Chautauqua Hardware Corp.

National Labor Relations Board - Board Decisions

Mar 17, 1953

103 N.L.R.B. 723 (N.L.R.B. 1953)

CHAUTAUQUA HARDWARE CORPORATION 723
shop office employees in the plant maintenance, tool engineering, ship-
ping and receiving, and traffic, machine repair, and gear departments
and the metallurgical laboratory and the hospital department for the
purposes of collective bargaining? (2) Do you desire to be repre-
sented by International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, CIO? If a majority of the
professional employees in voting group (B) vote "yes" to the first
question, indicating their desire to be included in a unit with the non-
professional employees, they will be so included. Their votes on the
second question will then be counted together with the votes of the non-
professional voting group (A) to decide the representative for the
whole agreed unit; and if a majority of the employees in voting groups
(A) and (B) together select the Petitioner, the Regional Director con-
ducting the elections directed herein is instructed to issue a certification
of representatives to the Petitioner for a unit of such shop office and
professional employees, which the Board under such circumstances
finds to be appropriate for the purposes of collective bargaining. If,
on the other hand, a majority of the professional employees in voting
group (B) vote against inclusion in a unit with the shop office employ-
ees, they will not be included with these nonprofessional employees.
In that event the votes in voting groups (A) and (B) will be counted
separately to determine whether or not the Petitioner will represent
the employees in separate units. The Regional Director conducting
the elections directed herein is instructed to issue a certification of
representatives to the Petitioner for such of these two units in which
a majority select the Petitioner, which separate units the Board, in
these circumstances, finds to be appropriate for the purposes of col-
lective bargaining.
[Text of Direction of Elections omitted from publication in this
volume.]
CHAUTAUQUA HARDWARE CORPORATION and LOCAL 38, METAL POLISHERS,
BUFFERs, PLATERS AND HELPERS INTERNATIONAL UNION, AFL.
Case No. 3-CA-560. March 17, 1953
Decision and Order
On January 27, 1953, Trial Examiner Albert P. Wheatley is-
sued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged 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 Intermediate Report
103 NLRB No. 72.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report, and a supporting brief.,,
The Board 2 has reviewed the rulings made by 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 Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions 3 and
recommendations of the Trial Examiner.
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, Chautauqua Hardware
Corporation, Jamestown, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 38, Metal Polishers, Buffers,
Platers and Helpers International Union, AFL, or any other labor
organization of its employees, by discriminatory layoffs or by discrimi-
nating in any other manner with regard to the hire and tenure of their
employment or any term or condition of employment of any of its
employees.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist Local 38, Metal Polishers,
Buffers, Platers and Helpers International Union, AFL, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
1 The Respondent ' s request for oral argument is hereby denied , as the record and the
Respondent 's exceptions and brief adequately present the issues and the positions of the
parties.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three - member panel [ Members Houston, Styles,
and Peterson].
3 As we agree with the Trial Examiner 's conclusion that the Respondent , in denying
time off to two union shop committeemen to attend a Board hearing , was illegally motivated
by a desire to interfere with the organizational activities of its employees, we consider the
reasoning of the court in N . L. R. B. v Superior Co., Inc., 199 F. 2d 39, inapposite, and,
therefore , find it unnecessary to distinguish the factual situation in that case , as did the
Trial Examiner.
CHAUTAUQUA HARDWARE CORPORATION 725
(a) Make whole Erich W. Jerder and William Olson for any loss
of pay they may have suffered by reason of Respondent's discrimina-
tion against them.
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of back
pay due.
(c) Post at its place of business in Jamestown, New York, copies of
the notice attached to the Intermediate Report and marked "Appendix
A." 4 Copies of such notice, to be furnished by the Regional Director
for the Third Region, shall, after being duly signed by Respondent's
authorized representative, be posted by Respondent immediately upon
receipt thereof in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
s This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner," in the caption thereof , the words "A Decision and Order ." In the
event that this Order is enforced by a decree of the United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant
to a Decree of the United States Court of Appeals , Enforcing an Order."
