by the record, I
find that Gibeault was discharged on June 9. But I further find that Gibeault was
not terminated for union or other activity protected by the Act , but rather , for refus-
ing to return to grinding when ordered to do so on June 9 . In this respect the evi-
dence is not substantially in dispute , but the General Counsel argues that the reasons
given by Respondent are a pretext to mask a discriminatory discharge . But I do not
find a pretext
Admittedly Plant Manager Grant had several times before June 9 requested
Gibeault to return to grinding work. Admittedly Gibeault refused to do so , claiming
such work affected his stomach , until shortly before and on June 9 he agreed to accept
grinding work but only at an increased rate of pay . I find that such conduct con-
stitutes insubordination for which Gibeault may be lawfully disciplined . For disci-
pline is an employer's prerogative which the Act does not take away from an
employer. In fact, even union activity does not confer immunity from discipline.
Metals Engineering Corporation , 148 NLRB 88 See Section 10(c) of the Act. I
also find that , since Gibeault could no longer help Cassanelli because some of the
latter's work was subcontracted after June, there was no floorwork for Gibeault to
perform
Since I find that Gibeault was discharged for cause recognized by the Act , I further
find that such discharge does not contravene the Act 1s Hence I shall recommend
dismissal of that part of the complaint seeking relief for Gibeault.
E. The transfer of Edward DeCouteau to lower paying work
and other discriminatory treatment of him
Edward DeCouteau was originally hired as a janitor about 12 years ago. About
3 weeks later he was assigned to the shop as a utility man. About 4 or 5 years ago he
became a painter and continued as such until about August 10, 1964. Two or three
weeks before May 7, DeCouteau become interested in the Sheetmetal Workers Union,
and shortly after May 7 joined that Union. In addition , he passed out union applica-
tion cards among Respondent 's employees.
DeCouteau attended the noon meeting of employees on May 7. While there he
"jotted down the gripes as we come up with them " During the meeting DeCouteau
was elected spokesman for the group. At the 4 : 30 p.m. meeting Plant Manager Grant
was advised that DeCouteau had been so elected and was possessed of a written list of
grievances . Thereupon Grant asked DeCouteau to read off the list. DeCouteau then
read off the items enumerated in a written document received in evidence as General
Counsel's Exhibit No 4. Although the grievances so recorded were not further
discussed at the meeting , Grant did agree to some of them on the spot.19 Grant took
"notes of everything concerned " during the meeting. He also mentioned , in response
to one of DeCouteau 's questions , that Respondent was considering a retirement plan,
a profit-sharing plan, and an insurance plan. Seniority was not granted at the time,
although Grant indicated some kind of seniority plan would be adopted. This meet-
ing ended about 5 p.m . Those attending were compensated therefor.
is The Court of Appeals for the Fifth Circuit has adjudged that failure to offer a reason
for a discharge supports an inference that the discharge is discriminatory . N L R.B. v.
Griggs Equipment, Inc, 307 F. 2d 275, 278 ( C A. 5) , N L R.B v. Plant City Steel Corp ,
331 F . 2d 511, 515 ( C.A. 5). But I am of the opinion that those cases do not apply here.
In any event I do not draw such inference because Gibeault was not significantly active
for the Union and because I have found Gibeault was discharged for cause
10 Grant promised to, and did , post on the bulletin board those matters to which he
consented at the meeting . Among others, these included Blue Cross and Blue Shield
fully paid by the Company , additional paid holidays , overtime , and separation notices.
ARDUINI MANUFACTURING CORP. 907
About May 8 or 9 the five safety teams each elected one person from their group
to serve on the shop or grievance committee. Grant gave them permission to conduct
this election in the plant during working time. DeCouteau conducted the balloting
by personally bringing the ballot box to each eligible voter. DeCouteau was elected
by safety team No. 3 as its representative on the committee.
The first meeting of the shop or grievance committee with management was called
by DeCouteau to present his personal grievance to management. He wanted to com-
plain to the Respondent that one of his painting jobs had been subcontracted to the
Adams Company. At the meeting Grant mentioned that since DeCouteau was work-
ing on a punch press, there was no sense in removing him therefrom to do minor
painting work. DeCouteau insisted that he had been taken off punch-press work 40
or 50 times in the past. Grant assured DeCouteau not to worry about it. Grant also
complained that it was costly to Respondent to have meetings for a "trivial" matter
of this nature.
