Clinton E. Hobbs Co.

National Labor Relations Board - Board Decisions

May 30, 1942

41 N.L.R.B. 537 (N.L.R.B. 1942)

In the Matter of CLINTON E. HOBBS COMPANY and DISTRICT 38, LODGE
264, INTERNATIONAL ASSOCIATION OF MACHINISTS (A. F. OF L.) '
Case No. C-2056.-Decided May 30, 194.x,0
'Jurisdiction : chain and hoist manufactuiing industry
Unfair Labor Practices
'Interference , Restraint, and Coercion : Interrogating employees concerning union
membership and activity
Discrimination : Discharge of employee because of union activity.
Collective Bargaining : Majority established by signed membership cards-re-
fusal to bargain collectively: refusal to cooperate in establishing majority
Remedial Orders : hack pay awarded to person discriminated against; reinstate-
ment not ordered because other employment obtained and reemployment not
des:ied; employer ordered to bargain with union on request.
Unit Appropriate for Collective - Bargaining : production and maintenance em-
ployees, excluding supervisory and clerical employees and chain makers.
Mr. Robert E. Greene, for the Board.
Mr. Richard C. Sheppard, of Boston, Mass., for the respondent.
Mr. David P. McSweeney, of Boston, Mass., for the Union.
Mr. Raymond J. Heilman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by District 38, Lodge 264, Inter-
national Association of Machinists,' affiliated with the American Fed-
eration of Labor, herein called the Union, the National Labor Rela-
tions Board,' herein called the Board, by the Regional Director for the
First Region (Boston, Massachusetts), issued its complaint dated No-
vember 21, 1941, and an amendment to the complaint, dated November
24, 1941, against Clinton E. Hobbs Company, Everett, Massachusetts,
herein called the respondent, alleging that the respondent had'engaged
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
'called the Act. Copies of the complaint, the accompanying notice
of hearing, and the amendment to the complaint were duly served upon
the respondent and the Union.
The complaint, as amended, alleged in substance (1) that on or about
June 28, 1941, the respondent discharged and thereafter refused to
'41 N L. R. B., No. 107.
537
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate Anthony Coviello because of his activity on behalf of the
.Union; (2) that on or about June 27, 1941, and at all times thereafter,
the respondent refused to bargain collectively with the Union as the
exclusive representative of all employees in an appropriate unit, with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment; (3) that on June 30, 1941, and thereafter, the
respondent questioned its employees concerning their membership in
and activity on behalf of the Union and made statements designed
to discourage membership in the Union; and (4) that by the aforesaid
acts the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
Thereafter, on December 6, 1941, the respondent filed its answer, deny-
ing that it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held from December 4 to 9, 1941,
at Boston, Massachusetts, before C. W. Whittemore, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board and
the respondent were represented by counsel and the Union by a repre-
sentative. All parties participated-in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. At the close
of the hearing, counsel for the Board moved to amend the complaint
to conform to the proof. The Trial Examiner granted this motion.
During the course of the hearing, the Trial Examiner made rulings
upon other motions and upon objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby af-
firmed. At the close of the hearing, counsel for the respondent argued
orally before the Trial Examiner.
- On January 13, 1942, the Trial Examiner issued his Intermediate
Report, copies of which were duly served on the parties. He found
that the respondent had engaged in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5), and
Section 2 (6) and (7) of the Act, and recommended that the respond-
,entb cease and- desist therefrom' and- take certain aflirmativeF action to
effectuate the policies of the Act.
The respondent filed no exceptions to the Intermediate Report but
filed a brief on March 2, 1942. Pursuant to notice, a hearing for the
purpose'of oral argument was held before the Board in Washington,
D'. C., on' March 21, 1942. The respondent and the Union appeared
and participated in the oral argument.
The Board has considered the respondent's' brief, and insofar as the
contentions therein made are inconsistent with the findings, conclu-
sions, and order set forth below, finds them to be without merit.
Upon the entire record in the case the Board makes the following :
CLINTON E. HOBBS COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
539
Clinton E. Hobbs Company is a Massachusetts corporation with its
principal place of business at Everett, Massachusetts, where it is en-
gaged in the manufacture, sale, and distribution of chains and hoists.
