Mastro Plastics Corp.

National Labor Relations Board - Board Decisions

Mar 13, 1953

103 N.L.R.B. 511 (N.L.R.B. 1953)

MASTRO PLASTICS CORP. 511
All our employees , but excluding the office employees , guards, and super-
visors, as defined in the Act.
All our employees are free to become , remain, or refrain from becoming mem-
bers of the above-named union , or any other organization except to the extent
that this right may be affected by an agreement in conformity with Section 8
(a) (3) of the Act.
KARTARIK, INC.,
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.
MASTRO PLASTICS CORP. AND FRENCH -AMERICAN REEDS MANUFACTUR-
ING CO., INC. and LOCAL 3127, UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA . Case No. £-CA-1799. March 13, 1953
Decision and Order
On June 11, 1952, Trial Examiner Arthur Leff issued his Inter-
mediate 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 . Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
together with supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed 1
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case , and hereby adopts the
1 During the course of the hearing , the Board denied the Respondents leave to appeal
several rulings of the Trial Examiner on the ground that the issues could best be resolved
on the basis of a full record. The Respondents moved to strike all allegations of the
complaint which concerned the strike at the Respondents' plant and the strikers on the
ground that the employee status of the strikers had become a representation matter.
During the strike at the Respondents ' plant , the Board Issued a Decision and Direction
of Election , Case No. 2-RC-3170, January 29, 1951 , not reported in printed volumes of
Board decisions . The petition in that case was filed by the charging Union herein.
The direction contained the proviso that strikers and replacements could vote under
challenge and was later amended to defer the election until "such time as the Regional
Director deemed appropriate " because of the filing of the charges in the instant case.
The Respondents contend , in their motions to strike , that the Board was without power
to refer issues concerning the strikers to a Trial Examiner and that the Trial Examiner
was without jurisdiction to hear evidence on such issues because Section 9 (c) of the
Act provides that representation matters should be heard by an officer or agent of the
Board who can make no recommendations . The Trial Examiner denied the motions
based on this argument and his ruling is hereby affirmed . Cf. Times Square Stores
Corporation, 79 NLRB 361.
103 NLRB No. 51.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOAIW
findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications : 2
1. The Board finds, as did the Trial Examiner, that the Respondents
engaged in extensive interference, restraint, and coercion of their
employees in the exercise of the rights guaranteed in Section 7 of
the Act, and thereby violated Section 8 (a) (1) of the Act.
2. The Board finds, as did the Trial Examiner, that the Respond-
ents rendered unlawful support and assistance to Local 318, Interna-
tional Brotherhood of Pulp, Sulphite and Paper Mill Workers, and
thereby engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (2) of the Act. The General Counsel
excepts to the failure of the Trial Examiner to recommend that the
Respondents withhold recognition from Local 318 unless and until
such time as it might be certified by the Board as the bargaining rep-
resentative of Respondents' employees. In view of the nature and ex-
tent of the Respondents' support and assistance as shown by the
record, we find merit in the exception. Accordingly, in order to re-
store the status quo and to free the employees from this restraint upon
their freedom to achieve self-organization, we shall order that the
Respondents withhold all recognition from Local 318 as the repre-
sentative of their employees for the purpose of dealing with the Re-
spondents concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until it is certified by the Board as such representative 3
3. We further find, in accord with the Trial Examiner, that the Re-
spondents discriminatorily discharged, and thereafter refused to re-
instate, Frank Ciccone because of his organizational activities in sup-
port of the charging Union. It is clear that this discharge and refusal
to reinstate, motivated by Respondents' support of Local 318 and its
animus toward rival organizations, constituted a discriminatory action
with regard to Ciccone's hire and tenure of employment which thereby
discouraged membership in the charging Union, encouraged member-
ship in Local 318, and interfered with, restrained, and coerced Re-
The following minor corrections of the Trial Examiner 's findings are noted: (1)
While the Union 's notice of intent to terminate or modify the contract was dated
September 29, 1950 , it was not delivered to the Employer until October 10; (2) the evi-
dence clearly shows, as found by the Trial Examiner and adopted by the Board, that
Maccaferri feared that Local 22045 was not strong enough to cope with the organiza-
tional efforts of Local 65 of the Wholesale and Warehouse Workers rather than, as inad-
vertently noted at one point in the Intermediate Report, the efforts of Local 318 of the
Paper Mill Workers; and (3 ) the Trial Examiner , having found and concluded correctly
that the Respondents had unlawfully assisted and supported Local 318, inadvertently
stated , under the heading "Concluding findings" that the Respondents thereby violated
Section 8 (a) (3) of the Act by such conduct rather than Section 8 (a) (2). None of these
inaccuracies or inadvertencies in the Trial Examiner 's report is of such a nature as to
affect his ultimate conclusion , or our concurrence therein.
3 See Julian Freirich Co., et at ., 86 NLRB 542.
MASTRO PLASTICS CORP. 513
spondents' employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
4. We also find, in agreement with the Trial Examiner, that the
work stoppage of November 10 was a strike rather than a lockout, but
that it was clearly caused and prolonged by the cumulative effects of
the Respondents' unfair labor practices culminating in the discrimina-
tory discharge of Ciccone. The Respondents, however, strongly urge
in their exceptions that the Trial Examiner was in error in finding that
this strike constituted concerted activity which was protected by the
Act. They make this contention on the basis of two affirmative de-
fenses, both of which were found without merit by the Trial Examiner.
The Respondents first contend that the strike was an action in breach
of contract and therefore cannot be held to be protected activity. The
contract in existence between the Respondents and Local 22045, Amer-
ican Federation of Labor,4 during the period of time pertinent here,
contained a clause stating that :
The Union agrees that during the term of this agreement, there
shall be no interference of any kind with the operations of the
Employers, or any interruptions or slackening of production of
work by any of its members. The Union further agrees to re-
frain from engaging in any strike or work stoppages during the
term of this agreement.
This contract did not expire until November 30, 1950, and the Re-
spondents argue that the strike of November 10, taking place as it did
during the term of this contractual pledge, breached the contract
and is therefore not entitled to the protection of the Act under the
Scullin-Dyson doctrine.5 The Trial Examiner found on the contrary
that the contract did not indicate an intention by either party to waive
the usual right of self-help to correct abuses "unrelated to the actual
operation of the contract or the normal relationship of the parties but
arising, as in this case, from a willful and serious violation of law
designed to destroy the very foundation of that contract and that
relationship." He further found that, as an equitable matter, the Re-
spondents should not be allowed to assert, as a defense, a strike which
was caused by their own wilful, deliberate, widespread, and grave
unfair labor practices.
The Board, under the Scullin-Dyson doctrine, has held that eco-
nomic strikes in violation of no-strike contract clauses are not pro-
tected activity. In both the Scullin and Dyson cases, however, the
Board noted the absence of any prior breach of contract or unfair
4 The incumbent union at the Respondents' plant in the period in question . As related
by the Trial Examiner, the membership of Local 22045 took steps shortly before the strike
to transfer affiliation to the charging Union.
a Scullin -Steel Company, 65 NLRB 1294 ; Joseph Dyson c6 Sons, Inc., 72 NLRB 445.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices on the part of the employer. In National Electric
Products,6 the doctrine was applied despite the fact that the strike
stemmed from an action of the employer found to be in violation of the
Act. In that case, the discharge of an employee for dual union activ-
ity was requested by the incumbent union and the employer acquiesced
under the terms of the union-shop provisions of the parties' contract.
The same contract contained a no-strike pledge but a strike was
conducted by the employees at the plant in protest against the dis-
charge. The discharge was found by the Board to be in violation of
the Act under the Rutland Court rule 4 but the strikers were held
to be engaged in unprotected activity because of the no-strike pledge.
The Board majority held:
The right to strike, although protected by the Act, may be
waived by the employees in an agreement concluded through the
collective bargaining process * * *. As we have heretofore em-
phasized, "no-strike" clauses * * * are designed to forestall the
use of even permissive economic weapons and to substitute set-
tlement by collective bargaining, and tend to realize the purposes
of the Act by encouraging the practice and procedure of collective
bargaining rather than resort to industrial warfare. (Emphasis
supplied.)
We do not consider that the National Electric Products case fur-
nishes authority or rationale for sustaining the Respondents' defense
here. The essential differences between the facts of the cases are
patent. In the earlier case, the discharge which instigated the strike
was an action required by and in accord with the contract between
the representative of the employees and their employer. In the pres-
ent situation, the strike was in protest of matters and actions not cov-
ered or in any respect demanded by the contract-matters which con-
stituted serious violations of the Act by the Respondents. In the
National Electric Products case, the employees waived their right to
strike action as to matters settled and agreed upon in the contract.
In the instant case, we can perceive no rational or legal basis on which
to assume that the employees contemplated or, in fact, executed a
waiver of self-help under the conditions imposed by the Respondents
which gave rise to the strike of November 10. The contract itself pro-
vides for arbitration, rather than strike or lockout economic pressure,
to settle "differences * * * between either of the Employeiis, and
the Union or its members as to the meaning and application of this
agreement, including questions of meaning, interpretations, operation
$ 80 NLRB 995 . Chairman Herzog concurred specially in the decision , with Board Mem-
ber Houston dissenting.
'' Rutland Court Owners , 44 NLRB 587, 46 NLRB 1040, subsequently overruled by the
Supreme Court in Colgate -Palmolive-Peet Co. v. N. L. R. B., 338 U . S. 355.
MASTRO PLASTICS CORP. 515
or application of any clause of this agreement or any breach or threat-
ened breach of this agreement." The November 10 strike was, as con-
clusively shown by the record, a protest against unfair labor practices
apart from the terms , meaning, and application of the contract and
in no manner was an attempt to circumvent the arbitration provisions
of the agreement or an effort to alter other provisions and guarantees.
On the entire record, we find that the no-strike clause of the contract
between the Respondents and Local 22045 did not contemplate or
incorporate a waiver of strike action on the part of the employees
under the circumstances present on November 10 .11 Accordingly, we
find no merit in the contention of the Respondents that the strike
of that date was in breach of contract and was activity unprotected
by the Act .9
The Respondents also contend, as an affirmative defense, that the
strike was in violation of the terms of Section 8 (d) of the Act and
that, as a result, the participants lost their employee status under the
mandate of that section. The Board Members, otherwise unanimous,
divide on this issue.
The Trial Examiner rejected this defense on the ground that Sec-
tion 8 (d) was not applicable to an unfair labor practice strike not
called or continued in order to force modification of a contract. The
Respondents except to this ruling on two grounds. First, they assert
that Section 13 of the Act prohibits the Board from construing the
Act and Section 8 (d) so as to affect limitations on the right to strike.
Secondly, they dispute the conclusion of the Trial Examiner on the
ground that Congress clearly intended to prohibit all strikes, economic
or unfair labor practice, during the 60-day period specified in the
statute.
The lack of merit in the first of the Respondents' arguments on this
issue is inherent in the language of Section 13, itself. That section
provides that :
° The Board also finds no merit in the Respondents' contention that Section 13 of the
Act prevents the Board from overruling the breach-of-contract defense. Section 13, dis-
cussed more fully hereafter with regard to the Respondents ' second affirmative defense,
enjoins constructions of the statute which "affect" limitations on the right to strike. It is
sufficient to note, in this regard , that it is not the Act or any part thereof which has been
construed herein to limit the no-strike clause relied upon by the Respondents , but the
terms and scope of that clause itself.
° Chairman Herzog, although dissenting as to the disposition made of the second defense
raised by the Respondents , concurs in the finding that the strike herein was not in breach
of contract . The Chairman, like the Trial Examiner, calls attention to the rationale con-
tained in his concurring opinion at page 1002 of the 1949 National Electric Products deci.
sion . Member Peterson joins in this rationale.
Member Murdock reserves opinion on the breach-of-contract issue which it is unnecessary
for him to reach in view of his dissenting conclusion that Section 8 (d) deprived the
strikers, in any event , of the status of employees protected by the Act.
Members Houston and Styles, while concurring in the finding that this particular con•
tract no-strike clause did not contemplate a waiver of self -help under the conditions present
herein , would further find that a no-strike clause is inapplicable where a strike is caused by
the unfair labor practices of the employer.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nothing in this Act, except as specifically provided for herein,
shall be construed so as to interfere with or impede or diminish
in any way the right to strike, or to affect the limitations or
qualifications on that right.
Section 13, it is therefore clear, prohibits constructions of the statute
affecting limitations on the right to strike. It also, however, prohibits
constructions which "interfere with or impede or diminish in any way"
the right to strike except as specifically provided for in the Act. This
two-edged approach of the section is as much a legal barrier, therefore,
to a Board construction broadening the scope of Section 8 (d), if the
limitation on strikes in that section is clearly to apply only to strikes
to force contract action, as it is to restricting the limitations on strikes
in that section if Section 8 (d) is clearly to apply to any strike. It is
apparent, accordingly, that the issue must be resolved by the terms of
Section 8 (d) alone.
Section 8 (d) provides, in part,
That where there is in effect a collective-bargaining contract
covering employees in an industry affecting commerce, the duty
to bargain collectively shall also mean that no party to such
contract shall terminate or modify such contract, unless the party
desiring such termination or modification-
(1) serves a written notice upon the other party to the con-
tract of the proposed termination or modification sixty days
prior to the expiration date thereof, or in the event such con-
tract contains no expiration date, sixty days prior to the
time it is proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract contain-
ing the proposed modifications ;
(3) notifies the Federal Mediation and Conciliation Service
within thirty days after such notice of the existence of a
dispute, and simultaneously therewith notifies any State or
Territorial agency established to mediate and conciliate dis-
putes within the State or Territory where the dispute oc-
curred, provided no agreement has been reached by that
time; and
(4) continues in full force and effect, without resorting to
strike or lockout, all the terms and conditions of the existing
contract for a period of sixty days after such notice is given
or until the expiration date Of such contract, whichever occurs
later:
The duties imposed upon employers, employees, and labor
organizations by paragraphs (2), (3), and (4) shall become
MASTRO PLASTICS CORP. 517
inapplicable upon an intervening certification of the Board,
under which the labor organization or individual, which is a
party to the contract, has been superseded as or ceased to be
the representative of the employees subject to the provisions
of section 9 (a), and the duties so imposed shall not be con-
strued as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a con-
tract for a fixed period, if such modification is to become effec-
tive before such terms and conditions can be reopened under
the provisions of the contract. Any employee who engages in
a strike within the sixty-day period specified in this subsection
shall lose his status as an employee of the employer engaged
in the particular labor dispute, for the purposes of sections
8, 9, and 10 of this Act, as amended, but such loss of status
for such employee shall terminate if and when he is re-
employed by such employer. (Emphasis supplied.)
The contract herein, between Local 22045 and the Respondents, ex-
pired on November 30,1950. The formal notice of an intent to modify
the contract was not served on the Respondents by Local 22045 until
October 10. It is the Respondents' contention, therefore, that as the
strike admittedly took place less than 60 days after the notice was
tendered, the strikers lost their status as employees. As noted, the
Trial Examiner rejected this argument finding that Section 8 (d),
viewed in its entirety, applied to economic strikes and strikers rather
than, as here, to an unfair labor practice strike called and continued
for issues apart from negotiation of a new or revised contract.
The Board has previously construed Section 8 (d) as having the
"prime purpose" of preventing "so-called `quickie' strikes designed to
secure termination or modification of collective-bargaining agree-
ments."" Moreover, in the recent Thayer case,11 where the section was
also posed as a defense in an unfair labor practice strike situation,
the Board indicated clearly that it considered the ambit of Section
8 (d) to be limited in scope to the contract modification or termination
area. There we held that
... by its terms [Section 8 (d) ] applies only to strikes to termi-
nate or to secure a modification or interpretation of a collective
bargaining contract. The finding that the present strike was an
unfair labor practice strike therefore takes the strike itself outside
the purview of Section 8 (d).
w United Packinghouse Workers of America, CIO ( Wilson & Company , Inc.), 89 NLRB
310, which concerned another, different problem arising from the enforcement and adminis-
tration of the section.
II H. N. Thayer Company, et al., 99 NLRB 1122, where the Board grounded its rejection
of a Section 8 (d) defense on the specific facts of the case, where the striking union was
never recognized as the representative of the employees and thus was not a party to the con-
tract subject to the restrictions of Section 8 (d).
257965-54-vol 103-34
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it is true that the Board did not find it necessary to base its
rejection of the Section 8 (d) contention in that case upon the ground
quoted, we find no reason to reject the reasoning expressed therein.
