Jamestown Sterling Corp.

National Labor Relations Board - Board DecisionsJul 30, 1953

106 N.L.R.B. 466 (N.L.R.B. 1953)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, Respondent engaged in discrimination and committed an unfair labor practice within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in their rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 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 discourage membership in United Packinghouse Workers of America, CIO, or in any other labor organization of our employees , by discharging or refusing to reinstate any of our employees , or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with economic or other reprisals in the event of the advent of the union ; spy on or keep under surveillance union meetings or activities; or interrogate our employees concerning their union sentiments. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist United Packinghouse Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining and other mutual aid or protection , or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Lawrence F. Folsom and Charles T. Williams immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. All of our employees are free to become or refrain from becoming members of the above- named union or any other labor organization. SUNNYLAND PACKING 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. JAMESTOWN STERLING CORPORATION and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No. 3-CA-596. July 30, 1953 DECISION AND ORDER On May 1Z, 1953, Trial Examiner Dent D. Dalby issued his Intermediate Report in the above- entitled proceeding finding 106 NLRB No. 88. JAMESTOWN STERLING CORPORATION 467 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations in the com- plaint be dismissed . Thereafter, the Respondent and the General Counsel each filed exceptions to the Intermediate Report, and the Respondent filed a supporting brief. The Respondent's request for oral argument is hereby denied, as the record, the exceptions, and brief, in our opinion, ade- quately present the issues and the positions of the parties. ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has consideredthe Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications:i 1. We agree with the Trial Examiner that the Respondent committed independent violations of Section 8 (a) (1) of the Act with respect to (a) Foreman Mason's interrogation of employees Cavallaro and Olson concerning their union activities; (b) Fore- man Mason's conveyance of a threat to Olson relating to union activities "to keep his mouth shut, he didn't want him dis- charged"; and (c) the grant of general wage increases and 4 paid holidays on August 1, 1952, at the height of the union or- ganizational campaign, which was not satisfactorily explained, and which we find, like the Trial Examiner, was instituted at such time to induce employees through allurements to discon- tinue their union activities and to discourage union member- ship.' In addition, we find that Foreman Mason's inquiries of Paterneti to ascertain Paterneti's knowledge of the union activity at the plant, as described in the Intermediate Report, was violative of the Act. 2. We agree with the Trial Examiner , and with the reasons stated in the Intermediate Report, that the Respondent violated Section 8 (a) (3) of the Act in discriminately discharging em- 'We note and correct a minor inadvertence in section IV of the Intermediate Report. The pertinent clause should read: "operations of the Respondent described in section I, above... " 2 See Cary Lumber Company, 102 NLRB 406; Dallas Concrete Company, 102 NLRB 1292; Jamestown Veneer and Plywood Corporation, 93 NLRB 101. 322615 0 - 54 - 31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees Cavallaro and Carlton.' Cavallaro was discharged at the close of business on Friday, August 1, and Carlton, who was absent on August 1, was discharged upon his return to work Monday, August 4, 1952. Both discharges, concurrent with the unlawful institution of the wage increases, were effected vir- tually simultaneously at the height of the union organizational drive at the plant. Cavallaro was the leader among the employ- ees in organizing the Union; Carlton actively assisted Cavallaro, and was otherwise known, before and during the union campaign, as a staunch advocate of the Union. The Respondent's animus against the Union is undisputed. The evidence, as detailed in the Intermediate Report, clearly reveals that Foreman Mason was aware of the existence of union activities at the plant during the immediate period pre- ceding Ausust 1, 1952. Further credible evidence in the record confirms this fact, e.g., (1) Paterneti's testimony that he informed Mason on the morning of August 1 of his earlier discussion with persons at Earl's Diner in which Paterneti was advised that "some union was trying to get organized in Jamestown Sterling"; and (2) on July 30, ina conversation with Cavallaro, Mason said he had in his possession a union-appli- cation card, showing the card to Cavallaro, "to prove it" that union activities were being carried on in the plant. With respect to Cavallaro, among other things, Paterneti's testimony was not specifically denied that Mason told Paterneti on August 1 that "he was informed that [Cavallaro] was distributing cards in connection with the Union there." With respect to Carlton, the uncontradicted evidence shows that during the period preceding his discharge, he was known by Superintendent Rubyand Fore- man Goben to be receiving a pension from the Union. Further evidence indicates that Carlton, in earlier employment with other companies in the same town, Jamestown, had been active on behalf of the Union, and had also been president of a CIO local for a period of 2 years. Such evidence, disclosing oppor- tunities for the Respondent to know of Carlton's strong union sympathies, is significant when considered in conjunction with the Respondent's admitted knowledge that Carlton was a pen- sioner of the Union, with the fact of his active union solicitation of the Respondent's employees, and with all the surrounding circumstances related in the Intermediate Report. As found by the Trial ' Examiner, the abuses of discipline on the part of 3Member Houston, dissenting in part, would distinguish Carlton's case from that of Cavallaro and dismiss the complaint as to Carlton. In his opinion, Carlton's discharge was reasonably