Between November 1940 and November 1941, the respondent used.raw
materials , consisting principally of iron and steel, valued in excess of
$10,000, about 20 percent of which was shipped to the Everett plant
from States other than Massachusetts. During the same period, the
respondent manufactured finished products valued in excess of $10,000,
more than 50 percent of which was shipped from the Everett plant to
points outside the Commonwealth of Massachusetts. The respondent
concedes that it is engaged in interstate commerce and is subject to
the jurisdiction of the Board.
H. THE ORGANIZATION INVOLVED
District 38, Lodge 264, International Association of Machinists; affil-
iated with the American Federation of Labor, is a labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The re fwsal to bargain collectively
1. The appropriate unit
The complaint alleged that the production and maintenance em-
ployees of the respondent, exclusive of supervisory and clerical em-
ployees and chain makers, constitute an appropriate bargaining unit.
In its answer, the respondent denied this allegation. In its brief, the
respondent contended that such appropriate unit comprised "the en-
tire plant." No evidence was offered by the respondent at the hear-
ing, and no reasons are stated in its brief, in support of this contention.
The record shows that all employees of the respondent alleged in
the complaint to constitute'an appropriate unit are eligible for-mem-
bership in the Union and that chain makers are eligible for member-
ship in another labor organization.
We -find that all production and maintenance employees of the
respondent, exclusive of supervisory and clerical employees and chain
makers, constitute a unit appropriate for the purposes of collective
bargaining and that such unit insures to the employees of the respond-
ent the full benefit of their right to self-organization.. and -collective
'bargaining and, otherwise effectuates the 'policies of the Act.
540 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
2. Representation by the Union of a majority in the appropriate unit
The respondent's pay roll for the week ending June 25, 1941, shows
that during that week 18 persons were employed in the unit herein-
before found appropriate. There were offered and received in evidence
signed cards expressly authorizing the Union in each case to represent
the signer for the purposes of collective bargaining. The respondent
contends in its brief that there is no evidence that those who signed
these cards did so with the intention of authorizing the Union to
represent them. The only witness who testified on this point stated
that he had signed a card with the belief that the act of signing con-
stituted a preliminary step toward obtaining membership in the
Union. The card signed by this witness and all the other signed
cards introduced in evidence bore the caption "Authorization for Rep-
resentation * * *" and expressly provided, as already stated, that
the signor authorized the Union to represent him for the purposes of
collective bargaining. Moreover, we have consistently held, and it is
now well settled, that an application for membership constitutes a
sufficient authorization as collective bargaining representative 1 We
"hold that the signing of these cards properly effected designation of
the Union as the representative of the signers for the purposes of col-
lective bargaining.
We have compared the cards with the respondent's pay roll and find
that, as of June 27, 1941, 11 employees of the 18 in the unit which
we have found to be appropriate had signed authorization cards. Ac-
cordingly, we find that on June 27, 1941, and at all times thereafter,
the. Union was the duly designated bargaining representative of a
majority of the respondent's employees in the unit above found to be
appropriate. Pursuant to Section 9 (a) of the Act, the Union was,
therefore, on that date, and at all times thereafter has been, the ex-
clusive representative of all the employees in such unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
3. The refusal to bargain
It is undisputed that on June 27, 1941, after a majority of the
respondent's employees within the unit found appropriate had signed
cards authorizing the Union as their representative, David P. Mc-
Sweeney, business-representative of District 38 of the Union, Timothy
Hurley, financial secretary of Lodge 264 of the Union, and Anthony
Coviello; an employee of the respondent, visited the respondent's office
I National Labor Relations Board v. Bradford Dyeing Association , 310 U. S. 318 ; Inter-
nattional Association of Machinists v. National Labor Relations Board, 311 U. S. 72;
National Labor Relations Board V. Chicago Apparatus Company, 116 F . (2d) 753.
CLINTON E: HOBBS COMPANY 541,
and there met Carl B. Gerry, the respondent's secretary; That Mc-
Sweeney informed the latter that he represented the Union and that
some employees of the respondent had signified their intention to
join the Union; and that Gerry replied. that he could take no action
himself, but that he would have Edwin Hobbs, the respondent's
president, telephone McSweeney.
