Bermite Powder Co.

National Labor Relations Board - Board Decisions

Mar 14, 1946

66 N.L.R.B. 678 (N.L.R.B. 1946)

In the Matter of BERMrrE POWDER COMPANY and LOCAL 193, BUILDING
SERVICE EMPLOYEES ' INTERNATIONAL UNION, A. F. L.
Case No. ,°L1-C-2860.Decided March 14, 1946
DECISION
AND
ORDER
On May 22, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and that it had not engaged in certain other unfair labor practices,
and recommending that it' cease and desist from the unfair labor
practices found and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto, and that the
complaint be dismissed as to the remaining allegations. Thereafter,
the respondent and counsel for the Board filed exceptions to the
Intermediate Report and briefs in support of their exceptions.
The Board has reviewed the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs of the respondent and
counsel for the Board, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the exceptions, additions, and qualifications here-
inafter set forth.
1. We agree with the Trial Examiner's finding that the respondent,
by various acts and statements of its president, Patrick Lima,' of
Chief of Guards Johnny Percivalle,2 and of Lieutenant George
1 The respondent contends that Lizza 's speeches of October 6, 1943, upon which our
finding is , in part, based, were induced by certain allegedly false statements made by the
PWAU about the respondent in a handbill distributed by that organization to the re-
spondent ' s employees . However, it is clear, and we find, that in these speeches Lizza
made coercive statements and went far beyond an attempt to correct any misleading
statements in the union handbill.
2 Percivalle , at the time of the hearing herein , was in the Army and was not called
as a witness . However, the parties, by stipulation , accepted , in lieu of testimony,
various statements made by him in an affidavit executed prior to the hearing . In this
affidavit , Percivalle denied the anti -union statements attributed to him by guards Lind-
sey, Mace, Williams , and Wendt. On the record as a whole , however, we credit the
testimony of these employees as against Percivalle 's denials, as did the Trial Examiner.
With respect to Mace 's testimony that Percivalle told him that , "If I were you boys,
66 N. L . R. B., No. 93.
678
BERMITE POWDER COMPANY 679
LeBrun,3 as set forth in detail in the Intermediate Report, engaged
in unfair labor practices within the meaning of Section 8 (1) of
the Act .4
2. We agree with the Trial Examiner's conclusion that the dis-
charges of guards Lindsey, Williams, Wendt, Mace, and Berger
were discriminatory.
These five discharges were part of a general reduction in the re-
spondent's guard force, which took place on October 1 and 2, 1943,5
and which the respondent claims was made in compliance with in-
structions from the Safety and Security Branch of the War De-
partment. Although the somewhat contradictory evidence regarding
these instructions gives rise to a suspicion that the respondent itself,
for discriminatory reasons , may have initiated the idea of reducing
the number of its guards and solicited the approval of the War
Department therefor, the complaint does not allege, and, on the
record before us, we are not convinced, that the reduction was, in
itself, an unfair labor practice. However, for the reasons set forth
below, we agree with the Trial Examiner's finding that the re-
spondent's selection of the five above-named guards, all of whom
were union members, for discharge, was for the purpose of discourag-
ing membership in the Union and defeating the Union's effort to
bargain with it.
The respondent contends that the selection of the guards to be
I wouldn't organize until I find out whether I had a right to organize a union," we
note that Mace further testified that Percivalle later told them that be had found out
that they had a right to belong to a union . It is clear , however, and we find, that
such advice did not neutralize or dissipate the effect of the respondent's coercive conduct
as a whole.
3 According to Percivaile 's affidavit , the three lieutenants of the guard force, while
having no authority to discipline employees under their supervision , were "in complete
charge of their respective shifts" during his absence . LeBrun was the lieutenant in
charge of the night shift. Upon the record as a whole , we find that LeBrun was a
supervisory employee, was identified by the employees with management , and that the
respondent is therefore responsible for his anti -union activities.
In so finding, however, we place no reliance on employee Edgington 's testimony, as
set forth in Section III, A, 1, of the Intermediate Report, that Lizza told her that he
had heard that she was advising employees that they had to join the PWAU or they
could not work in the plant and that she was trying to force the employees to join the
PWAU, in view of her further testimony that he also told her that it was all right for
her to "talk union" but "not to do it on his time." Nor do we rely on the testimony of
Lindsey ( erroneously attributed to Mace in the Intermediate Report ) that Percivalle, in
discussing the reasons why Minor , a union member, had quit the respondent 's employ,
remarked that Minor , was "union crazy," particularly In view of Lindsey 's further
testimony that Percivalle , on the same occasion , stated that he was not against unions
and that "anybody that wants to belong to a union , it is their privilege."
The record shows that 12 guards were directly involved In this reduction , of whom
8 were union members . Although a document introduced in evidence indicates that guard
Harry Royse , another union member, was also discharged at this time , the testimony of
Board witnesses , which we credit, establishes that he left the respondent 's employ
voluntarily . The discriminatory nature of the discharge of only 5 of the 8 union mem-
bers has been litigated in this proceeding.
680 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD
discharged was left entirely to Chief of Guards Percivalle.6 Perci-
valle, in his afore-mentioned affidavit, stated generally that in de-
ciding which guards were to be discharged, he was guided primarily
by their ability to secure other employment, which , "meant the
younger men of course," but that he also took into account their
efficiency and attendance records.7 A comparison of the ages of the
guards who were selected for discharge with those of the guards
who were retained fails to establish that age was, in fact, a determin-
ing factor in making the selection, and the record fails to show why
the five guards involved in the present proceeding should have been
considered better able to secure other positions than were the guards
who were retained. Nor was any corroborative evidence introduced
to show that the efficiency or attendance records of the five guards
in question compared unfavorably with those of the guards who were
retained. On the contrary, according to Mace's uncontradicted testi-
mony, which we credit, Percivalle told him, at the time of, his dis-
charge, that he was a "good" employee, and Percivalle, in his affidavit,
admitted that Williams' work "compared well with the work of the
other guards." Further, the record discloses that Lindsey and Wil-
liams had both been promoted to the position of sergeant sometime
prior to their discharge.
The specific reasons given or suggested by Percivalle, in his affi-
davit, for the discharges of the five guards in question are also
unconvincing. Thus, Percivalle stated that he discharged Lindsey
because of a number of complaints that he was discourteous, but
there is no corroborative evidence in the record that such complaints
had been made or that Lindsey was in fact discourteous. The reason
given by Percivalle for Williams' discharge was that he had been
away from work a number of Sundays in order to participate in
rodeos. The record clearly shows, however, and we find, that on
all these occasions, Williams had obtained the respondent's per-
6 President Lizza 's testimony to this effect is supported by Percivalle 's statement, In
the affidavit referred to above, that "Mr. Lizza told me that I had complete authority to
make this decision , and I did not discuss the details of the decision or the names of
any of the men to be layed off with Mr . Lizza. " However, we agree with the Trial
Examiner that it is unlikely that Lizza, who, according to his own testimony , handled
practically all the important details at the plant , took no part in the selection of the
guards to be discharged . In addition to Mace ' s testimony that Percivalle , at the time of
the discharges , told him that he was "on the list to be laid off," and that be ( Percivalle)
had received the list from Lizza, Lindsey testified that Percivalle told him that "Pat
[Lizza ] told me to fire you or lay you off , and he is the boss," and Berger testified that
Percivalle told him that Percivalle "had nothing to do with this [the discharge] what-
ever." At the hearing , it was stipulated that if Percivalle were called as a witness, he
would deny the foregoing testimony of Mace, Lindsey, slid Berger. Upon the entire
record, we find that Percivalle consulted with Lizza before determining which guards
were to be discharged.
''No explanation of the basis for selection of th¢ guards to be discharged , other than,
that contained in Percivalle ' s affidavit, was offered by thq respondent . In the absence
of credible corroborative evidence , we do not, upon the record as a whole , credit the
various statements made by Percivalle in his affidavit.
BERMITL POWDER COMPANY 681
mission to be away. Mace, Berger, and Wendt, according to Perci-
valle, had violated a rule of the Auxiliary Military Police Manual
forbidding arguments among the guards with respect to wages,
hours, or working conditions. Percivalle further stated that "Lieu-
tenant LeBrun, John Frazier, Charlie Woodward, and possibly one
or two others" had complained to him that Mace had violated the
alleged rule and that LeBrun had told him that he thought there
might be "a battle in here [among the guards] from the way Mace
and certain others were talking about certain things." However,
no corroborative evidence was offered to show the existence of such
a rule. Also, except for some vague testimony by Lieutenant LeBrun8
that there was some "friction" among the guards in which Wendt,
Mace, and Lindsey were "more or less" involved, and that he
(LeBrun) had reported to Percivalle that "There is a little friction
among the guards" s and that they were "liable to have a little
trouble," there is no corroborative evidence of Percivalle's assertion
that the three employees in question had in fact violated any such
rule or that any complaints thereof were made to Percivalle. As
another reason for his decision to discharge Mace, Percivalle stated
that Mace had been unwilling to work on the graveyard shift; how-
ever, no corroborative evidence was offered in support of that
assertion.
That the five employees in question were selected for discharge
because of their union membership or activity is evidenced by the
combination of the following circumstances: (a) the absence of any
credible and convincing explanation by the respondent as to why
it selected them for discharge, as well as the fact that some of the
reasons which the respondent did assign for their selection are not
supported by the evidence; (b) the fact that all five of these guards
had seniority over a number of guards who were retained; 10 (c) the
respondent's hostility toward the unionization of its employees, in-
cluding the guards, as demonstrated by its other unfair labor prac-
tices; (d) the fact that all five of the guards in question were known
by the respondent, prior to their discharge, to be union members,
and that at least one of them, Mace, had been very active on behalf
8 LeBrun did not impress us nor the Trial Examiner as a very trustworthy witness
8 LeBrun, in his testimony , did not mention the violation of any rule , nor did he state
that he had reported to Percivalle the names of any of the guards who were involved
in the "friction "
10 'There is no evidence concerning the respondent 's policy with respect to the considera-
tion to be given to seniority in laying off employees, and Lindsey testified that Percivalle
told him, in connection with his discharge, that "seniority doesn't count." Nevertheless,
we note that , although strict seniority was not followed in the case of the four non-
union guards who were selected for discharge , three of the four had been in the re-
spondent 's employ less than 2 months ; that Lindsey , on the other hand , had been
employed for over a year , Williams for almost a year , and Mace, Wendt , and Berger for
over 6 months ; and that, as already indicated, the first last-mentioned guards had
seniority over a number of guards who were not discharged.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union and had been elected its shop steward; (e) Percivalle's
statement to Lindsey, about a month prior to the discharges, that
if the guards joined the Union, the Army would "take over" and
they would lose their positions; (f) Percivalle's remark to Mace
and some of the other guards, a few months prior to the discharges,
that "If I were you boys, I wouldn't organize until I find out
whether I had a right to organize a union"; (g) Lizza's interrogation
of Lindsey, a few days before the discharges, about the Union's
membership, and his remark to Lindsey, when the latter, while re-
fusing to name the union members, admitted that he was one of
them, that "that's all I want to know . . . I've been fighting
this union for six months . . . I don't want to hear anything
about the union"; (h) the fact that Williams, a few days before
the discharges, and at a time when Percivalle was complaining about
the fact that some of the guards had joined the Union while Perci-
valle was away on his vacation, told Percivalle that he (Williams)
was a union member; (i) the fact that Berger, about 2 weeks before
the discharges, admitted to LeBrun, when questioned by the latter,
that he had joined the Union; and (j) Percivalle's remarks to
Wendt a few days prior to the discharges, that he was sorry that
Wendt and the other guards had joined the Union during Percivalle's
absence from the plant, that "the boss was pretty mad about it,"
and that if anything "happened," Wendt was not to blame Percivalle.