Although the Respondents and our dissenting colleagues contend that
the Congress intended that all strikes, economic or unfair labor prac-
tice alike, should be covered by the prohibition in that section, we
fail to discern any such intention expressed by proponents of the legis-
lation when it was enacted in 1947. The section itself, as we have
pointed out, is unmistakably designed to control and deal with a dis-
tinct facet of labor-management relationships, i. e., the critical period
of collective-bargaining negotiations preceding the termination or
modification of a contract. The congressional concern and intent, as
reiterated many times during consideration of the section in 1947,
was to prevent the use of economic pressures such as strikes and lock-
outs for reasons connected with contract negotiation from impeding
or disrupting collective bargaining during that critical period.12 In
short, the Congress prohibited either labor or management from using
strike or lockout pressures in the frame of contract negotiations in
preference to peaceful bargaining devices. To adopt the view of our
dissenting colleagues would be to find that Congress intended, despite
this clear concern and attention throughout the section to contract
negotiation, to render a labor organization helpless for a set period
against unfair labor practices totally unconnected with the problems
of contract termination or modification. This view we cannot ascribe
to Congress in the absence of any expressed legislative intent or desire.
Accordingly, we find that Section 8 (d) did not deprive the
strikers at Respondents' plant of their employee status. In accord
with the Trial Examiner, we further find that by discharging the
employees listed in Schedule A, attached hereto, on December 11, 1950,
and thereafter refusing to reinstate said employees following uncon-
ditional application for reinstatement made on their behalf, the Re-
spondents violated Section 8 (a) (1) and 8 (a) (3) of the amended
Act. Like the Trial Examiner, we shall therefore order the Respond-
ents to offer to the employees listed on Schedule A, together with
Frank Ciccone, full reinstatement to their former or substantially
equivalent positions as set forth in the Intermediate Report under
22 See, for example, the statement of Senator Ball , a proponent of the 1947 amendments
including Section 8 ( d). He stated , in defining the objectives of the latter, "The provision
in the National Labor Relations Act defining collective bargaining, and providing where a
contract between a union and an employer is in existence , fulfilling the obligation on both
sides to protect ( sic) [bargain ] collectively means giving at least 60 days' notice of the
termination of the contract, or of the desire for any change in it, is another provision aimed
primarily at protecting the public , as well as the employee , who have been the victims of
`quickie' strikes . I do not think that is taking away the rights of labor or of unions either
one; it is simply say ing that they should all follow the sound , fair, and sane procedure
which a majority of the good ones now follow ." ( Congressional Record, 80th Congress,
May 12 , 1947, p . 5146.)
MASTRO PLASTICS CORP. 519
the heading "The Remedy." We note, however, that while the appli-
cation for reinstatement was made on March 9, 1951, it was not re-
ceived by the Respondents until March 12. Accordingly, back pay
for employees listed in Schedule A shall be assessed from March 12
rather than the earlier date.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents Mastro Plastics
Corp., and French-American Reeds Manufacturing Co., Inc., New
York City, their respective agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 3127, United Brotherhood
of Carpenters and Joiners of America, or in any other labor organi-
zation of their employees, and encouraging membership in Local 318,
International Brotherhood of Pulp, Sulphite and Paper Mill Workers,
or in any other labor organization of their employees, by discrimi-
nating in regard to their hire or tenure of employment, or any term
or condition of their employment.
(b) Discharging or discriminatorily refusing to reinstate or reem-
ploy employees for the reason that they engaged in strike or con-
certed activities protected by the Act.
(c) Sponsoring or rendering assistance and support to Local 318,
International Brotherhood of Pulp, Sulphite and Paper Mill Workers,
or to any other labor organization, to become collective bargaining
agent of their employees.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Local 3127, United Brother-
hood of Carpenters and Joiners of America, or any other labor organi-
zation, to refrain from joining or assisting Local 318, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid and protection,
or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Offer Frank Ciccone and the employees named in Schedule A
full reinstatement to their former or substantially equivalent posi-
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lions, without prejudice to their seniority or other rights and privi-
leges, and make whole Frank Ciccone and the employees named in
Schedule A for any loss of pay they may have suffered by reason of
the Respondents' discrimination against them, in the manner de-
scribed in the remedy section of the Intermediate Report as amended
herein.
(b) Withhold all recognition from Local 318, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers as the exclu-
sive bargaining representative of their employees for the purpose of
dealing with the Respondents concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until the said Local 318 shall have been certi-
fied by the Board as the representative of such employees.
(c) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary for a determination of the
amounts of back pay due and the rights of employment accruing
under the terms of this Order.
(d) Post at their plant copies of the notice attached hereto as
Appendix A 13 Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by the
Respondents' authorized representatives, be posted by the Respondents
immediately upon receipt thereof and maintained by them for sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
CHAIRMAN HE, RZOG and MEMBER MURDOCK, dissenting in part only :
While we find, in agreement with our colleagues, that the Respond-
ents clearly committed violations of Section 8 (a) (1), 8 (a) (2),
and 8 (a) (3) of the Act, we are unable to join in the conclusion of
the majority opinion that the strike of November 30 was protected
activity. It is our considered belief that the strike on that day was
in contravention of the explicit mandate of Section 8 (d) of the present
Act and that the strikers, as a result, lost the status of employees
protected by the statute.
13 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MASTRO PLASTICS CORP. 521
Section 8 (d), as noted in the majority opinion, directs that con-
tracts shall not be modified or terminated unless certain specified
conditions are met . Among those conditions are provisions for a
60-day notice prior to the date of the desired modification or termi-
nation, and for notification to mediation agencies of the existence of
a dispute . As our colleagues of the majority admit , Congress in
enacting the provisions of Section 8 (d) was concerned with the
problem of industrial unrest that often arises when collective -bargain-
ing contracts are in process of revision or termination . There is no
question but that Congress concluded that labor -management rela-
tionships could be stabilized by enforcing certain specified rules to
govern and control the parties ' actions during these periods of stress
and possible conflict . The provision was accordingly added that
resort to the economic weapons of strike and lockout was forbidden
to both employers and employees during the 60 -day period following
notice of intent to terminate or modify a contract . The prohibition
was then emphasized , although only insofar as employees are con-
cerned , by the additional sanction of loss of employee status for
workers who engaged in strikes during that period.
There is no question here but that the strike of November 10 was
called and conducted before the expiration of the 60-day period follow-
ing the Union 's notification to the Respondents that it wished to
revise the contract then about to terminate . We agree with our
colleagues' finding that the strike was one caused and precipitated
by the Respondents ' unfair labor practices . The instant case thus
poses the question whether Section 8 (d) permits the Board any dis-
cretion to differentiate between types and classes of strikes according
to their motivation , or to apply the sanction of the statute to some, but
not all, strikes. We believe the answer must be in the negative.
The language used in Section 8 (d) does not distinguish as to what
types of strikes or lockouts are prohibited during the 60-day period.
The instruction to labor , management , and this Board is short and
explicit. The parties must continue the provisions of the contract in
full force and effect during this period "without resorting to strike or
lockout." Any employee "who engages in a strike" within the 60
days shall lose his status as an employee. No limitation or qualifica-
tion, express or implied , appears in the text to indicate a congressional
intent to limit the sanction to "economic strikers" and to allow freedom
of action to those striking in response to unfair labor practices. The
coverage is clear and all inclusive . If, as urged by the majority, the
Congress did intend to limit the scope of the prohibition to economic
strikes or, at most, to strikes within the frame of contract negotiation,
the, section is barren of any supporting indication. On the contrary,
we consider that this very failure to incorporate any such qualifying
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language, when it might easily have been added, underlines the fact
that the clear intent of the section was to prohibit all work stoppages
during this period.
Section 8 (d) being plain and unambiguous in this respect, there is
no need to resort to legislative history to plumb its meaning.14 The
congressional hearings and debates which accompanied its enactment,
if considered, however, make the majority opinion interpretation of
the section even more untenable. The opponents of the Taft-Hartley
revisions of the Wagner Act in 1947, on numerous occasions noted and
emphasized the broad coverage of Section 8 (d). Thus, the Senate
Minority Report stated :15
Moreover, the section is silent as to the Board's authority to
accommodate conflicting issues such as provocation on the part
of the employer. Under this section an employer desirous of
ridding himself either of the employees or their representative
can engage in the most provocative conduct without fear of re-
dress except by way of a lengthy hearing before the Board and a
subsequent admonition to thereafter "cease and desist" from such
practices. In striking contrast to the relatively delic'ate' triatment
provided for such action by an employer, employees unwilling
idly to countenance abuse, who resort to self-help under the cir-
cumstances , are removed from the protection of the statute and
lose "employee status." An employer is at liberty under such
circumstances freely to replace any employee bold enough to insist
upon justice. The provision denies to the Board the exercise of
any discretion to accommodate the equitable doctrine of "clean
hands." The provisions of the section are conclusive-the em-
ployee is subject to summary dismissal irrespective of the em-
ployer's conduct. (Emphasis supplied.)
To this, as to other statements of the same tenor, no denial was made
by the proponents of the legislation. The Senate Majority Report,16
indeed, reiterated that "any employee who engaged in a strike during
the 60-day period [specified in Section 8 (d) ] would lose any rights
under Sections 8, 9, and 10 of the Wagner Act, unless and until he is
reemployed." (Emphasis supplied.) Even apart from the clear
import of the statement, its reference to the loss of rights under Sec-
tion 8 would be pointless unless Section 8 (d) was clearly to include
unfair labor practice strikes with all other strikes among the pro-
hibited conduct.
It is true that the Board has, on prior occasion, referred to the
"prime purpose" of Section 8 (d) as being to eliminate "quickie
14 N. L R . B. v. Dant & Russell, Limited, 73 S. Ct. 375.
15 Senate Minority Report No. 105 p. 2 on S. 1126 , 80th Congress.
1s Senate Report No . 105 on S . 1126 , 80th Congress.
MASTRO PLASTICS CORP. 523
strikes." However, the fact that such strikes, presumptively economic,
were the prime object of the statute, cannot diminish the broad word-
ing of the section or the wider area of action which it also was intended
to govern. Nor is the dictum of the Thayer 17 case, which admittedly
was decided on a totally different ground, controlling. While the
result of the application of Section 8 (d) in the instant case may
indeed appear inequitable in the light of the extensive unfair labor
practices committed by the Respondents, such equitable considerations
are not within our power to apply. To us, the conclusion is inescap-
able that Congress determined in 1947 that the cause of industrial
peace would best be served by total elimination of the use of economic
weapons, no matter what the provocation, during the critical period
of contract renegotiation. As this determination was made a part
of the statute in Section 8 (d), it is not the province or the prerogative
of this Board to question or to alter it.
Accordingly, as the strike of November 10 was called and conducted
before the end of the 60-day period specified by the statute, we must
find that it was not protected concerted activity and that the strikers
lost the status of employees entitled to reinstatement.
17 H. N. Thayer Company, 99 NLRB 1122.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in LOCAL 3127, UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, or in any
other labor organization of our employees, or encourage mem-
bership in LOCAL 318, INTERNATIONAL BROTHERHOOD OF PULP,
SULPHITE AND PAPER MILL WORKERS, or in any other labor
organization of our employees, by discriminating in regard to
their hire or tenure of employment, or any terms or conditions of
employment.
WE WILL NOT discharge or discriminatorily refuse to reinstate
or reemploy any of our employees for engaging in strike or con-
certed activities protected by the Act.
WE WILL NOT recognize the aforementioned LOCAL 318, INTERNA-
TIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORK-
ERS, as the exclusive bargaining representative of our employees
for the purposes of collective bargaining, unless and until it shall
have been certified by the Board as the representative of our
employees.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations , to join or assist LOCAL 3127,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
or any other labor organization , to refrain from joining or assist-
ing LOCAL 318, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE
AND PAPER MILL WORKERS , or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that
such right might be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination against them :
ALTURI, ROSE
AMERICO, JOAN
AMOROSO, ROSE
AVALO, JOSE
BOWERMAN, JEAN
BOYD, JAMES
BRENDER , MORRIS
BRUNO, ANGELO
BRYANT, EDITH
CICCONE, FRANK
CIRILLO, JOSEPH
CRAWFORD, KATHERINE
DELBAGNO , THELMA
DE MINNO, ROSE
DE TuRo, MICHAEL
DIAZ, Luis
EBERT, JOSEPH
EsKENAZI 7 MORRIS
CASTALDO, Louis
CAPERS, FLORA
CARTEGENA, LUIS
CASCIONE, MICHAEL
CHELI, GAETANO
GIBSON , VERNAL
GOLPE, PETER
GONZALES, GLORIA
GRECO, BERNARD
GREEN, EVARD
HARRIS, JOSEPH
HERNANDEZ, Louis
HERZIG, EDWIN
KENNEDY, MARY
KOINER , CONNIS
LiBuzTI, CARMINE
MADDALENA, LENA
MADDALENA, LILLIE
MARESCO, RALPH
MARTIN, ALLEN
MARTONE, CAMILLE
MATERA, JOSEPH
MESSINA, AGNES
MIGLIORE , ANTHONY
MILLER, JAMES
OCCHINO, MARY
OLESZEK, JOHN
OLKER, MARIE
PASCULLI, JANE
PASTORE, CARMINE
FLAMIO, YOLANDA
FONAGY, ADELAIDE
MASTRO PLASTICS CORP . 525
FRANCHI, FRED
GHERARDI , DOROTHY
PAUL, HENRY
PELLAY, RICHARD
PETRUS, ELIZABETH
PIERONI, PETER
POLLINA, CHARLES
PRIETO, RAFAEL
RADICE, ANTOINETTE
RIVERA, PATRICIo
SANCHIRICE , WILLIAM
SANDHOP, WILLIAM
SQUILLATE, FRANK
SAXTON, JOHN
SCHULTZ, HENRY
SHAW, RUTH
SILLS, ESTELLE
SMITH, ISIAH
SMOLEN, MADELINE
TOMMARELLO, FRANK
TRIPOLONE , SALVATORE
LINGER, ALEXANDER
VALENTINE, MICHAEL
VARGAS, HENRY
WEINBERG , LEOPOLD
ZIMMERSPITZ , ABRAHAM
ZINZI, MICHAEL
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the above-named Local 3127, or
any other labor organization , except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3)
of the Act.
MASTRO PLASTICS CORP.,
Employer.
Dated -------------------- By --------------------------------
(Representative) (Title)
FRENCH-AMERICAN REEDS MANUFACTURING CO., INC.,
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.
Schedule
ALTURI, ROSE
AMERICO, JOAN
AMORoso, ROSE
AVALO, JOSE
BOWERMAN, JEAN
BOYD, JAMES
BRENDER , MORRIS
BRUNO, ANGELO
BRYANT, EDITH
CAPERS, FLORA
CARTEGENA, LUIS
CASIONE, MICHAEL
CASTALDO, Louis
A
CHELI, GAETANO
CIRILLO, JOSEPH
CRAWFORD, KATHERINE
DELBAGNO, THELMA
DE MINNO, ROSE
DE TURD, MICHAEL
DIAZ, LUIS
EBERT, JOSEPH
ESKENAZI, MORRIS
FLAMIO , YOLANDA
FONAGY, ADELAIDE
FRANCHI, FRED
GHERARDI , DOROTHY
526 DECISIONS OF NATIONAL LABOR
GIBSON, VERNAL
GOLPE, PETER
GONZALES, GLORIA
GRECO, BERNARD
GREEN, EVARD
HARRIS, JOSEPH
HERNANDEZ, Louis
HERZIG, EDWIN
KENNEDY, MARY
KOINER, CONNIS
LIBUTTI, CARMINE
MADDALENA, LENA
MADDALENA, LILLIE
MARESCO, RALPH
MARTIN, ALLEN
MATERA, JOSEPH
MESSINA, AGNES
MIGLIORE, ANTHONY
MILLER, JAMES
OCCHIN07 MARY
OLESZEK, JOHN
OLKER, MARIE
MARTONE, CAMILLE
PASCULLI, JANE
PASTORE, CARMINE
RELATIONS BOARD
PAUL, HENRY
PELLAY, RICHARD
PETRUS, ELIZABETH
PIERONI, PETER
POLLINA, CHARLES
PRIETO, RAFAEL
RADICE, ANTOINETTE
RIVERA, PATRICIO
SANCHIRICE, WILLIAM
SANDHOP, WILLIAM
SQUILLATE, FRANK
SAXTON, JOHN
SCHULTZ, HENRY
SHAW, RUTH
SILLS, ESTELLE
SMITH, ISIAH
SMOLEN, MADELINE
TOMMARELLO, FRANK
TRIPOLONE, SALVATORE
UNGER, ALEXANDER
VALENTINE, MICHAEL
VARGAS, HENRY
WEINBERG, LEOPOLD
ZIMMERSPITZ, ABRAHAM
ZINZI, MICHAEL
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed by Local 3127, United Brotherhood of Carpen-
ters and Joiners of America, herein called Local 3127, on January 26, 1951,
and amended on April 18, 1951, a complaint and notice of hearing thereon
having been issued and served by the General Counsel on September 6, 1951,
and an answer having been filed by the Respondents, Mastro Plastics Corp., and
French-American Reeds Manufacturing Co. Inc., a hearing was held at New
York City between March 3 and March 21, 1952, before Arthur Leff, the under-
signed duly designated Trial Examiner.