On Saturday, June 28, Anthony Coviello was discharged by the
respondent, and on the following Monday, June 30, the respondent's
employees went out of strike.2 On the same day, according to
McSweeney's uncontradicted and credible testimony, McSweeney,
accompanied by Coviello, again visited the respondent's office in an
attempt to obtain the reinstatement of Coviello. McSweeney in-
formed one of the girls in the office that he and Coviello had import-
ant business about which they desired to see Hobbs and, after
attempting to find Hobbs, the girl reported that he was too busy to
see them. She repeated this statement in response, to a request by
McSweeney that she tell Hobbs that the business involved was of a
serious nature, including the discharge of an employee. Later that
day, having decided to place "the matter" before the State Board of
Conciliation, McSweeney went to its offices, where he was told by one
Horneman, a representative of that Board, that he would summon the
management for a. conference. After, he had been notified of a
conference scheduled for July 1 at the office of the State Board of
Conciliation, McSweeney and a committee of the respondent's em-
ployees, including Coviello, appeared at the State Board, but no
representative of the respondent was present. Another colference,.
scheduled for July 7 at the same office, was attended-by McSweeney,
Hurley, and a committee of the respondent's employees, but no one
appeared on behalf of the respondent. Hobbs testified that he thought
he had been notified by letter of the conference of July 7, and that
he thought a subpoena had been served upon him personally or had
been left at his office. He did not explain the failure of the respond-
ent to appear at either of the conferences. Although the record does
not indicate directly the substance of the notice served upon the
respondent, it is apparent from the cross-examination of McSweeney'
by the respondent's counsel, concerning a telephone conversation, on
July 5 between the latter and McSweeney, that the respondent's coun-
sel=knew of the conference scheduled for July 7 and was aware that it
had been called to effect the reinstatement of Coviello and the return
of the strikers to work through negotiations with the Union. We
2The strike. apparently called in protest against the discharge of Coviello, is not alleged
in the complaint as having been caused by the respondent' s alleged unfair labor practices
and is mentioned herein only in connection with the sequence of events relating to the
refusal to bargain.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find, therefore, that Hobbs was similarly aware of the purpose of.
that conference.
On July 8, one Median, a 'representative of the Federal Office of
Production Management, held a conference at the respondent's office
with Hobbs, Gerry, and Hurley, for the purpose of adjusting the
dispute between the respondent and its employees and effecting a
resumption of production. Hurley's testimony concerning this con
ference is substantially as follows : After Meehan stated to Hobbs-
that Hurley was a representative of the' Union, Hurley asked Hobbs
to put the men back to work. Hobbs replied that he had need for
and could reinstate only five or six men and then asked H-itrley to send
him a letter stating that the union represented a majority of the
respondent's employees. Hurley agreed and then inquired whether,
in reply to such a letter, Hobbs would write stating that he would
recognize the Union as bargaining representative of the employees.
Hobbs answered that he could not do so until he had obtained legal
advice; whereupon Hurley stated that if that was Hobbs' attitude,
there would be no object in Hurley's writing as requested. During
the course of the conference Hobbs asked Hurley, "How do I know
you represent these men'?" and Hurley replied that authorization
cards ,bad been signed by employees of the respondent, which he pro-
posed to take to the Regional Office of the Board the next day, if
necessary, and asked Hobbs whether he would be willing to have the
Board's Regional Office settle the question of majority representation.
Hobbs again countered that he could not do anything without legal
advice.
, While admitting that Hurley had been introduced to him as a repre-
sentative of the Union at-the conference of July 8, Hobbs denied that
Hurley had made a majority representation claim on behalf of the
Union and testified that Hurley's claim was made as personal repre-
sentative of the employees. Hobbs also testified that, in reply to
Hurley's request as to whether Hobbs would agree by letter to recog-
nize the Union if Hurley would write a letter stating that the Union
represented a majority, he had said that when he received the letter
he "could then tell." Hobbs did not deny that Hurley had proposed
to have the question of majority representation settled by the, Board's
Regional Office and that Hobbs had refused to agree. We find, as did
the Trial Examiner, that the conference of July 8 took place sub-
stantially in accordance with Hurley's testimony.
On July 9, Hobbs, Gerry; McSweeney, Hurley, and a committee of
three employees, including Coviello, met at the office of the State Board
of Conciliation. McSweeney and Hurley testified as follows concern-
ing this conference : Horseman,. representing the State. Board, pro-'
posed, with the assent of the union representatives, that•the respond-;
CLINTON E. HOBBS COMPANY 543.