3. We do not agree with the Trial Examiner's conclusion that
the respondent has not refused to bargain collectively with the Union,
within the meaning of Section 8 (5) of the Act.
On September 22, 1943, Ted Camp, a representative of the Union,
visited the respondent's plant for the purpose of presenting a pro-
posed contract covering the respondent's guards." He first attempted
to see Patrick Lizza, the respondent's president and general manager,
but was told that he was not at the plant. Camp then attempted
to see Hugo Lizza, the respondent's office manager, and Sam Hyman,
its personnel manager , but they refused to see him or to receive the
proposed contract. On the following day, September 23, Camp wrote
Patrick Lizza a letter, stating that the Union represented a majority
of the guards and expressing a desire for "immediate negotiations."
Accompanying the letter was a copy of the Union's proposed con-
"We agree with the Trial Examiner , and we find, that all guards of the respondent
at its plant on Mint Canyon Road , near Saugus , California, excluding the chief of guards
and the lieutenants of guards , at all times material herein constituted , and that they
now constitute , a unit appropriate for the purposes of collective bargaining , within the
meaning of Section 9 (b) of the Act. See Matter of Wilson f Co., Inc., 64 N. L. R. B.
1091 , and cases therein cited . We also And , as did the Trial Examiner , that on Septem-
ber 16 and 23, 1943, and at all times material thereafter , the Union was, and that it
now is, the exclusive representative of all the employees in said unit for the purposes of
collective bargaining , within the meaning of Section 9 (a) of the Act.
BERMITE POWDER COMPANY 683
tract. The respondent received this letter on September 27, 1943,
but made no reply.
Shortly after receiving the letter , Patrick Lizza called guard
Lindsey to his office and , referring to the fact that he had received
a letter from the Union asking him to sign a contract , questioned
Lindsey about the Union and its membership . During the course
of that conversation , Lizza remarked , "I've been fighting this union
for six months . . . I don 't want to hear anything about the
union ." On September 27, 28, and 29 , Chief of Guards Percivalle
expressed to a number of guards his displeasure over the fact that
some of them had joined the Union while he was away on his va-
cation , and stated to guard Wendt that "the boss was pretty mad
about it" and that if anything "happened ," Wendt was not to blame
Percivalle. On October 1 and 2, 1943 , the respondent , as found
above, discharged five guards because of their union membership or
activity.
On October 1, 1943, Harry Malcolm, a United States conciliator
whose services had been secured by the Union , called Patrick Lizza
and requested a conference . Lizza agreed , and the two met on
Saturday, October 2. Camp was present during part of the con-
ference . After Lizza admitted having received the Union 's letter
and proposed contract , Camp handed the Union 's membership cards
to Lizza . The latter , after examining the cards cursorily , remarked
that the Union evidently had a majority but that he "didn't want
to discuss it without his attorney being present ," and that if the
Union had a majority he would give it "a closed shop without any
trouble at all." At this conference , the discharge of the guards was
also discussed , and Lizza insisted that they had been discharged
because of "an order from the plant -protection military forces" to
reduce the force. Since Lizza refused to negotiate further with the
Union in the absence of the respondent 's attorney, it was agreed that
Lizza should get in touch with Pierson , the respondent 's attorney,
and have the latter communicate with Malcolm. Pursuant to this
agreement , Pierson, during the week of October 4 , attempted to reach
Malcolm by telephone . but was unable to do so because of Malcolm's
absence from the city ( Los Angeles ). Neither Pierson nor Lizza
made any attempt , in Malcolm 's absence , to communicate with Camp
or any other representative of the Union.
On October 6, Patrick Lizza made a series of speeches to the pro-
duction workers , in which , after making various anti -PWAU re-
marks, he stated that there never had been a contract in the re-
spondent 's plant and that there never would be one, and that the
plant would be "an open shop until the cows came home."
On October 8, Pierson , for personal reasons, left Los Angeles for
684 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD
San Francisco. On October 14, Malcolm telephoned Pierson at San
Francisco, and asked him what he "knew about the situation."
Pierson replied, "little or nothing." Malcolm then advised Pierson
that Camp had threatened to call a strike, and that it might be
averted by reinstating either Lindsey or Mace pending "these nego-
tiations." Patrick Lizza, on Pierson's recommendation, agreed to
this proposal. However, when Pierson reported Lizza's decision
to Malcolm and asked Malcolm to have Camp designate which of
the two employees he wanted reinstated, Malcolm told him that it
was "all off" and that "Camp says he wants either all of them or
none [reinstated]." Pierson thereupon told Malcolm that he would
return to Los Angeles on Saturday, October 16, instead of on October
18, as he had originally planned, and Pierson and Malcolm then
agreed to hold a conference in Los Angeles on the morning of
October 16. Malcolm notified Patrick Lizza of the scheduled con-
ference. Pierson, upon his arrival in Los Angeles on the morning
of October 16, telephoned Malcolm's office, but was unable to reach
him. Pierson advised Lizza of this fact and told him that he would
call Lizza when he could reach Malcolm and make a definite ap-
pointment for the holding of the conference. Lizza then advised
Pierson that he (Lizza) had to leave for Washington, D. C., late
that afternoon, on company business. Pierson was first able to reach
Malcolm during the afternoon, when he advised Malcolm about
Lizza's having to leave for Washington on business. During the
course of that conversation, Pierson suggested, and Malcolm agreed,
that Pierson and Malcolm meet during the early part of the follow-
ing week. Later the sanie day, however, Malcolm informed Pierson
that Camp had decided to file charges with the Board, and Pierson
replied that he (Pierson) "can't stop it" and that "any time Mr.
Camp and you and I can get together in Mr. Lizza's absence, I will
meet with you." So far as the record shows, no further request for
a conference was made by the Union, and no further meetings were
held.
Upon the entire record, we are convinced, and we find, that the
respondent, while going through the motions of attempting to confer
with the Union toward the end of the period discussed above, on
the whole plainly manifested an intention not to carry out, in good
faith, its statutory duty to bargain. The latter is evident from the
combination of the following facts and circumstances: (a) the anti-
union remarks of President Lizza, Chief of Guards Percivalle, and
Lieutenant LeBrun prior to the Union's request for bargaining;
(b) the refusal of the respondent's office manager and personnel
manager, on September 22, 1943, to see the union representative or
to receive the Union's proposed contract; (c) Lizza's statement to
BERMITE POWDER COMPANY 68S
guard Lindsey, shortly after Lizza received the Union's proposed
contract by mail on September 27, that he (Lizza) had been fighting
the Union for 6 months and did not want to hear anything about
it; (d) Percivalle's action, on or about September 27, 28, and 29,
in expressing to a number of guards his displeasure over the fact
that some of them had joined the Union during his absence, and
his statement to guard Wendt, on September 27, that he was sorry
that Wendt and the other guards had joined the Union while
Percivalle was away, that "the boss was pretty mad about it," and
that Wendt should not blame Percivalle if anything "happened";
(e) the respondent's failure to reply to the Union's request to bargain
from September 27, the date when it was received, to October 1, the
day when Malcolm called Lizza on the telephone and made an ap-
pointment for the following day; (f) the discriminatory discharges
of five guards on October 1 and 2; and (g) Lizza's speech to the
production workers on October 6, in which he indicated that there
would never be a union contract in the respondent's plant.
In view of all the foregoing, we find that the respondent, on and
after September 22, 1943, refused to bargain collectively with the
Union as the exclusive representative of its employees in an appro-
priate unit, within the meaning of Section 8 (5) of the Act, and
thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
THE REMEDY
Having found that the respondent violated Section S (1), (3), and
(5) of the Act, we must order the respondent, pursuant to the
mandate of Section 10 (c), to cease and desist therefrom. Our cease
and desist order is also predicated upon the following findings : The
respondent's illegal conduct discloses a purpose to defeat self-
organization and its objects among its employees. For example,
Patrick Lizza, the respondent's president, made derogatory remarks
to the production employees about the PWAU, threatened two of
its members with discharge if they did not discontinue their union
activities, and interrogated one of the guards about the Union and
its membership ; and Chief of Guards Percivalle and Lieutenant
LeBrun made anti-union remarks to members of the guard force.
Furthermore, the respondent discharged five employees because of
their activities in behalf of the Union. Such discrimination, in
the language of the Circuit Court of Appeals for the Fourth Circuit,
"goes to the very heart of the Act." 12 Finally, the respondent actually
is N. L. R. B v. Entwistle Manufacturing Co., 120 F. (2d) 532, 536 (C C A 4). See
also N. L. R
(C. C. A. 7).
B. v. Automotive Maintenance Machinery Co, 116 F (2d) 350, 353
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to bargain with the Union, although it was the duly desig-
nated representative of employees in an appropriate unit. Because
of the respondent's unlawful conduct and its underlying purpose,
we are convinced that the unfair labor practices found are per-
suasively related to the other unfair labor practices hereinafter
proscribed and that danger of their commission in the future is to
be anticipated from the respondent's conduct in the past i3 The
preventive purposes of the Act will be thwarted unless our order
is coextensive with the threat. In order therefore to make effective
the interdependent guarantees of Section 7, to prevent a recurrence
of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the
policies of the Act, we shall order the respondent to cease and desist
from in any manner infringing upon the rights guaranteed in Section
7 of the Act.
We shall order the respondent to take certain affirmative action
designed to effectuate the policies of the Act. We have found that
the respondent refused to bargain collectively with the Union as
the representative of the employees in the appropriate unit. We
shall therefore order the respondent, upon request, to bargain col-
lectively with the Union. We have found that the respondent selected
five named employees for discharge on a discriminatory basis. We
have also found that these discharges were part of a general re-
duction in the respondent's guard force, which general reduction
was not discriminatorily motivated. Under these circumstances,
sufficient positions may not be available for the five named employees
affected by the respondent's discrimination. We shall accordingly
order the respondent to reinstate the five named employees 14 in
the following manner : each employee shall be reinstated to the
position he occupied or would have occupied but for the respondent's
discrimination, or to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, the re-
spondent to dismiss, if necessary, all persons now employed in the
same or similar positions who were hired or rehired after the re-
spondent's discrimination on October 1 and 2, 1943; if, after dis-
missal of all such employees, there are insufficient positions for all
employees remaining, including those ordered reinstated, the avail-
19 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
14 The Trial Examiner failed to recommend that the respondent offer reinstatement to
Williams, one of the five employees herein found to have been discriminatorily dis-
charged. His failure to do so appears to have been induced by the erroneous assumption
that "Williams stated at the hearing that he would not accept reinstatement to his
former position with the respondent." At the hearing, Williams was asked whether he
would return to work for the respondent "in the production department," and he replied
that he would not. He was not asked whether he would accept reinstatement to his
former position as sergeant in the guard force. Since there is no showing that a posi-
tion in the production department is substantially equivalent to a position as a sergeant
in the guard force, we shall include Williams in our reinstatement order.