caused by his flagrant record of absenteeism, and was precipitated by the fact that Carlton was again absent without permission on August 1 immediately preceding his dismissal by the Respondent He believes, in Carlton's case, that it was not inconsistent for Superintendent Ruby himself to discharge Carlton, rather than leave this matter to Carlton's foreman, Groben, or to seek Groben's recommendation, as was customary; for it was of course known to Ruby on August 1 that Groben was permanently leaving the Re- spondent's employ that day. JAMESTOWN STERLING CORPORATION 469 Cavallaro and Carlton with respect to visiting and absenteeism had been a continuing matter since their first employment with the Respondent ; and there is no question inthe record that they had personally never been warned of discharge , which was the practice of the Respondent before terminating employees for such reasons . Visiting and absenteeism , as the record amply shows, were prevalent among the employees in the plant. And, though it appears that there were periods of idleness among the employees along the production line in the cabinet and fin- ishing departments , testimony by the Respondent ' s president reveals that the Company was short of help in these departments during the first two quarters in 1952 . It seems clear to us, in view of the above factors and all those recited by the Trial Examiner , that the abuses of Cavallaro and Carlton were condoned by the Respondent . We find with the Trial Examiner that the asserted misconduct of these employees was seized upon by the Respondent as a pretext for its intent to remove the leaders of the union movement at the plant , and with well- calculated timing , to discourage union membership by demon- strating to the employees the threat of like action for continued union activities .4 The Respondent ' s grant of wage increases and 4 paid holidays , significantly timed with the discharges , we find, was intended to show the employees conversely , that they could obtain improved working conditions without the benefit of the Union. 3. We agree with the Trial Examiner ' s rulings , andwith his reasons therefor given in the record , for granting the motion to revoke the subpena duces tecum which was issued requiring counsel for the General Counsel to produce an affidavit of Paterneti , allegedly in the files of the General Counsel. Paterneti testified that he had signed an affidavit for the General Counsel during the informal investigation of the case. The Respondent sought the production of such affidavit for purposes of cross-examining Paterneti ; it asserts in its brief that it had "reason to believe " Paterneti ' s testimony would conflict with statements made in the affidavit . However, the basis for the Respondent ' s "reason to believe " was at no time disclosed or made apparent . No such affidavit was used by the General Counsel in examining Paterneti, or any other witness, or shown to any witness on the stand at the hearing , or at all revealed in the trial of the case. The Respondent was not entitled to the production of such an affidavit . It is settled that for purely exploratory purposes litigants may not obtain , as a matter of right , documents of this sort if they exist in the confidential files of the General Counsel or the Board.' 4See, e. g., N. L R . B. v. Whitin Machine Works, 204 F 2d 950 ( C. A 1), enforcing 100 NLRB 497. 5 See, e . g., N. L. R . B. v. Quest- Shon Mark Brassiere Co., 185 F. 2d 285 (C. A 2), cert. den. 342 U. S. 812 ; Goldman v . United States , 316 U. S . 129; Connecticut Chemical Research Corporation , 98 NLRB 160. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent , Jamestown Sterling Corporation , village of Falconer , Chautauqua County, New York, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in United Brotherhood of Car- penters and Joiners of America, AFL, or any other labor organization of its employees , by discriminatorily discharging any of its employees , or discriminating in any other manner in regard to their hire and tenure of employment , or any term or condition of employment. (b) Granting or promising wage increases , paid vacations, or other economic benefits for the purpose of influencing employees with respect to union activities. (c) Threatening and interrogating employees concerning union activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid of protection, or to refrain from any or 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: (a) Offer to Carl Cavallaro and John Carlton immediate rein- statement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (b) Make said employees whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its place of business in Falconer , New York , copies of the notice attached hereto and marked "Appendix ."6 Copies of said notice , to be furnished by the Regional Director for the Third Region , shall , after being duly signed by the Respondent's representative , be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where 6In 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." JAMESTOWN STERLING CORPORATION 471 notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due, and the right of reinstatement under the terms of this Order. (e) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of this Decision and Order what steps have been taken to comply therewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations Board in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization of our employees, by discharging any of our employees or discriminating in any other manner in respect to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten or interrogate our employees concerning their union activities. WE WILL NOT grant or promise wage increases, paid vacations, or other economic benefits for the purpose of influencing our employees with respect to their union activities. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity, 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. WE WILL offer to Carl Cavallaro and John Carlton immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay suffered as the result of the discrimination against them. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, remain, or to refrain from becoming or remaining members in any labor organiza- tion, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3). JAMESTOWN STERLING 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. Intermediate Report STATEMENT OF THE CASE' The United Brotherhood of Carpenters and Joiners of America, AFL, filed a charge with the National Labor Relations Board on August 8, 1952, and an amended charge on October 13 and December 30, 1952. This charge resulted in a complaint filed by the General Counsel on December 30, 1952, alleging that the Jamestown Sterling Corporation violated Section 8 (a) (1) and (3) of the National Labor Relations Act as amended (61 Stat. 136). The complaint as amended at the hearing in substance alleges that Respondent, a New York corporation, discharged Carl Cavallaro on August 1, 1952, and John Carlton on August 4, 1952, because they joined the Union or engaged in concerted activities protected by Section 7 of the Act and that Respondent from June 1, 1952, to February 2, 1953, interrogated its employees concerning union membership and activities, threatened its employees with discharge for such activities, promised or granted its employees economic benefits to induce them to refrain from Joining or sympathizing with the Union, and engaged in surveillance of such union activities. In answer Respondent denied the alleged unfair labor practices. Upon notice a hearing was held on February 2 to 6. 1953, at Jamestown, New York. An parties were present at the hearing and were afforded an opportunity to introduce relevant evidence, to examine and cross-examine witnesses, to argue the issues orally upon the record, and to file briefs, proposed findings of fact, and conclusions of law. At the conclusion of the General Counsel's case Respondent moved for a dismissal of the complaint, and renewed this motion at the conclusion of the hearing. A ruling thereon was reserved and is disposed of in accordance with the findings made below. A brief was filed by the General Counsel. Upon the record in this case and from my observation of the witnesses, I make the findings of fact, conclusions of law, and recommendations which follow: FINDINGS OF FACT I. BUSINESS OF THE RESPONDENT The Jamestown Sterling Corporation is incorporated under the laws of the State of New York with its principal office and place of business in the village of Falconer, Chautauqua County, New York, where it is engaged in the manufacture of furniture. During the calendar year 1952, Respondent purchased raw materials, supplies, and equipment valued at approxi- mately $ 250,000, of which approximately 25 percent was shipped directly to Respondent's plant from sources outside the State of New York. During 1952, Respondent manufactured and sold finished products valued in excess of $ 1,000,000, of which more than 50 percent was sold and shipped to customers outside the State of New York. 1For convenience Jamestown Sterling Corporation will be referred to as "Respondent," the United Brotherhood of Carpenters and Joiners of America, AFL, as the "Union," the National Labor Relations Board as the "Board", and the National Labor Relations Act as the "Act." JAMESTOWN STERLING CORPORATION 473 II. THE LABOR ORGANIZATION The United Brotherhood of Carpenters and Joiners of America , AFL. is a labor organiza- tion within the meaning of Section 2 (5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary findings Respondent manufactures furniture . Its plant is divided into departments . Since the manu- facturing is performed on a line basis , each department 's output is dependent upon the production of the preceding department. It is therefore necessary for efficient production to have the work flowing through the plant at an even rate without stoppages or bottlenecks. Respondent 's business had declined in the second and succeeding quarters of 1951. However, there was an upward trend in early 1952 which continued through the period covered by the complaint. During the slack period Respondent 's employment , at least in the assembly depart- ment or cabinet room, had declined and, according to Respondent 's president, some of the employees "seemed to get out of the habit of working ." Respondent 's president and its superintendent therefore directed their attention to increasing production and eliminating bottlenecks . During the period here involved a bottleneck in the cabinet room created a limiting factor to Respondent's production. This was caused by an inordinately high rate of returns of furniture to the cabinet room because of defects (estimated by the foreman as about 50 percent , and as by the superintendent as between 20 and 30 percent) and by a reduction of the number of personnel in the department during the preceding slack production period. Another contributing factor was worktime lost by employees through unnecessary visiting and other inattention to their duties. Against this general background the Union started an organizational drive on July 7, 1952, after Respondent's employees had returned from their vacations. The Union sent member- ship-application cards to Carl Cavallaro who led and directed the drive. He was assisted by John Carlton, Robert Olson, and Wave Lewis. John Carlton was employed in Respondent's assembly department or cabinet room where cut and sanded wood was assembled, glue marks and other defects removed, and the furniture otherwise prepared for finishing. Carl Cavallaro, Robert Olson, and Wave Lewis were employed in Respondent's finishing depart- ment where the stain and lacquer or other finish was applied and the manufacturing process completed . The union organizational drive was directed primarily to these two departments. It reached its peak during the week ending July 28, 1952. By that time 27 union-application cards had been signed and returned to Cavallaro. During this period, and subsequently, Respondent 's president made frequent inspection trips through the plant averaging 6 to 10 a day, allegedly to discourage excessive visiting and time-wasting by employees. These inspection trips were supplemented by frequent visits by Respondent's superintendent. During the workweek preceding July 31, 1952, Kermit T. Mason, finishing department foreman, asked Olson what he knew about a union. Olson told Mason that he did not know anything about a union, that he got a card from the mail , signed it , and sent it in. Mason then told Olson "to keep [his] mouth shut, he didn't want him [Olson] discharged." Mason also asked Cavallaro what he knew about the Union. Cavallaro advised Mason that he did not know any more than anyone else in the plant. On August 1, 1952, Respondent posted