The complaint alleged in substance that the Respondents engaged in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1), (2),
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat.
136, herein called the Act, by:
1. Illegally infringing upon guaranteed employee rights since on or about
October 10, 1950, in the following respects: (a) Encouraging representatives of
the established collective-bargaining agent of their employees to substitute in its
place and stead another labor organization, to wit : Local 318, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, herein called Local 318;
(b) encouraging Local 318 to engage in a campaign to displace the established
collective-bargaining agent ; (c) sponsoring, supporting, and assisting the organi-
MASTRO PLASTICS CORP. 527
zational campaign of Local 318 ; ( d) giving financial and other rewards to
Employees active in the organizational campaign of Local 318 ; ( e) inducing
employees , by threats of reprisal and promises of benefit , to become members
of Local 318 and to refrain from membership in Local 3127 ; ( f) making mem-
bership in Local 318 and/or abandonment of membership in Local 3127 a
condition of continued or new employment ; ( g) inducing employees , by solicita-
tion , threats, and promises of benefit to abandon picketing and other activities on
behalf of Local 3127 ; ( h) reinstating employees who refrained from picketing
and other^activities on behalf of Local 3127 to their jobs without loss of seniority
or other rights and privileges while requiring employees who engaged in such
activities to apply for new employment ; and (i) granting wage increases to em-
ployees who refrained from picketing and other activities on behalf of Local
-3127, and to those who abandoned their membership and activities on behalf of
Local 3127.
2. Sponsoring, assisting, and supporting Local 318 to become collective -bargain-
ing agent of their employees.
3. Discriminatorily discharging Frank Ciccone on or about November 10,
1951 , because of his membership in and concerted activities on behalf of Local
3127 and because of his refusal to become or remain a member of Local 318.
4. Discriminatorily locking out or constructively discharging 76 additional
named employees on or about November 10, 1951 , for the same reasons.
5. -Rejtic'ting , on or about March 11 , 1951 , and thereafter, applications for
reinstatement to their former or substantially equivalent positions, made by
the 77 employees above referred to.
The Respondents' answer as amended admitted the discharge of Frank Ciccone
and the termination of employment of the others named in the complaint, but
denied generally all allegations of the complaint attributing to the Respondents
the commission of unfair labor practices . With regard to Ciccone 's discharge,
the answer alleged affirmatively that Ciccone was discharged for violating a
specific direction of an official of the Respondents to remain at his work station
during the attendance of said official at a board of directors ' meeting. With
regard to the others named in the complaint , the answer in substance alleged
affirmatively ( 1) that they were validly terminated for engaging in a strike
in violation of a no-strike provision of an existing collective-bargaining agree-
ment, and (2) that they lost their status as employees under Section 8 (d) of
the Act because they engaged in a Arike less than 60 days after their collective-
bargaining representative served notice upon the Respondents of a proposed
termination or modification of an existing collective -bargaining contract.
All parties were represented at the hearing by counsel and were afforded full
opportunity to be heard, to examine and cross -examine witnesses , and to intro-
duce evidence on the issues. At the opening of the hearing the Respondents
objected to the Trial Examiner proceeding to hear the issues of the complaint
relating to the alleged discriminatory discharges , upon the ground that there
was then pending undetermined before the Board a representation proceeding
(Case No. 2-RC-3170) involving, inter alia, the issue of whether those alleged
to have been discriminated against occupied the status of employees of the
Respondents . In the alternative , the Respondents moved to strike the allegations
of the complaint relating to discrimination and/or to stay the hearing in the
instant complaint case pending the completion of the aforesaid representation
proceeding . The objection of the Respondents was overruled , and their motions
were denied. The Board denied the Respondents' application to appeal from
these rulings on'the ground that the issues raised could best be determined by
the Board on the basis of the record as a whole . At the close of the General
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel 's case a motion made by the Respondents to dismiss the allegations
of the complaint relating to the alleged discriminatory lockout was denied with
leave to renew at the close of the entire case. At the close of the case, decision
was reserved on various motions made by the Respondents to dismiss the com-
plaint in its entirety , as well as certain specific allegations thereof , for insuf-
ficiency of proof and upon other grounds. These motions are now disposed of
in accordance with the findings of fact and conclusions of law made below. A
motion of the General Counsel was granted to conform the pleadings to the proof
with regard to minor variances. Opportunity was afforded all parties to argue
orally upon the record at the close of the case, and to file briefs and proposed
findings and conclusions. The General Counsel and the Respondent argued orally
at the hearing, and the General Counsel filed a brief thereafter.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Mastro Plastics Corp. and French-American Reeds Manufacturing Co. Inc.,
are New York corporations, having their principal office and place of business at
Bronx, New York, and together employing a unitary work force. The Respond-
ents are engaged in the manufacture, sale, and distribution of plastic articles,
ukeleles, tiles, shoe forms, plastic reeds, accessories for musical instruments, and
related products. During 1950, the Respondent Mastro Plastics Corp. purchased
materials and supplies valued in excess of $500,000, and the Respondent French-
American Reeds Manufacturing Co, Inc., purchased materials and supplies
valued in excess of $200,000. Approximately 90 percent of the materials and
supplies purchased by each Respondent was transported to its Bronx, New York,
plant in interstate commerce from States of the United States other than the
State of New York. During the same year, the Respondent Mastro Plastics
Corp. manufactured at its plant products valued in excess of $1,000,000, and
the Respondent French-American Reeds Manufacturing Co. Inc., manufactured
products valued in excess of $600,000. Approximately 90 percent of the products
of Mastro Plastics Corp. and 60 percent of the products of French-American
Reeds Manufacturing Co. Inc., were transported from their said plant in inter-
state commerce to States of the United States other than the State of New York.
The Respondents admit they are engaged in commerce within the meaning of
the Act.
II. THE LABOR OGRANIZATIONS INVOLVED
Local 22045, American Federation of Labor ; Local 3127, United Brotherhood
of Carpenters and Joiners of America ; and Local 318, International Brotherhood
of Pulp, Sulphite and Paper Mill Workers, is each a labor organization within
the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Introduction
Although separate and distinct corporate entities, the 2 Respondents occupy
the same plant and utilize the same work force, which during the period material
herein numbered some 150 employees. It is conceded that those alleged to have
been discriminated against were employees of both Respondents. Mario Mac-
caferri is the president of both corporations, and his wife, Maria-who also
works at the plant in a supervisory capacity-the vice president. Other manage-
MASTRO PLASTICS CORP. 529
ment or supervisory personnel who figure in the events to be narrated below are
Arthur Zevin, described by Maccaferri as the Respondents' labor relations di-
rector and by Zevin as their personnel director ; Max Studli, foreman of the
machine shop; Alma Zwoboda, forelady in the finishing department ; and William
Ritacco, a day-shift foreman in the molding department. At the hearing, the
Respondent conceded the supervisory status of all those named, with the possible
exception of Ritacco. As to him, the Respondents' position appears to be equivo-
cal, but the evidence in any event shows clearly enough that he possessed sufficient
attributes of authority to bring him within the supervisor's definition of Section
2 (11) of the Act'
In July or August of 1948, Local 3127, United Brotherhood of Carpenters and
Joiners of America, was certified by the New York State Labor Relations Board
as the exclusive bargaining representative of the Respondents' production and
maintenance employees.
Local 3127 is 1 of 3 local labor organizations that are affiliated in the sense
that they have common business representatives and share a common business
office. The others are Federal Labor Union, Local 22045, which is involved in
this controversy, and Federal Labor Union, Local 18465 (also known as Picture
Frame Workers Union), which is not. At present Abraham H. Saul, a member
of the New York bar, serves all 3 unions as business representative and attorney.
At the time of the events narrated below the common business representative
of all 3 locals was Sol Rothenberg, since deceased. Saul then acted as attorney
for the 3 locals and also in a business capacity at least for Local 3127 and
Local 22045.
After its certification, Local 3127 entered Into negotiations with the Respond-
ents, and in the course of time concluded a written collective-bargaining agree-
ment to run for a term expiring November 30, 1949. During the negotiations
Local 3127 insisted upon the inclusion in the contract of a welfare-fund provision
calling for employer contributions. The Respondents at first agreed to this, but
later refused to execute any agreement with such a provision, and as a result
the contract eventually signed omitted the welfare clause. Shortly after the
execution of the contract, Saul advised the Respondents that because of this
omission Local 3127 could not fulfill its obligations under the contract. The
reason for this, Saul explained at the hearing, was that Local 3127 had an estab-
lished welfare fund from which all members were entitled under its constitution
to draw benefits, and it would have been an unwarranted drain on that fund
to permit benefit participation by employees of an employer who did not contribute
to it. It was suggested by Saul, and agreed to by Maccaferri for the Respondents,
that this difficulty might be overcome by allowing Local 3127 to assign to Local
22045 all its right, title, and interest in the recently executed collective-bargaining
agreement with the Respondents.
Consequently, on March 7, 1949, Local 3127, with the written consent of the
Respondents, assigned to Local 22045 its interest in the collective-bargaining
agreement expiring on November 30, 1949, and Local 22045 assumed the obliga-
tions of Local 3127 thereunder. At about the same time a consent to the assign-
ment was signed by a majority of the employees in the bargaining unit.
1 Ritacco had charge of some 12 machine jobs. It was his function to set up the jobs and
keep the machines in repair . When all machines were In operation be performed no manual
work himself, but would go from machine to machine overseeing the work of the operators.
He was authorized to give orders to the operators , to give them permission to leave work in
the event of Illness or the like, and to recommend the discharge of employees whose work be
directed . On a number of occasions he had recommended the discharge of employees, and
his recommendations had been followed . He was classified as a working foreman , a classi-
fication exempt from the coverage of the collective -bargaining agreement hereinafter
referred to.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the term pf the first contract expired, a new contract was entered into-
this time with Local 22045 as the signatory-for a term of 1 year, expiring Novem-
ber 30, 1950. The new contract, like the old one, contained a union-shop provi-
sion, requiring then present employees who were not members of Local 22045 to
apply for membership in that Local within 30 days from the execution date of
the contract, and new employees to apply within 30 days after commencing their
employment' The contract also contained the following no-strike and no-lockout
clauses which are particularly pertinent to this proceeding:
5. The Union agrees that during the term of this agreement, there shall be
no intbrference of any kind with the operations of the Employers, or any
interruptions or slackening of work by any of its members. The Union
further agrees to refrain from engaging in any strike or work stoppage
during the term of this agreement.
6. The Employers agree that there shall be no lockout during the term of
this agreement.
With regard to disputes, the contract made provision for the arbitration of dif-
ferences arising between the parties "as to the meaning and application of the
provisions of this agreement, including questions of meaning, interpretation,
operation or application of any clause of this agreement or any breach or threat-
ened breach of this agreement." The contract vested in the Respondents the sole
right to discipline and discharge employees for proper cause, but provided that
any disciplinary or discharge action was to be subject to review under the arbi-
tration procedures. To obtain such review the Union was required within 7 days
from the date of discharge to serve written notice upon the Respondents by
registered mail.
B. Local 65 institutes an organizational campaign among the Respondents'
employees
In August 1950, Local 65 of the Wholesale and Warehouse Workers Union
began an organizational campaign among the Respondents' employees. Appar-
ently this campaign met with some measure of success for, on September 28,
1950, Local 65 filed a petition with the Board seeking certification as bargaining
representative. Maccaferri, the Respondents' president, was admittedly aware
of Local 65's campaign, and feared it. He was bitterly opposed to Local 65 which
he regarded as a Communist-controlled union. At the hearing he made no
secret of his feeling toward that union, indicating he would have stopped at
nothing, even at closing his plant, to keep Local 65 out.
C. The Respondents enlist the aid of Joseph Tonelli of Local 818
Maccaferri believed Local 22045 to be too weak to cope successfully with the
organizational drive of Local 318, and came to the conclusion that the situation
was serious enough to call for some action on his part. At the suggestion of a
member of the Respondents' board of directors, Maccaferri consulted with an
unidentified intermediary who arranged to have him meet with Joseph Tonelli,
the head of Local 318, and a vice president of that Local's parent body, Interna-
tional Brotherhood of Pulp, Sulphite and Paper Mill Workers. Local 318 at
' So far as appars, no union-shop authorization election was ever held, although majority
authorization at such an election was then required as a condition precedent to a valid
union-shop agreement. The General Counsel expressly stated that he was not in this pro-
ceeding attacking the legality of the collective-bargaining contract because of any invalidity
of the union-shop provision, or for any other reason.
MASTRO PLASTICS CORP. 531
that time was the bargaining agent for the employees of a neighboring plastics
manufacturing company. Tonelli was recommended to Maccaferri as one who
had been successful in the past in defeating organizational efforts of Local 65.
Maccaferri first met with Tonelli about the middle of September, and thereafter,
according to his own testimony, had a number of additional meetings and tele-
phone conversations with him. He became convinced that Tonelli was a person
upon whom he could completely rely.
Saul was first made aware of Tonelli's interest in the situation at the Respond-
ents' plant at a meeting of the shop committee with Maccaferri on September 20,
1950, at which he was present.
Saul and the committee had earlier met with Maccaferri on September 7 to
discuss a renewal of Local 22045's contract with a 12/-cent hourly raise.' At
that meeting Maccaferri had stated he would consider it. A further meeting had
been held on September 15. At that time Maccaferri had refused to discuss
any wage increase until Local 65 was out of the way. He had also wrathfully
accused Saul of encouraging Local 65 to engage in an organizational campaign
as a pressure technique to force him to grant wage increments to the employees.
When Saul had assured him that this was not true, Maccaferri had suggested
that they work together to defeat Local 65, a proposal to which Saul readily
agreed.
At the September 20 meeting, called to discuss the proposed raise, Maccaferri
announced flatly that he did not intend signing any new contract with Local
22045 unless and until Tonelli approved it. Upon Maccaferri's insistence, Saul
agreed to see Tonelli.
Several days later Saul called on Tonelli. At that time Tonelli indicated an
interest in having his union take over the representation of employees at the
Respondents' plant. There was some talk between them of jurisdiction, Tonelli
asserting that jurisdictional rights in the plastic industry were properly lodged
by the A. F. L. in his organization. As appears from Saul's testimony,' Tonelli
at that time also broached the subject of a possible sale to his organization of
representation rights in the plant, no price being mentioned. Saul did not defi-
nitely reject this suggestion at once, stating he would have to take up the mat-
ter with his union's executive board. Although Saul did not admit it, I am satis-
fied on all the record that he did, for a time at least, give serious consideration
to the proposal. Maccaferri testified that shortly after Saul' s first meeting
with Tonelli, he again met with Tonelli who told him that Saul wanted money
to get out, and that Saul had suggested the equivalent of a year's dues. Tonelli
asked Maccaferri whether he would be willing to pay that amount. Maccaferri
refused, according to his testimony, stating that any arrangements of such a
nature would have to be made directly between Tonelli and Saul.
In any event, and whatever his reasons may have been for doing so, it ap-
pears that Saul eventually decided to reject Tonelli's proposal for the voluntary
transfer of bargaining rights to his union. According to Saul, whose testimony
is undenied and credited in that respect, he so informed Tonelli not long after,
when Tonelli telephoned him to inquire concerning his decision.
On or about October 6, organizers for Local 318 appeared outside the Respond-
ents' plant to distribute leaflets soliciting employees to join that union. Upon
learning of the solicitation, Saul protested Local 318's action to both Tonelli
and Maccaferri. Maccaferri's response was that Saul's union could not handle
I The demand at this time was an oral one. No written notice of intention to terminate
or modify the existing contract was served on the Respondents until on or after September
29, 1950.
1 Tonelli did not testify.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 65 and that Local 318 could, and that it should be a matter of little con-
cern to Saul since "it was all A. F. L." At Maccaferri's suggestion, Saul once
more met with Tonelli, but what was said at their meeting is not detailed in
the record. On October 12 Saul again discussed the subject with David W.