ent's employees, excepting Coviello, be returned to work and that
Coviello's case be held in abeyance. Horneman, at the same time, stated
that he had evidence, submitted by McSweeney and Hurley, that the
respondent's employees had designated the Union to represent them
and proposed that, if Hobbs doubted the Union's claim, the State
Board of Conciliation could conduct an election or have the employees
brought to its office for the purpose of checking their signatures against
the respondent's pay roll. Hobbs replied that, because of the absence
of counsel, he could not answer one way or the other but offered to
take some employees back. Gerry, who was not questioned at length
at the hearing concerning the conference of July 9, was asked whether
a proposal of a consent election among the respondent's employees
had been made and testified: "I don't recall." Hobbs was asked at
the hearing whether he had ever refused to bargain with any person
or organization which had offered to prove, or had proved, authoriza-
tion as majority representative, and testified : "I have not." The testi-
mony of Gerry and Hobbs cannot be accepted as rebutting the specific
testimony of McSweeney and Hurley, concerning the conference of
July, 9 at the office of the State Board of Conciliation. We find, there-
fore, that the facts as to that conference were substantially as testified
to by McSweeney and Hurley.
The Union made no further attempts to deal with the respondent.
4. Conclusions as to refusal to bargain - -
While the Union represented a majority of the respondent's employ-
ees in the 'appropriate unit on June 27 and thereafter, we do not find
that its unsuccessful attempts to meet with Hobbs on June 27 and June
30 constituted a refusal to bargain, since the Union made, no claim
of majority representation on either of these days. Nor do we find
that, by failing to attend the conference of July 1, the respondent
violated its duty-to bargain, for there is no evidence that the State
Board notified the respondent of the Union's majority_ -claim.* Al-
though, as we have found, Hobbs knew of the purpose of the con-
ference of July 7, it does not appear that the State Board of Concilia-
tion, in connection with that conference, informed the respondent of
the Union's majority claim. Therefore, the absence of any repre-
sentative of the respondent on that occasion cannot be deemed a refusal
to bargain. However, the failure of the respondent to meet with the
Union until July 8- reasonably affords a basis for finding an un-
willingness-to deal with the Union under any circumstances and bears
directly upon the respondent's attitude on July 8 and 9. On both of '
these days, the Union claimed to represent a majority of the employees
and requested that the respondent negotiate, with it concerning the
return to work of the strikers and the reinstatement of Coviello. Al-
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though Hobbs expressed no genuine doubt as to the validity of that
claim, the Union and the State Board of Conciliation nevertheless
offered to support the claim by adequate and reasonable means.
Hobbs' sole reply each time was that he could do nothing without the
advice of counsel . Since the Union in fact represented a majority
of the employees in-the appropriate unit and Hobbs failed to cooperate
with it in establishing that majority, refusal to bargain on July 8 and 9
is clear . Moreover, the consistent failure of Hobbs personally to
meet with the Union, the knowledge of his counsel of the Union's
efforts to negotiate concerning the very matters which were brought
up on July 8 and 9, and Hobbs' obvious opportunity to consult counsel-
at least after the conference of July 8, lead us to conclude, and we find.
that Hobbs deliberately refused to afford the Union the cooperation
to which it was entitled in proving its contention of majority repre-
sentation, thereby frustrating the employees' attempts to exercise their
right of collective bargaining.'
We find that the respondent, on July 8 and 9, 1941, and at all times
thereafter, refused to bargain collectively with the Union as the ex-
clusive representative of the employees in the unit hereinbefore found
to be appropriate. We further find that the respondent thereby in=
terfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
B. The discharge of Coviello and other conduct constituting
interference
Anthony Coviello began working'for the respondent on May 20,
1941, on the day shift at 40 cents per hour. On June 7, his rate of'
pay was increased to 45 cents per hour. On or about June 20, he was'
put on the night shift. The record shows that the employees working,'
on the night shift were subject to less supervision than those on the` ^'i
day shift and that only the more reliable workers were assigned to'
the night shift.
Coviello testified that about June 22, after the men had begun to
discuss the question of union organization, Richard, his foreman, told
him that if he was "smart" he would not talk about union activities-
in the shop. Richard first testified that he did not remember having
made such a statement, and then denied Coviello's testimony on this
point 4
'Matter of Burnside Steel Foundry Company and Amalagamated Association of Iron,-
Steel and Tin Workers of North America , Lodge No. 1719, 7 N. L. R. B. 714; Matter of
McNeeley & Price Company and National Leather Workers Association, Local No. $0, of
the C. I. 0., 6 N . L. R. B. 800.
* In its brief the respondent put much stress upon the fact that June 22 was Sunday,,
'a day on which the respondent 's plant was closed. However, Coviello had not testified
precisely that the above -mentioned remark to him was made on June 22 , but had said "about'
the 22nd of June."