A second meeting of the shop or grievance committee was held with Grant in
Grant's office shortly after employee Gibeault's discharge. DeCouteau attended.
At one point Grant said that DeCouteau had been "very wise" or that DeCouteau was
going to receive a "slip" in his pay envelope for being "wise " When Grant was asked
why employees Cassanelli and Gibeault were fired, he replied "for stealing," and that
the committee and everybody in the shop knew that "these men had been stealing
from 4 to 10 years " Grant also said that Gibeault refused to work as a grinder for
Vmnie May, a senior grinder. As the meeting broke up, DeCouteau told Grant that
he desired to resign from the shop committee because "it's the same old stuff, one side,
the shop side." Grant made no comment. That afternoon DeCouteau asked Grant
about the warning slip. Grant replied it was to make DeCouteau "an example for
the shop" but did not further clarify this. However, Grant mentioned that he gave
out these slips by the hundreds and suggested that DeCouteau lose no sleep over it.
On June 11 DeCouteau received an "Employee Warning Slip," signed by Joseph J.
Grant, bearing the notation that it was a first notice, assigning the "nature of the vio-
lation" as "conduct" and "attitude," and containing the "remarks" that "A second
warning carries an automatic 3-day layoff."
The day after DeCouteau attended the second union organizational meeting, which
occurred at some undisclosed time prior to June 9, employee Ralph Raymond (Presi-
dent Ardumi's son-in-law) asked him how many men had attended the meeting When
DeCouteau replied that he did not know, Raymond observed "they never give up, do
they?" Since I find Raymond is not a supervisor,20 I further find Respondent is not
responsible for Raymond's conduct. International Association of Machinists, Tool
and Die Makers Lodge No. 35 (Serrick Corp.) v. N.L.R.B , 311 U.S. 72, 79-81, does
not dictate a different conclusion.
On or about July 30 DeCouteau learned from an employee that "the union men"
were on the sidewalk in front of the plant. Within a very short time after this Grant
told DeCouteau, "Your friends Dusty and the other fellow are pacing up and down
the sidewalk in front of the shop" and asked DeCouteau if he was to meet them.
DeCouteau replied in the negative. Shortly thereafter DeCouteau went out to lunch
in a car with employee John Villa. The two met and had lunch with Dusty Dos-
toomian, the Sheetmetal Workers International organizer
DeCouteau testified that "they came behind us in their own car," that "they followed
us back," and that Grant was "ahead of us as we were driving down a ramp." After
DeCouteau and Villa parked at the Company's parking area Grant "waited for us and
joined us " Thereupon Grant told them that "the union organizer kept you out kind
of late." DeCouteau insisted that "we got served late." That evening DeCouteau
received in his pay envelope an "employee Warning Notice," signed by Joseph J.
Grant. containing the notation that it was a second notice, that the nature of the
violation was "lateness," and that under "Remarks" was inscribed the legend
"Returned late from lunch because of meeting with union organizer. Next warning
discharge." 21 DeCouteau had been late three or four times before. However, neither
he nor other workers who had previously been late received warning slips therefor.
DeCouteau had been criticized once before on a General Electric job, for which he
received a warning slip.
On the afternoon of or about August 10 Plant Manager Grant told DeCouteau that
Respondent was going to close down the paint job because painting had been coming
° Raymond has no employees working under him, although he is in charge of sales.
Hence , none of the legislative indicia of a supervisor may be ascribed to him.
a DeCouteau admitted he was 2 or 3 minutes late and that he had an altercation over
the space where he parked his car in Respondent ' s parking lot on returning from lunch.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in spurts , that in the past 2 weeks DeCouteau had performed only 3 or 4 hours of
painting work, and that it would be subcontracted to outside firms. ( In the past
DeCouteau had been assigned to other temporary work when he ran out of painting
to do. ) Grant also informed DeCouteau that his pay would be cut from $ 2.10 to.
$1.90 an hour in his new, nonpainting , duties. However, Grant assured DeCouteau•
that vacation pay would be computed on the basis of $2.10 an hour . DeCouteau was
doing punch-press work at the time of the hearing at the regular rate for such work,
i.e., $1.90 an hour . He testified that he received this same rate in the past when,
because of slackness in painting , he did punch-press work.
