Carl Burwick and Co.

National Labor Relations Board - Board Decisions

Feb 29, 1956

115 N.L.R.B. 629 (N.L.R.B. 1956)

CARL BURWICK AND COMPANY 629
by the Employer and they were therefore disfranchised. The Re-
gional Director's investigation shows that, when the eligibility list was
submitted to the Board's Regional Office and was examined by the
Petitioner in accordance with the customary procedure, the field
examiner's attention was called to the fact that the list included serv-
ice employees which were specifically excluded by the Board from the
unit. The field examiner therefore struck the names of the service
employees from the eligibility list. There is no, contention that em-
ployees other than service employees were stricken from the list of
eligible voters. Because we specifically excluded service employees in
our original decision, which we have also reaffirmed herein, we find
that the objection is wholly without merit. Accordingly, we adopt the
Regional Director's recommendation and overrule the objection.
In view of the foregoing, and as it appears that the Petitioner has
received a majority of the valid ballots cast, we shall certify it as the
exclusive bargaining representative of the Employer's employees in
the appropriate unit.
[The Board certified Retail Clerks, International Association, Local
212, AFL-CIO, as the designated collective-bargaining representative
of the employees of the Employer at its Buffalo, New York, store, in
the unit heretofore found appropriate.]
Hyman and Israel Burwick, d/b/a Carl Burwick and Company
and Alpheus S. Mascroft, Jr.
Hyman and Israel Burwick , d/b/a Carl Burwick and Company
and American Federation of Grain Millers , AFL-CIO. Cases
Noa. 1-CA-1869 and 1-CA-1926. February 29, 1956.
DECISION AND ORDER
On November 23, 1955, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices al-
leged in the complaint to be in violation of Section 8 (a) (1) and
(2) of the Act, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain unfair labor
practices alleged in the complaint to be in violation of Section 8
(a) (1), (3), and (4) of the Act. Thereafter, Alpheus S. Mascroft,
Jr., the Charging Party in Case No. 1-CA-1869, filed a brief and
exceptions with respect to the Trial Examiner's finding that the
Respondents had not reduced his hours of employment in violation
of Section 8 (a) (3) of the Act. The Respondents filed a reply brief.
No other exceptions were filed.
115 NLRB No. 94.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions' and briefs, and the entire record
in this case,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the Respondents, Hyman and Israel
Bui'wick, d/b/a Carl Burwick and Company, Worcester, Massa-
chusetts, their officers, agents, successors, and assigns, shall
1. Cease and desist from :
(a) Interrogating their employees concerning their union mem-
bership and activities and threatening them with reprisals because of
such activities.
(b) Assisting and contributing support to the Committee, or any
other labor organization of its employees, for the purposes of deal-
ing with it concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment.
(c) Giving effect to any and all contracts, supplements thereto,
or modifications thereof, with the Committee.
2. Take the following affirmative action which it is found will ef-
fectuate the policies of the Act.
(a) Withdraw and withhold all recognition from the Committee
as the representative of their employees for the purposes of dealing
with the Respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment,
unless and until such organization shall have been certified as such
representative by the Board.
(b) Post at their plant at Worcester, Massachusetts, the notice
attached hereto marked "Appendix." 9 Copies of such notice, to
,be furnished by the Regional Director for the First Region, shall,
after being duly signed by the Respondents' authorized representa-
tive, be posted by the Respondents immediately upon receipt thereof
and maintained by them for sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
t in their brief, the Respondents contend , among other things , that the exceptions
should be dismissed on the grounds ( 1) that they do not conform to the requirements of
Section 102 46 of the Board's Rules and Regulations, and (2) that they are without merit
As the Board finds the exceptions to be lacking in merit , it is unnecessary to consider
whet her they conform to the requirements of Section 102 46
9 biascroft 's request for oral argument is hereby denied , because . In our opinion, the
record and exceptions and briefs adequately present the issues and the positions of the
parties.
9 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CARL BURWICK AND COMPANY 631
are customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notice is not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it relates to matters not found by the Trial Examiner to be violations
of the Act.
APPENDIX
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 :
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of American Federation of
Grain Millers, AFL-CIO, or any other labor organization, or
threaten our employees with reprisals because of such activities.
WE WILL NOT assist or contribute support to the Committee of
oi1r employees, or any other labor organization of our employees,
for the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment.
WIVE WILL Withdraw and withhold all recognition from the Com-
mittee as the representative of any of our employees for the pur-
pose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until such organization shall have been
certified as such representative by the Board.
All our employees are free to become or remain members of the
above-named Union or any other labor organization.
HYMAN AND ISRAEL BURwICK, D/B/A
CARL BURWICK AND COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by Alpheus S. Mascroft, Jr., an individual , and American
Federation of Grain Millers , AFL, herein called the Union, the General Counsel
of the National Labor Relations Board , by the Regional Director for the First Re-
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gion (Boston , Massachusetts ), issued a complaint dated June , 27, 1955, against
Hyman and Israel Burwick, d/b/a Carl Burwick and Company, herein called the
Respondents, alleging that the Respondents had engaged in unfair labor practices
within the meaning of Section 8 (a) (1), (2), (3), and (4) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that the Re-
spondents: (1) on or about March 28, 1955, discriminatorily assigned Marie Palermo
and Dorothy Pellegrino to more arduous and less agreeable work; (2) on or about
April 12, 1955, discriminatorily discharged said Palermo and Pellegrino; (3) on
or about March 1, 1955, discriminatorily reduced the hours of employment of Al-
pheus S. Mascroft, Jr., and Norman J. LaCasse; (4) beginning on or about February
7, 1955, and thereafter, engaged in certain acts of interference, restraint, and coercion;
and (5) beginning in or about March 1955, initiated, sponsored, and formed the
Committee of Respondents' Employees, hereinafter referred to as the Committee,
and thereafter assisted, dominated, and contributed to the support of, and interfered
with the administration of, the Committee.
About July 20, 1955, the Respondents filed an answer in which they admitted the
jurisdictional allegations of the complaint, but denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held at Worcester, Massachusetts, before the
duly designated Trial Examiner, from August 16 to 20, 1955. At the conclusion
of the General Counsel's case, the Respondents made separate motions to dismiss
various allegations of the complaint. Ruling was reserved on the motions with one
exception. The motion to dismiss as to Harry Miller, alleged in the complaint to
be an agent of Respondents, was granted. At the conclusion of the whole case, the
General Counsel moved to conform the pleadings to the proof as to minor variances,
not as to substance. The motion was granted without objection. The Respondents
renewed their motions to dismiss. Rulings were reserved. The motions to dis-
miss are disposed of as hereinafter indicated.
After the close of the hearing, the General Counsel and the Respondents filed
briefs with the Trial Examiner. On September 22, 1955,' the Respondents also
filed a motion to correct the transcript of proceedings. Since none of the parties
has raised an objection to the motion, it hereby is granted; and the record of tran-
script is corrected accordingly. The Respondents' motion is received in evidence
and marked as Trial Examiner's Exhibit No. 1.