Intermediate Report
This case concerns two employees, Erich W. Jerder and William Olson, who
were laid off for a period of 4' days because they absented themselves from
Respondent's plant in order to attend a representation proceeding before this
Board,' after having been refused time off by their foreman. The question in
issue is whether Respondent's denial of time off and disciplinary layoff were
motivated by a desire to frustrate the Union's organizational efforts or by legiti-
mate business considerations.
Facts
In February 1952 Jerder and Olson, union shop committeemen, asked Allan
F. Jones, president of Respondent, "if he was willing to meet with the Union
officials." Jones stated that as far as he was concerned labor was a commodity
bought in the open market as he saw fit and refused to meet with the Union.
Jones also stated "he might and he might not meet with the Labor Board if com-
pelled to do so."
The Union filed a petition for certification of representatives with the Re-
gional Office of the National Labor Relations Board and the parties were advised
that a hearing would be held on April 9, 1952. This bearing was thereafter post-
poned to April 25, 1952, but the Union did not receive notice of such postpone-
ment until after the time set for the hearing. Meanwhile the Union anticipated
the hearing would be held as scheduled and appeared at the designated place
i Case No . 3-RC-916.
257965-64-vol. 103-47
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the appropriate time. During the morning of April 9, 1952, Jerder, on behalf
of himself and Olson (the two members of the union shop committee), requested
permission from their foreman, Carl Johnson, to take time off to attend "a meet-
ing" at 10 a. in. that morning! Foreman Johnson told them they could go. Jer-
der and Olson appeared at the place designated for the hearing and upon learning
that the hearing had been postponed returned to Respondent's place of business
and resumed their work. During their absence Jones, on a trip through the
plant, noted their absence and asked Foreman Johnson where they were. John-
son told Jones, they had gone to a Labor Board hearing 2 Jones replied, "Well,
there is no hearing. Any hearing that there was is postponed." It also appears
from this record that during this conversation Jones gave Johnson some instruc-
tions regarding the granting of permission to leave the plant, but it is not clear
what these instructions were. Jones testified that, in anticipation of a "shut-
down by the Government on the use of scarce materials," Respondent experienced
a "boom period" of business in the spring of 1951; that on July 1, 1951, it had
on hand $1,300,000 worth of orders ; that because of "Government regulations"
many of these orders could not be filled and the furniture industry (of which
Respondent is a part') suffered a recession; that the Government suddenly lifted
its restrictions and upon lifting of these restrictions Respondent, in anticipa-
tion of cancellations of orders on hand, endeavored to fill these orders before
receipt of such cancellations but that nevertheless Respondent's business de-
creased to such an extent that on July 1, 1952, Respondent's orders on hand
totaled only $43,000. Jones further testified that because of its race to fill orders
before receipt of cancellations, Respondent was especially busy during the month
of April 1952 (the period of time material herein) despite the decline in its
business and that when he (Jones) first learned, on April 9, 1952, of the absences
of Jerder and Olson he then instructed Foreman Johnson that " no one was to
be given any time off for any reason whatsoever." Johnson testified :
Q. And had you talked with Mr. Jones before this [before April 25, 1952)
about men taking time off?
A. No.
Q. He hadn't said anything to you about men taking time off?
A. Well, he told me, he don't like to have them taking too much time
off as long as those jobs are coming through.
During the morning of April 25, 1952, Jerder, accompanied by Olson, requested
from Foreman Johnson time off that afternoon' so that he and Olson could
2 On the basis of observations of witnesses and the entire record herein , Johnson's denial
that Jerder told him "why he wanted to go" is not credited by the undersigned. In deter-
mining credibility in this proceeding the undersigned has considered, inter alia : The de-
meanor and conduct of witnesses, their candor or lack thereof ; their apparent fairness,
bias, or prejudice ; their interest or lack thereof ; their ability to know, comprehend, and
understand matters about which they have testified ; whether they have been contradicted
or otherwise impeached ; and consistency and inherent probability of the testimony.
8 Jones testified he laid off Jerder and Olson "for leaving their work a second time with-
out permission," that the first time was on April 9, and that Johnson told him (Jones) on
that date that they had left without permission. Johnson did not corroborate this testi-
mony and testified that on April 9 Jerder and Olson left the plant with his permission.
Jones' testimony that upon inquiry Johnson told him (Jones) that Jerder and Olson had
left the plant without permission is not credited by the undersigned.