Concluding Findings as to Edward DeCouteau
It is contended by the General Counsel that Respondent discriminated against
DeCouteau by giving him the two warning slips . On the evidence before me, I am
unable to find that this aspect of the amended complaint has been established . I shall
recommend its dismissal . It is true , and I find, that DeCouteau engaged in union
activity , was the spokesman for the employees in presenting grievances on May 7,
and was a member of the shop or grievance committee from about May 8 or 9 to
June 10. It is further true that Plant Manager Grant informed DeCouteau of an
impending warning slip at one of the shop committee 's sessions with Grant. But I
find that the warning slip of June 11 was given for cause , and not for discriminatory
reasons. In this respect I accept Grant 's explanation for issuing this slip. Grant
testified that he gave DeCouteau a warning slip on June 11 because DeCouteau was
stirring up trouble by parking his auto in the spaces used by other employees. Grant
claims the first warning notice to DeCouteau was given because one day he did no
work from 7:30 a.m., the starting time, to 8:10 a.m., and also for "those series" of
parking incidents.
And I further find that the warning slip of July 30 was given to DeCouteau for
being late, rather than for the discriminatory reasons alleged in the amended com-
plaint.22 Admittedly DeCouteau was late. The fact that he had lunch with a union
organizer did not excuse his tardiness . Cf. Pioneer Photo Engraving, Inc., 142 NLRB
1099, 1101.
It is also admitted by the General Counsel that Plant Manager Grant coerced and
restrained DeCouteau by giving DeCouteau the impression that his activities outside
the plant were under surveillance . But the evidence on this branch of the case merely
shows that Grant saw DeCouteau with a union organizer , told DeCouteau that he
so saw him , and mentioned this orally and in DeCouteau 's warning slip of July 30.
Nevertheless it is not an unfair labor practice for a supervisor to observe what is
openly transpiring in public, or to mention this to an employee. Cf N.L.R B. V.
Davidson Rubber Co ., 305 F. 2d 166, 169 (C.A. 1); Salant & Salant, Incorporated,
92 NLRB 417, 446-447. Nor is a contrary result required because the warning slip
of July 30 alluded to DeCouteau 's "meeting with union organizer ." This referred to
the reason why DeCouteau was late; and , although it connoted disapproval of union
activity , it nevertheless did accurately relate that DeCouteau had been late. But
expressing disapproval or dislike of union activity is not an unfair labor practice.
Conroe Creosoting Company, 149 NLRB 1174; N.L.R.B. v. Threads, Inc., 308 F.
2d 1, 8 (C.A. 4).
It follows that I shall recommend that this aspect of the complaint be dismissed.
Finally it is contended that Respondent discriminately transferred DeCouteau from
a painting job to lower paying punch-press work. But I find no illegal motive in this
transfer . In this respect I credit Respondent 's explanation 23 that it was economi-
cally unfeasible to perform its own painting because there was so little of it , and that
it was preferable to let out this little bit of work to an outside contractor . Nor do,
I find unlawful discrimination in the fact that DeCouteau 's punch-press job paid less
22 As to the second warning slip, Grant told DeCouteau just before noon that Dostoomian
"probably is going to want to see you at 12 o 'clock " After they returned , Grant told
DeCouteau that "[Dostoomian goofed] . You know you are not supposed to go back late
from a meeting with the union organizer "
23 President Arduini and Grant decided to close down the paintshed because in the last
2 weeks preceding the hearing , DeCouteau engaged in only 3 i, hours of painting work.
Since some of the painting work had arready been contracted out at savings of from one-
third to one-half , it was decided to subcontract the remainder This deprived DeCouteau
of a painting job which paid $2 10, but he was transferred to punch pressing at the regu-
lar punch -press rate of $1 . 80 an hour . Beginning August 11, DeCouteau's rate as a
punch -press operator became $1.90.
ARDUINI MANUFACTURING CORP. 909
than his painting job, for the rate of pay received by DeCouteau for punch press work
was the regular rate therefor. Accordingly, I shall recommend dismissal of this part
of the complaint.
F. The discrimination against John Villa
John Villa is employed by Respondent as a plant mechanic . He signed a card to
join the Charging Party and handed out union authorization cards during his lunch
hour to fellow employees.