a notice at its plant advising its employees of a general wage increase of 5 cents an hour, the granting of 4 paid holidays a year, and the institution of an incentive program to benefit the employees . This notice also directed attention to the longer workweek provided by Respondent as compared to other plants working shorter weeks of as few as 2 and 3 days. During the latter part of August or early September, Mason approached Olson and told him that the employees did not need a union in the plant and that the "old man" couldn't afford a union . He also indicated that unionization might result in a strike and loss of wages to employees. Respondent sent a letter dated January 7, 1953, to its employees opposing unionization of the plant. The letter directed attention to better than 15 years of "friendly relationship between labor and management" in its organization and referred to "a few who have tried desperately to stir up trouble" in the " last several months." It speculated on the amount of money collected as dues by the A.F. of L. estimating this to be $ 312,000,000 annually, and suggested that the labor organization was more interested in dues than in the employees' welfare. The letter concluded with the suggestion that "a lot more can be accomplished under 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the present conditions." The union drive culminated in a Board-supervised election on January 9, 1953, in which the Union was unsuccessful,E B. The discharge of Carl Cavallaro Cavallaro was employed by Respondent in October 1942, and worked since then until the time of his discharge except for the period from January 1943 to February 1946 when he served in the Armed Forces. He worked continuously as a drawer sprayer for approximately 6 years preceding his discharge. Drawer spraying was the first operation in the finishing department and all furniture having drawers passed through Cavallaro's spray booth before proceeding to other manufacturing operations in the finishing department . His booth was immediately adjacent and to the right of the cabinet room. The next booth, several feet to the right, was the stain spray operated by Robert Olson. Cabinets (those pieces of furniture having drawers) were moved after inspection from the cabinet room to the drawer sprayer and from there to the stain sprayer. In addition to cabinets the stain sprayer applied stain to the noncabinet furniture which did not pass through the drawer-spray booth. Cavallaro was a fast worker. Drawer spraying required only about 50 percent of his time. During the rest of the workday he performed duties incidental to operation of the spray booth such as obtaining and spraying pin trays , getting lacquer, and moving furniture , or he per- formed work assigned to him by his foreman. About 15 to 20 percent of the time Cavallaro was not assigned to any work. He was paid on a piece - rate basis for spraying drawers and on an hourly rate basis for the remainder of his workday. His piecework earnings were substantially greater than his hourly pay rate. Cavallaro was discharged on August 1, 1952. Prior to the discharge Foreman Mason was aware of the union organizational activity in the plant. One of the employees in his depart- ment had, as a joke, filled in a union-application card with the name of another employee and left it on Mason's desk. What knowledge of union activity he had otherwise acquired was therefore supplemented by an examination of the application cards being distributed. On Thursday, July 31, 1952, Mason was absent from the plant. Cavallaro got permission from Anthony Paterniti, who assisted Mason, to leave during the forenoon to get an auto- mobile repaired. Plant Superintendent Walter H. Ruby noted Cavallaro's absence and asked Paterniti where he was. Paterniti advised Ruby that Cavallaro had been excused and would be back in the afternoon. Mason returned to work on Friday. August 1, 1952. Superintendent Ruby conferred with him about the condition of the finishing department the previous day. With reference to this conference and subsequent events Mason testified: I remember this instance very clearly on account of Walter getting on me very hard on that Friday that Carl was let go. I don't remember the words--they aren't so clear, but I said something to this effect. Everybody was talking that day that I was absent. Walter Ruby said, "The whole department is in bad shape at that end . Little Cavallaro was missing, doing a lot of visiting and running around the shop." Finally, he forced the issue. Carl was walking by the desk and I collared him, and I heard all this talking going on and I asked him what he knew about the Union. And as I get it, from remem- bering, he said he didn't know anything about it. I don't recall if we had a little conver- sation what effect it would have on us. We might have. I don't recall the exact words. I can't just pick them out from five months ago. 3 Mason then asked Paterniti if he knew the employees were trying to organize a union. Paterniti denied knowledge of union activity. He was told by Mason to keep Cavallaro busy the rest of the day and according to Paterniti this is what he did. In the midafternoon Ruby told Mason that he was going to discharge Cavallaro.4 Immediately following this advice from Ruby, Mason had another conversation with Paterniti in which Mason said he was informed that Cavallaro had been distributing cards in connection with the Union. At 5 p. m. of the same day Cavallaro was called into the office and discharged by Ruby. Cavallaro's version of this interview is: 2 Judicial notice has been taken of the decision in Jamestown Sterling Corp . 3-RC-1055. 3 From other testimony it appears that this conversation did not occur in Ruby's presence. 