Based upon the record as a whole, and from his observations of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Hyman and Israel Burwick, d/b/a Carl Burwick and Company, maintain their
office and plant in Worcester, Massachusetts, where they are engaged in the business
of cleaning, repairing, and reconditioning feed and grain bags.
Respondents, in the course and conduct of the said business, receive annually
over $200,000 for services performed, which services are furnished to employers who
themselves annually produce and ship, directly to points outside the States in which
they are located, goods valued at over $50,000. The goods which the Respondents
handle or produce and ship directly to customers located outside the State of Massa-
chusetts are valued at more than $50,000.
The Respondents admit and it is found that they are engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
American Federation of Grain Millers, AFL, and the Committee are labor organ-
izations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
There are 6 main departments in the Respondents' plant: the shipping and re-
ceiving department , the blower department, the stitching department, and 3 checking
departments known as the eastern department, the GLF department, and the mixed
bag department . Platform workers, loaders, and truckdrivers work in the shipping
and receiving department under the supervision of Foreman Dollard Charland. Jacob
Frankel has general supervision over all of the production departments . Michael
Falcone is foreman in the eastern department and Edward Strozina is foreman in the
mixed bag department . During January 1955 the Respondents employed approxi-
CARL BURWICK AND COMPANY 633
mately 1105 persons in the plant . By February 1955 this number was decreased to
approximately 87 and was decreased further to approximately 76 by August 1955.
Alpheus S. Mascroft, Jr., who worked for the Respondents as a truckdriver and on
the platform, instigated the union organizational drive in the plant, beginning during
the first week in February 1955. He contacted Floyd Fredericks, a representative
of the Union, and together they visited the homes of employees in order to solicit
their membership in the Union. As a result of the campaign, a representation peti-
tion was filed by the Union on February 7, 1955, in Case No. 1-RC-3912 (not re-
ported in printed volumes of Board Decisions and Orders); a consent-election agree-
ment was entered into on February 10, 1955; and an election was conducted by the
Board on February 25, 1955, which the Union lost. On March 2 the Union filed
objections to the election. On April 13, 1955, the Regional Director issued a report
on objections, setting aside the results of the election.
Starting about March 1, 1955, the hours of employment of Mascroft and Norman
J. LaCasse were reduced. On and after about March 30, 1955, Marie Palermo and
Dorothy Pellegrino, who were employed as checkers in the mixed bag de-
partment, frequently and for whole days were transferred to temporary work
in the blower department. It was part of the duties of Palermo and Pellegrino to
perform such work on the blowers prior to March 30, but the transfers were not as
prolonged or constant. The General Counsel contends that the Respondents cut the
hours of Mascroft and LaCasse and transferred Palermo and Pellegrino to less de-
sirable work for discriminatory reasons.
The Respondents ' defenses to these alleged discriminations are economic. The
evidence shows that during 1954 and 1955 bags were processed in the plant as follows:
1954 1955
January------------------------------------------- 1,017,198 937,123
February ------------------------------------------ 1,061,417 810,525
March-------------------------------------------- 1,212,675 1,121,544
April--------------------------------------------- 1,090,445 924,408
May---------------------------------------------- 1,121,353 940,681
June---------------- ------------------------------ 991,941 946,105
July---------------------------------------------- 783,883 669,818
August-------------------------------------------- 1,028,560
September----------------------------------------- 1,088,227
October------------------------------------------- 924,234
November----------------------------------------- 914,977
December----------------------------------------- 1,131,202
The testimony of the Respondents ' witnesses indicates that the above decline in
business was due mainly to the fact that the Respondents ' customers increasingly were
making bulk shipments and were using paper instead of burlap bags.
The testimony of Respondent Hyman Burwick concerning the reduction of the
number. of employees and their hours of employment is summarized in the following
tabulation:
Number of
Operators
Average Week-
ly Hours
Sewmg,,rlepartment•
January 1954------------------------------------------------------ 9to10 38 to 40
January 1955 -------------------------------------------------------- 7 35
February 195.5------------------------------------------------------- 7 32
March 1955------------------------------------------------------- 32 to 35
August 1955-----_-_ 7 24 to 30
Blower department
January 1954------------------------------------------------------ 15 or 16 40 or 41
January 1955 -------------------------------------------------------- 14 or 15 38
February 1955--------------------------------------------------- 13 or 14 36
March 1955 --------------------------------------------------------- 13 35
August 1955------------------------------------------------------- 12 or 13 32 to 35
Checking department
January 1954--------------- ------------------------------------- 28 to 30 40 to 42
January 1955---------------- ------------ ---- 24 to 25 38
February 195.5--------------------------------------------------- 24 to 25 36
March 1955-------------------------------------------------------- 23 to 24 35
August 1955---------------------- ------------- 22 35
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint, and coercion
As will be more fully discussed hereinafter , employee Norman J. LaCasse was an
active adherent of the Union . He testified that about 3 weeks before the election
on February 25 he had a conversation in the plant with his brother -in-law , Foreman.
Michael Falcone ; and that, "Mr. Falcone told me that I better think this matter
over about the Union, that I had a good job and jobs are hard to get today, and
I should think about it twice. . . I couldn't get one outside like it." Falcone
admitted having a conversation with LaCasse about the Union . He testified that
the conversation took place at his home ; that LaCasse asked him what he thought
about the Union ; and that, "I told him I didn 't think it would be good for him
because he was doing all right . He had a good job there . . . what was he kicking
about."
I credit LaCasse's version of the conversation 1 and find that Falcone 's remarks
constitute interference , restraint , and coercion since they contain an implied threat
of reprisal.
Employee Majorie Goding had a conversation with Foreman Falcone about 10
days before the election. He asked her what she thought about the Union. She
replied that she was not "sure as yet." He then said , "Well, you girls should give
it a lot of thought, because if you get a union in here you will only be working to
12:00 o 'clock a good many days because the Burwicks are stretching the work to
3:00 o 'clock now to give you extra time ." He also told her that the male employees
would be working "only 40 hours with no more overtime" if the Union organized
the plant , and that "the Burwicks had a lot of money and they could close the plant
anytime they wished." 2
It is found that Falcone 's interrogation of Goding concerning the Union and his-
threats of reprisal were violative of Section 8 (a) (1) of the Act.
As related above, Marie Palermo and Dorothy Pellegrino worked in the mixed
bag department under the supervision of Foreman Edward Strozina. Concerning
conversations that she and Pellegrino had with Strozina shortly before the election,
Palermo testified ,3 "Well, Eddie Strozina said to me that if the Union got in-he said
that when the work was done that we would be sent home and we wouldn 't be trans-
ferred to any other kind of work to be filled in . He also said that we wouldn't get
no Christmas bonuses. . . . He said that Hyman [Burwick] was going to give
everybody a 5 or 10 cent raise , but when he heard about the union he knocked it
right off , and he said that he would knock the union over if it killed him, and he
said that Hyman knows who signed cards for the union , and Eddie said 'I pity them
because they won't get no raises .' And, he said that if the union got in that Stanley
Mascroft wouldn 't be getting any overtime , . . . and he said that if the union got
in, the rate of reduction [ sic] was going to go up ; and if you didn 't make it , out you
would be."