About May 14 Joe Arduini spoke to employee Bear in the presence of Villa and
employee Joe Rosicrossik. Arduini told Bear that if the Union got in overtime would
be abolished. Later that day Arduini warned Bear that Bear could not cut his own
stock at the shearer if the Union came in.
On or about May 18 employee Ralph Raymond asked Villa whether "they [are]
still trying to organize" and what the employees would gain by having a union. Then
Raymond said that if the Union did "try to get in Mr. Arduini could close his shop,"
and that employees would gain nothing by going on strike. As noted above, I have
found Raymond not to be a supervisor. Hence Respondent is not accountable for
his utterances.
On or about May 22 Raymond asked Villa how many attended the union meeting
on the day before. Villa also testified that Grant discussed union matters with him
in May, after a union meeting at which Cassanelli "stated his case." But Cassanelli
admittedly was fired-on June 9. Hence I do not credit Villa as to what transpired
at this talk between him and Grant. Accordingly, this conversation need not be
narrated.
On July 30 Villa drove to lunch with employee DeCouteau as narrated above. They
returned to work approximately 3 minutes late. As the two entered the shop, Plant
Manager Grant told them "those union fellows are keeping you out kind of late."
Later that day Villa received a warning slip identical to that received by DeCouteau
except that it was a first notice.
On the above evidence the General Counsel maintains that Respondent ( 1) dis-
criminated against Villa by issuing the warning slip and ( 2) coerced and restrained
Villa by giving him the impression that his activities outside the plant were under sur-
veillance On almost identical evidence , as to employee DeCouteau , I have found
that no unfair labor practice is discernible under the circumstances . For the reasons
there outlined , I also find that the allegations of the complaint involving the above
incidents as to Villa have not been sustained . Hence I shall recommend dismissal of
this division of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices, as set forth
in section III, above , occurring in connection with its operations described in sec-
tion I, above, have a close, intimate , and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor practices
prohibited by Section 8(a)(1) and (3) of the Act, it will be recommended that it
cease and desist therefrom , and that it take specific affirmative action , as set forth
below, designed to effectuate the policies of the Act. It is reasonable to anticipate
that such violations may recur. Hence, an order is warranted which will prevent
repetition of the same or similar conduct by Respondent.
In view of the finding that Respondent discriminated with respect to the tenure of
Leo Cassanelli's employment, the Recommended Order herein will require Respond-
ent to offer him full and immediate reinstatement to his former position or one sub-
stantially equivalent thereto, without prejudice to his seniority and other rights and
privileges , and to make him whole for any loss of earnings suffered by reason of the
discrimination. In making Cassanelli whole, Respondent shall pay to him a sum of
money equal to that which he would have earned as wages from the date of such
discrimination to the date of reinstatement or a proper offer of reinstatement, as the
case may be , less his net earnings during such period. The backpay is to be com-
puted on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at 6 percent as ascertained by the
formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that Respondent preserve and make available to the Board, or its
agents, upon request , all pertinent records and data necessary to analyze and calcu-
late the amount , if any, of backpay due.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Sheetmetal Workers International Association , AFL-CIO, is a labor organiza-
tion within the meaning of Sections 2(5) and 8(a) of the Act.
2. The shop committee , also known as the grievance committee, is a labor organi-
zation within the meaning of Sections 2(5) and 8(a) (2) of the Act.
3. Respondent is an employer within the meaning of Sections 2(2) and 8(a), and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
4. By discriminating in regard to the tenure of employment of Leo J. Cassanelli,
thereby discouraging membership in Sheetmetal Workers International Association,
AFL-CIO, a labor organization , Respondent has engaged in unfair labor practices as
defined in Section 8(a) (3) and (1) of the Act.
5. By (a ) granting benefits consciously timed to undermine the organizing efforts
of the Sheetmetal Workers, and ( b) threatening employees with reprisals if a labor
organization became their collective -bargaining agent, Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a)( I) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent has not engaged in any other labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended , it is hereby ordered that Respondent, Arduini Manufacturing Corp.,
Worcester, Massachusetts , its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Sheetmetal Workers International Association,
AFL-CIO, by discharging employees or otherwise discriminating in any manner in
respect to their tenure of employment , or any term or condition of employment.