4Ruby places the time of this conversation as between 9 and 9:30 a . in. in one part of his testimony and as between 3 : 30 and 4 p. m. in another portion. However , Mason places the time as midafternoon and this accords with the other events of that day. JAMESTOWN STERLING CORPORATION 475 Well, it was 5:00 o'clock because the people started walking out, and I walked in, I asked Mr. Ruby if he wanted to see me. I said, "What about? " He says, "Carl, I am going to have to let you go." I stood there for a second--a few seconds maybe--and I said, "What for9 " He says, "You are visiting too much." He says, "There is a lot of them down in that corner going to get the same thing." And so, I asked for my pay and he give me my pay and he started to say something else. I told him he was wasting his time, and walked out. Prior to the day of his discharge Cavallaro had not been advised that a continuation of excessive visiting would result in dismissal or told by any of Respondent's supervisors that he was not a satisfactory employee. It was customary in Respondent's plant for the foremen rather than the plant superintendent to discipline employees and to discharge those who proved unsatisfactory, but this policy was not followed in the dismissal of Caval- laro. Nor was his foreman's recommendation obtained prior to the discharge. C. The discharge of John Carlton Carlton, now 66 years of age, was employed by Respondent in April 1950 as a cabinet repairman. At the time of his employment he was a member of and received a small old-age pension from the Union. Either at that time or during the course of his employment this fact became known to his foreman and to Superintendent Ruby. Since his employment, Carlton was frequently absent. These absences varied from 1 to 9 days a month. Except for an occasional sickness which was reported by his wife, Carlton did not report his intention to be absent or obtain permission from his supervisors. In February 1951 he quit work because his foreman assigned another employee to his workbench but returned at his foreman's request. In August 1951, he asked his foreman for a leave of absence to build a house for his daughter and her husband and was referred to Assistant Superintendent Peterson. Carlton told Peterson that he intended to take the time off. Peterson said, "Ifyour job is there when you are ready to come back you might be re-hired." He stayed away from work from August 24 to October 3, 1951, and was reemployed when he reported for work. In late 1951 or early 1952 he told his foreman, Clemmens J. Groben, that he would quit unless he received a raise in pay. After Groben consulted Superintendent Ruby he told Carlton that Ruby would give him a raise of 10 cents an hour. Prior to the July 1952 vacation Carlton advised Groben that he wanted an extra week's vacation. Groben did not grant permission for the extended vacation, but Carlton neverthe- less took the time. Nothing was said to him when he returned. On the Friday that Cavallaro was discharged, John Carlton did not report for work. He did, however, come to the plant at quitting time, about 5 p. m., to get his paycheck and "to say goodbye to Mr. Groben," who was leaving the Company's employ that day. Carlton obtained his paycheck from Leland Peterson, personnel manager and assistant superintendent. He told Peterson that he was absent because the arrival of unexpected out-of-town visitors had kept him up late the night before. Carlton had not obtained permission for his absence or given Respondent any pre- vious notice. Carlton did not work on Saturday. He reported for work the following Monday, August 4, 1952, and was advised that Ruby wanted to see him. Ruby's version of the resulting conversation follows: Mr. Carlton come in and he asked me--as well as I can remember--what was wrong. As well as I can remember, I says, "Jack, I cannot go on with this absenteeism any longer. I am going to have to let you go." And as well as I can remember he said, "Is there anything wrong with my work? " As well as I can remember, I told him that there was nothing wrong with his work. He says, "Well, if that is the way you feel about it I will have my money." I said "All right." So I had his check made up Saturday I believe it was, if I am not mistaken. I went into the office and got his check where it was kept in the vault and brought it back and gave it to him. He made some remark about this--he didn't care too much--get out of this damn workhouse anyhow. That is about as straight as I can put it. And that was the end of Mr. Carlton and my conversation. As in the case of Cavallaro, Carlton was discharged contrary to usual practice by Super- intendent Ruby rather than by his foreman and his foreman was not consulted about the 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge .5 Ruby offered by way of testimonial explanation that the decision to discharge Carlton was made after Foreman Groben had left Respondent 's employ. 6 Carlton had prior to his discharge been given no warning by Respondent or told that a continuation of his absenteeism would result in dismissal . According to Carlton , uncontradicted by Respondent, the only comment made concerning the poor attendance record was by Gorben who said he would like him to report for work a little oftener. D. Related events According to Superintendent Ruby and Respondent 's President Floyd C. Pickard , excessive visiting prevailed in the plant and particularly in the sections of cabinet room and finishing department which were adjacent . This was the area where Carlton and Cavallaro worked. The excessive visiting was the frequent subject of conversations between Ruby and Mason. Ruby regarded Cavallaro as one of the chief offenders and allegedly specifically directed Mason's attention to Cavallaro 's visiting "a dozen tunes or more previous to his discharge" and (in another portion of his testimony ) "8, 9 or maybe 10 times" in the 2 months preceding his discharge . Pickard would frequently see visiting by employees on his inspection trips through the plant. He spoke to Ruby 4 or 5 times about this the first week after vacation. He also told Foreman Groben and spoke very frequently to Mason about this visiting. Pickard also noted employee absenteeism and the insufficient number of workers which resulted, and spoke to Ruby about this problem . He noted Cavallaro's visiting and absence from his spray booth and had several conversations with Ruby about it. Pickard testified that between July 14 and 20, 1952 , he told Mason that Cavallaro was "continually visiting" and that "the two of you [ Ruby and Mason] have got to get together and break this up." He thought he saw Cavallaro "on every day away from his spray and visiting each time , and ... made a very special point to see what was done ." Pickard further testified that he spoke to either Ruby or Mason about Cavallaro 's visiting a dozen times . However , he never mentioned this to Cavallaro . Pickard on occasion would take an offending employee to his foreman and report the offense in the employee 's presence . He never followed this practice with respect to