Strozina testified to the effect that some of the statements , such as the one con-
cerning Mascroft, he had heard "just as a rumor that went around the shop" or as
"shop gossip," but denied making any of the statements attributed to him by Palermo
and Pellegrino . Strozina admitted having a conversation with them about the Union
during the week before the election . He testified , in substance , that they brought
up the subject by asking him for his opinion of the Union; and that he told Palermo
to discuss it with her family rather than him , as he did not want to get involved.
Mascroft had a conversation with Strozina about February 18 or 19. In this con-
nection Mascroft testified credibly , "I told him that I understood he had been talking
'From his demeanor as a witness, Falcone did not impress me as reliable or credible.
He was evasive and contradictory in his testimony . He admitted during cross -exanmina-
tion that prior to the tune of the above conversation LaCasse, Mascroft, and Fredericks
had visited him at his home and asked him for his opinion of the Union. He at first testi-
fled that he did not "commit" himself Latei he testified that he told them what he
thought about the Union Falcone was equally co tiadictot,y when asked to explain why
LaCasse asked him toi his opinion about the Union if he had heard it before. He at first
testified, "Well, he knew my opinion," and then, "The first time lie cause up he didn't know
my opinion "
s The above conversation is based upon the credited testimony of Goding Falcone de-
nied that lie had a talk with Goding about the Union His denial is not coedited
3Pa]ermo testified that Pellegrino worked on her might and employee Rita Des Roches
on hem left, that Strozina "icas speaking to all of us," and that "he used to repeat the
same thing evemy day" during the week before the election. Pellegrino's testimony was
substantially the same as Palermo's concerning the conversations with Strozina Des
Roches did not appear as a witness at the hearing
CARL BURWICK AND COMPANY 635
to his girls about voting against the Union and he was intimidating and threatening
them . and he said 'If you organize the shop February 25 . there would be
a strike the first of March . . . There are good points and bad points , and all I can
see that you are going to gain is 2 cents an hour . . . and I don't see where it is
worthwhile .' He said he didn 't threaten anybody." 4
I credit the above testimony of Palmero and Pellegrino . Strozina did not im-
press me favorably as a witness . It is found that his statements constitute inter-
ference, restraint, and coercion since they contain threats of reprisal . His state-
ment to Mascroft concerning a strike is not found to be violative of the Act.
About 2 or 3 weeks before the election on February 25, employee Charles
Nichols , a truckdriver, had a conversation with Foreman Dollard Charland when
they met in a tavern away from the plant . Concerning the conversation , Nichols
testified , "Well, the way I recall it, he said , 'Look at the way things are happening
down here right now .' He said 'I can get you and Mr. Sullivan [ also a truckdriver
for the Respondents ] a raise of 15¢ without any question whatsoever,' and that
Stanley Mascroft was at it again."
Charland at first testified that he did not "think" that Mascroft 's name was men-
tioned during the conversation , and later that he was "sure " his name was not
brought up because the Union was not discussed. He admitted that Mascroft's name
and the word "union" meant the same thing at the time in question . As for his talk
with Nichols , he testified , "He asked me to have his truck greased and a few other
changes and items he wanted done, and then the question of wages was brought up
and he suggested to me that him and George Sullivan, another driver, . were
worth a little more money per hour than what they were getting , so I told him I
would speak to the office and see what I could do for them . No amount was
mentioned."
I credit Charland 's version of the above conversation . However, assuming
arguendo that Charland did make the statements as testified to by Nichols, I be-
lieve that the evidence is meaningless and does not warrant the drawing of an infer-
ence to the effect that Nichols and Sullivan were promised a wage increase if they
did not support the Union.
John Kowalsky worked as a truckdriver under the supervision of Foreman Char-
land. Kowalsky testified that a few days before the election and again a few days
after Charland stated to him and employees Bourdon and Witkes that the Burwicks
had "plenty of money," that they did not have "to worry about [ the employees] at
all," and that they could close the plant.
Charland admitted having a conversation about the Union with Kowalsky, Bour-
don and Witkes , but testified that it took place about 2 or 3 weeks before the elec-
tion. He denied having a conversation with them after the election , and also denied
the statements attributed to him by Kowalsky. Concerning the conversation, Char-
land testified , "I was taking work up to them. They were unloading these trucks
that I brought up. . . They were in conversation when I got there . . . I stood
by for a moment and Bourdon . . . asked me what I thought of the Union. I told
him I didn't think much of it , and he said 'Why?' I said 'I am well satisfied the
way I am going,' and I took the empty trucks back down in the elevator and con-
tinued on my work." Neither Bourdon nor Witkes appeared as witnesses at the
hearing.
I credit Charland 's version of the above conversation . Kowalsky did not impress
me as a reliable witness. Although questioned at length , he was unable to recall any
of the conversation other than the above . Further , it appears improbable that
Charland would have made the same statement after the election, especially since
the Union had lost it.
Employee Ulric Germain, a "receiving inspector," testified without contradiction
that a few weeks before the election Hyman Burwick came to his department and
spoke to him; that Burwick asked him if he had been "approached by anybody con-
cerning the Union "; that when he admitted that he had been solicited , Burwick
asked him to identify the person; that he told Burwick that he "would rather not
answer"; and that Burwick replied that it was "all right."
It is found that Burwick's interrogation of Germain constitutes interference,
restraint, and coercion.
Frances Villatico worked as a checker in the eastern department under Foreman
Falcone. She wore a union button for about 2 days before the election and was the
only employee in her department who did. Villatico testified that about 8:15 a. m.
on February 25, Falcone came to her bench and told her "to go up and vote"; that
* Strozina testified , in substance , that Mascroft accused him "of knocking the Union
down ," and that he denied the charge.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when she returned to the department about 3 minutes later , Falcone told the rest
of the employees that it was time for them to vote; and that they left the depart-
ment as a group.
Falcone denied that he at any time told Villatico to vote alone. He testified, in
substance, that he did not notify or instruct any of the employees under his super-
vision concerning the time they were scheduled to vote; that the employees left
their work when employee John Domantas "came after them"; and that he did not
hear anything said by Domantas as he (Falcone) was busy at "the other end of my
department." Domantas testified to the effect that on February 25 he assisted the
Board's field examiner by notifying the employees when it was time for them to
vote, that about 9 a. m. he notified the employees in the eastern -department by tell-
ing them, "Okay, girls, you are next"; that at the time Villatico "was the first one
in [the] line"; that Falcone could not have said anything to Villatico because he
"was down the other end, all the way"; and that Villatico left the department alone
to vote, with the other employees following about 10 feet behind her. Villatico
testified that she did not see or hear Domantas notify the employees to vote.
Falcone has been discredited heretofore. However, in this instance his testimony
is supported by that of Domantas, who appeared to be a credible and reliable wit-
ness. Accordingly, their version of the above incident is credited. It is undisputed
that Domantas assisted the field examiner in the conduct of the election by notify-
ing the employees when it was time for them to vote. However, Villatico was defi-
nite in her testimony that the employees were notified when to vote by Falcone,
and not by Domantas. Her testimony rules out the possibility that Falcone in-
structed her to vote alone before she was notified when to vote.