CLINTON E. HOBBS COMPANY 545
Coviello, on June 24, took the initiative in organizing the respond-
ent's employees; when he arranged to have representatives of the Union
meet him to confer on a plan of organization. On June 25, McSweeney,
business representative of District 38 of the Union, and Hurley, finan-
cial secretary of Lodge 264 of the Union, met with Coviello and' Romeo
Manganiello, a"gang leader" in the respondent's plant, at Coviello's
home. McSweeney, on June 26, provided Coviello• with blank union
authorization cards, and on the next day Coviello informed McSweeney
that a majority of the cards had been signed. Coviello testified that
the greater number -of these had been signed in -his presence' and that
a few of the signatures had been obtained by two of his fellow em-
ployees: Thereupon, McSweeney, with Coviello, went to, the respond-
ent's office and, informed Gerry, the respondent's' secretary, that a
number of employees had signified their intention- to join; the' Union:
and that he desired to meet with Hobbs.
Manganiello testified that on June- 28, at about 10: 30' o'clock, he
had, the following conversation with Richard, foreman of the day
shift on which both Coviello and Manganiello were working that day;
Richard approached him and asked: "Do, you knowanything about
the Union coming-in?" -When Manganiello replied that he had heard
about it,, Richard' asked him whether' he had signed- one of those
"slips", and Manganiello admitted that he had. Richard then in-
quired- whether or not he knew who had brought the "slips" in,
and 'Manganiello' asked, "Who' have- you got in mind?" Richards'
replied- "Tony [Cbviello]" adding, "We won't be bothered with him
any, more."' Richard was not questioned at the hearing concerning
any conversation he had with- Manganiello on June- 28. Archie Ken-
dall,. the' respondent's superintendent, testified that at 1: 00- o'clock,
of the same day,, June 28, when the respond'ent's employees were
being paid, he paid Coviello last and told him that he would- not be
needed' any more;, that Coviello asked the reason- for his discharge,
and that Kendall', after remarking, "Do you have to ask- that?";,
stated that his work was' unsatisfactory.
Anthony Ciulla,- an employee of the- respondent, testified' that on
Monday, June 30, Richard asked him whether or not he had' signed
any= papers which, Coviello had handed him, and that he replied that
he knew nothing, about such papers, although he had signed an au'
thorization card. On being asked at the hearing why he had "lied"'
to Richard, Ciulla said that he thought he might be discharged if
he told the truth about his having signed- a card. Richard was not
asked at, the- hearing whether or not he had had a conversation with
Ciul'la on June 28 or on June 30.5 - We find, as did` the Trial Examiner,
"The respondent stressed ' in its brief that Ciulla did not work on June 28 The. re-
spondent 'scounsei , both in conducting the examination of'witnesses and in the preparation
of the respondent 's brief, seems to have confused Ciulla with Manganiello Manganiello
463892-42-vol 41--35
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Richard made the remarks attributed to him by Coviello, Man-
ganiello, and Ciulla and that such statements clearly tended to dis-
courage the respondent's employees from engaging in union activity.
In support of the respondent's contention that Coviello's work
was unsatisfactory, Richard testified that on three occasions Coviello
had disregarded instructions to use a jig as a guide in drilling cast-
ings, had complied only after direct orders, and had, because of his
disobedience, necessitated the redrilling of a substantial number of
castings. Richard testified also that on one occasion he had found
Coviello throwing waste around in the shop, and that, on another
occasion, grease thrown by Coviello had struck the wall near Richard,
for both of which offenses the latter had reprimanded and warned
him. Nicholas Pickowicz, a chain maker, corroborated Richard's
testimony concerning the grease-throwing incident. Richard also
testified that 4 or 5 days before Coviello was discharged, he had
ordered him to grind a casting on an emery wheel, that Coviello had
refused with insulting and obscene language, and that Richard had
repeated the order and had then told Superintendent Kendall, who
had just come into the shop, that he would not "stand much more"
from Coviello.