' Respondent, a New York corporation, having its principal office and place of business
at Jamestown, New York, engages in the manufacture, sale, and distribution of metal furni-
ture trim and related products. There is no issue herein concerning, the facts reveal, and
the undersigned finds, that Respondent is engaged in commerce within the meaning of the
National Labor Relations Act, as amended, herein called the Act.
5 Although Jerder may have and probably did use the terms "we decided to have the
afternoon" it is clear from this record as a whole that the individuals involved interpreted
his remarks as a request for time off.
CHAUTAUQUA HARDWARE CORPORATION 727
attend the scheduled hearing. Johnson was informed that the Union had
requested Jerder and Olson to be present' Foreman Johnson told Jerder and
Olson that he would not grant them "permission to go" and that if they did
take time off they did so at their "own risk." The evidence is conflicting, and
Johnson's testimony is not clear, as to whether Johnson told Jerder and Olson
that he had work on hand which needed to be completed that day and that in
view of this he would not grant time off. On the basis of the entire record and
observations of the witnesses the undersigned finds that Johnson did not say
why he refused to grant the request for time off.
The denial of time off to Jerder and Olson was in marked contrast to Re-
spondent's normally liberal practice of granting permission to take time off.
The two employees, Jerder and Olson, left the plant at noon on Friday, April
25, 1952, and attended the hearing (apparently scheduled for 2 p. m.). They
had not been subpenaed and did not enter a formal appearance on behalf of
the Union or testify. However, they did sit at counsel table and assist the
Union in presenting the Union's position? They were observed, of course, by
Respondent's attorney (J. Russell Rogerson) and by Jones who appeared at
the hearing. The employees and Jones remained at the hearing until it
terminated at about 4: 15 p. m. Jerder and Olson were not replaced at Re-
spondent's plant that afternoon and there is no evidence that other employees
performed the work these employees were to have performed.
Jones testified that after the hearing on April 25, 1952, he "went back in the
plant that night and asked the foreman there whether or not he had given
them [Jerder and Olson] permission to leave because I had previously given
instructions no one was to be given any time off for any reason whatsoever" i
and that Johnson said "he had not given them permission to leave." On cross-
examination by counsel for the General Counsel (William J. Cavers), Johnson
was not "sure" whether Jones talked to him that afternoon about the absence
of Jerder and Olson and did not give his version of any conversation that may
have ensued. In response to questions by the undersigned, Johnson testified
that upon inquiry by Jones, he (Johnson) told Jones, around 2 or 3 o'clock on
April 25, 1952, that Jerder and Olson "went home at noon without my permis-
sion." Johnson's testimony in this regard is not persuasive. Thus it is not
clear when and how Jones learned that Jerder and Olson had left the plant
without permission.
On Monday, April 28, 1952, Jones told Johnson he was "going to have the boys
for a meeting at 11 o'clock. Tell them to be in there." At about 11 a. in. that
morning all polishers, including Jerder and Olson, were addressed by Jones.
The evidence concerning the remarks made by Jones is conflicting and vague and
it is difficult to reconstruct the situation and determine, with a reasonable
degree of accuracy, the specific comments made. However, it does appear, and
the undersigned finds, that Jones informed the assemblage that Respondent had
been in business for a considerable length of time without "outsiders" and did
not want "outsiders" and suggested that the employees think it over and not
6 Johnson testified nothing was said as to why they wanted time off and that at that
time he (Johnson) did not know there was a hearing scheduled for that afternoon. On
the basis of the entire record herein the undersigned finds it difficult to believe that Johnson
was not aware of the scheduled bearing and was not informed that Jerder and Olson
desired to attend this hearing to assist the Union in the presentation of its case in support
of its petition for certification. The undersigned finds the facts to be as stated above.
Apparently they were present at the hearing for the purpose of testifying in the event
an issue arose concerning the work of polishers , but were not called as witnesses because
the Union was satisfied with the testimony of Jones concerning their work.
6 As noted above it is by no means clear that such instructions had been given.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bring them in. Jones also told the employees that he could not permit employees
to do as they pleased and at the same time maintain plant discipline and that the
two employees (Jerder and Olson) who had left the plant without permission
on Friday to attend the Labor Board hearing were laid off for the balance
of the week.