The complaint alleges that during February and March 1955 , the Respondents
granted wage raises and other economic benefits in order to discourage the em-
ployees' support for and adherence to the Union, and that such conduct was viola-
tive of Section 8 (a) (1) of the Act. The evidence shows that: Roland Orn re-
ceived a 10-cent increase effective the week ending February 25; Elwin Chase
received a 5-cent increase effective February 11; Roland Rivers received a 10-cent
increase effective March 4; Chauncy Crepean received a 10-cent increase during
the week ending February 11; and during the week ending March 25, 1955, wage
increases were given to all the employees in the plant , ranging from 5 to 15 cents
per hour, except in the case of Harry Miller, maintenance man, who received an
increase of 25 cents per hour. The evidence further discloses that the election was
held on February 25, 1955; that the Union filed objections to the election on March
2, 1955 ; and that a report on the objections, setting aside the results of the election,
was issued on April 13, 1955. The General Counsel adduced no evidence other than
the above in support of this allegation of the complaint. Orn, Crepean, Chase, and
Rivers did not appear as witnesses at the hearing.
With respect to the 4 individual wage increases, Hyman Burwick testified without
contradiction that for a number of years the Respondent had a policy of granting
wage increases to individual employes on the basis of merit; that 3 of the 4 increases
in question had been granted for merit; and that Crepean was granted his increase
because additional duties had been assigned to him
The evidence discloses that at some time during the early part of March 1955 a
group of employees, including Beatrice Benoit and Walter Juskovitch, met with
Hyman Burwick. This meeting will be more fully discussed hereinafter. Concern-
ing the meeting Benoit testified without contradiction that Juskovitch reminded
Burwick that during the previous December he (Burwick) had told him that he
might be able to give the employees a wage increase in the spring.
In my opinion , the General Counsel has failed to sustain the burden of proving
that the above wage increases were granted in order to discourage the employees
from supporting the Union. There is no substantial evidence upon which an in-
ference to this effect could be based. The uncontradicted testimony of Burwick and
Benoit indicates the contrary.
C. The reduction of Mascroft's hours of employment
Alpheus S. Mascroft, Jr., was hired by the Respondents as a platform worker
in August 1950. Subsequently, he became a "spare" truckdriver. In this job he con-
tinued to perform platform work when not driving a truck. About May 1951, when
another truckdriver quit, Mascroft became a regular truckdriver on the Maine run,
working 5 days a week as a driver and a half day in the plant on Saturday. Beginning
in January 1953, he drove a trailer truck. On this job he spent about half of his time
driving and the other half performing platform work at the plant.
As related above, Mascroft was the instigator of the union campaign in the plant.
On about February 3, 1955, he contacted Floyd Fredericks, a representative of the
CARL BURWICK AND COMPANY 637
Union , and thereafter , he and Fredericks visited employees at their homes. At the
plant Mascroft solicited employees to join the Union by talking to them and by
passing out union authorization cards and literature. On February 13, he distributed
union leaflets near the employees ' entrance to the plant before work . He engaged
in these union activities continuously until the election on February 25, at which he
acted as the observer for the Union . The evidence discloses that the Respondents
were fully aware of Mascroft's union activity. Burwick testified, "It was very well
known that Mr. Mascroft was more or less the spirit of the campaign to the union."
Concerning his hours of work, Mascroft testified , in substance , that during the
years 1952, 1953, and 1954 he averaged between 60 and 65 hours per week, that dur-
ing January and February of 1955 he averaged approximately 50 hours per week;
that after March 1, 1955, his weekly hours were reduced to about 45 or 46; and that
this reduction in hours was caused by the elimination of (1) all Saturday platform
work, ( 2) platform work from 7 a. m. to 12 noon on those days on which he was
scheduled to drive the truck to Albany, New York, and (3) platform work from 1
to 4 p . in. on 5 or 6 occasions during March 1955, and on 2 or 3 other occasions sub-
sequent to March, when he returned from truck trips during the morning.
Mascroft protested his reduced hours to both Israel and Hyman Burwick. His con-
versation with the former took place about 2, or 3 weeks after March 1. As to this
conversation he testified without contradiction as follows:
I asked him why my hours were being reduced , so he said , "We are not reducing
your hours. We are just trying to spread the time out among the boys," he said,
"Business, is bad . I can't have you coming in and taking work away from the
boys," and I told him that one time he didn't care how many hours that I put
in if there was work. If there was work I worked, and I put in a lot of hours in
the past, and he said "There is no sense in arguing ," and then I left. I walked
out.
He talked to Hyman Burwick on or about April 1 Concerning this conversation,
Mascroft testified, "I told him my hours were being cut down, and they were prob-
ably putting all this pressure on me . . . think I am going to quit. He said, `No, you
are not going to quit, you are going to stay here and ruin my business . . With all
this trouble you are stirring up . you got these investigators in here all the time
taking up all our time .5 We can't take care of our business '. . and he told me
that I did more than read the comic page and you are seeing what they are trying
to do in the steel and auto industry , and he said `You can 't do it here. You don't
mind your own business and you are always going around bothering everybody on
company time . I have had people come in here and tell me you are bothering them
on company time . . . that they want me to do something to you for bothering
them . You have done a lot of things that you could be fired for, but you have got a
family, and we give you a break . . . we feel sorry for you.' "
Burwick admitted having a conversation with Mascroft about his reduction in
hours, but denied that the field examiner's investigation was mentioned . He testified
to the following:
Well, Stanley walked into my office one morning about the early part of May,'
as I recall it, and started off something like this. "Hy , I want to talk to you
about why you cut my hours," and then he said something about, "Oh, I sup-
pose you are expecting me to quit, but I don't intend to." And I said to him,
"No, I wasn 't expecting you to quit." He said, "Well , I suppose you want me to
quit because of what I have been doing," so I said to him , "Well, this is a free
country, and you have a right to try to do anything you please within your
rights in this plant here, and there is nothing we can do to stop you, those are
your rights ." And, he said, "Well, I suppose you would like to get rid of me,"
or words to that effect, and I said to him, "No, if we were gunning for
you, there have been several occasions recently when we could have either
fired you, or disciplined you, or something of that kind, for things that you
shouldn't have done, and you know you shouldn ' t have done them," and
so I said, "If you want to know what is the reason for your hours , I think you un-
derstand them very clearly yourself, you know yourself how the trips to Albany
have fallen off, I think you have observed yourself how the business in general
here has been going down , and down, and down, and we are having everything
we can do to try to compete and try to keep the volume coming in here " I
6It was stipulated at the heating that Joseph Bair}, a field examiner of the Board,
first visited the plant on March 23, 1955 Aascroft filed his charge in the instant case on
Alarch 2 1953,
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said, "You know about bulk feeds now, about paper, you know about a lot of
other things there, and you know that this business is not a booming business like
you read in the papers, like steel and automobiles, you know that this is more of
a depression business." And I recall Stanley said to me, "Well, I read beyond
the funnies and the sport page, and I know what is going on."