Kendall testified that, after the first few days of Coviello's employ-
ment, the latter began to loaf and complained to Kendall that he was
"working for peanuts" and that Kendall then had his pay increased by
5 cents per hour to encourage him. Kendall stated that Coviello did
not, however, improve very much, and that he had warned him that he
would have to stop "fooling around" and throwing waste in the shop,
or be dismissed. Kendall testified also that Richard had made com-
plaints to him five or six times about Coviello's conduct, including the
latter's disregard of instructions to use the jig, with the consequent
-spoilage of castings. Kendall corroborated Richard's testimony about
the grease-throwing incident, about Coviello's defiance of Richard's
order on June 25 to grind a casting, and about C,oviello's use of vile
language on that day. Kendall testified that he had rebuked Coviello
for his disobedience and use of obscene language, saying, "I have put
up with as much as I can from you. Go over there and go to work."
Kendall testified further that Richard at that time recommended to
him that Coviello be discharged immediately, but that he told Richard
that he would let Coviello work until Saturday; that he believed he told
Hobbs of the incident on the next day, June 26, and that Hobbs
ordered that Coviello be discharged. In an affidavit taken on July 21,
1941, before an Examiner of the Board, Kendall stated, referring to
the incident of June 25: " * * . * as I was passing the machine shop
testified that the above-described conversation between Richard and himself occurred on
June 28; Ciulla , that the above -described conversation between Richard and hiu elf
occurred on June 30.
CLINTON E. HOBBS COMPANY 547
I heard Coviello using profanity to Richards. This was the final
thing that made me decide on Thursday, June 26th, to let Coviella
go. I went to the office and told the bookkeeper, Miss Lindquist
(Mrs. Collins) to make up Coviello's salary envelope as of Saturday,
June 28th. On Saturday, about an hour before I notified Coviello that
he was through, I discussed the matter with Mr. Edwin Hobbs.
Until that time the only person I had told of my intention to fire
Coviello was Miss Lindquist, although I may have mentioned it to
Richards on Friday. * * *" On cross-examination, Kendall stated
that he believed he talked for the first time with Hobbs about dis-
charging Coviello on Thursday afternoon, adding that it could have
been on Wednesday morning or night. When his attention was di-
rected to his statement in the affidavit that he had talked with Hobbs
about Coviello for the first time on Saturday, June 28, about an hour
before the discharge, he replied that this statement must be correct
since it was in writing and had been made soon after the events to
which it related. Ile also testified that he was sure he had talked with
Richard on Wednesday after, June 25, about discharging Coviello_
Hobbs testified that there were "many reasons" for the discharge,
specifying, in addition to others mentioned in the testimony of Richard
and Kendall, the following alleged ground : taking work from day
men and applying it to his work quantity; interfering with other
men's work; affecting the productiveness of other men; breakage of
tools; impairing the effectiveness of machine tools. No evidence was
introduced by the respondent to substantiate the additional' reasons
assigned by Hobbs for the discharge of Coviello.
According to the testimony of the respondent's principal witnesses,
Kendall and Richard, Coviello's conduct as an employee had been
unsatisfactory almost from the beginning of his employment. His
acts of misbehavior, as for example, his open defiance of instructions,
to use a jig in drilling holes in castings, had been committed at inter-
vals. Not only was Coviello kept on the pay roll, but, according to
Kendall's testimony, he was given an increase in pay, allegedly to
encourage him. In addition, he was put on the night shift, to which
only the more reliable workers were assigned. His subsequent mis-
demeanors of greater seriousness were tolerated without more severe
disciplinary action than reprimand. His misbehavior immediately
preceding June 25, including the grease-throwing incident, had been'
quite serious and yet he was retained. Moreover, although Kendall
testified that Coviello's disobedience and vile and insulting language
when ordered by Richard to grind a casting on Wednesday, June 25,
was what finally caused Kendall to decide to discharge him, nothing
was said to him about such decision until he was given his separation
pay on Saturday, June 28, at which time the incident of June 25 was
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not mentioned to him. The inconsistencies and vagueness of Ken-
dall's testimony regarding the date on which he reported the incident
of June 25 to Hobbs and the date on which the latter agreed that
Coviello should be discharged render such testimony unacceptable.
In the meantime, Coviello's union activity had been intensified pro-
gressively and had culminated in his visit to 'the respondent's office
with Union Representatives McSweeney and Hurley on Friday,
June 27. Richard's warning to Coviello on about June 22 not to talk
about union activities in the shop, his remark to Manganiello on the
forenoon of Saturday, June 28, suggesting, in reference to the signing
of the union cards, that Coviello was about to be discharged, and
his questioning of Ciulla on the Monday following the discharge,
compel the conclusion that Coviello's union activity was the real reason
for the discharge.