Jerder and Olson left the plant about noon that day (April 28) and did not
return to their jobs until the following Monday, May 5, 1952. During their
absence they were not replaced and there is no evidence that during their
disciplinary layoff their work was performed by other employees.
There is nothing in this record establishing that Respondent was busier on
April 25 (when the employees were denied time off) than on April 9 (when
they were granted time off) except for the fact that April 25 was the last work-
day of the week and Respondent had certain orders it wanted filled that day.
However, there is no direct evidence that because of the absence of Jerder and
Olson shipments which otherwise would have been made were not actually made.
There is an innuendo to this effect in the testimony of Jones, but be evaded
answering a specific question as to whether there were any orders that were
canceled as a result of Jerder's and Olson's absence on April 25. On the basis
of the entire record, the undersigned is not persuaded that the absence of Jerder
and Olson created any substantial production problem or that it was anticipated
that such a problem would be created by their absence on that date.
Conclusions
Section 8 (a) (1) of the National Labor Relations Act, as amended, herein
called the Act, safeguards employees from employer infringement of their right
to engage in self-organization, collective bargaining, or other concerted activities
for mutual aid or protection, and Section 8 (a) (3) of the Act protects employees
from discriminatory impairment of their employment tenure or terms because of
union activity. If animus against the exercise of these rights underlay its action,
Respondent violated these provisions by denying time off to Jerder and Olson
and by suspending them. For, while the Act does not affect the "normal exer-
cise" by an employer of his right to hire, discharge, or determine the conditions
of employment of his employees, an employer may not under cover of that right
interfere with the self-organization, representation, or concerted activities of
his employees, or take any action with regard to their conditions of employment
for the purpose of discouraging membership in, or action on behalf of, a union.
In view of the fact that time off was requested, and the hearing attended, for the
purpose of processing the representation petition filed by the Union, there can
be no doubt that Jerder and Olson were exercising the rights guaranteed them
by Section 7 of the Act "to self-organization," to "assist labor organizations"
and "to engage in" concerted activities for "collective bargaining or other mutual
aid or protection." Thus the question in issue is whether Respondent's denial
of time off and disciplinary layoff were in reprisal for this protected activity.
In determining whether these employees were disciplined for leaving the
plant without permission or for their union activities, it is noteworthy that
Jones testified he laid them off "for leaving their work a second time without
permission" and that this testimony does not stand up under scrutiny. In ad-
dition, Jones' statements at the time of the layoff (on April 28), in the light of
the entire record, indicate that he was concerned about "outsiders" and that
the leaving of the plant without permission may not have been the true reason
for the layoff.
CHAUTAUQUA HARDWARE CORPORATION 729
Respondent claims it refused the request for time off on April 25 because the
plant was busy during the month of April and that employees could not be
spared . As noted above , Jerder and Olson were granted time off on April 9 but
not on April 25, and no reason was given them for such denial . There is nothing
in this record establishing that Respondent was busier on April 25 than on
April 9 except for the fact that it was the end of the workweek and Respondent
had certain orders it wanted filled that day . However , the record does not
establish that a substantial production problem was anticipated or created by
the absence of Jerder and Olson on that date . Cf. Apex Toledo Corporation, 101
NLRB 807. They were not replaced , there is no evidence that other em-
ployees ( or officials ) did the work which these employees were to have per-
formed, and the evidence does not establish a lack of shipments which other-
wise would have been made. In addition , the denial of time off was a disparate
application of Respondent 's customarily liberal practice of granting requests
for time off for a variety of personal reasons . The record reflects that even
chronic and unnotified absenteeism was permitted . Furthermore , if the legit-
imate business consideration of avoiding production delays during a busy sea-
son motivated the refusal to grant time off on short notice on April 25, it is
difficult to understand why the services of these employees could be dispensed
with , with no apparent difficulty , on April 9 and for the 4Y2 workdays im-
mediately after April 25 when they were subjected to disciplinary layoff.