The evidence discloses that there were 5 regular platform workers; that these
employees normally work from 7 a. m. to 4 p. in., Monday through Friday, and
from 3 to 5 hours on Saturday; and that 2 of the 5 truckdrivers, Mascroft and
Edward Cohen, also performed platform work .6 Mascroft testified that approxi-
mately half of his time was spent on platform work; and Cohen testified that about
30 percent of his time was on such work.
The Respondents admit that Mascroft's hours were reduced, except not to the
extent claimed by him. Mascroft's timecards from the week ending September 3,
1955, through the week ending July 29, 1955, were received in evidence. The cards
show that after March 1, 1955, he did not perform any Saturday work; that from
September 3, 1954, to March 4, 1955, a period of 27 consecutive weeks, he worked
on only 8 Saturdays; that during the first 8 weeks of 1955 he worked a total of
418 hours including 12 hours on 3 Saturdays for an average of 52 hours per week;
and that during the period beginning with the week ending March 10 through
July 29, excluding the weeks ending June 24 and July 8,7 Mascroft worked a total
of 870 hours for a weekly average of about 46 hours. The record therefore shows
that after March 1 Mascroft's hours of employment were reduced by about 6 per
week.
Foreman Charland and Hyman Burwick testified to the effect that it was neces-
sary to have the full platform crew available during the regular workweek because
of the irregular times of shipments and deliveries; and that because the work was
getting slack and "in order to keep the platform crew occupied" it was decided to
reduce the hours of Mascroft and Cohen. Burwick testified that his decision to
reduce Mascroft's hours was reached during the early part of February 1955, because
of "a terrific drop off in the number of bags received" during that month; that he was
advised by Respondents' attorney, however, to postpone the rescheduling of hours
until after the Board's election; that through "some misunderstanding" Cohen's
Saturday work was not eliminated until April; 8 and that the hours of employees
-Robert Strozina, John Domantas, Michael Gobriella, and John Viktazentis were re-
duced during April and May.
Charland testified that "both me and the office" were responsible for the decision
to reduce Mascroft's hours "because of lack of work"; and that he arrived at this
decision "the latter part of March, or the first of April." When asked to explain
why Mascroft's hours actually were reduced about March 1 if he had reached
his decision in April, Charland' testified "I don't know . I must have been told
to, probably," but that he "may have had" something to do with that decision.
Charland admitted that there were some occasions after March 1 when Mas-
croft was not permitted to work during the afternoon after arriving back from a
trip during the morning.9 In this connection, Burwick testified, ". . . I believe there
were two instances in which [Mascroft] returned from a trip very late in the morn-
ing, which was not the usual practice on his trips, and Mr. Charland reported to
me that he did not inform him as to why he did come back late. . Mr. Charland
said to me, `He doesn't look fit to me to work, and I don't think I want him around
here to work,' and I said, `then if he doesn't look fit to work, send him home.' "
Mascroft testified that about March 1 he asked Charland if he could work on
the following Saturday; that Charland shook his head and replied, "Don't ask me";
Chauncy Crepean, a regular platform worker, became a spare truckdriver during March
1955. Charles Nichols and George Sullivan worked exclusively as truckdrivers Norman
J LaCasse, whose work will be discussed hereinafter in more detail, worked both as a
truckdriver and in the plant on work other than the platform
1 Mascroft did not work during the week of June 24 and was on vacation during the
week of July 8
8 The timecards of Cohen foi the period of February 4 until April 29, 1955 , were re-
ceived in evidence The card for the week ending April 22 discloses that he worked on
Saturday for 4 hours
Y Mascroft testified without contradiction that the first time that this happened during
his employment was on March 1 or 2, 1955, when he returned from a trip during the morn-
ing and reported for platform work at 1 p. in.; and that Charland told him, "you can't
work this afternoon . . . . They feel you are a hazard around the shop. You will have to
go home."
CARL BURWICK AND COMPANY 639
that before that time Charland was the supervisor who told him when he could
work on Saturday; and that, "I was free to come in [on Saturday] if I wanted
to and if I didn't want to, I would take the day off." Burwick admitted that Mas-
-croft "was told definitely not to come in any more Saturdays." Neither Burwick
nor Charland testified as to the date when Mascroft was so notified.
The evidence establishes that on the majority of his trips to Albany Mascroft
left Worcester about 1 p. m.; and that prior to March 1, 1955, he worked on the
platform during the morning hours before leaving on such trips. It appears that
before February 1955, the GLF plant in Albany gave the Respondents short notice
as to the time that it wanted the Respondents ' truck to arrive in Albany. The Re-
spondents contend, in effect , that the reduction of Mascroft' s morning hours was
necessitated because of a business decline , and that such reduction became possible
early in February by reason of the fact that the GLF plant gave notice a day or
more ahead when it wanted the truck, rather than on'the day itself. As related above,
Burwick testified that he deferred reducing Mascroft's hours at that time on the advice
of counsel . In this connection , Burwick testified to the following:
This was between the early part'and the middle part of February. . . And be-
cause of the tremendous drop in the amount of GLF bags available, they
were in a position to let us know, in fact, not only a day, but sometimes even
two days ahead as to when they thought they might have a load available and
when we could send up a load of bales. Because of that tremendous slow down,
they were in a better position to keep us informed ahead of time as to when
we could schedule the trip, and we asked them to please try to keep us informed
ahead of time because of the slow condition in the plant, that we were desperate
for bags, and we would like to know as quickly as we could as to when the
the loads were available ahead of time.
Charland at first testified that during a period of about 6 months before March 1,
1955, when the GLF plant notified the Respondents the day before it wanted the
truck at Albany, he instructed Mascroft not to report for work the following morn-
ing. Later he testified that he was not "sure that the Respondents ever had received
such notice" during the period of time in question or that he had told Mascroft
not to work under such conditions.
The undisputed evidence shows that there was a general decline in the Respond-
ents ' business . Witnesses for the General Counsel also testified to this effect. As
related above, Burwick testified without contradiction that there was a correspond-
ing decrease throughout the plant in the number of employees and in their hours
of employment. However, except for LaCasse, whose case will be discussed here-
inafter, and Mascroft, the hours of the male employees named by Burwick were not
reduced until April or May.
As found above, Cohen worked on Saturday during the week ending April 22.
The last Saturday that he worked before that time was during the week ending
March 25. Cohen was not certain in his testimony as to when he was notified that
he was not to work on Saturday. He testified at first that this occurred about 3
weeks after the election, then 3 weeks after March 21, and finally 3 weeks after April
21. He testified that he was notified by Charland and that he spoke to Burwick to
find out the reason. Concerning his conversation with Burwick, he testified, "I
asked him why I was taken off Saturday work, and he told me that he was looking
to equalize the hours among the men, the drivers, and I was getting too much time
in . and business wasn't as good as it should be." Burwick testified in this con-
nection , "Cohen's hours were actually reduced in April. Actually something went
amiss, and he was supposed to have been reduced in March, but what went amiss
there was that he came in one or two Saturdays extra.1° . I told him [during
March] not to come in anymore on Saturdays, but I think he misunderstood me about
what I meant on not coming in on Saturdays. He thought I was still referring to
the long Saturdays, or one week there when he had a breakdown, he had a long week
there when he was really supposed to be in. . But when I heard that he had
come in , I told Charland to make sure to tell him to make sure he was not to come
in." I credit the above testimony of Burwick.