Cavallaro. Upon these facts the General Counsel claims that Respondent violated the Act by (1) dis- criminating in regard to the tenure of Cavallaro and Carlton by discharging them for union activity ; (2) interrogating its employees concerning union activities ; (3) coercing or threat- ening them with discharge for union activities ; (4) promising and granting economic benefits to induce them to refrain from joining a union; and (5 ) engaging in surveillance of union activities. Concluding Findings The initial question is whether the discharges of Cavallaro and Carlton and the union organization drive were related events or merely coincidental occurrences . Respondent, relying upon coincidence to account for the employee discharges at the height of the union campaign , presented testimony tending to prove that : (1) The supervisor who made the discharges had no knowledge of the union activity ; and (2) Respondent was engaged in a campaign to obtain greater employee production by eliminating visiting and absenteeism and the discharge of offending employees was necessary to make that campaign effective. Despite his testimpny to the contrary , I cannot believe that Ruby did not know of the union activity prior to the discharges . The picture drawn by Respondent 's testimony is one of increasing visiting by employees in the plant which prompted intensive inspection trips by the superintendent and the president. These trips were supplemented by numerous confer- ences with the foremen of the two departments involved. It is incredible that Mason, who admittedly had knowledge of union activity , withheld this information from his superiors or that they were otherwise unable to learn of the union drive . Knowledge of union activity by Ruby is also revealed in Mason's account . of his conversation with Ruby and Cavallaro on the morning of August 1. (Page 474 , supra .) Ruby advised Mason that " little Cavallaro was missing , doing a lot of visiting" and finally "forced the issue." Mason "collared " Cavallaro 5 The foreman involved , Groben, discharged another worker , Agnes Miller , on August 1, 1952, for visiting 6At one point in his testimony he stated the decision was made after work on Friday, August 1, 1952; at another point he stated that the decision was made Saturday , August 2, 1952 , after examining Carlton's employment record JAMESTOWN STERLING CORPORATION 477 and "asked him what he knew about the Union ." If Ruby 's forcing the issue with Mason induced an inquiry about union activity , that issue must have been the union organizational drive. This inquiry was followed by a conversation with Paterniti in which Mason asked him about union activity . It is apparent that the original conversation between Ruby and Mason that induced the subsequent inquiries was about union activity and that Ruby was well aware of the union organizational drive. Respondent 's employees , particularly those in the cabinet room , were guilty of visiting. Undoubtedly , the union activity in the plant caused an increase in this practice.? However, a fair appraisal of the evidence does not indicate that either Cavallaro or Carlton were more active offenders than other employees . While Ruby testified that he had specifically directed Mason's attention to Cavallaro 's visiting from 8 to 12 or more times and Pickard testified that he directed Mason's or Ruby 's attention to Cavallaro 's visiting a dozen times, these statements appear to be exaggerations . If the foreman 's attention had been so force- fully and so often directed to one of his employees ' deficiencies , it is inconceivable that the foreman would not with equal force and regularity have accused the offending employee, and informed him that his objectional conduct had been observed by the superintendent and by the president of the Company . Cavallaro , however, testified that he had never been warned of excessive visiting . This testimony was not substantially challenged by Respondent. Mason related only one instance when any warning was given as the result of conversations with either Ruby or Pickard.8 This occurred on the morning of Cavallaro 's discharge. Mason said, " I told him to keep his mouth shut, to go back to work and quit running around the shop. " 9 Even if this is an accurate representation of the conversation , it is significant that it occurred on the day of the discharge . This hardly afforded Cavallaro an opportunity to correct his alleged deficiency. It would be normal in a situation of this kind, and indeed the evidence indicates it was normal for Respondent , to warn an employee of a deficiency before discharging him. Ruby offered as the reason for this failure to warn the employee , an assertion that it was the foreman 's responsibility . Pickard testified similarly . However, whatever weight this ex- planation might otherwise have had was destroyed by the disclosure that Ruby had personally warned another employee of his deficiency and Pickard had personally conducted employees to this foreman and called attention to an infraction of Respondent 's work policies in the employees ' presence. For these reasons I cannot find that Cavallaro was discharged for the reason advanced by Respondent. At the hearing Ruby testified that Carlton was discharged for absenteeism and visiting. Specific evidence of his visiting was not presented at the hearing, Respondent relying upon absenteeism as the controlling factor motivating the discharge . There is no question but TCavallaro testified that his union activity was confined to nonworking periods. However, it is extremely unlikely that his and other employees ' union activity did not encroach upon the employees working time. 8 Mason testified to a conversation with Cavallaro relating to visiting which was prompted not by Ruby 's or Pickard ' s admonition but by Foreman Groben 's complaint . Mason's explana- tion of this event is: Q. What did he say to you? A. Why, he [Groben] said , "If you would keep that little sprayer out of the upper end we would get a lot more cabinets cleaned up." He caught him down in the other end of the plant-- the cabinet line . I says, "Well, Clem, I will see what I can do about it Q. What did you do about it" A. Well, at times if I would go up to Carl and if he would be talking, he would stop and walk over to his spray . I'd say, "If they would break up a lot of this talking, why, we would get more cabinets ." He agreed to that. The mild nature of such a reproach , if it can be so termed , is not consistent with the impli- cation of Ruby's and Pickard 's testimony. 