Kahn, the Respondents' general counsel, and possibly also with Tonelli-the rec-
ord is not entirely clear on this point. When Saul left the meeting at Mr . Kahn's
office, it was with Mr. Kahn's assurance that the matter would be straightened
out and that Saul had nothing to fear.
After the meeting at Mr. Kahn' s office , there was a cessation , or at least a
suspension , of Local 318 activities, and for a brief time Local 22045 was able
to concentrate on its efforts to combat Local 65's organizational campaign.
But Local 318 did not remain out of the picture for long. About a week after
Saul's first meeting with Mr. Kahn-which would fix the date at about October
19-another meeting was held at Mr. Kahn' s office. In addition to Messrs. Saul
and Kahn, there were present Maccaferri and an attorney named Shipman, who,
Saul was told, represented Maccaferri in labor relations work. No representa-
tive of Local 318 was present at that conference. The purpose of the meeting
soon became apparent. Shipman asked Saul whether he would be interested
in withdrawing from the plant and allowing Local 318 to take over. Saul said,
"No." Asked why, Saul told Maccaferri that his "union derived its living from
the dues, and that [it] had no intention of letting 318 or anybody else take
over any of [its] plants." Maccaferri said, "I understand that 318 wants to
compensate you for withdrawing." Saul asked if it was 318 or Maccaferri.
Maccaferri said, "No, no, 318. I understand they want to buy the shop." Saul
observed that if Local 318 wanted to buy the shop Maccaferri had no business
knowing of it, and that it did not stand well with him that Maccaferri knew so
much of what had gone on between him and Tonelli. Saul insisted upon an
assurance that there would be no interference from Local 318 in the future.
To that, Shipman finally responded, "All right, we will see to it that they stay
away from the place." The events that were shortly to follow proved, however,
that Maccaferri actually had other ideas-but of that, more later.
D. Local 22045 adds to its demands
At a membership meeting of Local 22045 held on October 20 and attended by
some 90 employees, all present who had previously designated Local 65 agreed
to sign revocations of their designations of authority. At the same time reso-
lutions were adopted formulating new bargaining demands. Among them was
a demand for a 25-cent hourly wage increase, as contrasted to the 12%-cent
increase previously demanded, and a demand for a 3-percent welfare fund. Also
discussed at this meeting, but tabled for later consideration, was the question
of whether affiliation should not be shifted back to Local 3127, the originally
certified union. The new demands were not formally presented to Maccaferri
until October 25. And there is no direct evidence that Maccaferri learned about
them until then. Maccaferri, however, testified it was common for employees
to come to him and apprise him of what was happening about the plant with
regard to union activity, and from this it is reasonable to infer that what oc-
curred at the October 20 meeting soon came to his attention.
E. Maccaferri induces employees to engage in an organization campaign on
behalf of Local 818
On October 20 Virginia O'Neill, who had been, and in fact still was, shop
stewardess for Local 22045, but who had admittedly turned against that organi-
MASTRO PLASTICS CORP. 533
zation and was now hostile to it, told 4 other employees, Grace Cincimino, Al
Montopoli (Grace's husband), Rose Amorosa, and Vernal Gibson 6-that Macca-
ferri wanted them to meet with Tonelli and help organize the employees into
Local 318. An appointment had already been arranged by or for O'Neill for
a meeting with Tonelli on Saturday, October 21-O'Neill's testimony was vague
as to just how or when the arrangements had been made. On October 21, the
5 named employees called on Tonelli at the offices of Local 318. Tonelli spoke to
them at length of the advantages of representation by Local 318 and, handing
them a stack of membership application forms, emphasized the necessity of secur-
ing at least 75 signatures by the following Monday. The 5 employees were not
scheduled to work that Saturday. However, after their visit to Tonelli they
decided to return to the Respondents' plant to confer with Maccaferri. Macca-
ferri, when told where they had been, appeared neither surprised nor displeased ;
indeed one of his first comments, made even before they had brought up the
particular subject, was to inquire whether they had obtained application cards
from Tonelli. Maccaferri asked whether they, too, had not come to the conclu-
sion that Tonelli was "a fine man," and observed that he himself would be
inclined to give everything to Local 318, but nothing to Local 22045. After being
informed that 75 cards had to be signed by the following Monday, Maccaferri
took out a payroll and together with the employees went over the list of names
to determine who might be expected to sign. At one point, when O'Neill indi-
cated some doubt as to whether 75 signatures could be obtained, Maccaferri firmly
expressed his confidence that it could be done. And at another, when asked what
if some didn't sign, Maccaferri remarked in substance, "If they don't sign, they
know where the door is and they can get out." Maccaferri told the employees
to be in early Monday morning so that Local 318 solicitation might get underway
promptly. And to Rose Amorosa, who had some reservations, Maccaferri stated
as she was leaving, "Don't worry Rose, you won't regret helping me, everything
will be all right." °
The employees' meeting with Maccaferri lasted about an hour and a half. At
its end, O'Neill requested that the 5 employees be paid for that day. None had
been in the plant before the meeting and, except possibly for Montopoli, all left
5 Vernal Gibson , who has since married, is now known as Vernal Gibson Fine, the name
under which she testified. To avoid confusion with her husband, who also testified, she
will be referred to in this report by her maiden name.
The findings made in the above paragraph are based principally upon the testimony of
Rose Amorosa and Vernal Gibson, both of whom impressed me as essentially honest
witnesses. Their account as to what occurred was disputed with regard to a number of
details by O'Neill (who was still employed by the Respondents and was obviously hostile
to the charging Union) as well as by Maccaferri. O'Neill's testimony in certain respects
was self-contradictory , and in others inconsistent with statements made by her in an
affidavit supplied to the Board 's field examiner who investigated the case. Her overall
testimony left the impression that she was intent upon conforming her testimony to the
Respondents' theory of the case, except where she was aware of inconsistent statements
already made in her affidavit to the field examiner. To the extent her testimony is at
variance with that of Amorosa and Gibson, I find it unreliable and unworthy of credence.
Maccaferri in his testimony did not dwell on the incidents described above, nor attempt to
deny them in detail. He testified that he first heard of Local 318 by number when the five
employees came in to him that day to tell him, according to his version, that they had seen
Tonelli who had indicated a lack of enthusiasm. Beyond that, his testimony would have it,
he could recall nothing else, except that the girls had mentioned they were going to get
cards signed, had expressed doubt whether they could do so in so short a time, and had been
told by him that he felt they could do it if all employees felt as they did. In the light
of all the surrounding circumstances, Maccaferri's testimony that he was unfamiliar with
Local 318 until that time impressed me as implausible . In other respects I thought his
testimony was wilfully incomplete. To the extent his version conflicts with that of
Amorosa and Gibson, I do not credit it.
257965-54-vol. 103-35
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant immediately thereafter without performing any work. Nevertheless,
Maccaferri readily acceded to O'Neill's request. The employees were compensated
for a full 8-hour day at time-and-a-half rates.' By thus compensating the em-
ployees, as well as by the statements made by him at the meeting, it is found
Maccaferri gave substance and support to, and in effect ratified, O'Neill's assertion
to the other employees that she had been authorized by Maccaferri to request them
to engage in organizational activities on behalf of Local 318.
Maccaferri's efforts that day to induce employees to organize on behalf of Local
318 were not confined to the five employees named above.
Thus, Frank Squillate, an employee in the finishing department, testified that
on that same Saturday afternoon Maccaferri approached him at his place of work
and told him that he did not like the incumbent union ; that he was paying it
$500 a week that could better be distributed among the employees ; that he would
like to have Local 318 in its stead ; and that he wanted Squillate, as one of the
older employees in the plant, to talk about Local 318 to his fellow employees
Maccaferri specifically denied stating to Squillate that he was paying $500 to any
labor organization or organizer. As to the balance of Squillate's testimony, h '
stated he could not "recall whether we had a conversation or not." Without
resolving the question of whether Maccaferri made any specific reference to a
$500 payment, I am convinced, and I find, that Maccaferri did urge Squillate to
enlist support for Local 318 on the occasion mentioned by Squillate.
On the same day, Maccaferri also had a conversation along somewhat similar
lines with another employee, Frank Ciccone, who was employed in the Respond-
ents' machine shop, and who was the only employee working there that Satur-
day. Ciccone and another employee had earlier planted a baseless rumor with
an employee whom they suspected of tablebearing and wanted to test, that they
were trying to bring the International Association of Machinists into the
plant. The rumor had quickly found its way to Maccaferri. When Ciccone
had asked Max Studli, the machine shop foreman, for a raise shortly thereafter,
Studli had replied that Maccaferri was "sore" at all in the machine shop for
trying to bring in the IAM. On Saturday, October 21, Ciccone made it a point
to assure Maccaferri that there was nothing to the IAM story. Maccaferri
then brought up the subject of Local 318. He told Ciccone a neighboring plastics
manufacturing company was dealing with Local 318 and was happy with it,
and declared his desire to bring that labor organization into his plant. Char-
acterizing Local 65 as "communists" and Local 22045 as "gangsters and racket-
eers," he added that because of this he had determined not to deal with any
but Local 318 in the future, and that he would close his doors rather than
deal with either Local 65 or Local 22045. With Local 318 in the plant, he went
on, he was sure everybody would be satisfied. Maccaferri informed Ciccone
that on Monday morning, October 23, he was going to ask Peter Pieroni, an-
other machine shop employee, to help in the campaign for Local 318, and
expressed his desire to have Ciccone assist Pieroni in distributing Local 318
cards among employees. During their conversation, Maccaferri took occasion
to announce to Ciccone, without, however, making any definite commitment,
that there was a good possibility that Ciccone would eventually be made a
foreman in the ukelele department.'
As appears from Peter Pieroni's testimony, credited in this respect, at about
8: 35 a. in. on Monday morning, October, 23, Maccaferri came into the machine
7 Maccaferri 's testimony at one point that the employees had worked until noon, and
were paid for that reason, is at variance with clearly established record facts.
8 The findings in this paragraph are based upon Ciccone's credited testimony which in the
respects set out was not specifically denied.
MASTRO PLASTICS CORP. 535,
shop, summoned Pieroni to the office, and told him in substance that Local 318
was the union he wanted as the collective-bargaining agent of his employees.
Maccaferri gave Pieroni some 40 Local 318 membership application cards, and
asked him to solicit signatures for them. When Pieroni inquired what would
happen if employees refused to sign, Maccaferri replied that if they didn' t sign
they would be "out."'
F. Events of October 28; the Respondents allow and support Local 318
organizational activities on company time
Beginning at the start of the first shift on the morning of October 23, a
vigorous organizational drive was conducted on plant premises on behalf of
Local 318. The leader of the drive was Virginia O'Neill with Frank Pieroni
also playing a prominent part, particularly in the machine shop. Other em-
ployees who it appears participated in varying degrees in obtaining signatures
for Local 318 membership applications included Al Montopoli, Grace Cincimino,
and Frank Ciccone. Activities were conducted largely during the working
time, either of the solicitors or the solicited, and O'Neill and Pieroni, at least,
performed none of their regular work that morning,10 although they were paid
for their time at their regular rates. The solicitation activities were conducted
openly in the presence of supervisors. Though it resulted in some disruption
of regular production, the Respondents' supervisory and management officials
made no effort to curb it.
In soliciting application for Local 318, the solicitors represented to the em-
ployees that Maccaferri wanted that labor organization ; that it was the only
union with which he watlted to deal; that it would result in economic advantages
to them if they cooperated with him; and that it might result in job insecurity
for them if they failed to sign.11 Supervisory and management officials of the
Respondents by their statements and conduct, to be described below, provided
substance and support for these representations, thereby materially aiding the
Local 318 solicitation activities.
One supervisor, William Ritacco, actually joined in the solicitation activities
in the molding department where he was foreman, by receiving cards from
O'Neill, himself openly signing one in the presence of employees, and distribut-
ing others to a number of employees in his department with instructions to fill
them out."
Y Maccaferri admitted having an Interview with Pieroni concerning Local 318 on the
occasion in question but, according to him, the interview was requested by Pieroni who
voluntarily came to his office with cards in his hands to ask about Local 318. All he told
Pieroni, Maccaferri would have it believed, was that he did not care uuhat union the em-
ployees decided upon, as long as it was not a Communist union. Considering all the other
evidence in the record, I am unable to believe that Maccaferri expressed a position of
neutrality as between Local 318 and Local 22045. Other undenied testimony convinces
me that it was Maccaferri and not Pleroni who sought the interview. To the extent their
versions are in conflict, I credit that of Pieroni and find that the incident occurred sub-
stantially as related by him.
1° Although O'Neill testified that she confined her solicitation activities to nonworking
time, there is overwhelming record evidence to the contrary and her testimony is not
credited.
11 This is established by credited testimony of Rose Amorosa, Carmen Libutti, Frank
Ciccone, Antoinette Radice, Frank Squillate, Louis Castaldo, and Evard Green. O'Neill's
denial that she made any reference to Maccaferri or to his desires in the matter is not
credited.
11
This is established not only by the testimony of Amorosa, Gibson, and Castaldo,
witnesses for the General Counsel, but also by admissions of Ritacco, a witness for the
Respondents . O'Neill denied giving cards to Ritacco, but her denial is inconsistent with
her affidavit and is not credited. Ritacco's attempted justification for his conduct-that
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Others, although not joining in the actual distribution of cards, made no secret
of what the Respondents' desires were with regard to Local 318, and provided
assistance to the campaign in other ways. Thus, in the machine shop, Macca-
ferri entered the room while Pieroni was addressing employees in an effort to
have them sign, saw the employees standing about idle, and instead of asking
them to return to work, contributed to Pieroni's efforts by remarking that he
would like to have them join and that they would be satisfied if they did. One
employee, Albino, who, as a salaried maintenance man, had never been required
to joint the contracting union, specifically inquired of Maccaferri whether it
would be necessary for him also to join, and Maccaferri told him it would"
In the packing department, Mrs. Maccaferri , addressing a number of employees
generally, told them that it was all right to sign for Local 318; that her hus-
band knew about it ; that it was a good union and had a good contract ; and
that they would not be able to work in the plant in the future unless they joined"
In the ukelele department, Forelady Alma Zwoboda told employee Estelle Sills,
while the latter was being solicited for Local 318 membership on company time
by Grace Cincimino, that Local 318 was the union Maccaferri wanted and the
one whose demands he would meet's
As a result of the concerted drive carried on that morning, with the acquies-
cence, assistance, and support of management representatives, the Local 318
campaign achieved a spectacular success, which in the circumstances is not to be
wondered at. Upwards of 70 membership application cards were collected.
These were given to O'Neill who made it a point to inform Maccaferri of what
had been accomplished. At about noon, the cards were turned over by O'Neill
to official Local 318 representatives who were waiting for them outside the
plant 1° On the following day, October 24, Local 318 intervened in the representa-
tion case that had been instituted by Local 65, filing approximately 73 authori-
zation cards.
Maccaferri was not slow in expressing his appreciation for the services O'Neill
had performed. Vernal Gibson testified without specific contradiction, and it is
found, that during the afternoon of October 23 Maccaferri, in her presence, con-
he was simply seeking to hasten the return of molders to their machines-impressed me
as implausible in the light of all the surrounding circumstances , particularly his own
ostentatious signing of a card.
"The above findings relating to the machine shop are based upon testimony of
Ciccone, Pieroni, and Libutti, not specifically denied and credited in these respects.
14 This finding is based upon credited testimony of Jean Bowerman and Elizabeth
Petrus, employees in the packing department . Mrs. Maccaferri in her testimony did not
refer specifically to this incident She testified generally , however , that she could not
recall having a conversation with anyone about Local 318. Her testimony was uncon-
vincing and is not credited.
15 This finding is based upon the credited testimony of Sills, denied by Zwoboda.
According to Zwoboda, she had returned to the plant that morning after a period of
absence and had no knowledge of any union called Local 318. Zwoboda's testimony in
that respect conflicts with a sworn statement she gave the Board's field examiner, wherein
she in effect admitted her familiarity with Local 318 at that time. Moreover, there is
other evidence tending to corroborate Sills. Thus, another employee, Ruth Shaw, testi-
fied without direct contradiction that on October 23, she inquired of Zwoboda whether
to join Local 318, and was told that all foremen and foreladies would be in Local 318
and that it would be "a good deal" for employees who would thereby get what they
wanted.