The General Counsel points out in his brief that Cohen's hours on platform work
were not reduced, except for the elimination of Saturday work. At first glance,
this fact ,appears to raise a presumption of discrimination against Mascroft. How-
ever, the undisputed evidence shows that Cohen devoted only 25 to 30 percent of
d"Cohen was supposed to work every other Saturday. His tunecards show that lie
worked`on Saturday during the weeks ending February 25 and March 4 and 11.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his time to platform'work, as against Mascroft's 50 percent.ir There is no proof
that the Respondents were in a position to reduce Cohen's platform hours. Fur-
ther, since the question of discrimination as between Mascroft and Cohen has been
raised, it is noteworthy that Cohen testified without contradiction that he wore a
union button before the election.
The evidence shows that for the period from the week ending January 7 through
the week ending February 25 Mascroft's weekly hours were as follows: 661/4, 483/4,
521/4, 521/2, 50, 49, 533/4, and 451/2. It is not claimed that any discriminatory treat-
ment was accorded Mascroft during those weeks. His weekly hours for the next
5 weeks were: 521/4, 493/4, 481/2, 48, and 49. This evidence does not present a
picture of drastically reduced hours during March, at least not to the extent gath-
ered from Mascroft's testimony. It is true that his weekly hours were reduced
to a greater extent after March, but the evidence shows that Cohen's hours were
reduced proportionately.
Although Charland was vague and contradictory in his testimony, Burwick im-
pressed me as a reliable and credible witness. Accordingly, I credit his testimony,
above, when in conflict with that of Mascroft. From all of the evidence, I believe
and find that the Respondents did not discriminate against Mascroft by reducing his
hours of employment, and shall recommend that this allegation of the complaint
be dismissed.
D. The reduction of Norman J. LaCasse's hours of employment
LaCasse, a brother-in-law of Mascroft, was hired by the Respondents in 1950
as a platform worker and a spare truckdriver. About December 1952, he was relieved
of his truckdriving duties and his work was confined to jobs in the plant. About
October 1954 he became a spare truckdriver again. When not driving a truck,
he worked in the plant assisting employee Harry Miller in general maintenance work
under the supervision of General Production Supervisor Jacob Frankel. LaCasse
testified that his hours, while working in the plant, were from 7 a. in. to 5 p. in.
and 5 hours on Saturday.
During the union campaign, LaCasse accompanied Mascroft and Fredericks to the
homes of "a few" employees. He also was a member of the Union's organizational
committee.
LaCasse testified that at about 4:15 p. in. on March 1, while he was repairing a
sewing machine, Frankel told him to go home as Burwick did not want to give him
"any overtime"; that the next day Frankel told him that Hyman Burwick had ordered
that he was to quit work at 4 p. m.; that he was instructed by the truck dispatcher,
who first checked with Burwick, not to report for work on the following Saturday;
that he worked on the next Saturday but was not permitted to perform Saturday
work thereafter;12 that after March 1 he was not permitted to work after 4 p. m.;
and that "around April" he was transferred to work on the blowers.
The evidence shows that before March 1, 1955, Miller was employed by the
Respondents on work other than at the plant, and that this work consumed a con-
siderable portion of his time. Burwick testified that with the exception of from 2
to 4 hours per week Miller resumed his work at the plant during the latter part of
February or the early part of March 1955. Miller testified to the effect that after
March 1 he commenced to devote more of his time to maintenance work at the
plant.
The Respondents contend, in substance, that LaCasse's hours were reduced be-
cause of the general decline in business and because there was not enough work to
keep him occupied when Miller resumed his duties at the plant. When questioned as
to the reasons for LaCasse's reduced hours, Hyman Burwick testified to the following:
Well, it goes along very much with the general decline in business and produc-
tion, and Mr. Frankel had reported to me on a few occasions there that he
didn't know what to do with Norman LaCasse during the day time, that while he
was doing some maintenance work, there was nowhere near enough for him
to take care of, and that Mr. Miller being back in the plant more regularly,
he didn't know just what to do with him. I told him "We'll shift him around
to different departments and use him you can, so that he will keep himself
r1 Mascroft testified that Cohen "works about 25 percent of his time on the platform,
75) percent of his work hours on the ; oad "
12LCCasse 's timecards show that be did not work on Saturday during the week ending
Mai c h 11, but did 'a ork on Saturday during the week ending March 18.
CARL BURWICK AND COMPANY 641
employed," and then he said to me, "Well, he kind of tries to make the time of
day go by so that when 4 o'clock comes, he gets busy fixing up some kind of
motor, or machine, so he can stay until 5 o'clock," and I said, "That kind of
business I don't want to put up with. The man has got to do his work during
his regular hours, and there is no sense in having the man stay overtime in order
to do work that he can do during his regular hours," and then I said to him,
"Well, does he do that to spread the work out to Saturday?" And, he said,
"Yes, in other words, he doesn't fill his full time so that he can do the work that
he should have done during the week on Saturday." So, I said to him, "Well,
tell Mr. LaCasse," or "tell Norman that hereafter he is to quit work at 4 o'clock,
and he is not to come in on Saturdays because he is not needed."
The record discloses that for the first 11 weeks of 1955, LaCasse's weekly hours
were 521/2, 561/4, 501/z, 51, 513/4, 501/2, 49, 541/2, 533/4, and 51i/z; and that for
the next 8 weeks, beginning with the week ending March 25, his weekly hours were
45, 44, 46, 431/2, 421/4, 433/4, 451/2, and 473/4. This record conclusively proves,
contrary to LaCasse's testimony, that his hours were not reduced until the week
ending March 25. It is true that LaCasse's hours were reduced, as were Mascroft's
before those of the other male employees named by Burwick. This fact raises a
suspicion of discrimination. However, Burwick's testimony affords a credible ex-
planation; and I find nothing in the record of a substantial nature that would cause
me to discredit him in this connection. Accordingly, I find that LaCasse's hours
were not reduced in violation of the Act, and shall recommend that the complaint
be dismissed insofar as his case is concerned.
E. Marie Palermo and Dorothy Pellegrino
Palermo and Pellegrino were hired by the Respondents during 1951. They both
worked as checkers in the mixed bag department under Foreman Strozina. Palermo,
Pellegrino, and Rita Des Roches, also a checker in the mix bag department, often
were transferred temporarily to work on the blowers. Palermo and Pellegrino both
testified that before March 1955, they worked about 1 or 2 days per week on the
blowers.13 Checkers were paid by the hour; and employees in the blower depart-
ment were paid on a piece-rate basis. Checkers who were transferred temporarily
to blower work continued to receive their hourly rates, and were not required to.
meet any production quota.
As related above, Palermo and Pellegrino were the only employees in the mixed
bag department who wore union buttons before the election on February 25. Also,
the conversations between them and Strozina have been related and found above.