9Cavallaro 's version of this conversation gives itadifferent implication. Cavallaro testified that he informed Mason that the company officials had pegged him as a union organizer. Mason responded , "I don't know what went on yesterday" since he was not there. Paterniti, who was present during the conversation, informed Mason that Ruby inquired about Cavallaro while he was out repairing his automobile . Then Mason said to Cavallaro, "Well, whatever you do , keep your mouth shut and watch your step." This version removes any implication that he was being admonished for visiting. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Carlton had a poor attendance record. He evidently failed to report for work without any acceptable reason and failed to report to his supervisors when he intended to be absent. However this practice had prevailed ever since his first employment with Respondent. Respondent evidenced a willingness to employ Carlton on this basis, at least until August 1, 1952. Carlton's casual work practices were specifically condoned 3 weeks before his discharge when Respondent permitted his continued employment after he had taken an extra week's vacation without permission. Between that date and his discharge two events occur which present a possible motive for Respondent's termination of his services--an unexcused absence on August 1, 1952, and the union organizational drive. Despite Respondent's claim of the former as the motive there appears no reasonable explanation as to why, after carry- ing a load of 6 days unexcused absence from July 7 to 12, 1 additional day on August 1 would be the straw to break Respondent's back. Respondent's failure to act in a reasonable and normal manner by giving Carlton a warning before discharging him for absenteeism creates doubt that that is the real reason for the discharge. In another similar case, a warning was given an offending employee before his discharge. Ruby's testimony regarding this incident is: I think Armstrong was in last year, if I'm not mistaken, in '51. I don't want to quote the time because all the figures I can't keep in my head . Personally I talked to Mr. Armstrong and showed him where he had lost over a thousand dollars in pay during the year for being off, then told him that I just couldn't put up with that any more. He had to straighten himself out, get in to work, or else we'd have to let him go. For three or four days he done all right--maybe two or three weeks, then he was right back in the same rut. For the year preceding his discharge I estimate that Carlton's loss of pay due to absences, including the period from August 24 to October 3, 1951, when he left Respondent's employ, was substantially less than $1,000. Apparently the only other employee specifically identified as being discharged for absenteeism was not only a worse offender but had been given a warning by Respondent 's superintendent . Upon considering all of these facts and circum- stances I cannot find that Carlton was discharged for the reason advanced by Respondent. Having rejected the reasons presented by Respondent for the discharges of Cavallaro and Carlton, it is concluded that they were in fact discharged for union activity. This conclusion is apparent from these established factors: (1) Respondent's antipathy toward unionization of its plant as evidenced by its January 7, 1953, letter to its employees and the foreman's conversations; (2) the assertions by Respondent's superintendent that he was not aware of the union activity; (3) the discharges being made, contrary to the usual practice, by the superintendent, rather than the foreman; (4) the failure of the superintendent to consult with or obtain the foreman 's recommendation in arriving at the decision to discharge the em- ployees; (5) the failure to warn the employees that their allegedly objectional conduct would, if not corrected, result in dismissal, which evidently was Respondent's usual practice; and (6) the simultaneous occurrence of the union drive, the discharge of the union organizers, and the granting of general wage benefits. The plausible explanation of these factors is that Respondent , in its desire to prevent unionization of its plant, granted a general wage increase and discharged the union organizers and in order to avoid the consequences of its unlawful conduct asserted that the supervisor who made the discharges lacked knowledge of the union activity. It is therefore found that the discharges of Carl Cavallaro and John Carlton were discriminatory and violated Section 8 (a) (3) of the Act. E. Interference, restraint, and coercion The remaining issues presented is whether Respondent 's conduct during the union drive constituted a restraint or coercion of the employees' rights. One of the purposes of the Act is to insure that employees shall have a free choice in organizing or joining a union. And any activity that interfered with or restrains employees in the exercise of a free choice is proscribed by the Act. Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 (C.A.D.C.). Such action "minimizes the influence of organized bargaining . It interferes with the right of self-organi- zation by emphasizing to the employees that there is no necessity for a collective bargaining agent. " May Stores Co. v. N, L. R. B., 326 U. S. 376, 385. The Act does not, however, preclude an employer from introducing benefits to his employees during an organizational drive, provided its purpose is not to interfere "through allurements rather than coercion." Western Cartridge Co. v. N. L. R. B., 134 F. 2d 240, 244; N. L. R. B, v. Bailey Co., JAMESTOWN STERLING CORPORATION 479 180 F. 2d 278; N. L. R. B. v. La Salle Steel Co., 178 F. 2d 829, 835; N. L. R. B. v. Crown Can Co., 138 F. 2d 263, 267. In this case Respondent granted a general wage increase and 4 paid holidays. No explana- tion was given as to the reasons for granting the increase at that time other than the bare statement in the posted notice that "this increase comes about by the furniture business being some better." The wage benefits coming as they did when two of the union organizers were discharged could not help but have the effect of demonstrating to employees the benefits which were forthcoming without union membership and the disadvantages of belonging to the Union. Nor can the conclusion be avoided that this effect was overlooked by Respondents when the action was taken. Under these circumstances the granting of the wage benefits interfered with the guaranteed rights of the employees in violation of the Act. (The Cleveland Trust Company, 102 NLRB 1497). As previously stated, Respondent's foreman did interrogate two employees, Olson and Cavallaro, concerning their knowledge of union activity. The Board has uniformly held that employer interrogation of employees concerning their union membership to be a violation of Section 8 (a) of the Act. (Standard-Coosa-Thatcher Company. 