BERMITE POWDER COMPANY 687
able positions shall be distributed among all employees, without
discrimination against any employee because of his union member-
ship or activity, following such a system of seniority or other non-
discriminatory practice to such an extent as has heretofore been
applied in the conduct of the respondent's business; those employees,
if any, remaining after such distribution, for whom no employment
is immediately available, together with all the remaining employees
discharged on October 1 and 2, 1943, shall be placed on a preferential
list, with priority determined among them in accordance with such
system of seniority or other non-discriminatory procedure as has
been heretofore applied by the respondent -in the conduct of its
business, and thereafter, in accordance with such list, shall be offered
reinstatement to positions as provided above, as such employment
becomes available and before other persons are hired for such work.
We shall also order the respondent to make the five named em-
ployees whole for losses incurred because of the respondent's discrimi-
nation.16 It is possible that one or more of these five might have
been discharged in the general reduction of the guard force, even
if the respondent's selection had been made on a non-discriminatory
basis. This possibility will be taken into consideration in determining
the amount due to the employees in compliance with our order herein.
We also expressly reserve the right to modify the back-pay and
reinstatement provisions if made necessary by a change of conditions
in the future, and to make such supplements thereto as may here-
after become necessary in ,order to define or clarify their application
to a specific set of circumstances not now apparent.16
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Bermite Powders Company,
Saugus, California, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Local 193, Building Service Em-
ployees' International Union, affiliated with the American Federation
of Labor, or in any other labor organization, by discharging or re-
15 Since the Trial Examiner, in his Intermediate Report, did not recommend that
Williams be reinstated, we shall exclude from the back -pay award in his case the period
from the date of the Intermediate Report to the date of our Decision and Order. See
Matter of Virginia Electric and Power Company, 44 N. L. R. B. 404, enf 'd 132 F. (2d)
390 (C. C. A. 4), atf'd, 319 U. S. 533.
ae Matter of Fairmont Creamery Company, 64 N. L. R. B. 824 ; cf. N. L. R. B. v. New
York Merchandising Co., 134 F. ( 2d) 949 (C. C. A. 2) ; International Union v. Eagle
Picher Mining cE Smelting Co., 325 U. S. 335.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fusing to reinstate any of its employees, or by discriminating in any
other manner in regard to their lure or tenure of employment, or any
term or condition of their employment;
(b) Refusing to bargain collectively in respect to rates of pay,
wages, hours of employment, and other conditions of employment,
with Local 193, Building Service Employees' International Union,
affiliated with the American Federation of Labor, as the exclusive
representative of all its guards at its plant located on Mint Canyon
Road, near Saugus, California, excluding the chief of guards and
the lieutenants of guards;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 193, Building Service Em-
ployees' International Union, affiliated with the American Federation
of Labor, or Powder & Ammunition Workers Union, Division of
Local Union No. 598, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :17
(a) Upon request, bargain collectively in respect to rates of pay,
wages, hours of employment, and other conditions of employment,
with Local 193, Building Service Employees' International Union,
affiliated with the American Federation of Labor, as the exclusive
representative of all its guards at its plant located on Mint Canyon
Road, near Saugus, California, excluding the chief of guards and the
lieutenants of guards :
(b) Offer to Virgil Lindsey, Fred Wendt, Jesse Mace, John Berger,
and Kenneth Williams immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, in the manner set
forth in our Decision under the Section entitled "The Remedy," plac-
ing those employees for whom no employment is presently available,
together with all remaining employees discharged on October 1 and 2,
1943, on a preferential list and offering them employment as it .be-
comes available, in the manner therein set forth;
(c) Make whole Virgil Lindsey, Fred Wendt, Jesse Mace, and
John Berger for any loss of pay they may have suffered by reason of
the respondent's discrimination, by payment to each of them of a
17 The Board expressly reserves the right to modify the back-pay and reinstatement
provisions if made necessary by a change of circumstances in the future, and to make
such supplements thereto as may hereafter become necessary in order to define or clarify
their application to a specific set of circumstances not now appearing.
13VRMITE POWDER COMPANY 689
sum of money equal to the amount which he normally would have
earned as wages from the date of the respondent's discrimination
to the date of the respondent's offer of reinstatement or placement
upon a preferential list, less his net earnings during said period;
(d) Make whole Kenneth Williams for any loss of pay he may
have suffered by reason of the respondent's discrimination, by pay-
ment to him of a sum of money equal to the amount which he normally
would have earned as wages from the date of the respondent's dis-
crimination to the date of the Intermediate Report herein, and from
the date of the Decision and Order herein to the date of the respond-
ent's offer of reinstatement or placement upon a preferential list, less
his net earnings during said periods;18
(e) Post immediately at its plant located on Mint Canyon Road,
near Saugus, California, copies of the notice attached hereto, marked
"Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly signed
by the respondent's representative, be posted by the respondent imme-
diately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(f) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what step'
the respondent has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER
of the National Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, we hereby notify
our employees that :
IVE WILL NOT in any 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 Local 193, Building
Service Employees' International Union, affiliated with the
American Federation of Labor, or Powder & Ammunition
18 In determining the amount due under provisions ( c) and (d) of the order, consider-
ation shall be given to the possibility that one or more of the named employees might
have been discharged in the general reduction of the guard force , even if the respond-
ent's selection had been made-on a non -discriminatory basis.
686572-46---45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers Union, Division of Local Union No. 598, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination in the manner set
forth in the Board's Decision : Virgil Lindsey, Fred Wendt,
Jesse Mace, John Berger, and Kenneth Williams.
WE WILL BARGAIN collectively upon request with Local 193, Build-
ing Service Employees' International Union, affiliated with the
American Federation of Labor, as the exclusive representative of
all employees in the bargaining unit described herein with rer
spect to rates of pay, hours of employment or other conditions of
employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
all guards at our plant on Mint Canyon Road, near Saugus, Cali-
fornia, excluding the chief of guards and the lieutenants of
guards.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
BERMITE POWDER COMPANY,
Employer.
Dated .................... By ...........................
(Representative ) (Title)
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. George H. O'Brien, for the Board.
Pierson and Block , by Mr. Ralph K . Pierson, of Compton , Calif., for the
respondent.
Mr. John C. Steveson, of Los Angeles , Calif., for the Union.
BERMITE POWDER COMPANY
STATEMENT OF THE CASE
691
Upon an amended charge duly filed February 7, 1944, by Local 193, Building
Service Employees' International Union, affiliated with the American Federa-
tion of Labor, herein called the Union, the National Labor Relations board,
herein called the Board, by its Regional Director for the Twenty-first Region
(Los Angeles, California), issued its complaint dated February 7, 1944, against
Bermite Powder Company, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (5) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint and notice of hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in substance:
(1) that the respondent on or about October 1, 1943, discharged five employees'
and since that time had refused to reinstate them because of their membership
in and activity on behalf of the Union; (2) that (a) all the guards employed
by the respondent, exclusive of four supervisors, constitute a unit appropriate
for the purposes of collective bargaining, (b) that prior to September 23, 1943,
and at all times subsequent thereto, to and including the date of the complaint,
a majority of the employees in said unit had designated the Union as their
bargaining representative and by virtue thereof the Union, since September 23,
1943, has been the exclusive representative of all the employees in said unit
for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment and other conditions of employment; (3) that the
respondent from on or about September 23, 1943, to the date of the complaint
had refused and failed to bargain collectively with the Union in good faith
with respect to pay, wages, hours of employment and other conditions of
employment; (4) that the respondent through its President, Patrick Lizza, and
its agents Johnny Percivalle, George Le Brun, Wilfred B. Bunzell, and Robert
Wheeler, since on or about April 1, 1943, engaged in acts of interference,
restraint, and coercion;I and (5) by the acts described above the respondent
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
On or about February 16, 1944, the respondent filed its answer to the com-
plaint denying that it had engaged in the unfair labor practices alleged.
Pursuant to notice a hearing was held in Los Angeles, California, on Febru-
1 Virgil Lindsey, Kenneth Williams, Fred Wendt, Jesse M. Mace, and John J Berger.
8 The acts of the respondent alleged to have been committed by and through Lizza are
as follows: (a) advising employees in April and May 1943, that wage and other griev-
ances would be adjusted without the intercession of any union, (b) in June, August and
September, 1943, threatening to discharge certain employees if they did not cease their
activity on behalf of a labor organization affiliated with the Union; (c) in August
urging and persuading employees to renounce and repudiate a labor organization affili-
ated with the Union; (d) in September 1943 interrogating employees regarding their
union affiliation, expressing disapproval of and opposition to any union, threatening to
discharge union members , and stating that lie would never sign a union contract; (e) in
October 1943 vilifying union members and representatives, striking and injuring members
of an affiliated union, advising employees to use physical violence upon union members,
and reiterating his determination never to sign a union contract; and (f ) in September
1943 ridiculing and abusing certain employees upon observing union insignia on their
persons The actions of the respondent alleged to have been committed by and through
l'ei civalle are as follows : (a) during August 1943, warning employees that if the Union
became the bargaining agency , guards then employed would be discharged, and expressing
the opinion that interest in the Union was undesirable quality in a guard ; and (b)
about October 1 , 1943 , expressing disapproval of the guards having become members of
the Union.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 28, and from March 7 through March 11, 1944, before Peter F. Ward, the
Trial Examiner duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel and a representative appeared
for the Union. All participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded all parties. At the close of the Board's case
counsel for the Board moved, without objection, that the complaint be amended
in formal matters to conform to the proof. The motion was granted.
Following receipt of all evidence and testimony, counsel for the Board and
the respondent argued orally before the undersigned, and the arguments were
included in the official transcript of the proceedings. While the parties were
afforded an opportunity to file briefs with the undersigned, no briefs have been
received.
Upon the entire record in the case and from his observation of the witnesses-,
the undersigned makes, in addition to the above, the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a California corporation with its plant and principal office
located on Mint Canyon Road near Saugus, California. It is engaged in the
business of loading and assembling high explosive shells under contract with
the United States Navy. Raw materials, furnished by the United States Navy,
consist of shell casings, explosives, etcetera, valued in excess of $10,000 annu-
ally. More than 40 percent of such materials is shipped to the plant from
points outside of the State of California. The respondent, during 1943, manu-
factured and delivered to the United States Navy finished shells valued in
excess of $15,000, practically all of which were transported from the plant
to points outside the State of California. The respondent did not contest the
jurisdiction of the Board at the hearing.'