' Maccaferri admitted , after being shown his prehearing statement , that earlier that
morning he had been in telephone communication with Tonelli. According to Maccaferri,
Tonelli advised him at that time that "although he cannot yet foresee how he can repre-
sent the people, and he would like to know whether he would be accepted, he informed
me cards were given to the employees, and he said , 'Let's see the reaction of the majority'."
MASTRO PLASTICS CORP. 537
gratulated O'Neill on the good job she had done that day. He further told
O'Neill she need not worry, that some day he would take her to Florida 17
G. Additional interference, assistance, and support between October 23
and November 10
After the events of October 23, there was apparently little active solicitation
on behalf of Local 318. The record, however, does disclose at least two addi-
tional relevant incidents to which reference should be made.
On or about October 26, Estelle Sills had a conversation with Grace Cincimino
and Forelady Zwoboda in which she disclosed to them that she had renounced her
designation of Local 318. Both Cincimino and Zwoboda told her that she was
foolish not to stick with Local 318 as it might cost her her job.18
During the week of October 23 there was a meeting of Local 318. O'Neill
requested Luis Cartagena and another employee who worked on the 4 p. m. to
midnight shift to attend the meeting. Cartagena asked if it would be all right
for him to attend during his working hours. O'Neill said she would take it up
with Maccaferri. Later the 2 employees were advised by their foreman that
they could go to the meeting and would probably be paid for the time lost. Both
Cartagena and the other employee, Richard Pelley, clocked out at 5 p. m. and
did not return to the plant until after the conclusion of the meeting, more than
2 hours later. Both were compensated for that full day, just as if they had not
left the plant 19
H. The Local 22045 membership votes to transfer its affiliation to Local 8127
Upon learning of the events that had occurred on October 23, Saul arranged
an emergency meeting of the Respondents' day-shift employees to be held after
work that day under the auspices of Local 22045. At the meeting, which Saul
says was attended by about 90 day-shift employees, a resolution was adopted to,
transfer the affiliation of the membership back to Local 3127, the originally
certified collective-bargaining representative. The transfer was decided upon,
according to Saul, because Local 3127 was believed better equipped to handle
the welfare fund the employees were then demanding , and because it was further
believed that Local 3127, with the support of an international behind it, was in
a stronger position to resist the raiding of Local 318. At this meeting, a deci-
sion was also reached to present to Maccaferri the demands previously formu-
17 On the following day, October 24, a regular payday, O'Neill received over and above
her wages a check from the Respondent , Mastro, for $50. The General Counsel con-
tends this represented a reward for her work on behalf of Local 318. The check was
endorsed , "Extra work on plumes." O'Neill testified that some weeks before she had
been given a special "plume" job to be performed on her regular working time. When
she had been assigned that work , Maccaferri had told her it would be worth $50 if
she saved a certain amount of material. Her testimony continued : At the time she was
given the job Maccaferri had made no definite commitment to pay her $50. When she
had satisfactorily completed the work , she had forgotten about what Maccaferri had told
her and had not pressed him for payment. However, the check she received on October
24 was considered by Maccaferri and by her as a discharge of Maccaferri's obligation
to her for special services rendered in connection with the "plume" job, and not as a
reward for what she had done on behalf of Local 318. O'Neill's explanation-consid-
ering the timing of the payment in relation to the surrounding circumstances-is not
entirely convincing. It is nevertheless not so inherently implausible as to warrant rejec-
tion. There is no positive evidence to rebut her explanation, and other surrounding cir-
cumstances , while giving rise to a suspicion that the payment may have been connected
with Local 318 activities, are not in my opinion sufficient to warrant an inference to
that effect. Consequently , I reject the General Counsel's contention in this respect.
Is According to Sills' credited testimony , denied by Zwoboda but not by Cincimino.
10 The facts concerning this incident are undisputed.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated by Local 22045 at its meeting on October 20. There was also some discus-
sion of a strike if the demands were not met, but on that point no action was
taken.
On October 25, Saul, Rothenberg , and a committee of employees called on
Maccaferri to present the demands previously formulated by Local 22045. At
that time, Saul, according to his credited testimony, informed Maccaferri of the
decision to reaffiliate with Local 3127. Maccaferri's only comment was, "I know
all about it. I know everything that took place at the meeting." As for the
demands, Maccaferri indicated he considered them outrageous. There was no
attempt at negotiations that day. Maccaferri stated he would take the Union's
demands under advisement and let the Union have an answer in a few days.'0
On October 26 a further meeting of Local 22045 was held, this time attended
by fewer employees. Employees present were asked by Saul to sign forms revok-
ing designations given to Local 318, and also to sign membership applications for
Local 3127. How many of these were signed that night, the record does not dis-
close. A decision was reached at that meeting to solicit additional signatures
from employees at the point.
On October 31, at a conference at the Board's Regional Office held in connection
with the pending representation proceeding in which Local 318 had intervened,
Local 22045 refused to consent to an election on the ground that the Respondents
had unlawfully assisted Local 318. Two days later, Local 22045 filed unfair
labor practice charges against the Respondents in Case No. 2-CA-5658.
A further meeting of Local 22045 (or Local 3127) was held on November 6.
There was general discussion of what Maccaferri intended to do with regard to
the Union's contract demands, and of what action should be taken by the Union.
It was agreed that if the Union could not come to a determination with Macca-
ferri, there would be a strike. However, no strike vote was taken and no strike
date set. The matter was tabled for consideration at a meeting to be held the
following week.
About a day or so later, Saul received an invitation to the office of Mr. Kahn
to confer with Maccaferri. At the meeting, held on November 8, Maccaferri
told Saul he could forget about Tonelli and Local 318. As for the terms of the
contract, Maccaferri stated he thought the Respondents might grant a 10-cent
hourly increase, but that he wanted to defer final decision on contract conditions
pending receipt of a report from his auditor.23
Saul left the meeting at Mr. Kahn's office with the impression that the differ-
ences between his union and the Respondents would be adjusted amicably.
However, Maccaferri must have come to a different conclusion during the next
2 days, because on the morning of November 10 he posted a bulletin board notice
to employees reading as follows :
It has been rumored that on Monday morning, November 13th, there is
going to be a strike of the employees.
Any employee who will go on strike on Monday will forfeit his or her
right to their jobs, because they will be in violation of the present union
contract.
20 Saul's testimony of what occurred that day is substantially corroborated by testimony
of Amorosa, Gibson, and Pieroni. Maccaferri denied hearing any mention of Local 3127
at that meeting. According to him, he first heard Local 3127 was back in the picture when
it was mentioned to him by Saul in a telephone conversation on November 9. Particularly
in view of Maccaferri 's own testimony elsewhere in the record indicating that employees
voluntarily kept him abreast of union activities , I am unable to believe that knowledge of
Local 3127's reentry on the scene could have been so long delayed in reaching him. I
believe he made the statement attributed to him by Saul.
21 These findings are based upon credited testimony of Saul, disputed in part by Maccaferri.
Mr. Kahn did not testify.
MASTRO PLASTICS CORP. 539
We will have no alternative but to replace each and every worker who goes
on strike on Monday.
I. The discharge of Frank Ciccone on November 10, 1950
Before his discharge on November 10, 1950, Frank Ciccone was in the Respond-
ents' employ continuously for some 41/2 years, except for one brief interruption. u
He worked as a machinist in the machine shop but also performed maintenance
work, his maintenance assignments taking him to other departments of the plant,
particularly to the packing room where it was his function to keep certain
assembly machinery in a state of repair. As appears from the testimony of Max
Studli, foreman of the machine shop, Ciccone was regarded as an able and
conscientious worker.
Ciccone had not been prominent in union affairs before Local 318 came upon
the scene. It will be recalled, however, that at one time Maccaferri had suspected
Ciccone of organizing for the I. A. M., and, on October 21, upon being assured
that he was in error, had urged Ciccone to help organize employees in the union
of Maccaferri's choice. On October 23, Ciccone had engaged in Local 318 solici-
tation activities conducted on company time but, according to his testimony, had
done so reluctantly and in opposition to his convictions. Shortly thereafter he
had regretted his action, and at the meetings of Local 22045 held that week he
had been in the forefront of those critical of the attempt to bring "the boss'
union" into the plant.
After the decision was reached at the membership meetings of Local 22045 to
transfer back to Local 3127, Ciccone undertook to solicit employees at the plant
for membership in Local 3127. During the week in which he was discharged,
Ciccone became very active in that respect. Ciccone, who impressed me by and
large as a forthright witness, testified that he confined his solicitation activities
to nonworking time, such as during lunch hours and rest periods, and there is
no credible evidence of probative force to the contrary.2' The record is clear
that Maccaferri and other management officials were aware, at least by Novem-
ber 10, of Ciccone's organizational activities in opposition to Local 318. Indeed,
Maccaferri virtually admitted as much when he testified that Ciccone before his
n The interruption had occurred about 2 years before when Maccaferri had criticized
certain work of Ciccone , using profane and abusive language , Ciccone in anger had replied
in kind, and Maccaferri had ordered Ciccone from the plant for insubordination After
several weeks absence Ciccone had been induced by Max Studli, his foreman, to return to
work.
03 Contrary testimony of Maccaferri and O'Neill is found unreliable. At one point,
Maccaferri testified he saw Ciccone with cards in the packing room, but in almost the
next breath he contradicted himself, stating he did not know whether or not Ciccone had
cards with him. Maccaferri also gave testimony that Ciccone was going around from
machine to machine soliciting employees, interfering with their work and disrupting
production. His testimony in that regard, however, was vague, unsupported by speci-
fications of detail, and generally unconvincing. Moreover, cross-examination developed
that much of what he was testifying to purportedly from personal knowledge was not
observed by him at all, but was based upon reports he said were made to him by his wife.
Significantly, Mrs. Maccaferri, while testifying, was not called on to corroborate her
husband's obviously hearsay account. Nor did anyone else, except O'Neill whose testi-
mony throughout revealed a disposition to conceal facts that might aid and to exaggerate
facts that might injure the charging Union toward which she was bitterly antagonistic.
The unreliability of her testimony on this particular point is illustrated by the fact that,
according to her, Ciccone on November 10 was busy throughout the day, including the
afternoon , up to the time of his discharge, in soliciting employees in various depart-
ments. This is inconsistent with otherwise undisputed evidence showing that in the
afternoon of that day, Ciccone did not leave his bench in the machine shop at all, except
for the visit to the Coca Cola machine, hereinafter related, which immediately precipi-
tated his discharge.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge was "more than suspected" of engaging in solicitation activities for
Saul's union-according to Maccaferri, however, he thought it was for Local
22045 rather than Local 3127.
On November 10-testimony of the Respondents' witnesses discloses-Ciccone
became an object of special attention. O'Neill testified that on that day she
spoke to Mrs. Maccaferri about Ciccone, making the charge that Ciccone was
soliciting employees in the packing room and disturbing their work. Maccaferri's
testimony reveals that a report to that effect was made to him by his wife
although, apparently, O'Neill was not disclosed as the source of information.
Maccaferri's testimony further reveals that his attention was also directed to
the fact that Ciccone and another employee, Pete Pieroni, who was now also
active in behalf of Local 3127, had spent their noon hour going through various
departments in the plant engaging in "this big activity," as Maccaferri referred
to it at the hearing. According to Maccaferri, he became disturbed by what he
characterized as the "unrest" in the plant, and decided that something would
have to be done about it.
About 1 o'clock that afternoon, immediately after the lunch period, Macca-
ferri approached Ciccone in the machine shop where he was working at a bench
alongside Pieroni. Following is Ciccone's credited version of what occurred :
He came over to the spot where Pete [Pieroni] and I were standing and
again he went into this business of being wise to us and he was sorry he
hadn't stopped me sooner . He says, "I want you to leave my people alone,
you have been going around signing them up with 3127, they have already
signed with 318; why don't you let things be. They have made up their
minds already."
I told him they hadn't, he was making up their minds for them. He says
to me "You just mind your God damn business and remain in the machine
shop. From now on your work is going to be in the machine shop. You will
not do any more maintenance work." I says, "But I have to leave the
machine shop to do my work." He says, "You work in here. We will find
work for you in here steady." 24
Thereafter, in accordance with Maccaferri's instructions, Ciccone remained at
his bench in the machine shop until approximately 2: 30 p. in.
Under the existing collective-bargaining agreement employees were permitted
two 10-minute rest periods each day. In certain departments the rest periods
were set at fixed times and were signalled by the ringing of a bell. In the
machine shop there were no definitely set periods. It was customary, however,
for employees in that department to take their afternoon "break" at about 2: 50
p. in., the time of the regular "break" in other departments.
About 2: 50 p. m.-perhaps a minute or two before-Ciccone together with
Pieroni and Libutti, and possibly some other machine shop employees following
them but not in the same group, left their places of work in the machine shop to go
to the Coca Cola machine which was located in the molding room. There was
nothing unusual about this, except possibly for the number of employees who
left the machine shop at approximately the same time. Max Studli, the machine
chop foreman, made no complaint. In order to get to the molding room, it was
necessary for the employees to walk through the packing room where Mrs.
20 Ciccone's version was corroborated by Pieroni. According to Maccaferri, he simply
told Ciccone, "Look, Frank, you have had yesterday and to-day to do what you wanted
to do. I don't know it and I don't want to know it, but from now on you stay at your
bench." Studli, who was present, and who testified as to witness for the Respondents,
did not dispute the details of Ciccone's version, testifying simply that Maccaferri ordered
Ciconne not to leave the machine shop , and ordered Studli to fire him if he did.
MASTRO PLASTICS CORP. 541
Maccaferri had her desk . Mrs. Maccaferri testified that they marched through
this room like "storm troopers ," attracting considerable attention . She experi-
enced great difficulty , however , in explaining what she meant by this. The
weight of credible evidence is to the effect , and I find, contrary to her conclusory
statement , that they walked through in an ordinary manner without anything
unusual in their demeanor or conduct . If their passage attracted the notice of
other employees , as it did that of Mrs. Maccaferri , it was not because of anything
they said or did . The machine shop employees who testified denied that they
said anything to employees in the packing room or engaged in any untoward
conduct that might tend to create a disturbance , and there is no credible evidence
to the contrary 26 From the packing room Ciccone and the others went into the
molding room to the Coca Cola machine , where they obtained and drank refresh-
ments, remaining there from 5 to 7 minutes, and then returned directly to their
stations of work. There is no claim that they engaged in any union -solicitation
activities while they were gone.
O'Neill , her testimony reveals, believed the employees had come to the Coca
Cola machine to hold a meeting of some kind . She did not deny that, upon
observing Ciccone and the others enter the molding room, she again spoke to
Mrs. Maccaferri to call it to her attention and to ask her what she proposed
to do about it " Mrs. Maccaferri had remained in the packing room and did not
know what if anything was occurring in the molding room . Without making
an investigation to find out , she at once telephoned her husband, who was then
absent from the plant at a board of directors ' meeting." Informing him that the
machine shop employees had walked by, she expressed apprehension that "some-
thing is going on ." Maccaferri , also without investigating , moved hastily. Ask-
ing to be connected with Personnel Manager Arthur Zevin and with Foreman
Studli , be instructed them to discharge Ciccone at once. All this occurred during
the 5- or 7-minute interval during which the machine shop employees were at the
Coca Cola machine.
As soon as the employees reentered the machine shop, shortly before 3 p. in.,
Studli approached Ciccone to tell him that he had just received a telephone call
from Maccaferri , and that he had to fire him, Ciccone asked for the reason, and
Studli , apparently expressing it as his own opinion, stated he believed it was for
union activity YB Shortly thereafter Zevin came in and paid Ciccone off. When
sa O'Neill 's unsupported testimony , that when the men marched through it created a "lot
of confusion ," that employees "probably" left their work before the rest periods to talk
to the men, and that people were "stunned ," Impressed me as wholly imaginative and
unworthy of credence
"Although Mrs. Maccaferri testified on direct that she did not see O 'Neill , on cross-
examination, when her attention was directed to O'Neill 's contrary testimony , she stated
she could not remember.
sT Mrs . Maccaferri 's testimony that she did not call hr husband but he called at just
this time, Is Implausible . Maccaferri , although he later sought to alter his testimony to
conform to that of his wife, had earlier testified as an adverse witness that he received the
call from Mrs . Maccaferri . O 'Neill also testified that she saw Mrs. Maccaferri make a call
at this time, although she professed not to know to whom.
za The finding concerning Studli's statement is based upon Ciccone's credited testimony,
corroborated by Pieroni and Libutti. Stubdli testified he was not sure whether he gave
Ciccone a reason for his discharge , and at another point , that Ciccone did not ask for a
reason. ,Studli's denial that Ciccone asked for a reason impresses me as implausible.