85 NLRB 1358.) The courts have generally held that interrogation must have coercing or restraining effect on employees in order to be violative of the Act (N. L. R. B. v. Tennessee Coach Company, 191 F. 2d 546 (C. A. 6); Atlas Life Insurance Company v. N. L. R. B., 195 F. 2d 136 (C. A. 10)), or there must be evidence of conduct otherwise establishing employer hostility to organizational activity on the part of his employees. (Max Sax v. N. L. R. B., 171 F. 2d 769 (C. A. 7); John S. Barnes Corporation v. N. L, R. B., 190 F. 2d 127 (C. A. 7); N. L. R. B. v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7); N. L. R. B. v. Horde & Dauch Pompany, 171 F. 2d 240 (C. A. 4)). In N. L. R. B. v. Montgomery Ward & Company, 192 F. 2d 160 (C. A.2), the court held that inquiries made by the manager concerning what was being done in behalf of the union, and statements that he did not like the union, to the extent that they constituted no threat or intimidation, or promise of favor or benefit in return for resistance to the union, were not unlawful and did not violate Section 8 (a) (1) of the Act. After considering these court decisions the Board has recently affirmed its previous decisions that interrogation is viola- tive of the Act (Syracuse Color Press, Inc., 103 NLRB 1375). Under the circumstances of this case, the interrogation of Olson, accompanied as it was by the instruction "to keep [his] mouth shut, [Mason] didn't want him discharged," was coercive. Furthermore, the statement itself constituted a threat violative of the Act. The General Counsel asserts that the January 7, 1953, letter sent to employees contained threats of economic reprisal and was coercive. The letter, while antiunion in tone, contains no threat or promise. Consequently I find that the statements contained therein were merely expressions of Respondent's views regarding the Union and were protected by the guarantee of free speech (Wrought Iron Range Co., 77 NLRB 487; Morrison Turning Co., Inc., 77 NLRB 670; Agar Packing & Provision Corp., 81 NLRB 1262; Solomon Co., 84 NLRB 226.) The General Counsel also contends that Respondent interfered with the rights of its em- ployees by surveillance of union activities. The evidence of the frequent inspection trips through the plant by Respondent's superintendent and by the president is relied upon to support the allegation. This evidence does not indicate the inspection trips were made during the employees' rest periods or other free time. Consequently, even if it is assumed that the purpose of the trips was to prevent union activity during working hours the evidence fails to establish that Respondent unlawfully interfered with employees' rights guaranteed by Section 7 of the Act through surveillance. An employer is privileged to prohibit activities, including union activities which intefered with an employee's production. It is recommended that this allegation of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section II, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices it will be recommended that Respondent cease and desist therefrom. Having found that the Respondent 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminated against Carl Cavallaro and John Carlton by discharging them because of their union membership and activities it will be recommended that Respondent offer each of them immediate reinstatement to their former or substantially equivalent position without preju- dice to their seniority or other rights and privileges. It will be further recommended that Respondent make each of them whole for any loss of pay he may have suffered by reason of Respondent's discrimination by payment of a sum of money equal to that which each would normally have earned as wages from the date on which he was discharged to the date of an offer of reinstatement, less his net earnings during that period. The loss of pay shall be computed on the basis of each separate calendar quarter, or portion thereof during the period from Respondent's discriminatory action to the date of an offer of reinstatement. The quarterly periods shall begin on the first day of January. April, July, and October. Earnings in one particular quarterly period shall have no effect upon the back-pay liability for any other period. In order to insure compliance with the foregoing back pay and rein- statement provision it is recommended that Respondent, upon reasonable request, make all pertinent records available to the Board and its agents. Respondent' s unlawful conduct in this case in my opinion discloses a fixed purpose to defeat self-organization and its objectives. Because of Respondent's unlawful conduct and its underlying purposes, I am convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed by the Act and that the danger of their commission in the future is to be anticipated from the course of Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the recommendations are coextensive with the threat. In order therefore to. make effective the interdependent guarantee of Section 7 to prevent a recurrence of unfair labor practices and to minimize strife which burdens and obstructs commerce and thus to effectuate the policies of the Act it will be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. CONCLUSIONS OF LAW 1. United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Carl Cavallaro and John Carlton thereby discouraging membership in the Union. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] MOUNT HOPE FINISHING COMPANY, MOUNT HOPE FINISH- ING COMPANY, INC., JOSEPH K. MILLIKEN, FRANK L. DAYLOR AND ROBERT D. MILLIKEN and TEXTILE WORK- ERS UNION OF AMERICA, CIO. Case No. 1 -CA-1085. July 30, 1953 DECISION AND ORDER On August 5, 1952, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above -entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. 106 NLRB No. 95.