That Respondent was concerned over the advent of the Union in its plant is
indicated by certain statements by its officials. Jones, as noted above, stated
that labor was a commodity bought in the open market, that Respondent would
not meet with the Union and might not meet with the Labor Board. Foreman
Johnson stated to Henry Norton in December 1951 that "if you go in the Union
you will all get fired. Jones will fire all of us." Johnson immediately retracted
this statement by stating, "I don't think he will fire you. He will probably for-
get it." These statements, at the very least, indicate that Respondent was con-
cerned over the advent of the Union and are of significance in appraising Re-
spondent's motive in denying time off on April 25 and in laying off the employees
on April 28. It is also significant that when time off was granted on April 9 to
attend a hearing Respondent knew, and the employees did not, that it was a
useless trip since the hearing had been postponed, but that such was not the
situation on April 25, m hen Respondent was aware of the scheduled hearing,
was aware of the purpose for the request for time off, and was aware that these
two employees were active proponents of the Union.
Respondent contends that the decision of the Court of Appeals for the Sixth
Circuit in N. L. R. B. v. Superior Co., Inc., 199 F. 2d 39, is applicable herein and
that the complaint should be dismissed because of the absence of a request by
the Board , or by the Union , that Jerder and Olson be excused from work to
attend the hearing.
In the Superior case the Board found the employer discriminatorily denied
leave to a union committee of five employees , who had requested a day off to
attend an informal conference with a field examiner of the Board convened to
discuss a consent-election agreement with the employer , and discriminatorily sus-
pended these employees in reprisal for attending the meeting ( 94 NLRB 586).
The court of appeals denied enforcement of the Board 's order holding that the evi-
dence failed to establish that the disciplinary action taken was because of union
activities rather than because of violation of the order prohibiting the employees
from taking the day off. The court held that the refusal to grant the requested
leave of absence was valid-"justifiable"-and that the disciplinary action which
followed for violation of the order prohibiting the employees from taking the
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day off was not improper. The court held that the facts in the Superior case
revealed that the request for leave had "no justifiable reason" because the em-
ployer "had unequivocally stated it would not participate in such a conference"
(a conference with the union participating) and hence the employees were re-
questing leave to make a "useless trip." The court further held that leave to
attend an informal conference between the union and the Board's agent (which
took place when the employer refused to participate in a conference with the
union) was not "justifiable" because the record in the Superior case did not
show that such a meeting was "necessary or advisable," or that the information
elicited, if not already in the Board agent's possession , could not have been
obtained by telephone, correspondence, or after working hours. However, the
court indicated that it believed a formal hearing has a superior status to an
informal conference and agreed that "it would be a violation of the Act for [an
employer] to refuse to permit an employee to attend a formal hearing of the
Board where his presence was requested by the Board."
In the instant matter, a formal hearing before the Board (not an informal
conference) was involved and the employees' presence was "advisable" because
they were in a position to assist in the presentation of the Union's case. Further-
more, any information already in the Board agent's ex parte possession was use-
less to the Board because the Board's determination must be made only on the
facts spread "upon the record of such hearing" (Section 9 (c) (1) of the Act).
A hearing, of course, cannot be held by telephone or correspondence, nor as a
general rule after working hours. Thus the question for determination narrows
to : Is the absence of request by the Board that employees be present at the for-
mal hearing critical? The undersigned believes such absence not critical. Usually
in representation proceedings, the Board does not occupy an adversary prosecu-
tory role, but instead relies primarily on the union, the employer, and employee
parties to the proceeding to adduce the necessary information, and the Board
does not normally request employee presence. (See National Labor Relations
Board Rules and Regulations and Statements of Procedure, Section 101.20.) Had
subpenas been requested, which they were not since the Union did not foresee
any difficulty in obtaining employee presence without subpenas, they would have
been issued as a matter of course (Section 11 (1) of the Act) and the presence
of the employees would then have been at the request of the Board. In these
circumstances the voluntary presence of the employees without subpenas makes
no difference. N. L. R. B. v. Fulton Bag d Cotton Mills, 180 F. 2d 68, 70 (C. A. 10),
cited with approval in the Superior case. It appears to the undersigned that the
basis for the court's decision distinguishes the Superior case from the present one
and that the decision in that case does not require a dismissal of the complaint
herein.
In view of all the circumstances the undersigned concludes that in denying time
off Respondent was not motivated by legitimate business considerations, but
rather by a desire to interfere with the organizational activities of its employees.