(b) Granting benefits to employees for the purpose of dissuading employees not
to join or select as their collective -bargaining agent Sheetmetal Workers International
Association, AFL-CIO, or any other labor organization . Nothing herein shall be
construed to prevent the grant of benefits made in good faith pursuant to established
company policy or which are not motivated by antiunion considerations ; nor shall
anything herein be construed to require Respondent to annul or rescind any benefits,
heretofore given to employees.
(c) Threatening employees with reprisals if Sheetmetal Workers International
Association , AFL-CIO, or any other labor organization , becomes their collective-
bargaining agent.
(d) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist Sheetmetal Workers International Association , AFL-CIO, or
any other labor organization , to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for the purpose of collec-
tive 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 requir-
ing 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 designed to effectuate the policies of the
Act:
(a) Offer Leo J. Cassanelli immediate and full reinstatement to his former or a
substantially equivalent position without prejudice to his seniority or other rights and
privileges previously enjoyed , and make him whole for any loss of pay he may have
suffered by reason of the discrimination against him, with interest at the rate of
6 percent.
(b) Notify Leo J . Cassanelli , if presently serving in the Armed Forces of the
United States, of his right to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces.
ARDUINI MANUFACTURING CORP. 911
(c) Preserve and, upon reasonable request, make available to the Board or its
agents, for examination and copying , all payroll records , social security payment
records, timecards , personnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Worcester , Massachusetts , copies of the attached notice
marked "Appendix ." 24 Copies of said notice , to be furnished by the Regional Direc-
tor for Region 1, shall, after being signed by a duly authorized representative of
Respondent , be posted by it immediately upon receipt thereof, and be maintained by
it for 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 said notices are not altered , defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 1, in writing , within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
herewith.25
It is further recommended that the complaint be dismissed in all other respects.
It is finally recommended that unless Respondent shall, within the prescribed
period, notify the said Regional Director that it will comply , the Board issue an
Order requiring Respondent to take the aforesaid action.
u If this Recommended Order Is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words " the Recommended Order of a Trial Examiner" in
the notice . In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and Order."
21 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify said Regional Director, in writing , within 10 days from the date of this
Order, of the steps which Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Sheetmetal Workers International
Association, AFL-CIO, or in any other labor organization , by discharging any
of our employees or in any other manner discriminating against them in regard
to their hire or tenure of employment or any term or condition of employment.
WE WILL NOT grant benefits to employees for the purpose of dissuading
employees not to join or select as their collective -bargaining agent Sheetmetal
Workers International Association , AFL-CIO, or any other labor organization.
Nothing herein shall be construed to prevent the grant of benefits made in good
faith pursuant to established company policy or which are not motivated by anti-
union considerations , or to require us to annul or rescind any benefits heretofore
given to our employees.
WE WILL NOT threaten employees with reprisals if Sheetmetal Workers Inter-
national Association , AFL-CIO, or any other labor organization , becomes your
collective -bargaining agent.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the aforesaid union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , 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 Leo J. Cassanelli immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights previously enjoyed, and make him whole for any loss of pay suf-
fered as a result of the discrimination against him, with interest thereon at
6 percent per annum.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from becoming or remain-
ing members of Sheetmetal Workers International Association, AFL-CIO, or any
other labor organization.
ARDUINI MANUFACTURING CORP.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone
No. 523-8100, if they have any questions concerning this notice or compliance with
its provisions.
Monroe Auto Equipment Co., and Midwest Employers Council,
Inc., and John E. Tate and International Union , United Auto-
mobile, Aerospace & Agricultural Implement Workers of Amer-
ica, AFL-CIO. Case No. 17-CA-2463. June 30, 1965
DECISION AND ORDER
On March 15, 1965, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that Respondent
Monroe Auto Equipment Co. (Monroe), had engaged in and is engag-
ing in certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. He also found that
Respondents Midwest Employers Council, Inc., and John E. Tate had
not engaged in certain unfair labor practices alleged in the complaint.
Thereafter, Respondent Monroe filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof. The Charging Party
filed exceptions to the Trial Examiner's Recommended Order dis-
missing the complaint with respect to Respondents Midwest Employ-
ers Council, Inc., and John E. Tate.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
153 NLRB No. 69.