Studli's own testimony reveals that he himself believed the action taken against Ciconne
that day had some connection with Ciconne 's union activities . Studli had always been
friendly with Ciccone, he himself had always remained aloof from the union conflicts in the
plant ; and he impressed me as a person naive in labor relations and unsophisticated In the
applicable law. Under all the circumstances , I think it altogether probable that he
expressed to Ciccone the personal opinion which Ciccone attributed to him and which
Studli in his testimony did not categorically deny.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ciccone inquired why he was being treated in that manner, Zevin curtly replied,
"Get the hell out and keep your mouth shut." Ciccone left the plant at or shortly
after 3:13 p. in.
J. The work stoppage and other events on November 10, 1950 , following Ciccone's
discharge
Within about 10 minutes after Ciccone 's discharge , the other employees in
the machine shop walked out. As to the events immediately preceding the walk-
out, the testimony is in conflict. The resolution is important , because on it
may turn the question of whether the employees were locked out, as contended by
the General Counsel, or simply engaged in a strike , as contended by the Re-
spondents.
Pieroni testified that, as committeeman for the machine shop, he questioned
Zevin about Ciccone's discharge at or immediately after the time Zevin handed
Ciccone his final check. Pieroni 's account of what was said was as follows :
I asked him [ Zevin ] why was he fired. So Mr. Zevin said , "Because of
trying to get people to sign with 3127 . You know the boss wants 318, and
whoever doesn 't like it can get the hell out with Frank ." So I asked him if
that meant we had to take the boss' union and not the one we wanted. And
he asked me if I was getting technical , "If so, it is pretty plain . . . the
boss wants 318 and anyone who doesn 't want it can get out."
Upon hearing the last statement , according to Pieroni , he and the other em-
ployees of the machine shop punched out and left the plant.
Pieroni's account was supported by Libutti whose testimony concerning the
conversation followed that of Pieroni in substantially identical words. Al-
though the conversation , according to Pieroni and Libutti , was loud enough to
have been overheard by all present in the machine shop , no other employee of that
department was called as a witness except Ciccone. Ciccone testified that he
himself did not hear the conversation , having been "so mad [he] didn't know
what was going on," but that he was told of the conversation by Pieroni, upon
returning from the locker room where he had gone to gather his belongings after
being paid off.
Zevin, although not denying he had a conversation with Pieroni on the occa-
sion in question-the details of which he stated he could not recall-was emphatic
in his assertion that he made no reference to Local 318 or to Local 3127 or to
Ciccone's union activities as the cause of the discharge . He was equally positive
he did not announce that anyone who did not want Local 318 could get out.
He knew, he explained , that Ciccone had been engaged in union activities, and
was aware also that the discharge was a "ticklish" one. For those reasons, and
because he had some knowledge of the law of labor relations , he was especially
careful not to involve himself, and was therefore certain he did not make the
statements attributed to him.
At the time of the hearing Zevin was no longer employed by the Respondents,
and was wholly disinterested in the outcome of the case . His overall testimony
revealed no propensity to shape his testimony to conform to the Respondents'
theory of the case. On the particular point in issue, his testimony seemed to
me to be plausible , and his demeanor in giving it to carry the stamp of sincerity.
And while , it is true, neither Pieroni nor Libutti impressed me as wilfully dis-
honest, I am inclined to the view that in the excitement of the occasion and of
what followed it they may have confused what was said by Pieroni with what
was said by Zevin. I think it possible that Pieroni accused Maccaferri of firing
Ciccone because he wanted to inflict Local 318 on the employees, persisting in
MASTRO PLASTICS CORP. 543
this accusation to the point where Zevin, seeking to put an end to the interview,
told Pieroni in irritation that he could get out if he did not like it, and that
Pieroni and Libutti were thus led to believe Zevin was agreeing to the accusa-
tions. In any event, I am not entirely satisfied on all the testimony that Zevin's
denial is not to be credited. Consequently, I accept it.
A report of Ciccone's discharge, and of the walkout of the machine-shop em-
ployees following it, was promptly communicated to Saul. Arriving at the
plant at about 4 p. in., Saul established a Local 3127 picket line. In the mean-
time news of the occurrence spread rapidly throughout the plant, and before
the end of their shifts a substantial number of employees in other plant depart-
ments left the building to join the work stoppage.
In the molding room , the employees on the first shift-7: 30 a. in . to 4 p. m.-
continued working until their regular quitting time. At the end of the shift,
Rose Amorosa and Vernal Gibson asked Ritacco, their supervisor, why Ciccone
had been discharged. They were told it was because of his activities on behalf
of Local 3127, and that anyone else who went along with that local could expect
like treatment 29
In the buffing room of the finishing department, supervised by Alma Zwoboda,
news of Ciccone's discharge and of the machine shop walkout reached the
employees between 3: 30 and 4 p. in. The department was located in a separate
section of the plant facing the street. A request by Ciccone and Pieroni for
others to join them was shouted to an employee inside the plant, and by him
transmitted to other employees in the department. Upon receiving the news,
the men in the finishing department left the plant in a group, joining the picket
line outside. This was about an hour before their regular 5 p. in. quitting
time."
In the ukelele room of the finishing department, the girls remained at work
until about 4: 30 p. in., when all but three of them walked out to join the picket
line. When a rumor of Ciccone 's discharge first reached the ukelele room,
employee Estelle Sills asked Forelady Zwoboda whether it was true. Zwoboda
confirmed the rumor, stating that Ciccone had been fired for union activities,
and adding that the others in the machine shop had walked out in protest and
as a result had also been discharged 31 As appears from Sills' credited testimony,
29 This finding is based upon mutually corroborative testimony of Amorosa and Gibson,
both of whom impressed me generally as credible witnesses . Ritacco denied speaking to
them or , for that matter , to anyone else that day about the strike or walkout . But his
denial was materially weakened by his admission on cross-examination that employees did
come to him to inquire about what had happened in the machine shop, and his further
admission that he "probably" told them Ciccone had been fired. Ritacco insisted he could
not have made the statement attributed to him because he was unfamiliar with both Local
318 and Local 3127 by number and completely disinterested in the plant's union conflicts.
His testimony in that respect is wholly implausible when considered in the light of the
evidence above set forth showing his own membership and activities on behalf of Local 318.
Although Ritacco was no longer employed by the Respondents at the time of the hearing,
a factor considered, his overall testimony disclosed a marked inclination to "cover up" for
the Respondents . His denial is not credited.
2° One employee in this group, Francisco Tomarello, testified that before the walkout the
employees in the buffing and ukelele rooms of the finishing department were called together
by Zwoboda and addressed by her and O'Neill. His testimony, contradicted in that
respect, is not borne out by testimony of other finishing department employees, and is
discredited. Another employee, Frank Squillate, testified that he walked out because
Zwoboda told him the machine shop employees bad been discharged for not accepting Local
318, and that he also would be discharged unless he signed up with that local. Squillate
under cross-examination revealed such confusion, vacillation, and uncertainty, as to cast
doubt on the reliability of any of his testimony on this point . Consequently , his testimony
relating to his asserted conversation with Zwoboda is rejected.
°'. This finding is based on credited testimony of Sills, not specifically denied by Zwoboda.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the girls in the ukelele department decided to walk out in order to protest
Ciccone 's discharge . Before they left, Zwoboda spoke to them , urging them to
stay. It was foolish for them, she said , to walk out with Local 3127 rather
than to remain in the plant with Local 318 . Maccaferri wanted Local 318, she told
them, and they could expect their demands to be met only through that union.
But, warned Zwoboda, if they went along with Local 3127 and joined its strike,
it would mean the loss of their jobs , for in that event they would automatically
be fired under the contract 3Y
In the packing room , directly supervised by Mrs. Maccaferri , the employees
learned of Ciccone 's discharge about 20 minutes after it occurred . At that time
about 3 or 4 of the employees left the plant. The others continued to work
until their regular quitting time at 5 p. in.
According to the credited testimony of employee Jane Bowerman , Mrs. Mac-
caferri told her, "Frank [Ciccone ] is not here no more . He's just been fired for
making trouble with 3127 . And if anybody else starts the same thing , they'll
be going just like him." "
At the close of the shift that afternoon , Mrs. Maccaferri spoke informally to
the employees as they were leaving. There is no unanimity among the General
Counsel's witnesses as to the details of what she said. According to Bowerman,
Mrs. Maccaferri stated that the plant would be open the following day, that they
should do what she told them to do, and not be foolish like the others who had
walked out. Another employee , Elizabeth Petrus, testified that Mrs. Maccaferri
urged them not to join the strike , pointing out that her husband had built the
plant and was going to run it his way without having any troublemakers in it.
In addition , testified Petrus, Mrs . Maccaferri told them that if they did not sign
up with Local 318, which her husband knew to be a good union , they would not
work there at all . Another, Lillie Maddalina , testified Mrs. Maccaferri stated
that her husband built the plant, that no one was going to tell him what to do, that
he was going to bring in any union he wanted , and that he wanted Local 318.
Still another , Vernal Gibson , not employed in that department but present at the
time, testified that Mrs. Maccaferri stated that her husband wanted Local 318
and no other union, and that those who didn 't like it could get out and stay out"
Mrs. Maccaferri denied saying anything at all on this occasion , either in con-
nection with the strike or otherwise . I do not credit her. On the basis of my
appraisal of all the testimony and the witnesses giving it , I believe , despite the
variances in the witnesses ' recollections of what was said, that Mrs. Maccaferri
did express her views concerning then current occurrences . I believe , and I find,
that Mrs. Maccaferri urged them not to join the strike , as reflected by the testi-
mony of Bowerman and Petrus ; that she indicated her husband 's determination
to see Local 318 become the collective -bargaining representative in the plant, as
reflected in substance by the testimony of Petrus , Maddalina , and Gibson ; and
that she indicated it would be foolhardy and useless for them to attempt to oppose
her husband's will , as reflected to some extent by the testimony of all the above-
named witnesses . I am not persuaded , however , that Mrs. Maccaferri told the
employees they could work there no longer if they did not sign up with Local 318.
a The findings concerning Zwoboda's remarks are based upon a synthesis of credited
testimony of Sills and Ruth Shaw. Zwoboda did not specifically deny making the state-
ments they attributed to her. To the extent that other testimony of Zwoboda may be
construed as a denial , her testimony is not believed.
33 Mrs. Maccaferri 's denial that she had any talk with Bowerman that day was uncon-
vincing and is not credited
34 Another employee , Antoinette Radice, also testified on this subject , stating that Mrs.
Maccaferri said that anyone who did not join Local 318 would be fired like Ciccone.
Radice's testimony , however, was otherwise impeached , and is not relied on.
MASTRO PLASTICS CORP. 545
To that extent I reject Petrus' uncorroborated testimony's Moreover, while I
believe Gibson's testimony that Mrs. Maccaferri made a statement generally to
the effect that those who did not want to go along with her husband "could get
out and stay out," I do not think the remark was intended as an instruction to
the employees to whom it was addressed, or so understood by them, but rather
as a show of bravado.
The employees on the second molding shift-3:30 p. in. to midnight-came to
work before the picket line was established. None left before the end of the shift.
Ritacco, who normally worked the first shift, stayed on that night for the second
at the request of Maccaferri . During the course of the evening , Ritacco came
through the molding room to announce to the employees individually that Mac-
caferri desired to address them before quitting time. According to the credited
testimony of one employee, Luis Cartegena, Ritacco told him that Ciccone had
been fired, adding in substance that Maccaferri would fire anyone who did not
adhere to Local 318.36
Toward the close of that shift , Maccaferri assembled and addressed the mold-
ing room employees for about 15 minutes . Three witnesses testified for the
General Counsel on that subject-Cartegena , Ralph Prieto , and Morris Brender.
Their testimony , although varying as to details, dovetails in broad outline with
respect to most matters. They are in general agreement that Maccaferri casti-
gated Local 3127 as a racketeering union ; emphasized his unwillingness to have
anything to do with that union or anyone connected with it ; expressed his own
favor for Local 318 , saying, according to Cartegena , that Local 318 was a better
and stronger union, the acceptance of which would enure to the benefit of the
employees ; and warned of the consequences that would flow from nonacceptance
of Local 318 and continued adherence to the old union . More specifically on
the last point, Cartegena and Prieto testified Maccaferri told the employees
in substance that if they did not leave the old union alone and sign up with Local
318, they should not or could not come back to work . According to Brender's
version , Maccaferri told them that if they wanted to work there they should
take Local 318, otherwise they would find themselves without jobs . On the ques-
tion of whether Maccaferri made reference in his remarks to the notice posted
that morning announcing that a breach-of-contract strike would result in job
forfeiture, Prieto had no recollection ; Cartegena remembered that he did,
although his recollection was confused as to what was said ; and Brender agreed
that Maccaferri mentioned they would be fired for breaching the contract if they
joined the strike.
According to Maccaferri , his address was designed to urge his employees to
decide on a single union-other than Local 65-so that plant production might
settle down , to advise them that the strike was in violation of the existing con-
tract and unlawful , and to warn them that they would lose their jobs if they
joined it. Although he would have it that he expressed no preference among the
competing unions-other than to declare his abhorrence of Local 65-his own
testimony on cross-examination clearly contradicts him in that regard. Thus he
admitted that, while characterizing Local 65 as "communists," he also character-
ized the incumbent union as "racketeers" and "contract breakers." He further
conceded that he might have interpolated in his remarks that employees should
86 Mrs. Maccaferri' s main interest at that time was not to solicit membership for Local
318. Petrus ' testimony suggests that she may have confused in her recollection a state-
ment to that effect made to her by Mrs . Maccaferri on October 23
a° R.itacco , in his testimony , did not specifically refer to this incident His general denial
that he discussed union with anyone that day, or made any statements of like import. Is not
believed.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
see to it that they were not represented by "communists or racketeering unions" ;
that Local 318 in contrast was a "decent" union ; and that Local 318 was the union
he would be willing to sit down and deal with at any time.
Except in one respect , Maccaferri 's own testimony appears to me to substan-
tiate that of the General Counsel 's witnesses . The point of conflict is whether
Maccaferri told the employees not to come back to work unless they abandoned
the old union and signed up with Local 318 , as testified to by Prieto and Car-
tegena, or whether he simply warned them they would lose their jobs if they
breached the contract by joining the strike. On all the evidence , I am con-
vinced that the truth lies somewhere in between . Maccaferri impressed me
as a person given to violent temper and unrestrained expression . His own testi-
mony substantially concedes that he utilized the occasion to voice his approval
for Local 318, while expressing his bitter antagonism toward the union which
was then picketing the plant. In his remarks he coupled the latter union with
Local 65, toward which his admit 'ed attitude has always been that he would
close his plant rather than deal with it. Under all the circumstances, I do
not believe Maccaferri stopped at the point of warning his employees of the
consequences of a contract violation . I think it entirely likely that in expressing
his equal dislike for the incumbent union and Local 65, he declared his disposi-
tion to close the plant before dealing with either of them. From this , joined
with his expression of friendliness for Local 318, the employees might reasonably
have drawn the impression that if the plant was to remain open and their jobs
secure, they should choose Local 318 rather than Local 3176. That in substance
is Brender 's testimony , and I credit it . I am not persuaded , however, that
Maccaferri couched his remarks in the language of Prieto and Cartegena , i.. e.,
in the form of an instruction to the men not to return to work unless they signed
with Local 318. Both these witnesses disclosed while testifying that because
of English language difficulties they had either a confused recollection of what
Maccaferri actually did say or else an inadequate power to report it. What
they testified to may well have represented the over -all impression they formed.
But I am nevertheless not convinced on the basis of all the evidence that the
record justifies a finding that Maccaferri in his address actually conditioned the
continuation of further job status upon affiliation with Local 318 before the
next working day. To the extent that Cartegena 's and Prieto's testimony may
he read as implying as much, I do not accept it.
K. Events after November 10, 1950; the discharge and subsequent refusal to
reinstate the employees named in the complaint
On November 11, 1950 , a handful of the Respondents ' employees reported for
work across the picket line. On that day Saul intimated to Maccaferri that
violence might result if any employees continued to cross the lines. There-
after the Respondents ' plant operations were virtually shut down until about
December 11 when, as will more fully appear below, there was a back-to-work
movement led by O'Neill with the backing of Local 318.