II. THE ORGANIZATION INVOLVED
Local 193, Building Service Employees' International Union, affiliated with
the American Federation of Labor, is a labor organization admitting to mem-
bership employees of the respondent
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Anti-union conduct and statements directed against the PWAU
and its members
While the respondent's plant began operations at its present location about
April 1942, there was no union organizational activity until March 1943. At
' The findings in this section are based upon a stipulation of the parties entered into at
the hearing , at which time it was announced that the figures included in the stipula-
tion , to wit: $10,000 and $15,000, were used instead of the exact valuation of the
materials , as such values were known only to the United States Navy
BERMITE POWDER COMPANY 693
this time Edgar E. Josephson undertook to organize the production and mainte-
nance employees of the respondent as members of the Powder and Ammunition
Workers, Local 598, herein called the PWAU.
Charlotte Howell, a production employee, joined the PWAU on or about
July 29, 1943,' and subsequently became its recording secretary. During the
latter part of June and before she had joined the PWAU, Patrick Lizza, the
respondent's president and general manager, in a low tone and in the presence
of Dolly Collins called Howell away from her job. Lizza told Howell that he
had heard that she was "agitating" his employees and causing a lot of trouble
over the PWAU, and that if she and "Red" (Mrs. Alma Robinson) did not
stop it, he was going to fire them. Howell denied that she was "agitating" the
employees, and stated that if they did not want to join "far be it from me to
try to convince them that they should." After the foregoing occurrence, Howell
returned to her job and told Collins what had occurred'
Mrs. Alma Robinson, a production worker, joined the PWAU in June. All
production employees wore identification badges while in the plant. Members
of the PWAU were issued union buttons which they also wore. During July
Lizza approached Robinson while she was engaged on the assembly line and
after noting that she wore both her identification badge and the PWAU button
stated: "Well, I see you have two badges.-I will give you another one with
a snake on it." Lizza added: "I think you would wear it if I did." Robinson
replied that she would wear anything Lizza brought to her.'
Sometime before October 6, Bessie Edgington was stopped by Lizza while
on her way to lunch. She was wearing her PWAU button and a stewardess
button. Lizza told her that "people" were telling him that she was advising
the employees that they had to join the PWAU or they could not work in the
plant and that she was trying to force the employees to join. Edgington denied
making the statements, adding: "this is a free country," and asked to be
"faced" with those making the charges. Lizza warned Edgington "not to talk
union on his time."' The record contains no evidence that Edgington had
solicited membership for her union during working hours and her denial that
she had done the things attributed to her by Lizza is credited by the
undersigned.
During August, after returning from a trip to Washington, D. C., Lizza
assembled the day and swing shifts in front of the plant cafeteria where he
spoke to them from a truck. At the outset of his speech, which he read, he
stated in substance that while he was in the East he had made a comparison
between the respondent's plant and others making 20 MM shells to see whether
or not the Bermite plant was in line with such other plants with respect to
production, wages, hours, and working conditions. He stated that hours were
about the same, that women at the Bermite plant received more pay, and that
general working conditions at Bermite were above the average of other plants.
A Unless otherwise specified all events related herein occurred in 1943
5 These findings are based upon the credible testimony of Howell and Collins. For
reasons discussed below Lizza's denial that he made these remarks is not credited by
the undersigned.
These findings are based on the credible testimony of Robinson and Collins . Lizza's
denial that he made these statements is not credited by the undersigned. As noted
hereinafter, Lizza expressed unmistakeable hostility toward outside labor organizations
in at least two speeches which he admitted making to assemblages of his employees. It
is reasonable to believe that Lizza would not hesitate to make remarks to individual
employees and express similar antipathy toward their union activity . The undersigned is
unable to accept, as true, Lizza's testimony wherein he denies making anti -union state-
ments attributed to him by various employees.
7 This finding is based on Edgington's testimony See footnote next above.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"We," he declared , are more liberal in giving and paying overtime than any
other 20 MM plants and gave longer rest periods than the "International"
(makers of 20 MM shells ). He also informed the employees that he had
received authorization to build 50 more houses for employees in addition to
the 50 then under construction. He explained his plans for a proposed recrea-
tion hall which was to include bowling alleys , billiard tables, lunch counter,
soda fountain and card tables . He then stated :
You have been bombarded from time to time by outside propaganda in
the nature of PWAU bulletins and up until this time I have never said
anything to you about this propaganda.
In fact I have never got you together to talk to you for the past three
months. Something recently happened though that hurt me very, very
much and it was something that is contained in the propaganda that is
being put out to you people . I had a very hard trip both going and coming
from Washington. While some of you may think it is lots of fun to take
those trips let me tell you that It isn't any at all under present traveling
conditions. I was just about sick when I got back home and the only thing
that kept me going was the fact that Washington was so pleased with what
we were doing out here, and that I had gotten another contract so that
there would be work for all of us, and I was so happy to pass this informa-
tion along to all of you that I could hardly wait to get back to tell you.
I was terribly disappointed, however, to learn on my return that this
propaganda , which is being put out to you, among other things contained
the following statement : "The company has taken advantage of you
people long enough , it Is time that you take action to protect yourself
from some of the unwarranted conditions under which the company forces
you to work. You cannot reasonably be expected as American workers
to reach your maximum production under conditions as those at the
Bermite Powder Company ." This bulletin , or hand bill , then goes on to
say : "We are wholly and totally interested in seeing that the Production
of Bermite Powder Company reaches its maximum . It cannot reach its
maximum as long as these conditions exist . You, as American workers,
have a right under the Wagner Labor Act to bargain collectively with the
Company in order to rectify these conditions and thereby increase your
production." I would like to ask you when either the Bermite Powder
Company or myself has ever taken advantage of you people . What are
the unwarranted conditions that I am forcing you to work under? Why,
as American workers, under the present conditions existing In Bermite
Powder Company can you not reach your maximum production? I want
you to know that this statement contained in the bulletin which was put
out to all of you people, as you left this plant really makes me feel awfully
sad and hurts me very much. I always done my very best for you people
and we have always gotten along and if left alone we will continue to get
along. These people say that they are only Interested in seeing that the
production of Bermite Powder Company reaches its maximum. If that is
true, why is it that they put in a bulletin such statements that they do,
such as the company has been taking advantage of you people when they
know that such is not the fact? Forgetting now (sic) what contained in
the bulletin and just as among friends, between you and me, let's discuss
this situation fairly and honestly and see what the truth is. You know
and I know that the working conditions at the Bermite Powder Company
are not unwarranted . You know that you can come to me at any time
and discuss with me as you often times do, day in and day out, either in
groups or as individuals, any problems that concern the welfare either of
BERMITE POWDER COMPANY 695
the employees or this company. The only thing that we could do to make
our conditions better than what they are, would be to pay you your
salaries or your wages and ask you not to do any work at all.
But you people know, as Americans and as American workers and
employees of the Bermite Powder Company that we can't win the war
that way, we can't win the Army and Navy E award and keep it by laying
down on the Job. These people say that they want to take everything
before the National Labor Relations Board. Well, they have a perfect
right to do that if they want to do it, but on the other hand, as long as
things are running along here in a smooth and normal way, why should
they by false propaganda attempt to put the company in a bad light with
you people? I have always told you that the extra shell we build today
may be the shell that knocks down a Jap plane tomorrow. Why not build
the extra shell if we can? Let 's disregard all the rumors and outside talk
out of the plant. Let's go back where we always have been. Just one
big family trying to help each other and trying to get a job done for our
country and for our boys who are fighting for us and giving their lives.
without any of us laying down on the fob, or stirring up any trouble among
themselves or putting out any false propaganda" concerning each other.
(Emphasis added.)
In order that the employees might hear the above speech the swing shift was
called to the plant an hour early and the day shift was excused an hour
earlier than usual. The record indicates that the day shift was paid for the
hour not worked.
As discussed more fully below, a majority of the respondent's guards had
Joined the Union on or about September 22, on which date its representatives
attempted without success to contact Lizza, his son Hugo Lizza, and Personnel
Manager Hymen. On September 23 the Union mailed a copy of a proposed
contract together with a letter in which it claimed a majority of the guards
as members. On or about October 1 the PWAU issued a handbill headed "IT
HAS BEEN DONE ! ! !" °
e The record contains no evidence that the "propaganda" was, in fact , false.
° The text of the handbill was as follows :
NEWHALL, CALIF. BERMITE POWDER WORKERS VOICE OCTOBER 1, 1943
FOR THE ENLIGHTENMENT OF THOSE OF THE BERMITE WORKERS WHO
WERE NOT BENEFITED BY THE RECENT SIGNING BY MR LIZZA OF THE
CLOSED SHOP AGREEMENTS, WE HAVE DECIDED TO LET YOU KNOW JUST
WHAT HAS BEEN DONE FOR THEM. FOR THE WORKERS OF THE "MAIN-
TENANCE DEPARTMENT", WHO WERE WORKING ON A WAGE SCALE RANG-
ING BETWEEN NINETY CENTS AND ONE DOLLAR, (DEPENDING OF COURSE,
ON WHO THEY WERE), WE ARE HAPPY TO REPORT AN INCREASE ON THE
NEW PROPOSAL TO ONE DOLLAR AND TWENTY-FIVE CENTS, ($ 1 25). THE
TERM "MAINTENANCE" COVERS ALL MEN WHO WORK AT THE VARIOUS
CRAFTS AND SKILLS WITHIN THE PLANT, SUCH AS CARPENTERS, ELEC-
TRICIANS, ETC.
IN THE CONSTRUCTION WORK THAT IS GOING ON WITHIN THE BERMITE
PROPERTY LIMITS, THE CARPENTERS WHO HAVE BEEN DRAWING ONE
DOLLAR PER HOUR, WILL UNDER THE NEW AGREEMENT, COMMAND A
WAGE OF ONE DOLLAR AND THIRTY-FIVE CENTS PER HOUR ($1.35). THIS
IS QUITE AN INCREASE, AND THEY WILL BE ABLE TO BUY A GREAT MANY
MORE "WAR BONDS", AND THUS HELP TO SWELL BERMITE'S ENVIOUS
HONOR ROLL. THE ELECTRICIANS OF THE CONSTRUCTION DEPARTMENT
WHO HAVE BEEN WORKING FOR ONE DOLLAR AND FIFTY CENTS PER
HOUR, WILL UNDER THE NEW PROPOSAL BE ENTITLED TO ONE DOLLAR
AND SEVENTY CENTS PER HOUR, ($1.70).
THE GUARDS, WHO ARE PROBABLY A GREAT DEAL CLOSER TO THE BER-
MITE PRODUCTION WORKER THAN THE CONSTRUCTION WORK, HAVE A
CONTRACT BEFORE MR . LIZZA AT THIS TIME, WHEREIN, THEY WILL BE
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 6, Lizza made a series of eight speeches to the production
employees in different departments of the plant as follows : three speeches
to separate groups on the day shift, three speeches to separate groups on the
"swing" shift , and two speeches to separate groups on the night or "graveyard"
shift. Lizza testified that the eight speeches were occasioned by the PWAU's
handbill , and by the fact that a "rumor" had been going around one or two
days before the speeches, and stated further:
I didn't see the importance of making a speech until I found out that they
were really getting worse in the department. I had to settle their minds
to the correct position of our plant, to tell them we didn't have such an
agreement.