We find, as did the Trial Examiner, that the respondent, by dis-
charging Anthony Coviello, discriminated in regard to his hire and
tenure of employment, thereby discouraging membership in the Union
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
We find further that, by questioning its employees concerning their
activity on behalf of, and their membership in, the Union, the respond-
ent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.,
IV. TI;E EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade,trafC1c, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged, in- certain- unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action which we deem necessary to,effectuate
the policies of the Act.
We- have found that the respondent has refused to bargain collec-
tively with the Union in the unit hereinbefore found to be appropriate.
We shall, therefore, order the respondent to bargain collectively with
the Union upon request.
We have found that the respondent discharged Anthony Coviello
because of his activity on behalf of the Union. The record shows that
_ CLINTON E. HOBBS COMPANY - 549
Coviello has,cbtained other. employment since_his;discharge,and that
he does not desire to be reemployed by the respondent. Accordingly,
we shall,not order that he be reinstated. However, in order to effectu-
ate the policies of the Act, we shall direct the respondent to make
Coviello whole for any loss of pay he may have suffered by reason of
the respondent's discrimination against him, by payment to him of.a
sum of money equal to the amount which he normally would have
earned as wages from the date of such discrimination to the date upon
which he started working steadily in the employment in which he was
engaged at the time of the hearing, less his net earnings o during said
period. -
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. District 38, Lodge 264, International Association of Machinists,
affiliated with the American Federation of Labor, is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent,
exclusive of supervisory and clerical employees and chain makers, con-
stitute a unit appropriate for. the.,purposes of collective bargaining,
withinthe meaning of Section 9 (b) of the.Act.
3. District 38, Lodge 264, International Association of ,"Machinists,
affiliated with the American Federation of Labor, on June 27, 1041, and
at all times thereafter, has been and now is, the exclusive representative
of all employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing, on July 8 and 9, 1941, and at all times thereafter, to
bargain collectively with the Union- as the exclusive representative of
the employees in the above-mentioned appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment
of Anthony Coviello and thereby discouraging membership in the
Union, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of'Section 8 (3) of the'Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
By "net earnings " is meant earnings less expenses such as for transportation, room,
and board , Incurred by an employee in connection with obtaining work and Working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsevvhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440.' Monies received for
work performed upon Federal , State, county, municipal , or other work-rellef pcdjeets shall
be considered as earnings See Republic Steel Cot poratton v N. L. R B , 311 U. S 7.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent'has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
.7: The.aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) aid (7) of
,the Act:
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Clinton E. Hobbs Company, Everett, Massachusetts, and its officers,
agents, successors, and assigns shall : - '
1. Cease and desist from :
(a) Refusing'to bargain collectively with District 38, Lodge 264,
International Association of Machinists, affiliated with the American
Federation of'Labor, as the exclusive representative of all its produc-
tion and' maintenance employees, ' excluding supervisory and clerical
employees and chain makers; '
(b) Discouraging membership in District 38, Lodge 264, Iriterna"
tional Association of Machinists, affiliated with the American Federa-
tion of Labor,* or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees or in any
other manner discriminating in 'regard to their hire and tenure of
,employment or any term-or conditibn of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join or assist labor organizations, to bargain collectively through rep-
resentatives 'of their own choosing; and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or'
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
'effectuate the policies of the'Act:
(a) Upon request, bargain collectively with District 38, Lodge 264,
International Association of Machinists, affiliated with the American
Federation of Labor, as the exclusive representative of all its produc-
tion and maintenance employees, excluding supervisory and clerical
employees and chain makers;
(b) Make whole Anthony Coviello for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment'to him of a sum of money equal to the amount which he nor-
inally would have earned as wages from the date of such discrimina-
tion to the date upon which he started working steadily in the em-
ployment in which he was engaged at the time of the hearing, less his
net earnings during such-period;', - • -
CLINTON E. HOBBS COMPANY 551
(c) Immediately post notices in conspicuous places in its plant and
maintain such notices for a period of at least sixty (60) consecutive
days, stating (1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a), (b),
and (c) of this Order; (2) that the respondent will take the affirmative
action set forth'in paragraphs 2 (a) and (b) of this Order, and (3)
that its employees are free to become or remain members of District 38, -
Lodge 264, International Association of Machinists, affiliated with the
American Federation of Labor, and that the respondent will not dis-
criminate against any employee because of membership or activity in
that organization;
(d) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.