There is a conflict in the testimony as to what negotiations, if any, occurred
between the Respondents and Local 3127 during the period of the work stop-
page. Maccaferri stated that after the stoppage began, Local 3127 never de-
manded any conference and never-until March 4, 1951-offered to return em-
ployees to work. Saul's testimony is to the contrary, and in the main I credit
him over Maccaferri . As appears from Saul 's credited account, he spoke to
Maccaferri the day after the strike began, urging him to put Ciccone back to
work. He told him that that was the only issue at the moment, and after that
was settled and the men back at work they could then negotiate on others. But
MASTRO PLASTICS CORP. 547
Maccaferri , declaring that Ciccone was "no damn good," refused to consider
Ciccone's return . Maccaferri also expressed the position that he could not
negotiate with Saul in view of the conflicting representation claims. Later,
first Tonelli and then Maccaferri communicated with Saul to request that he
agree to send the employees back to work and settle the representation contro-
versy by an election after their return. Saul was short with Tonelli, telling
him that if an election was to be conducted, it should be conducted while the
employees were still out. In response to Maccaferri 's request, Saul stated he
wanted Ciccone reinstated first. But Maccaferri declared he wanted to have
nothing further to do with Ciccone , nor with some 7 or 8 other employees
prominent in Local 3127 activities whom he named . Saul then refused to consent
to an election , indicating as an additional ground for his refusal that he did not
want to have Local 318 appear on the ballot . Saul also gave some general testi-
mony that during this period he unsuccessfully sought through various inter-
mediaries to obtain Maccaferri 's agreement to submit the issues between them
to arbitration . His testimony is vague , however , as to just what steps he took
in that direction and as to just what issues he sought to have arbitrated. Saul
did not claim, and there is no evidence to show, that Local 22045 ever invoked
by the required written notice the arbitration procedures under the contract.
The inference is that it did not.
In the early part of December 1950, O'Neill started a back-to-work movement.
At a meeting held at Local 318's office on December 11, 1950, O'Neill, and other
nonpicketing employees who had helped promote the meeting, assured invited
employees that they could return to work despite their breach of contract. Im-
mediately after the meeting, 16 employees reported in a group to the Respondents
for work. They were reinstated to their former positions, as old employees
without any loss of seniority or other rights and privileges 3i
On the same day, the Respondents addressed a form letter to other employees,
including all those named on Schedule A hereto attached , reading as follows :
We do hereby advise you that due to your breach of contract with us,
which did not expire until November 30, 1950, by going out in strike on
November 10, 1950, in violation of the provisions of the contract, we have
terminated your employment with this corporation.
Two days later, Local 3127 placed a picket line about the offices of Local 318.
Alarmed by this action, Tonelli sent for Saul. Saul told Tonelli that he would
not remove the pickets unless Tonelli withdrew his claim of interest in the
representation of the Respondents ' employees . With Saul listening in on an
extension, Tonelli telephoned Maccaferri, told him that he was "loaded with
pickets" and in a "mess of trouble," and was being forced to withdraw from
the picture . In response to Maccaferri 's protest , "I didn't think you were going
to do this," Tonelli said he was being forced to because, as a labor union, Local
318, unlike the Respondents, could not stand being picketed . There was also
some conversation in Italian , not understood by Saul , winding up with a state-
ment in English by Tonelli, "No, I am going to call my lawyer and tell him to
withdraw."
That same day, Local 318 notified the Board's Regional Office that it was with-
drawing all claim to interest in the representation proceeding previously filed by
Local 65. About 2 weeks later (Local 65 notified the Regional Office that it, too,
Hi The General Counsel sought to prove that these employees were promised , and later
granted , wage increases in consideration of their abandonment of their activities on behalf
of Local 3127 . Without detailing the evidence relied on , I think it sufficient to say that
this particular contention is not supported by the record as a whole
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desired to withdraw. In the meantime, Local 3127 filed a representation petition
of its own in Case No. 2-RC-3170, Local 22045 withdrawing at about the same
time the unfair labor practice charges it had previously filed. With Local 318 no
longer in the picture, Maccaferri who had previously professed anxiety for an
election to compose the representation differences, now declined to consent to
one. On December 29 a hearing was held on the representation petition filed by
Local 3127, and on January 29 a Decision and Direction of Election was issued by
the Board. The Board ruled, inter alia, that since no unfair labor practice
charges were then on file with respect to the strike, the voting eligibility period
would be the last payroll period immediately preceding the date of the Direction,
with all strikers and employees on that payroll presumptively eligible to vote.
In doing so, the Board rejected Local 3127's contention that the eligibility period
should be that immediately preceding the date of the strike. Three days before
the Board's Decision, however, Local 3127 filed its charge in this proceeding.
On being apprised of that fact, the Board, on February 2, 1951, entered a sup-
plemental order in the representation proceeding, postponing the holding of an
election until such time as the Regional Director might deem it proper.
Picketing continued until the end of January or the beginning of February, but
no application for the reinstatement of striking employees was made until
March 9, 1951. The application on that date was an unconditional one, made by
registered letter written by Local 3127 on behalf of all employees. On advice of
counsel, the Respondents ignored the letter. Before the receipt of the uncondi-
tional application the Respondents hired a substantial number of replacements.
In addition, they rehired some seven former employees besides those reinstated on
December 11, 1950. Although the Respondents have had occasion since March 9,
1951, to hire numerous new employees in classifications for which striking
employees were presumptively qualified, none of the strikers named in the com-
plaint, and listed on Schedule A hereto attached, has been reinstated.
L. Solicitation of employees to abandon Local 3127 and strike activities
To establish the allegations of the complaint relating to the Respondents' illegal
solicitation of employees to abandon picketing and other activities on behalf of
Local 3127, and also to support other allegations of the complaint, the following
additional proof not previously adverted to was offered.
Pieroni testified without contradiction, and it is found, that shortly after he re-
ceived his letter of dicharge, he had a conversation with Maccaferri in which
Maccaferri invited him to give up Local 3127 and return to work. When Pieroni
reminded Maccaferri that he had been discharged, Maccaferri replied in substance
that if Pieroni were willing to give up Local 3127 he could forget about the
discharge letter and return to work.
Morris Brender testified, also without contradiction, and it is found, that about
Christmas, 1950, he and several other pickets met Maccaferri outside the plant
and wished him a Merry Christmas. Maccaferri told the employees, "Why don't
you fellows get smart to yourself and come back to work and forget about 3127,
and I will give you back your Christmas bonus." '
Estelle Sills testified, without denial, and it is found, that about 4 or 5 weeks
after picketing began, Maccaferri told her and several other pickets in front of
the plant that he would never sit down with Local 3127, but if they wanted to
38 Another witness, Luis Cartegena, also testifying to this Incident, attributed to Macca-
ferri the further statement that the employees should sign with Local 318 and go back to
wt rk Ac Local 318 had already withdrawn Its claim of interest , I do not think it likely
that Ar fern made anv nucb express reference to Local 318 at that time, and do not
accept Cartegena 's testimony in ba respec.
MASTRO PLASTICS CORP. 549
return to work they could do so, provided they forgot about Local 3127. Sills
further testified, and it is found, that about 9 weeks after the picketing began,
she accompanied 1 of the pickets, Lillie Maddalena, to Maccaferri's office for the
purpose of correcting a payroll record for unemployment insurance purposes.
At that time Maccaferri urged Maddalena to forget about Local 3127 and to
return to work 8°
M. Concluding findings
I. Violation of Section 8 (a) (1) and 8 (a) (2)
The proof of the Respondents' unlawful interference with employee self-
organizational rights, and of its illegal sponsorship, assistance, and support of
Local 318, is overwhelming. Notwithstanding Maccaferri's assertion that he
merely sought Tonelli's advice on how to combat the organization campaign of
Local 65, I think it obvious from the entire sequence of events that the object
of his dealings with Tonelli was a much broader one-to have Local 318 substi-
tuted in the place and stead of Meal 22045 as bargaining agent, Maccaferri's
original motive may well have been, as he says, to prevent what he considered
a Communist-dominated union from taking over the representation of his em-
ployees. But while this may explain, it does not justify the conduct in which
he engaged. The Act leaves to employees alone the right to decide what union
shall represent them. For an employer to encourage a union to undertake such
representation, and to negotiate with it for that purpose in advance of that
union's selection by the employees, as the Respondents did here, is for him un-
lawfully to intrude upon his employees' self-organizational rights.
At the beginning, Maccaferri sought to accomplish his objective by arranging
a private deal with the respective business representatives of Local 22045 and
Local 318, under which Local 22045 would agree voluntarily, and perhaps for a
monetary consideration, to transfer its representation interests to Local 318.
This inference is inescapable from a cumulative consideration of all the sur-
rounding circumstances-Maccaferri's meeting with Tonelli ; his insistence after
that meeting that Saul confer with Tonelli ; his accompanying declaration to
Saul that Tonelli would have to approve any new contract negotiated with Local
22045; the proposals made by Tonelli to Saul at their meeting ; and the meeting
at Mr. Kahn's office, at which the Respondents' representatives, revealing their
complete familiarity and approval of Tonelli's negotiations with Saul, sought to
induce Saul to withdraw in favor of Local 318. The Respondents' abortive
efforts in that regard, designed as they were to circumvent their employees' own
choice of a bargaining agent, constituted, it is found, an illegal interference
with employee rights guaranteed by the Act. It is no answer to say that Saul, for
a time at least, appears to have been receptive to a sale to Local 318 of his
union's representation interests. Representation authority is conferred upon
an agent by majority designation of the affected employees, and is subject to
change or withdrawal only by the employees themselves. It is not an object
for bargain and sales. And it was not for the Respondents to seek to tempt
or influence their employees' bargaining agent on a matter of this kind.
19 Maddalena also testified concerning this incident. According to her version, Macca-
ferri in urging her to return to work also told her that if she joined Local 318 she would
be well paid. Maccaferri specifically denied mentioning Local 318 to Maddalena. In
view of the fact that Local 318 was by this time out of the picture, I credit Maccaferri's
denial in that respect. Maddalena also testified that sometime after she received the dis-
charge letter, she called Maccaferri to ask whether she could come back to work, and that
Maccaferri responded she could "if you join my union and give up this goon's union."
For the reasons indicated, I also credit Maccaferri's denial in this respect.
257965-54-vol. 103-36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Maccaferri finally became convinced that Local 22045's voluntary with-
drawal in favor of Local 318 could not be arranged , he decided to take matters
in his own hands to insure the employees acceptance of the union he chose for
them. Accordingly, ignoring the employees' statutory rights to organize without
interference from their employer , he set out to sponsor , assist, and support an
organizational campaign for Local 318. He set the stage for that campaign by
prompting O'Neill to visit Local 318's offices along with other employees to confer
with Tonelli and to obtain campaign material and application cards.4° He encour-
aged the employees in the O'Neill group to proceed with the campaign, and also
directly solicited others to participate in it, among them Squillate, Ciccone, and
Pieroni, implementing his solicitation by express and implied promises of benefit
and threats of reprisal." He sat down with the O'Neill group to help plan the
mechanics of the campaign to be conducted the following Monday. And to show
unmistakably that he considered employees participating in the Local 318 cam-
paign to be acting in the Respondents' interests, and his willingness to reward
them for it, he agreed to, and did, compensate the members of the O'Neill group
at overtime rates for a full day, because they devoted part of the day to organ-
izational efforts for Local 318, although none to production work.
With the stage thus set, the Respondents' management and supervisory officials
went the whole route to support and assist the intensive Local 318 organ zational
drive which was conducted in the plant on October 23. In sharp contrast to the
attitude later displayed toward Ciccone when he was suspected of organizing for
Local 3127, Local 318 solicitors were allowed unrestricted freedom in the use of
company time and property. One foreman, Ritacco, personally participated in
the distribution of Local 318 application cards. Others refrained from such
direct participation but, no less unlawfully, contributed support to the campaign
by openly announcing the Respondents' approval of that union, by making no
effort to conceal their anxiety to have it installed as bargaining representative,
by indicating that employees might expect to benefit from that choice through a
more satisfactory contract, and-in the case of Mrs. Maccaferri-by declaring
that employees would be unable to work in the plant unless they joined Local
318. In short, the Respondents' representatives utilized their full economic power
to see to it that a majority of their employees signed for Local 318 that morning.
The rapidity with which the majority was attained attests to the force of that
power.
For a period of slighly more than 2 weeks after October 23, there was an abate-
ment of the Respondents' illegal activities, but not a complete abandonment of its
continued support of Local 318 is reflected by the Respondents' release of em-
ployees Cartegena and Pell.ay at O'Neill's request to attend a Local 318 meeting
and the payment made them for the time they were gone. It is reflected as well
by Zwoboda's coercive remark to employee Sills, upon learning she had renounced
her designation of Local 318, that she was foolish not to stick with Local 318 as
it might cost her her job. At the meeting at Attorney Kahn's office on November
8, Maccaferri revealed , or at least professed , a disposition to withdraw his support
40 Despite O'Neill's and Maccaferri 's insistence at the hearing that the visit was O'Neill's
idea , I am persuaded on the basis of the entire record that O'Neill, as she informed the
other employees at the time, was actually requested by Maccaferri to call on Tonelli
41 E g , his observation to the O'Neill group that he would give everything to Local 318
but nothing to Local 22045 ; his statement to the same group that if employees did not sign
they knew where the door was and they could get out; his similar statement to Pieronl;
his declaration to Ciccone indicating employees would benefit from Local 318 but that he
would close his doors before dealing with Local 65 or Local 22045 ; and his intimations to
Amorosa and Ciccone that they might individually expect to benefit by assisting in the
campaign.
MASTRO PLASTICS CORP. 551
of Local 318 and to compose his differences with Saul. What motivated that
sudden-and as events proved, temporary-change in attitude , if change in atti-
tude it was, is not apparent from the record and must remain a matter of specula-
tion. Perhaps it was because of the unfair labor practice charges that had been
filed , tieing up the chances of Local 318 gaining quick control at an election.
Perhaps it was because Maccaferri feared the deterioration of employee morale
and the possibility of a strike by Saul's union , which , as events after October
23 proved , was still able to retain some hold on the loyalty of employees. Per-
haps, as the General Counsel believes, it was only because Maccaferri wanted
to lull Saul into a false sense of security . In any event , I am persuaded that,
whatever the reason , sometime between November 8 and November 10, Macca-
ferri reverted to his original position and became as determined as ever to use
every means to maintain employee adherence to Local 318.
Maccaferri 's renewed determination in that regard was made apparent on the
morning of November 10 when, confining Ciccone to the machine shop , he vio-
lently reprimanded him for attempting to disturb the employees ' acceptance of
Local 318 by signing them up for Local 3127 , Saul's other union to which the Local
22045 membership had voted to transfer . It was brought into even sharper focus
that afternoon by Ciccone 's discharge-found below to be discriminatory-and by
the events which followed . Various supervisors seized the occasion to foster the
impression already current in the plant that the discharge represented reprisal
action for Ciccone's union activities on behalf of Local 3127 , and that others might
expect like treatment if they went along with Local 3127 instead of adhering to
Local 318. In talks to employees in their departments , Supervisors Zwoboda and
Mrs. Maccaferri expressed Maccaferri 's determination to see Local 318 installed
as bargaining agent, pointing to the economic risks of opposing his will . Macca-
ferri himself in an address to the second shift molding room employees , not only
voiced his approval of Local 318 and bitter antagonism toward Local 3127, but
made it clear that Local 318 alone of the competing unions was the one he would
deal with and grant benefits to, indicating he would close his plant rather than
have anything to do with the others.
During the course of the strike , Maccaferri in conversations with employees
sought to impress upon them that they could come back to work only if they
abandoned membership in Local 3127 . On a number of occasions , Maccaferri
individually solicited strikers to abandon their picketing activities , and on one
occasion promised as an inducement to pay them a Christmas bonus if they did.
On the basis of the facts summarized above, I find substantial support in the
record for the allegations of the complaint that the Respondent's, in violation of
Section 8 (a) (1), interfered with , restrained , and coerced their employees in the
exercise of their rights guaranteed by Section 7 of the Act, by ( a) inducing and
encouraging the representatives of Local 22045 to agree to substitute Local 318
in its place and stead ; ( b) inducing and encouraging the representatives of Local
318 to engage in a campaign to displace Local 22045 as the bargaining agent of
their employees ; ( c) sponsoring , supporting, and assisting the organizational
campaign of Local 318 ; ( d) giving financial rewards to employees active in the
organizational campaign of Local 318 ; ( e) inducing employees by threats, warn-
ings of reprisal , and promises of benefit to become and remain members of Local
318 and to refrain from becoming or remaining members of other competing
unions; ( f) making abandonment of membership in or activities on behalf of
Local 3127 a condition of continued or new employment, after the start of the
strike; and ( g) soliciting employees engaged in picketing and other strike activi-
ties on behalf of Local 3127 to abandon such activities , and promising benefits to
induce them to do so.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further find that by such conduct-to the extent it occurred before Decem-
ber 13, 1950, the date Local 318 withdrew its representation claim-as well as
by the discharges hereinafter independently found to be in violation of Section 8
(a) (1) and (3) of the complaint, the Respondents rendered unlawful assistance
and support to Local 318, and did thereby violate Section 8 (a) (3) of the Act.