Lizza was angry when he made one speech in the assembly room. Prior
to this meeting he had an altercation with employees Howell and Collins which
resulted in a police court prosecution against him on charges filed by them.
Lizza was acquitted.'" Lizza, in his speech, stated in substance that he had
made so many talks "about the God damn union" that he had almost lost his
voice ; that those who belonged to the PWAU were insects and he had brought
"stuff" to shoot them with ; that if PWAU members said anythng to the others
that the latter did not like "to sock them in the jaw" for he was behind them
one hundred percent; that the PWAU in stating that he had signed a closed-
shop contract with them were telling lies ; that he would never sign any con-
tracts "until the cows come home" ; that there had never been a contract in
the plant and never would be one; that the PWAU members could go outside
the gate and howl out there, and "They couldn't talk union inside." "
At another speech made the same night Lizza stated in substance that people
were telling lies around there and he did not like it; that if anybody heard
another person telling lies to come to him "and they would go out the gate
and go out for good." Lizza added that he would "go out the gate" with the
BENEFITED QUITE MATERIALLY, HAVING THEIR WAGES FIGURED ON AN
HOURLY BASIS, AT A SUBSTANTIAL INCREASE, RATHER THAN ON A
MONTHLY BASIS, AS HAS BEEN THE PRACTICE IN THE PAST.
IT HAS BEEN DONE ! ! ! YOU PEOPLE ARE THE JUDGES OF THAT, AND
NOW IT IS YOUR MOVE! ' ! WHAT ARE YOU WAITING FOR? ? ? ? ?
Issued by
POWDER & AMMUNITION WORKERS UNION
DIVISION OF LOCAL UNION NO. 598
10A transcript of the police court proceedings, consisting of three hundred pages was,
by stipulation of the parties, introduced as evidence herein. The undersigned has read
and considered such transcript. The police court record did not reveal that Howell had
theretofore been reprimanded by Lizza for union activity and did not disclose other facts
in connection with the PWAU's attempt to organize the production workers. While
the record herein and the police court record in evidence herein will not support a find-
Ing that Lizza struck and injured members of the PWAU, as alleged In the complaint,
such records do disclose that Howell and Collins did not approach the meeting place as
rapidly as Lizza desired, with the result that he became angry at and greatly displeased
with them.
II These findings are based upon the credible testimony of Collins, Bessie Edgington, and
Howell . Lizza 's categorical denial is not credited by the undersigned. Ile did admit
that on one occasion in June he had used the "cows come home" expression Otherwise
he denied each and all anti-union statements and conduct attributed to him by Board
witnesses . Several production employees testified on behalf of the respondent to the
effect that all Lizza had said in his October 6 speeches was that he had not signed a
closed-shop contract with the PWAU and that the employees weie fiee to join or not
to join the PWAU. With reference to the anti-union statements testified to by Board
witnesses , some of the respondent witnesses testified that such statements had not been
made, that they had not heard them, or did not remember having heard them While
Lizza emphatically denied stating that he would never sign a union contract a iespond-
ent witness testified that he stated " . that he had not signed and wasn't figuiing on
signing . . . ( any agreement),"
BERMITE POWDER COMPANY 697
people that did not want to join the Union. Also on this occasion Lizza stated
that "people" were saying that the plant would have a closed shop, but that
it would be "an open shop until the cows come home." The employees at this
meeting were told they were free to join the Union if they desired to"
Lizza in his speeches on October 6 implied that the PWAU bulletin stated
that he had signed a closed-shop agreement with the PWAU, and that all
statements in the bulletin were false.
The bulletin, however, plainly referred not to the production workers who
were eligible to membership in the PWAU but to crafts composed of carpenters
and electricians, part of whom at least were employed by the respondent in
the erection of a housing project on its property. According to Lizza, construc-
tion of the house project was "contracted" by one Clarence DeWitt. Also
according to Lizza, DeWitt hired and fired all employees on the house project
and, he admited, "It is possible he had signed a contract with an organization."
(Italics added.) While the PWAU bulletin referred to employees working on
the housing project, Lizza admittedly made no reference to such employees
in his October 6 speeches. He also admitted that the Guards' Union had, as
was stated in the bulletin, submitted a proposed contract to the respondent.
The PWAU bulletin stated that the carpenters and electricians employed in
the plant had received a wage increase from $.90 and $1.00 per hour to $125
per hour ; that housing carpenters were raised from $1.00 to $1.35 per hour,
and that the housing electricians were raised from $1.50 to $1.70 per hour.
The record contains no evidence that the increases claimed had not in fact
been made.
The respondent offered no evidence to show that statements appearing in
the PWAU bulletin were false, or that their issuance required, in the interest
of employee relationship, any refutation or speeches by Lizza. The undersigned
is convinced and finds that they were made for the purpose of discouraging
membership in the PWAU.
2 Conclusions as to interference, restraint, and coercion against production
and maintenance employees
The undersigned finds that the PWAU began to organize the production and
maintenance employees in March 1943, and by July 1 had gained some members.
Lizza learned of the PWAU attempt and took immediate steps to counteract
it. In June he learned of Howell's interest and activity in the PWAU before
she had actually joined it, accused her of "agitating" the employees, and
threatened to discharge her and Robinson if they did not stop causing trouble
over the PWAU. In July he noted that Robinson wore a PWAU button in
addition to her identification badge and told her he would give her another
button to wear with a snake on it, which he stated he thought she would wear.
He unwarrantedly accused Edgington, who wore a PWAU and a stewardess
button of attempting to force employees to join the PWAU. During August
he made a speech" in which he characterized the PWAU bulletins as "outside
2 These findings are based on the credible testimony of Geraldine Smith. Other than
the statement that the employees were free to join th Union if they so desired and the
fact that he stated that the plant was to be run as an open one, Lizza categorically
denied the above statements . Such denials are not credited by the undersigned, for
reasons set forth above.
28 Lizza delivered a speech to the employees prior to June 26, in connection with a cele-
bration to be had on June 26, at which time the respondent was awarded the "Army-
Navy 'E' award". In this speech Lizza stated in substance that he would furnish
certain identification badges to be used for admission to certain picnic grounds without
payment of fees and dues , as was required by PWAU. In all the circumstances the
undersigned is convinced that whatever Lizza said on this occasion was said In a spirit
of levity.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propaganda" ; promised to erect additional houses ; described plans for a pro-
posed recreation hall with many facilities ; expressed disappointment on learn-
ing of the PWAU bulletin and certain statements contained therein; advised
the employees that he had always done his very best for them; and stated that
they had always gotten along "and if left alone we will continue to get along."
(Emphasis added.)
The contents of the October 6 speeches made by Lizza have been detailed
and described above.
The undersigned finds that by the totality of the anti-union conduct and
statements of President and General Manager Lizza, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B Other acts of interference, restraint, and coercion ; the discriminatory
discharges of five employees
1. Anti-union conduct and statements by officials and supervisors
During 1943 guards employed by the respondent worked in three shifts under
the supervision of Johnny Percivalle as Chief or Captain, with Lt. Wilfred
Brunzell in charge of the day shift, Lt. Robert Wheeler in charge of the swing
shift, and Lt. George Le Brun in charge of the night shift.
During May a number of guards went to the PWAU headquarters and
requested "affiliation" with that organization. Since the PWAU had no juris-
diction over guards, they were referred to Ted Camp, Business Agent of the
Union. Between May 26 and August 2 eight guards joined the Union.
About May 15 Percivalle discussed the Union with Jesse M. Mace whose
discriminatory discharge is discussed below, and two other guards. Percivalle
said he understood that the guards were organizing or starting to organize
a union. He added : "If I were you boys, I wouldn't organize until I find
out whether I (sic) had a right to organize a union." Mace and the other
guards agreed to wait until Percivalle "found out." Subsequently Percivalle
advised some of the guards that he had found out that they had a right to
belong to a union."
James M. Minor, one of the first two guards to join the Union, left the
respondent's employ on July 31. During August and subsequent to his leaving
a number of guards were discussing the reason why he had quit, whereupon
Percivalle stated: "You know what is the matter with Jim Minor. He Is
uni5.n crazy." On this occasion Percivalle also stated that he was not against
unions and added : "Anybody that wants to belong to a union, it is their own
privilege." 16
A few days before September 4 Percivalle asked Virgil Lindsey, whose
discriminatory discharge is found below, if he was a union man. Lindsey,
who had not joined the Union at that time, replied that he would join the
1' This finding is based upon Mace's credible testimony. Percivalle was In the Armed
Service at the time of the hearing and was not a witness. However, by stipulation of
the parties Percivalle's affidavit was received in evidence. The affidavit indicates that
Percivalle had been advised of most of the statements and conduct attributed to him
in connection herewith and he was given an opportunity to state his version or deny
any of such statements or conduct . He denied making the above statement. For
reasons detailed In connection with the discharges below the undersigned does not credit
his denials.
1R This finding Is based on Mace's credible testimony. Percivalle did not refer to such
statement In his affidavit . Percivalle 's anti-union bias Is discussed below in connee-
tion with the discharge of Mace.
BERMITE POWDER COMPANY 699
Union if he thought, after investigating it and attending meetings , that "it
would do any good." Percivalle then stated : "You know what will happen
if you join the union.-The Army will take over and it will mean that all
you boys will lose your jobs. It will be under Army jurisdiction." Lindsey
then asked whether it would make any difference to Percivalle if he belonged
to the Union. Percivalle replied : "No not at all, every man to his own
privilege." 16
Percivalle was away from the plant on vacation from September 11 to 27.
At the time he left nine of the guards were members of the Union." Between
September 13 and 27, 11 additional guards joined the Union. By September 22,
19 guards belonged to the Union and by September 27, 20 were union members.
Thirty-seven guards , exclusive of the three supervising Lieutenants, were on
the pay roll for the September 15 to October 1 period.
On September 22, Ted Camp, business agent for the Union, accompanied by
Josephson, PWAU organizer, called at the respondent's plant and informed
the guard at the gate that he had a proposed contract to submit to Lizza, and
wished to present it in person . After telephoning the office the guard advised
Camp and Josephson that Lizza was not at the plant. Camp then asked the
guard to telephone Hugo Lizza, the respondent's office manager, for an appoint-
ment. The guard reported that Hugo Lizza said he was too busy to see them
and refused to accept the proposed contract. Camp and Josephson then asked
to see Personnel Manager Hyman, who sent word through the gate that he
would not meet the callers because he felt that "that was not his business."
On September 23 Camp mailed the proposed contract to Lizza by registered
mail, together with a letter stating in part that a majority of the Plant Pro-
tection Workers employed by the respondent had joined the Union , and if the
respondent wanted a "certificate of proof" the Union would "concede an imme-
diate election" by the Board ; and requested that immediate negotiations be
entered into.