Palermo testified that during 1954 and at some time before the election in 1955 she
made complaints to Strozina, Frankel, and Burwick concerning her assignment to
blower work; that she told Strozina "that I couldn't work on the blower because my
back used to hurt all the time, it was strenuous work for me"; that Strozina replied,
"I can 't do anything, so see Mr. Frankel"; that when she asked Frankel to be relieved
from blower work, he replied, "Well, I need the work"; that on another occasion she
told Burwick that she could not work on the blower because she had a sore throat
and the dust was bothering her; that Burwick told her to tell Frankel to take her off
the blowers; that after she gave the message to Frankel, she was relieved from blower
work for only 1 or 2 days; that on still another occasion she told Strozina and Frankel
that she did not want to work on the blowers as she "broke out with a rash from the
dust"; that they made no reply but continued to assign her to blower work; and that
employees in the other checking departments also were assigned temporarily to blower
work. Palermo further testified that starting about March 28, 1955, and until her
termination of employment on April 12, she was assigned continuously to blower
work; that during this period of time she did not do any checking, and Des Roches
was not assigned to blower work; that "one day" she saw Des Roches checking bags
on which she (Palermo) usually worked; that Des Roches had not checked such
bags before March 28; that from her observations there were sufficient bags in the
mixed bag department to keep her occupied; that after her first week on blower work
she complained to Strozina, asking him why she was assigned to blowers "all the
time"; that he replied, "I don't know, ask Frankel, it's Frankel's orders. He told'
me to tell you to go on the blower"; that she then complained to Frankel, telling him,
1s Des Roches did not appear as a witness at the hearing
390609-56-vol 115-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"There's enough work in the mixed department for me to do"; that he replied that it
was necessary to assign her to blower work as there wasn't enough checking work to
keep her occupied ; that during her second week on blower work she again complained
to Strozina , telling him , "Well, look at all the work all over the floor I can check,
why don't they put someone else on the blowers?", and that Strozina replied, "I don't
know, you just have to go on because that 's Mr. Frankel 's orders."
Concerning her last day of work on April 12, Palermo testified as follows:
Well, I worked on the blowers for two weeks, and April 12 I went in and my
bench was piled again , and I asked Eddie "How come I have to go on the blowers
again , I've been on it enough ? Two weeks is enough , it's strenuous work, and
I can't do it." So, he said , "That's Mr. Frankel 's orders , he wants you to go on
the blowers ." So, I went up to Frankel and I told him , "How come I had to go
on the blowers?" I says, "I went on two weeks and that was enough for me,
give someone else a chance." And, he said, "I want you on the blowers." And,
I said , "Well, Frankel I can 't. It's strenuous and my back hurts, and I get very
tired." And, he said, "Powell is working on the blower," and I said, "She was
hired for the blower, and I wasn't hired for the blower, I was hired for checking."
And, he said, "She does piece work," and I said "I don't want piece work," and he
said, "I'll give you piece work," and I said, "I don't want piece work," and he
said , "If you don 't want to do it, go home ," so we [Palermo and Pellegrino]
punched our cards and went home.
Pellegrino also testified that she worked continuously on blowers and did no check-
ing between March 28 and termination of employment on April 12. However, she
testified that Des Roches worked once on the blowers during that period of time.
Pellegrino testified that her work in the mixed bag department was on "grandin" bags;
that she observed Des Roches working on these bags after March 28; that each morn-
ing when she reported to Strozina "my bench was piled [with grandin bags] and they
had about three or four trucks;" that she "constantly" complained to Frankel over
being assigned to the blowers ; and that "he didn't say anything and just nodded his head
and told me to work on the blowers ... but he wouldn't give me any satisfaction
on why I had to go on the blowers when I had my own work to do."
Concerning her termination of employment on April 12, Pellegrino testified to the
following:
I went back to my bench, and Edward Strozina told me Mr. Frankel wanted me
up to the blowers, so I went to Mr. Frankel, and he told me to work the blowers,
and I talked up to him and said , "Mr. Frankel , this is getting sickening , don't you
think I was on the blowers long enough? I had my own work, and you took me
off to put someone on my work, and she could have done the blower work just
as well as I did." He said, "The other girls are on the blowers," and I said,
"Yes, but all of them that are here now were hired for this job, and they are on
piece work." And, he said, "If that is what you are coming to, I will put you on
piece work," and I said, "No." He said, "If you don't want to do the work, go
home," so I punched out.
Frankel denied that he told Palermo and Pellegrino "to go home" or that they were
discharged. He also denied that he offered them piece work. He testified that they.
told him that they did not want to work on the blowers, and that he explained to them
that there was not sufficient work in the mixed bag department to keep them occupied.
Employee Michael Gobriella testified that he overheard the conversation between
Frankel, Palermo, and Pellegrino on April 12. In this connection he testified, "They
asked Mr. Frankel `What do you want us to do?' and he said `seeing they haven't got
any work, it is slow, that is all we got to do, go on the blowers. Go right to work.' ..
Their answer was `why should we?' and he said `That is all we got. The work is slow.'
So Dottie said to Marie `Let's punch out,' and they told Mr. Frankel to stick it, and
they punched out and walked home." Gobriello denied that Frankel told Palermo
and Pellegrino "to go home."
Frankel further testified to the effect that during the 2 weeks before April 12
Palermo and Pellegrino did some checking work ; that Des Roches performed some
work on the blowers during that time; that he alone was the one who decided when
to assign checkers to blowers and which checkers were to be so assigned ; and that
checkers were transferred to blowers "in order to keep the work up" and when the
work in their departments was slack . Daily production records, which were main-
tained by Foreman Strozina for the period from March 28 to April 12 were received
in evidence. A summary of the hourly and daily blower work as shown by these
records is as follows:
CARL BURWICK AND COMPANY 643
Palermo Pellegrino Des Roches
3-28------------------------------- 0------------------------- 0--------------- - -------
0
3-29------------------------------- 0-------------------------- 0-------------------------
0
3-30------------------------------- 2------------------------- 0i------------------------
3
3-31------------------------------- 536------------------------ 43 -----------------------
4
4-1------------------------------- 0-------------------------- 0--------------------------
336
4-2------------------------------- 0-------------------------- 0-------------------------
0
4-4------------------------------- 0-------------------------- 0--------------------------
0
4'5-------------------------------- 536------------------------ 43t------------------------
0
4-6 -------------------------------- All day------------------- 64------------------------
0
4-7-------------------------------- -----do-------------------- All day-------------------
1
4'8-------------------------------- -----do--------------------- 0------------------------
234
4-11------------------------------ -----do--------------------- All day-------------------
0
4-12------------------------------- Assigned to blowers-------
Assigned to blowers------- 0
With respect to the alleged violation of Section 8 (a) (4) of the Act, the evi-
dence discloses that during about the middle of March 1955, Palermo and Pellegrino
gave affidavits to Field Examiner Joseph Barry; that Barry visited the Respondents'
office on March 23 in order to question employees; that at the time Barry ques-
tioned the supervisors, including Strozina, in the presence of Hyman Burwick; that
Strozina was questioned by Barry concerning threatening statements that he was
alleged to have made to undisclosed employees; that Strozina denied the statements
attributed to him; and that Strozina assumed that the statements with which he
had been confronted had come from employees in his department. It has been
found above that Strozina's remarks, made in the presence of Palermo, Pellegrino,
and Des Roches, contained threats of reprisal.