See Stratford Furniture Corporation , 96 NLRB 1031 and American Thread Co.,
301 NLRB 1374. Since the refusal to grant the requested time off was invalid
under the Act, the disciplinary action which followed was likewise invalid.
Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793, 805.' By denying the request,
and by subsequently imposing a disciplinary layoff on Jerder and Olson, Respond-
ent interfered with, restrained, and coerced its employees in the exercise of rights
9 In view of the conclusions above stated no determination is made herein as to whether
Respondent , absent motivation against the Union , nevertheless , discriminated against
attendance at a Board hearing.
CHAUTAUQUA HARDWARE CORPORATION 731
guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) of the
Act. Because such conduct amounts to a discrimination in the hire and tenure
of employment which necessarily discouraged membership in the Union, it also
violated Section 8 (a) (3) of the Act.
In summary, the undersigned concludes and finds that: (1) Respondent dis-
criminated in regard to the terms and conditions of employment of Erich W.
Jerder and William Olson in violation of Section 8 (a) (3) and (1) of the Act;
(2) Respondent interfered with, restrained, and coerced its employees, in the
manner outlined herein, in violation of Section 8 (a) (1) of the Act ; and (3)
these unfair labor practices occurring in connection with the operations of
Respondent's business 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.
The Remedy
Having found that Respondent has engaged in unfair labor practices in viola-
tion of the Act, the undersigned recommends that Respondent, to effectuate they
policies of the Act, cease and desist therefrom and take the affirmative action
hereinafter specified.
Whether Respondent's conduct be viewed as a violation of Section 8 (a) (1)
or of Section 8 (a) (3) of the Act, the undersigned believes that in order to
effectuate the policies of the Act, Respondent should be required to make Jerder
and Olson whole for any loss of pay they may have suffered. Stratford Furniture
Corporation, supra.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist LocAL 38, METAL POLISHERS, BUFFERS, PLATERS
AND HELPERS INTERNATIONAL UNION, AFL, or any other labor organization,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities
except to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT discourage membership in LOCAL 38, METAL POLISHERS, BUF-
FERS, PLATERS AND HELPERS INTERNATIONAL UNION, AFL, or any other labor
organization of our employees, by discriminating in any manner with regard
to their hire and tenure of employment, or any term or condition of employ-
ment.
WE WILL make whole Erich W. Jerder and William Olson for any loss of
pay suffered by them by reason of the discrimination practices against them,
without prejudice to their seniority and other rights and privileges pre-
viously enjoyed.
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain , or refrain from becoming mem-
bers of the above-named union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity with Sec-
tion 8 (a) (3) of the amended Act.
CHAUTAUQUA HARDWARE CORPORATION,
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.
GRIFFIN MANUFACTURING COMPANY and UNITED STEELWORKERS OF
AMERICA, *CIO. Case No. 16-CA-392. March 17, 1953
Decision and Order
On November 3, 1952, Trial Examiner David London 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and the
General Counsel filed a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
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 Respondent's exceptions,z the General Coun-
sel's exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.3
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and
Members Styles and Peterson].
2 The Respondent excepted to the failure of the Trial Examiner to strike paragraph 9
of the complaint because more than 6 months had elapsed between the occurrence of the
unfair labor practices set forth in paragraph 9 and the issuance of the complaint. We
find no merit in this contention. Section 10 (b) of the Act prohibits the issuance of a
complaint based upon an unfair labor practice occurring more than 6 months before the
filing and service of a charge. The original charge in this case was timely filed; It is
immaterial that the complaint was issued more than 6 months after the occurrence of the
unfair labor practices alleged therein.
The Respondent also contends that the Board lacks jurisdiction over the unfair labor
practices set forth in paragraph 9 of the complaint because such unfair labor practices. are
not expressly alleged in the original or amended charges filed herein. We find no merit in
this contention. Cathey Lumber Company, 86 NLRB 157.
3 The Trial Examiner stated that Fannie Rose was transferred to a new position every
night before she was discharged by the Respondent. While the record shows that she was
frequently transferred , there is no evidence that such transfers occurred every night.
However, this error does not affect our concurrence in the Trial Examiner 's finding that
the Respondent did not discriminate against Rose.
103 NLRB No. 79.