John J. Berger joined the Union on September 15, during Percivalle's vaca-
tion. Some 2 or 3 days later Perger met Lt. Le Brun, who had charge of the
night shift, at a restaurant. Le Brun asked him, "Well, did you join the Union
too?" When Berger replied in the affirmative. Le Brun stated: " I will never
join a union if I have to keep a job as long as I live." 1H
On or about September 25, Lizza called Lindsey to the former' s office and
asked him: "What is this I hear about this Union?" Lindsey replied: "I
don't know, Pat, but whatever you heard its probably true." Lizza then con-
tinued : "I got a letter wanting me to sign a contract.-The letter states that
the biggest majority of men belong to the Union.-I believe they are bluffing."
Lindsey replied that the Union was not bluffing and that "the biggest majority
does belong to the Union." Lizza then reminded Lindsey that the latter was an
"old man" (in service with the respondent). in whom he had always had
confidence and had always found that what Lindsey said was true. Lizza
is This finding is based upon the credible and uncontradicted testimony of Lindsey
While Percivalle, in his affidavit, denied most of the statements and acts attributed to
him by Board witnesses herein, his affidavit made no refeience to the above statements
In the light of the entire record and Lindsey's credibility the undersigned is convinced
that Percivalle made the statement substantially as found above
1T Four union members had theretofore voluntarily quit their jobs and one other union
member quit on September 15.
i5 These findings are based upon Berger's credible testimony Le Brun admitted that
he had met Berger in the restaurant several times and stated that he could not remem-
ber what he and Berger had discussed, but was sure he did not discuss the Union. The
undersigned does not credit his denial and believes that Le Brun indicated his dis-
approval of the Union as found above.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Lindsey to tell him "who these men are who belonged to the union."
Lindsey refused to name the union members "-unless it is agreeable with
the men," and added : "but I am one of them and here is my button ." Lizza
responded by saying "that's all I want to know. I've been fighting this union
for six months,-I don't want to hear anything about the Union." 11
Percivalle returned from his vacation on September 27. Within a day or
two thereafter he expressed displeasure to a number of the guards because
some of them had joined the Union in his absence, stating: "I understand
a bunch of my guards have joined the Union." Guard Kenneth Williams who
was present, replied : "I guess so, most of them." Percivalle then stated :
"I don't mind that, but I hate for them to take advantage of me and join
while I was on my vacation." Williams, who had joined the Union on Sep-
tember 4, informed Percivalle that he had belonged "before you left." IA
On the day he returned to work after his vacation, Percivalle noticed that
Fred H. Wendt was wearing a union button, and said, "Well, I see you done
it too " Percivalle added that he was sorry it had happened in his absence,
that the "boss was pretty mad about it," and if anything happened Wendt was
not to blame him. Wendt's discriminatory discharge is discussed below.
Percivalle asked Wendt if any of the others "on top of the hill" had joined.
Wendt replied in the affirmative and named Royse, Harding, Boilier and
Ireland 21
2. Conclusions as to interference, restraint , and coercion
The undersigned finds that the respondent, by the above-described anti-union
conduct and statements of President Lizza, chief of guards Percivalle, and
night supervisor of guards Le Brun , has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act
3. The discriminatory discharges of five guards
The complaint alleged in substance that on or about October 1, 1943, the
respondent discharged Kenneth Williams, Virgil Lindsey, Jesse M. Mace, Fred
"These findings are based on Lindsey 's credible testimony. Lizza categorically denied
all of Lindsey 's testimony in this connection . Although Lindsey had been in the respond-
ent's employ for more than a year Lizza testified : "I didn 't have any conversation with
Mr. Lindsey of any kind regarding a union or nothing else . I never talked to him."
Lindsey impressed the undersigned as a trustworthy witness who wished only to answer
truthfully questions put to him . At the time Lindsey talked with Lizza , the Union had
a majority of the guards as members ; it had sent a letter to Lizza with a proposed
contract , and a claim of a majority , and there is nothing in the record to indicate that
Lindsey had received such information from the union officials Lindsey joined the
Union on September 4, and it is undisputed that he wore his union button From the
above and the record in its entirety , the undersigned does not credit Lizza's denials and
is convinced that he made the statements substantially as found above.
20 These findings are based on the testimony of Williams who had been employed since
December 1, 1942, and was later made a sergeant . Arthur Brown and Louis B. Taylor,
employed as guards , testified that they did not "recall" Percivalle making the above
statements . Percivalle in his affidavit likewise stated that he did not "recall" making
such statements . The undersigned credits Williams ' positive testimony in this connection
and is convinced that Percivalle made the statements substantially as found above.
n These findings are based on Wendt's credible testimony . Percivalle in his affidavit
denied having discussed the Union with Wendt either before or after his vacation. The
undersigned considers it is unlikely that Pereivalle would express his displeasure to
Williams because some 10 or 11 guards joined the Union during his absence and then
refrain from mentioning his displeasure to Wendt, who was one of those who joined the
Union during his absence. The undersigned is convinced that Percivalle made the above
statement to Wendt, substantially as found above.
BERMITE POWDER COMPANY 701
11 Wendt, and John J. Berger and thereafter refused to reinstate them because
of their membership in and activities on behalf of the Union. The respondent's
answer denied the allegations. •
(a) Events leading up to the discharge
As found and described above, the Union began to organize the guards in
May 1943 . By September 1 the Union had made a net gain of but 7 members"
among the guards. Between September 1 and 4, 4 additional guards joined,
making a total of 11. During September 13, 14, and 15, 21 9 more guards
joined the Union and 1 union member resigned on September 15. Thus on
and after September 16, the Union had 19 members out of a total of 37,
or a majority.
When Percivalle returned from his vacation on September 27 he learned that
a number of the guards had joined the Union and expressed his displeasure
with some of them for taking such action during his absence.
On October 1, the respondent posted a memorandum on the bulletin board
to the effect that it had received "an approval to reduce our guard force to
approximately 24 men." On October 1 and 2, the respondent , acting through
Iercivalle, discharged 13 guards.
(b) Guards selected for discharge who are claimants herein
Nine of the 13 guards thus discharged were union members ; 4 were not. Two
of the non-union guards discharged were the last 2 employed by the respond-
ent, their dates of hiring being September 1 and September 13, 1943. The
original charge named 7 of the 9 union members as having been allegedly
discriminated against; the complaint names but 5. Although, as noted below,
the evidence might warrant the inference that all 9 union members were
selected for lay-off because of union membership and activity, the undersigned
considers it necessary here to consider only the cases of the individuals named
in the complaint.
Kenneth Williams: Williams was employed on November 15, 1942. He was
later promoted to sergeant, and put in charge of a shift on Sundays in the
absence of lieutenants. At the time of his discharge Williams was No. 12 on
the seniority list. Twelve employees were retained who had less seniority than
he. He testified at the hearing that he does not desire reinstatement by the
respondent.
Virgil D. Lindsey: Lindsey was employed on July 28, 1942. He was there-
after promoted to sergeant. Lindsey was No. 6 on the seniority list ; 18
employees with less seniority were retained at the time of his discharge.
Jesse M. Mace: Mace was employed March 11, 1943, having been induced
to leave his employment as a detective with the Southern Pacific Railroad to
work for the respondent by personnel manager Hyman. Mace was No. 19 on
the seniority list; eight guards with less seniority were retained when he was
discharged.
Fred H. Wendt: Wendt was employed March 1, 1943. At the time of his
discharge Wendt was No. 18 on the seniority list ; eight men with less seniority
were retained.
John J. Berger: Berger was employed March 15, 1943. At the time of his
22 Three union members had left their jobs on and before August 1.
0 It is noted that these dates are included in the time covering Percivalle's vacation.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge he was No. 20 on the seniority list ; eight guards with less seniority
were retained.
Mace was the most active of the five guards above named in organizing the
Union. He joined the organization early in June, and between then and his
discharge obtained membership applications from nine other guards. As noted
above, Mace discussed organization of the Union with Percivalle as early as
May 1943 _As noted below, in his affidavit Percivalle admitted that he con-
sidered Mace to be the leader in arguments relative to wages and working
conditions. When discharged, Mace asked Percivalle why he had been selected.
The Chief replied, "Mace, you are a good man, but you are on the list to be
laid off." Upon being asked where he got the list, Percivalle replied, "From
Pat (Lizza)." As found above, Lindsey was questioned about his union mem-
bership by Lizza on September 25 and asked to reveal the names of others.
A day or two after Percivalle's return from his vacation, as noted above,
Williams informed Percivalle that he had joined the Union before his vacation,
at a time when the Chief was complaining that his guards had taken advantage
of him by joining while he was away. At about the same time, as found
above, Percivalle coinmented upon the union button being worn by Wendt, and
remarked that the "boss was pretty mad about it." Also as found above,
during Percivalle's vacation Lt. Le Brun asked Berger if he had joined the
Union, and the latter admitted that he had.
The undersigned concludes and finds that the respondent had knowledge of
the union membership and activity of each of the five above-named guards at
the time selection was made for the discharges.
(c) The respondent's contentions and testimony as to the discharges
Lizza testified that on or about September 11, Jack Walters, Inspector for
the Safety and Security Branch of the War Department , San Francisco Region,
and W. S. Codd, Security Auditor for the same division , visited at the respond-
ent's plant. Walters testified in substance that he and Codd went to the plant
at that time because he had instructions to have the guard force reduced 25
to 30 percent ; that he and Codd instructed Percivalle to draw up a schedule
of his guard force "and then within a reasonable time reduce the force at least
25 percent and if possible 30 percent"; that he knew Percivalle was going on
his vacation on that date, September 11; that he returned to the plant on
September 22 or 23, at which time he asked Lizza what action had been taken
on prior instructions to reduce the guard force; that Lizza advised him the
matter was entirely in Percivalle 's hands and that Percivalle was on his vaca-
tion and that Lizza did not want to interfere with such plans ; and that Perci-
valle would return the following Monday (September 27) "and that immediate
action would be taken then."
In connection with Walter's visit to the plant on September 22 or 23, as was
claimed by both Walters and Lizza, the latter testified :
Q. (By Mr. Pierson) Did you give your son Hugo any instructions in
connection with that subject matter?
A. Yes, the very same day Mr. Walters was there I told my son Hugo
Lizza that we had to make this reduction. My son is my assistant in the
office.
He then suggested a letter should be written to the office in San Francisco.
Ile said, "Daddy, you should have an official letter from Mr . Knott which
is the head of the office in San Francisco , and have this letter on file in
BERMITE POWDER COMPANY 703
case there might be questions in the future that we do not have enough
guards in our plant . Then you have just Mr . Walters' and Mr . Codd's
word . You don't have anything to show it was a directive that came
through the office, stating that you had to make this reduction."
So I said to him at the time, "Well , then go right ahead and write
a letter to Mr. Knott in San Francisco at the Plant Security Office and
ask Mr. Knott if this is official. We would like to have a reply as quick
as we can get one because this reduction has to be made in a short while."
So my son wrote the letter and he told me the letter was in the mail, by
air mail, that same night-that same afternoon, rather , I talked to him.
And that is the conversation I had with Hugo.
Then I think we received a reply to that , stating that the recommendation
by Mr. Codd and Mr. Walters was correct.