I find that the General Counsel has failed to prove that on and after March 28
Palermo and Pellegrino were assigned "to more arduous and less agreeable work"
because of their union membership and activity and because they gave affidavits to
an agent of the Board, as alleged in the complaint. The evidence shows that before
the advent of the Union they worked 1 or 2 days per week on the blowers, and that
the Respondents continued to assign Palermo to such work even though she ob-
jected to it. I credit the Respondents' production records. These records show,
contrary to the testimony of Palermo and Pellegrino, that the former was not as-
signed to full days on the blowers until April 6 and the latter until April 7. Pelle-
grino did not work on April 8. Also contrary to their testimony, Des Roches worked
for parts of 5 days on the blowers during the time in question. At best, the record
reveals that Palermo worked 4 full days on the blowers and again was assigned to
them on the day her employment terminated. As pointed out in the Respondents'
brief, a weekend intervened after the third full day. While it appears that Palermo
and Pellegrino performed more than the usual amount of blower work on and after
April 6, especially Palermo, nevertheless such work was part of their regularly
assigned duties. Taking into consideration the general decline in the Respondents'
business and the short period of time during which this abnormal blower work
occurred, I do not believe that an inference of discrimination would be justified.
Further, in regard to the 8 (a) (4) allegation of the complaint, it is to be noted that
Frankel, not Strozina, made the decision with respect to the transfer of checkers.
I find that Palermo and Pellegrino quit their jobs on April 12 and that they were
not discharged, constructively or otherwise. In so finding, I credit Frankel's de-
nials of the statements attributed to him by Palermo and Pellegrino during their
conversation on April 12.
F. The Committee
As related and found above, during the week ending March 25, 1955, Respond-
ents granted wage increases to all employees, ranging from 5 to 15 cents per hour.
Beatrice Benoit testified that she had been in the employ of the Respondents for
19 years; that she worked as an "inspector" in the eastern department under Foreman
Falcone; that on rare occasions she supervised the department during Falcone's
absence; that "after working hours" she gave Hyman Burwick a "note" in which
she asked for a wage increase; that a few days later Burwick answered "for me to
get whoever I wanted to go downstairs and have a conference with him"; that she
then formed "a group" and during lunch hour they discussed the possibility of ob-
taining a wage increase; that the group consisted of herself, Ellen Bausis, Rose
Feraco, Eva Feraco, Walter Juskovitch, and Michael Gobriella, each representing
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different departments; that shortly after receiving Burwick's answer and at sometime
during March the group met with Burwick and asked him to grant the employees a
wage increase; that she and Juskovitch talked for the group; that a wage increase
was the only subject discussed at the meeting; that Burwick told the group that he
would consider the request but that he could "make no promises"; that "Class A and
Class B" raises were not discussed at the meeting; that the group had no further
meetings with Burwick; that thereafter on her own initiative she told the employees
in her department about the meeting with Burwick; that some weeks after the meet-
ing she and the employees in her department received wage increases; and that
the group no longer functioned or met, except as individuals, after its meeting with
Burwick.
At the hearing the parties stipulated as follows:
Eva Feraco, if she appeared at this hearing, would testify as follows:
That in the first talk with Mr. Hyman Burwick, concerning which Beatrice
Benoit testified here yesterday, there was some talk of classifying the girls into
Class A and Class B, that the girls in Class A would consist of the better
workers and that they would receive an increase of 5 cents more than the in-
crease which would be given to the girls in Class B; that Miss Feraco would
testify that during the Korean War she acted as forelady in the mixed bag
department taking the place of Edward Strozina who was in the military service,
and that her position in this sense terminated when he returned from the war
in 1953, ever since which time she had been employed as a checker in the
mixed bag department.
It is stipulated that she would further testify that at this meeting only raises
were discussed and that Mr. Hyman Burwick said that he would consider what
had been discussed at this meeting.
The next day Eva Feraco went around and told the girls in her department
about the talk and asked what they thought of the Class A and Class B
idea. After she spoke to the girls, Eva Feraco, Miss Bausis, Rose Feraco, and
Beatrice Benoit, each one, came down, pretty close to one another, to tell
Mr. Hyman Burwick that the girls liked the Class A and Class B idea. Mr.
Burwick said that he would consider it . he would let them know.
The group decided, Miss Feraco would testify, that they would meet with Mr.
Burwick again if it was not satisfied with working conditions or if it had
any other similar suggestions.
Mr. Burwick did not participate in any conferences of the group leading to
this latter decision on its part.
It is further stipulated that Eva Feraco would testify that there was another
meeting of the group with Mr. Burwick in the latter part of April, 1955, at
which there was a discussion of Blue Cross-Blue Shield, and that nothing had
been settled on the point but that there had been a discussion and that Miss
Feraco told this to the girls in the mixed bag department.
I credit the stipulated testimony of Eva Feraco. Except that it is in conflict
in some respects with that of Benoit, it stands uncontradicted in the record. Further,
Benoit did not impress me as a reliable witness.
In my opinion, the evidence is insufficient to hold that the members of the
Committee, or any of them, were supervisory employees within the meaning of
the Act. However, I find that the Respondents during March 1955, recognized
and negotiated with the Committee as the exclusive representative of the employees
while the petition filed by the Union in Case No. 1-RC-3912 was pending, and
thereafter granted the employees wage increases as a result of said negotiations.
I find such conduct to be violative of Section 8 (a) (2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
MONTGOMERY WARD & CO., INCORPORATED 645
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. American Federation of Grain Millers , AFL, and the Committee are labor
-organizations within the meaning of Section 2 (5) of the Act.
2. By interfering with , restraining, and coercing their employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By recognizing and dealing with the Committee as the exclusive representative
-of their employees while the petition filed by the Union was pending, and by grant-
ing wage increases as a result of such negotiations , the Respondents have engaged
in unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Montgomery Ward & Co., Incorporated and Retail Clerks Inter-
national Association , Local Union No. 1687, AFL-CIO. Case
No. 3-C-4-825. February 29,1956
DECISION AND ORDER
On April 18, 1955, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner did not find as
unfair labor practices other conduct alleged in the complaint to be un-
lawful. Thereafter, the Respondent and the General Counsel filed
-exceptions to the Intermediate Report together with supporting
briefs.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings ,z conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications.
1 The Respondent also requested oral aigumeut In our opinion the record and the
exceptions and briefs fully present the issues and the positions of the parties Accord-
ingly , the request is denied
3In the section of the Intermediate Report entitled "Union organization ," the Trial
Examiner inaccurately referred to the date that the Union filed a representation petition
as February 16, 1954 Earlier in the Intermediate Report , under the section entitled
"Preliminary findings ," the Trial Examiner correctly stated that the Union filed its peti-
tion on July 16, 1954 We coriect the Febiuary date in the Intermediate Report to road
July 16, 1954
115 NLRB No. 92.