While the foregoing would seem to indicate that the Security Division took
the initiative in, and "ordered" the respondent to reduce its guard force, suc-
ceeding events and testimony do not support such contention. The letters
referred to above, by Lizza, are as follows :
Office of the Chief of Ordnance September 24, 1943
Safety & Security Branch
100 McAllister Street
San Francisco , California
Attention : Mr. Jack Walters
Subject: Plant Guard Personnel
Gentlemen :
At the present time , we have thirty -five members in our plant Guard Force.
This number of men were hired originally because of the difficulty of
guarding our plant and surrounding terrain. Since that time , we have
constructed new facilities for guard purposes that do not require as many
men as we now have on the force , yet our new facilities will make less
men more efficient.
New facilities consist of three watch towers erected approximately , twenty-
five feet in the air at local points of our plant. From these three stations,
we can view all of the surrounding territory and in all inner departments
of the plant. These three large towers have eliminated approximately
seven small Dog Houses that were previously used by the guards on the
hill. These new watch towers will be equipped with direct communication
to the main station of the guards as well as to outside communication.
We propose to reduce our Guard force from the present number of thirty-
five to a number between twenty-four and twenty-six. However, before
we do this, we should like the approval of your Department.
Very truly yours,
BERMITE POWDER COMPANY
Hugo Lizza
Office Manager
It will be noted that the above letter is to the "Attention" of Jack Walters,
although the surname is spelled with an "o" rather than "a".
The reply to the foregoing letter is signed by E. A. Knott, as "Chief" and
reads as follows :
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WAR DEPARTMENT
OFFICE OF THE CHIEF OF ORDNANCE
SAFETY AND SECURITY BRANCH
SAN FRANCISCO REGIONAL OFFICE
100 McALLISTER STREET
SAN FRANCISCO, CALIFORNIA
27, September 1943
Bermite Powder Company
Mint Canyon Road
Saugus, California
Attention Mr. Hugo Lizza, Office Manager
Subject: Plant Guard Personnel
Dear Mr. Lizza: (sic)
This will acknowledge receipt of your letter, dated 24 September 1943,
same subject as above.
It seems very reasonable that your guard force should be cut down in
view of the installation of will (sic) located guard houses on surrounding
hills.
Mr. Wolters will probably call on you within a short time and will be
glad to go into the subject in detail.
It is recognized that the manpower situation is critical at this time, and
it is only right that a careful survey be made to release any guards from
duty where they can rightly be released without taking unnecessary
chances on the safety and security of the plant.
Very truly yours,
E. A. KNOTT, Chief
San Francisco Regional Office
While Walters testified directly and Lizza inferentially to the effect that
Walters and Codd issued a "directive" or order to reduce the guards, Percivalle
in his affidavit stated that when Codd visited the plant on September 10:
I took him on a tour of the plant, and he inspected our guard set-up thor-
oughly. He told me after that that I could cut down the number of guards
by a third and still protect the plant as thoroughly as it had been protected
before. He made this as a recommendation, but not as an ultimatum.
(Emphasis added.)
Percivalle made no mention of having conferred with Walters. The record
contains a visitor's pass dated September 11, issued to and signed in name of
W. S. Codd. Walters testified that he carried a pass to the respondent's plant
and that it was unnecessary for him to sign in or out of the plant.
In his affidavit, above described, Percivalle stated that on September 28, the
• day after he returned from his vacation, he "decided in my own mind" who
among the guards would be discharged, and that he did not discuss with Lizza
the names of any men so selected. He further stated that the primary consid-
eration, although not the only one, was the ability of the men to obtain other
jobs, based upon their age. He admitted, however, that he made no list of such
ages. Specifically, he stated that he let Lindsey go because he had received
a number of complaints, after Lindsey had been promoted to sergeant, of the
employee's discourtesy, and that one such complaint had come from Foreman
Specht. Specht was not called as a witness ; the respondent made no showing
that he was not available to testify. As to Williams, Percivalle in his affidavit
admitted that his "only difficulty" was that the guard had asked for and was
granted a number of Sundays off to take part in rodeos . The affidavit further
admits that Percivalle gave Williams permission each time, however, because
BERMITE POWDER COMPANY 70S
he did not want the latter to be prevented from earning extra money. He had
no complaints about Williams' work . As to Mace , Berger and Wendt, Perci-
valle claimed in his affidavit that all of them had violated a rule of the Auxil-
iary Military Police Manual which he alleged stated that "men are not supposed
to argue with one another with respect to wages, hours or working conditions."
Percivalle admitted in the same document that other guards whom he could
not "recall now" had violated the same rule . The rule was not offered in
evidence ; Percivalle's interpretation of it is unsupported by other testimony or
evidence. Specifically as to Mace, Percivalle stated :
I was not actually present at any time that Mace violated this rule, but I
received complaints about it from Lt. Le Brun, John Frazier , Charlie
Woodward, and possibly one or two others. Le Brun told me about towards
the end of August or the first of September that he was afraid there would
be a fight among the guards because Mace was talking as he was ; Le Brun
said, "Johnny , I'm afraid there's going to be a battle in here, from the
way Mace and certain others were talking about certain things ." Le Brun
did not tell me what these "certain things" they were talking about were:
I assume they were wages primarily. I told Le Brun then I thought I
could control the situation.
Frazier was not called as a witness , nor was he shown to be unavailable.
Woodward testified for the respondent but was not questioned about any
matters referred to in Percivalle 's affidavit . Le Brun testified for the respond-
ent, but gave no testimony with respect to the alleged violation of rules The
only report made by him to Percivalle, according to his testimony, relative to
"trouble" among the guards, was when he told the Chief :
There is a little friction among the guards . We are liable to have a little
trouble There is a graveyard crew coming on that can't take any more
of that stuff. I
He explained that the dispute arose over making some of the guards come to
work earlier than had been the custom , and stated , "They would start quarrel-
ing among themselves over there ; that is all there is to it."
With reference to the selection of guards to be discharged, Lizza contended,
in effect : ( 1) that he did not know which guards were union members ; (2)
that Percivalle had full and complete charge of the hiring and firing of the
guards; ( 3) that after receiving "orders" from the War Department he in-
structed Percivalle to reduce the force but did not know or designate which
of the guards were to be discharged ; and (4 ) that none of them was discharged
because of union membership or activity.
Conclusions as to the merit of the respondent 's contentions
and as to the discharges
In addition to the confused and contradictory testimony adduced by the
respondent with respect to any directive or order from the War Department
to reduce its force of guards , serious doubt as to the merit of its contention
is raised by the fact, revealed by the respondent's own records, that one new
guard was hired two days after the date of the alleged "order" to reduce its
force.24 It is unreasonable to believe that if the respondent actually considered
it had received an order from the War Department to reduce its guard force
on September 11, that on September 13 it would have increased it. The record
clearly does not warrant a finding that the respondent, on September 11, was
instructed by any official of the War Department to reduce its guard force.
24 Theodore I{ornelissen was hired on September 13.
686572-46--46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That tacit approval for such reduction was obtained from the War Depart.
ment before the actual lay-offs is established, however, by the letter from E. A.
Knott, above quoted. In view of this fact, and although the evidence would
amply support the conclusion that Lizza's solicitation of approval for such
reduction was prompted by his hostility toward the Union which was seeking
to bargain with him, the undersigned does not consider it necessary to deter-
mine whether or not the reduction-in force was itself an unfair labor practice.
The issue to be determined here is whether or not the respondent's selection of
certain guards for discharge was discriminatory.
The undersigned does not accept as true Lizza's testimony that he left selec-
tion of guards to be discharged entirely to Percivalle or that union member-
ship and activity was not a determinant factor. In the Police Court proceeding
above referred to, Lizza stated that he was usually in the plant 16 hours a day.
The following colloquy is quoted:
Q. Now, you handle practically everything there, or oversee it, or do you
have some help?
A. Well, I have some help but the important details I practically handle
those myself.
It was upon Lizza's initiative, and not Percivalle's, that permission was sought
from the War Department, to reduce the guard force. It is unreasonable to
believe that Lizza took no part in the selection of guards to be discharged.
Furthermore, the testimony of Mace, noted above, is undisputed that at the
time of his discharge Percivalle told him that he had received the lay-off "list"
from Lizza.
Even if Percivalle's testimony were to be accepted as true-to the effect
that he selected the guards to he discharged-the reasons advanced by him in
the affidavit are unpersuasive. The respondent offered no evidence to corrobo-
rate or substantiate any of the allegations of misconduct contained in Perci-
valle's affidavit. There is not a scintilla of evidence, except Percivalle's
unsupported affidavit, that Lindsey was ever discourteous while on duty. The
affidavit admits that Percivalle had no complaint against Williams, except that
the guard occasionally asked for permission to attend a rodeo, and that such
permission was readily granted. As to the other three guards, although Lelrun
was questioned specifically on the subject of "arguments" among the guards,
the lieutenant mentioned no incident of having complained to Percivalle, as
the latter stated in his affidavit that Mace and others were discussing wages,
and thereby violating a "rule." Nor did the respondent offer any evidence to
show that all or any of the five guards concerned herein were better fitted,
than guards retained, to find employment elsewhere. The undersigned is con-
vinced, and finds, that there is no merit in Percivalle's contentions as to the
reasons why these five employees were discharged.
On the other hand, the entire course of the respondent's conduct toward
organization of its employees, both among the production and guard forces,
leads to the more reasonable conclusion that the respondent's real reason for
the selection of the five above-named guards was to discourage membership in
the Union and to defeat the Union's effort to bargain with it. The undersigned
therefore concludes and finds that Lindsey, Williams, '.llace, Wendt, and Berger
were discriminatorily discharged by the respondent on October 1, 1943, thereby
discouraging membership in the Union and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed by Section 7 of
the Act.
BERMITE POWDER COMPANY
C. The alleged refusal to bargain collectively
707
The complaint alleged that the respondent on or about September 23, 1943,
and at all times thereafter, refused to bargain with the Union as the exclusive
representative of the guards employed by it.
1. The appropriate unit
The complaint alleged in substance that all guards, excluding the Chief and
Lieutenants of guards, would ensure to respondent's employees the full benefit
of the right to self-organization, and would otherwise effectuate the policies
of the Act, and is therefore a unit appropriate for the purpose of collective bar-
gaining. While the respondent, in its answer, denied such allegation generally,
it offered no evidence and raised no objection thereto during the hearing.
The undersigned finds that all guards of the respondent engaged at its Mint
Canyon Road, Saugus, California, plant, excluding the Chief of guards and
Lieutenants of guards, at all times material herein constituted, and now con-
iUtute, a unit appropriate for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of employ-
ment, and that said unit insures to the employees of the respondent the full
benefit of their right to self-organization and collective bargaining and other-
', ise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
During the pay-roll period of September 15 to October 1, 1943, the respondent
employed 37 guards, exclusive of the Chief and Lieutenants, which group has
been found herein to constitute an appropriate unit for the purposes of collec-
tive bargaining.
During the hearing membership application cards of the Union were intro-
duced in evidence covering 20 guards whose names 25 appeared on the pay roll,
also introduced in evidence. All cards bore what appeared to be original sig-
natures, and their authenticity was not questioned by the respondent. Thus
on September 23. 1943, the Union had been designated by 19 of the 37 employees
in the appropriate unit, and by September 27 had been designated by 20
employees.
The undersigned finds that on September 23, 1943, and at all material times
thereafter, the Union was and now is, the duly designated representative of
a majority of the employees in the aforesaid appropriate unit, and that, by
virtue of Section 9 (a) of the Act, the Union at all such times was and now
is representative of all the respondent's employees in such unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employ-
ment or other conditions of employment.
3. The alleged refusal to bargain
(a) History of the attempted negotiations
The facts with reference to the attempted negotiations between the parties
are in substance as follows : By September 22, 1943, the Union had signed a
25 All cards except one had been signed prior to September 22, 1943, and that one was
signed as of September 27, 1943.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of the guards as members ; on that day Camp attempted to submit
a proposed contract to Patrick Lizza, general manager, Hugo Lizza, office
manager , and Sam Hyman , personnel manager," in the order named, but
without success . On the following day, September 23, 1943 , Camp mailed
a copy of the proposed contract to Lizza with a letter in which it was stated.
that a majority of the guards had joined the Union , that if "certification of
proof" was desired by the respondent a Board election was "conceded", that
the Union desired to enter into immediate negotiations, and added that unless
the Union heard from Lizza within five days, the appointment of a U. S
Conciliator would be requested . Camp, however , requested such appointment
by mail on September 23, and Harry Malcolm , a U. S. Labor Department
Conciliator , was designated to act in the matter.
Following the discharges of October 1, described above, Malcolm made
an appointment to meet Lizza at the plant office on October 2. On that day
Malcolm, accompanied by Camp and Josephson , went to the plant where
Malcolm conferred privately with Lizza for an hour or more, after which
Camp and Josephson joined the conference. Camp then asked Lizza if he
had received the Union 's letter and proposed contract . Lizza said that he
had and produced both the letter and proposed contract.
During the conference , Camp handed the union's membership cards to
Lizza , who examined them in a cursory manner , and returned them to Camp
with the remark that the Union evidently had a majority but that he "didn't
want to discuss it without his attorney being present . * * * he wanted the
advice of his attorney ." Lizza also stated that if the Union had a majority
he would give it "a closed shop without any trouble at alk" During this
conference Camp asked if the men "that had been discharged for union activi-
ties could be reinstated ." Lizza replied that the men had not been discharged
for union activities but because he "had an order from the plant -protection
military forces" to reduce the force.
Since Lizza refused to negotiate in the absence of his attorney it was
agreed that Lizza would get in touch with his attorney, Ralph K. Pierson,
and have the latter communicate with Malcolm. During the week of October
4, Pierson , on several occasions , attempted to get in touch with Malcolm and
was advised by a girl in the latter 's office that Malcolm had been called to
San Diego, California, and was not expected back before the end of the week.
Pierson then reported his efforts to see Malcolm to Lizza and advised the
latter that he was leaving for San Francisco on the night of October 8, which
he did. About October 14, Malcolm telephoned Pierson at San Francisco,
and asked him what he "knew about the situation." Pierson replied "Little or
nothing," and told of his attempts to contact Malcolm during the preceding
week and that he planned to return to Los Angeles October 18.
Malcolm then advised Pierson that Camp had said "he was going to call
the guards off at Bermite" and suggested that such action might be prevented
if either Lindsey or Mace were reinstated pending "these negotiations," as
was desired by Camp.
Pierson then called Lizza and reported the foregoing conversation and recom-
mended that he reinstate either Lindsey or Mace as requested . Lizza agreed
to do as requested , and asked which "one they wanted on." Pierson then
reported by telephone to Malcolm that Lizza had accepted his recommendation
and for Malcolm to have Camp designate which man "he wanted sent out
there, and to send him out." Malcolm then informed Pierson, "That is all off
28 Neither Hugo Lizza nor Hyman , although not shown to be unavailable , were called as
witnesses.
BERMITE POWDER COMPANY 709
Mr. Camp says he wants either all of them or none." While Pierson had not
planned to return to Los Angeles until October 18 , he agreed to try to make
reservations for the night of October 15 and to reach Los Angeles on October
16, at which time a conference would be had.
At Malcolm 's request Lizza called at the former 's office in Los Angeles on
October 14; at this time he was informed that Malcolm expected Pierson's
return by Saturday a. in. October 16, at which time a meeting would be held
When Pierson arrived in Los Angeles Saturday morning, he telephoned Mal-
colm but was unable to get him at that time. Pierson then called Lizza and
told him that he had been unable to reach Malcolm , but when he did he would
call Lizza and make "the appointment."
Lizza then advised Pierson that he was leaving for Washington , D. C., that
night as it was "absolutely necessary " that he go in connection with certain
ordnance the respondent was manufacturing for the United States Navy. After
lunch on that day Pierson relayed the above information to Malcolm who, after
a discussion , asked "Why can't you and I get together and discuss it?" Pierson
replied, "We can do that the first of the week ." Malcolm said, "That would
be all right." In a later conversation that day Malcolm informed Pierson
that Camp had made up his mind that he was "going to the Board and file "
To which statement Pierson replied : "Well, if he is going to do that, he will
just have to go ahead and do it. I can't stop it. * * * Any time Mr. Camp
and you and I can get together in Mr. Lizza 's absence , I will meet with you.""
(b) Conclusions
The above and the record establish : ( 1) that Lizza was opposed to having
unions in the plant ; that he took prompt measures to counteract the efforts
of the PWAU to organize the production employees ; that after the Union had
secured a majority among the guards and submitted a proposed contract he
discriminatorily discharged at least five of the guards; that on October 6, four
days after meeting with Malcolm and Camp and agreeing that his attorney
would meet with Malcolm and arrange a further conference , he made speeches
to the production employees , stating in part that he would never sign a con-
tract with the Union ; and (2 ) that after the October 2 meeting with Malcolm
and Camp , Lizza did instruct Pierson to contact Malcolm for the purpose of
arranging a meeting of the parties ; that during the week of October 4, Pierson
made reasonable efforts to get in touch with Malcolm ; that on October 14,
Lizza agreed to reinstate either Lindsey or Mace, pending negotiations as sug-
gested by Malcolm and recommended by Pierson ; that after Lizza had advised
Pierson that it was absolutely necessary that he leave for Washington , Pierson
offered to meet and confer with Malcolm and Camp , which suggestion was first
accepted by Malcolm and later cancelled by Camp 's decision to file charges ;
and that since October 16 the Union has not requested a bargaining conference
with the respondent.
From the above and the record it appears that although .the respondent is
opposed to union organizations in its plant , its officials at no time questioned
the Union 's status as the bargaining agent, or definitely refused to bargain
with it. Had Lizza kept the October 16 appointment referred to above and
bargained in good faith with the Union , no issue under Section 8 ( 5) of the
Act would have arisen herein . The record will not support a finding that
Lizza's trip to Washington , D. C., on October 16 was not in fact a necessary
'All findings with reference to conversations had between Pierson and Malcolm are
based upon Pierson 's credible testimony
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one and in support of the war. Pierson offered to meet with Malcolm and
Camp during Lizza's absences and thus pave the way for further meetings
and possible successful negotiations. In all the circumstances Camp should
either have accepted Pierson's offer to meet with him or sought further con-
ferences upon Lizza's return from Washington. The respondent has not refused
to bargain collectively with the Union, and it is so found.
IV THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent, set forth in Section III, above, occurring
in connection with the operation of the respondent's business described In Sec-
tion 1, 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
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to
the hire and tenure of employment of Virgil Lindsey, Kenneth Williams, Fred
Wendt, Jesse M Mace and John J. Berger, by discharging them on October
1, 1943. Williams stated at the hearing that he would not accept reinstatement
to his former position with the respondent. Therefore, it will be recommended
that the respondent offer to Lindsey, Wendt, Mace, and Berger immediate and
full reinstatement to their former or substantially equivalent positions. It will
be further recommended, as to all but Williams, that the respondent make them
whole for any loss of pay that they may have suffered by reason of the dis-
crimination by payment to each of them of a sum of money equal to the amount
he would normally have earned as wages during the period from October 1,
1943, the date of the discrimination against him, to the date of the offer of
reinstatement, less his net earnings SS during such period. As to Williams it
will be recommended that the respondent make him whole for any loss of pay
he may have suffered by reason of the discrimination by payment to him of a
sum of money equal to the amount he normally would have earned as wages
during the period from October 1, 1943, the date of the discrimination against
him, to the date of his employment in the position held by him at the date of
the hearing herein, less his net earnings during such period.
Although the undersigned has dismissed the 8 (5) allegation of the com-
plaint since the respondent has not refused to bargain within the meaning of
the Act, it is clear, as found above, that the Union represents a majority of
the employees in the appropriate unit herein and it is assumed, that upon
request, the respondent will continue to bargain with the Union.
28 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B 440. Monies
received for v of k performed upon Federal, State, county, municipal, or other work-
relief projects shall be considered as earnings. See Republic Steel Corporation v.
N. L. R. B. 311 U. S 7.
BERMITE POWDER COMPANY 711
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Local 193, Building Service Employees' International Union, affiliated
with the American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Virgil Lindsey, Kenneth Williams, Fred Wendt, Jesse M. Mace, and John J.
Berger, thereby discouraging membership in Local 193, Building Service Em-
ployees' International Union, affiliated with the American Federation of Labor,
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not refused to bargain collectively within the meaning
of Section 8 (5) of the Act.
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, Bermite Powder Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 193, Building Service Employees'
International Union, affiliated with the American Federation of Labor, or any
other labor organization of its employees, by discharging and refusing to re-
instate any of its employees, or in any other manner discriminating in regard
to the hire and tenure of employment or any terms or conditions of their
employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Virgil Lindsey, Fred Wendt, Jesse M. Mace, and John J. Berger
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges.
(b) Make whole the said Virgil Lindsey, Fred Wendt, Jesse M. Mace, and
John J. Berger, and also make whole said Kenneth Williams, each in the man-
ner set forth in the Section entitled "The remedy" for any loss of pay they
may have suffered ;
(c) Post immediately in conspicuous places throughout its plant on Mint
Canyon Road near Saugus, California, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from which it
is recommended that it cease and desist in paragraph 1 (a) and (b) of these
recommendations ; (2) that the respondent will take the affirmative action set
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in paragraph 2 (a) and (b) of these recommendations; and (3) that
the respondent's employees are free to become or remain members of Local
193, Building Service Employes' International Union, affiliated with the Ameri-
can Federation of Lalior, and that the respondent will not discriminate against
any employees because of their membership in or activities on behalf of that
organization ;
(d) Notify the Regional Director for the Twenty-first Region in writing,
within ten (10) days from the receipt of this Intermediate Report, what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint, insofar as it alleges a viola-
tion of Section 8 (5) of the Act, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rocharn-
beau Building, Washington, D. C, an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same
shall serve a copy thereof upon each of the other parties and shall file a copy
with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing within ten (10) days from the date of the order
transferring the case to the Board.
PETER F. WARD,
Trial Examiner.
Dated May 22, 1944.