The complaint contains certain additional allegations of conduct claimed to
be violative of Section 8 (a) (1) and (2) that I find not to be sustained. Thus,
it is alleged the Respondents unlawfully reinstated without loss of seniority or
other rights and privileges those who did engage in activities on behalf of Local
3127, while requiring employees who did so engage to apply for new employment.
The fact that the employees who returned to work as part of the Local 318 back-
to-work movement were fully reinstated without loss of rights was not illegal in
itself. There is no substantial proof to show on what basis the Respondents
later rehired other workers. The Respondents, it is true, thereafter rejected
Local 3127's unconditional application for the reinstatement of all strikers. But
if this was illegal it was because the strikers as unfair labor practice strikers
were entitled to reinstatement in law, and not because of the dissimilarity in the
treatment accorded those who had earlier returned. It is also alleged that the
Respondents illegally granted wage increases to those employees who abandoned
the strike on or about December 11. While it appears that most of the 18 em-
ployees who returned to work on December 11, 1950, were given small hourly
wage increases in varying amounts some weeks after their return, there is no
evidence to show that these increases were promised to induce their return, or
that the wage increases were given for an illegal purpose.
2. The discriminatory discharge of Frank Ciccone
The relevant facts have been reported above. The complaint alleges the
Respondents discriminated against Ciccone because of his union activities. The
Respondents assert Ciccone was validly discharged for disobeying a special in-
struction of Maccaferri to remain at his work station in the machine shop. On
all the evidence, I am satisfied the complaint must be sustained.
I think it clear, to begin with, that Maccaferri's instruction confining Ciccone
to the machine shop was motivated by discriminatory considerations. The facts
found show conclusively that Maccaferri issued the special instruction, not only
because he suspected or believed Ciccone to be engaged in solicitation activities
on behalf of Local 3127, but more importantly to him, because he was resentful
of Ciccone's efforts to wean employees away from Local 318. In the particular
circumstances of this case, it matters not that Maccaferri may have honestly
believed, although the record here shows no proper basis for such a belief, that
Ciccone had been using company time for that purpose. An employer may, of
course, prohibit and take appropriate steps to prevent union activities on com-
pany time or, once having permitted it, later to forbid it ; but if he would do so,
he must do so impartially ; and he may not single out one individual or union
group for restriction while allowing full liberty to another. Here, the Respond-
ents had no rule of general application against union activities on company time
and property. Indeed, Local 318 adherents recently not only had been permitted,
they had been encouraged to utilize company time for the advocacy of that
union's cause. Company time was also used on the afternoon of Ciccone's dis-
charge to support the interests of Local 318 in opposition to Local 3127. On this
record, the Respondents are scarcely in a position to assert that the special in-
struction was justified in the interests of maintaining plant production. The
transparent Inspiration for the instruction was not that Ciccone was using com-
pany time to engage in union activities as such, but that he was believed to be
MASTRO PLASTICS CORP. 553
using it for the purpose of assisting a particular union to which the Respondents
were opposed.
The special instruction issued Ciccone was thus analogous to a no-solicitation
order that is not extended to all as a rule of general application, but is applied
to a single individual or a limited group. If construed as prohibiting Ciccone
from leaving the restroom at any time, it was also-considering its motivation-
discriminatory under the Act for another reason. For, thus construed, it imposed
upon Ciccone because of his union activities a special working condition, namely.
the requirement to remain in the machine shop even during the contract-authorized
rest period, when other employees were granted the privilege of leaving and
otherwise utilizing the period as free time. Inasmuch as the instruction, in the
respects noted, was discriminatory and hence illegal, it follows that if Ciccone, by
leaving the machine shop during his rest period, had in fact violated the instruc-
tion, his discharge for that reason would have been illegal under Section 8 (a)
(3). See Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793, 805.
But decision here need not rest on that ground. For it is clear on the record
that Ciccone did not in point of fact disobey the instruction Maccaferri had
given him. Maccaferri himself expressly admitted while testifying that his
instruction to Ciccone was not so restrictive as to mean Ciccone could not leave
the machine shop for such usual purposes as going to the restroom or for a
Coca Cola. There is no claim that Ciccone actually engaged in any union activi-
ties, and no credible evidence that he engaged in any untoward conduct, when
he went for a Coca Cola on the particular occasion here involved. Indeed, what
he did then was no different from what other machine shop employees did at
the same time. And, as Maccaferri and Zevin conceded at the hearing, what
the others did was not considered a dischargeable offense. The haste with which
Mrs. Maccaferri telephoned her husband, and the haste with which her husband
acted to order Ciccone's discharge, neither of them troubling to investigate
Ciccone's actual reason for leaving the machine shop, point inescapably to the
conclusion that Maccaferri, if he did not actually anticipate when he gave Ciccone
the instruction that this particular situation would arise, was at least anxiously
looking for some pretext upon which to frame Ciccone's discharge . Even if
Maccaferri honestly, although mistakenly, believed at the time that Ciccone
was about to engage in union activities, this would not aid the Respondents'
position in the light of all the circumstances indicated above. On all the evi-
dence I am fully satisfied that Maccaferri' s real reason for discharging Ciccone
was not what the Respondents now claim it to be. I find, rather, that it was
rooted in the same discriminatory considerations that had led him earlier that
morning to order Ciccone's confinement to the machine shop.
It is found that the Respondents by discharging Frank Ciccone on November
10, 1950, and thereafter refusing to reinstate him to his former position, dis-
criminated with regard to his hire and tenure of employment, thereby discourag-
ing membership in Local 3127, encouraging membership in Local 318, and inter-
fering with, restraining, and coercing their employees in the exercising of the
rights guaranteed in Section 7 of the Act.
3. The alleged discriminatory lockout and constructive discharge of other
employees on November 10, 1950
The General Counsel would support this allegation of the complaint on the
following basis : Factually, he contends that on November 10, 1950, immediately
following Ciccone's discharge, the Respondent imposed upon their employees,
as a condition of their continued employment, the requirement that they give
up Local 3127 and accept Local 318 as their bargaining agent. Rather than
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accept the discriminatory condition of employment thus imposed, and for that
reason-he says-the employees ceased their work. Legally, the General Coun-
sel relies on a line of Board cases holding in substance that employees need not
acquiesce in a condition of employment unlawfully requiring them to abandon
the union of their own choice or to accept a union of their employer's selection,
and that a refusal by employees to continue with their work under such cir-
cumstances constitutes neither a quitting of their employment nor a strike but,
rather, a discriminatory constructive discharge or lockout.a
The difficulty with the General Counsel's theory is that it is predicated upon
an assumption of facts the record does not support. There is evidence, to be
sure, that following Ciccone's discharge, a number of the Respondent's super-
visory and management officials made statements that employees were reason-
ably justified in construing as promising them benefits if they adhered to the
union of Maccaferri's choice, and threatening reprisal if they did not. It is
doubtful, however, whether these coercive statements may fairly be read, or
were understood by the employees, as imposing as an already consummated and
effective condition of employment the discriminatory requirement claimed by the
General Counsel. The line between a threat to discriminate against an employee
in the future-which would not alone justify the employee in considering him-
self discharged' -and the actual imposition of discriminatory conditions of em-
ployment-to which an employee need not accede-is not always a clear one.
Where it lies can only be determined on a case-to-case basis upon consideration
of all surrounding circumstances. On the particular facts found in this case,
I am not persuaded that a holding is justified that the line was crossed.
But the weakness of the General Counsel's factual premise lies even deeper.
To sustain the General Counsel's position, it is not enough to show that dis-
criminatory conditions actually were imposed. It is necessary also to show that
the employees claimed to have been discharged actually ceased their work for
that reason. As appears from the findings made above, those employees who
were the first to walk out decided to do so before the utterance of the coercive
statements on which the General Counsel would predicate a finding of dis-
criminatory lockout or constructive discharge. Of those who remained in the
plant and who heard the coercive statements before they decided to join the
walkout, only one testified he left because he believed he would no longer be
permitted to work there, and his testimony has been discredited. The others who
declared themselves on that point testified that they walked out, or failed to
return the next day, either because they wanted to protest the discriminatory
discharge of Ciccone, or because they respected the picket line which was set up.
It does not appear that any of them actually considered himself discharged
until receiving the discharge notification some weeks later.
For the reasons indicated, I conclude and find that the employees named in
the complaint (other than Ciccone) were not discharged or locked out on
November 10, 1950. I find, rather, that they went out on strike.
4. The strike as an unfair labor practice strike
On all the evidence, I am convinced, and I find, that the strike which began on
November 10, 1950, and extended until the unconditional application for re-
instatement was made on March 9, 1951, resulted from the cumulative effect
42 The General Counsel's brief cites Louis F. Casoff, 43 NLRB 1193; Watkins & Company,
53 NLRB 235; McLeansboro Shale Products Co., 69 NLRB 809; Quest-Shon Mark Brassiere
Co., So NLRB 1149; Hamslton-Scheu Go , 80 NLRB 496.
43 Trenton Garment Co., 4 NLRB 1186.
MASTRO PLASTICS CORP. 555
upon the employees of the Respondents ' unfair labor practices , climaxed by
Ciccone ' s discriminatory discharge, and was caused by such unfair labor prac-
tices. I further find that the strike, after it began, was prolonged by the Re-
spondents ' continuing unfair labor practices.
5. The discriminatory discharge of striking employees on December 11, 1950,
and the discriminatory refusal to reinstate them upon their unconditional ap-
plication for reinstatement on March 9, 1951
a. The issues
The basic question to be decided is whether the strikers were engaged in
protected concerted activities . The Respondents assert they were not, for two
reasons : First , they contend, the strike was violative of the "no-strike " provision
contained in the collective-bargaining agreement with Local 22045 which was
still in effect when the strike began. Because of that, they say, the Respondents
were privileged to discharge the strikers for breach of contract. Secondly, they
contend, the strikers lost their status as employees of the Respondents under
Section 8 (d) of the Act, by engaging in a strike within the 60-day period follow-
ing service by their collective -bargaining representative upon the Respondent's
of a proposed termination or modification of the existing collective-bargaining
contract . Joining issue with the Respondents on these contentions , the General
Counsel asserts that neither of the defenses relied upon are available to the
Respondents because the strike was caused and provoked by serious employer
unfair labor practices.
If the Respondents are right , and the General Counsel wrong, on either or both
of these issues , the allegations of illegal discrimination against the strikers would
have to be dismissed . It would not matter that the record here shows that the
Respondents reinstated some strikers and not others , and that after the uncon-
ditional application for reinstatement the Respondents hired many new em-
ployees in positions for which strikers were qualified . A finding, under the
Respondents ' first defense, that the strike activity was unprotected , would mean
the discharges were lawful and that the Respondents were free thereafter to
exercise any choice they saw fit with respect to reemployment of the dischargees.
United Elastic Corp., 84 NLRB 768. A finding supporting the Respondents'
second defense would achieve a similar result , for Section 8 (d) (4) permits an
employer to restore employee status on an individual basis to any employee whose
status has been lost under that section.
If, on the other hand, the General Counsel is upheld on these issues , it would
follow that the allegations of the complaint , both with regard to the discrimina-
tory discharges and the discriminatory refusals to reinstate , must be sustained.
In that event , regardless of any replacements that may have occurred during or
since the strike, effectuation of the policies of the Act would require as a
remedial measure the reinstatement of the strikers named in the complaint as
well as the reimbursement to them of any losses in earnings sustained as a result
of the discrimination . Back pay, however , would be dated from the date of
the application for reinstatement , not from the date of discharge . At the time
of the discharge the employees were on strike, and there is nothing in the record
to support a finding that , but for discharge , the strikers would have abandoned
the strike , and returned to work before the date of their unconditional applica-
tion-unless of course , the Respondents remedied the conditions against which
they were striking . Any loss of earnings , they may have suffered prior to that
time cannot therefore be said to have been caused by the Respondents ' discrimina-
tion. See American Manufacturing Company of Texas, 98 NLRB 226.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With these other matters out of the way, we turn now to a specific considera-
tion of the affirmative defenses urged by the Respondents.
b. The breach-of-contract defense
While not contesting the general validity of the Scullin-Dyson doctrine," the
General Counsel asserts that it should not be applied to a situation where, as
here, the strike is provoked by an employer's serious unfair labor practices.
The General Counsel makes two principal points. The first is that such a dispute
was not within the contemplation of the contracting parties when they entered
their "no-strike, no-lockout" agreement, and therefore cannot be said to be in
breach of contract. The second is that the employees were excused from the
performance of the no-strike clause, even if it could be construed to apply to such
a dispute, because of the Respondents' prior breach of the contract. I am per-
suaded that there is substantial merit to the Respondents' first point. I think,
too, although not precisely for the reasons advanced by the General Counsel,
that, in view of the character of the unfair labor practices which caused the
strike, it would neither effectuate the policies of the Act nor conform to general
equitable principles to permit the Respondents to invoke the contract clause to
deny the strikers the protection to which the Act would otherwise entitle them.
I reach these conclusions for the reasons stated below.
Section 7 of the Act guarantees to employees the right to engage in concerted
activities for their mutual aid and protection, and Section 13 expressly preserves
to them the right to strike, except as otherwise specifically limited by the Act-
the situation before us not falling within the specified limitations. It is, of
course, now well settled by decisional law that the right to strike may be bar-
gained away for the term of a contract. But since a contractual waiver is in
derogation of normal employee rights, it is to be strictly construed to apply only
to situations that may reasonably be concluded to have been within the con-
templation of the contracting parties when the agreement was made. In the
instant case, it is true, the no-strike clause itself contains no express qualifica-
tion. But, like other clauses in the contract, it may not fairly be read in isola-
tion. When read, as it must be, as an integrated part of the entire contract, it
appears reasonably clear that the quid pro quo for the no-strike clause was not
only the no-lockout clause but, more important, the clause of the contract headed
"Disputes," under which the parties agreed to arbitrate differences that might
arise between the employers, the Union or its members. The express language
of that clause reveals the character of the "differences" the parties contemplated
might arise, and for which the peaceful procedures of arbitration were to be
substituted for trial by combat. They are stated as "differences . . . as to the
meaning and application of the provisions of this agreement, including questions
of meaning, interpretation, operation or application of any clause of this agree-
ment or any breach or threatened breach of this agreement." In short, it appears
in context that what the parties had in mind when they mutually agreed to
arbitrate their disputes, and to forego strikes and lockouts over them, were
situations that might normally arise under the administration of the contract.
I do not think the contract is fairly to be read as indicating an intention by either
party to waive the usual right of self-help to correct abuses, unrelated to the
actual operation of the contract or the normal relationship of the parties, but
arising, as in this case, from a wilful and serious violation of law designed to
destroy the very foundation of that contract and that relationship. The thought
0 Scullin Steel Company , 65 NLRB 1294; Joseph Dyson cf Sons, Inc., 72 NLRB 445. See
also N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332.
MASTRO PLASTICS CORP. 557
I am seeking to convey was better and more succinctly expressed by Chairman
Herzog in his concurring opinion in National Electric Products Corporation, 80
NLRB 995, as follows :
But such clauses ordinarily contemplate a pledge by one party not to
strike or lock-out during the term of a contract because of any conduct by
the other party relating to its provisions or to their normal relations. In
the absence of an express provision to that effect , I do not see how such a
clause can also be taken to disclose an intention by either party to include
a pledge never to use self-help in the event of a serious violation of law
by the other . If a contract does not preclude self -help in such circumstances,
its use cannot constitute a breach of that contract . And if there is no
breach, this Board may not apply the Scullin-Dyson rule.
Whether , as a strict matter of contract law, the Respondents can be said to
have engaged in a prior breach of contract , so as to excuse performance of the
no-strike clause-as the General Counsel alternatively argues-is open to some
doubt . The General Counsel would premise a finding of a prior breach upon the
Respondent 's course of conduct, illegal under the Act , by which they sought to
substitute the company-sponsored union, Local 318, in the place and stead of
Local 22045, the existing bargaining agent to which they were then bound by
contract . By such conduct, the General Counsel says, the Respondents did
violence to their contractual obligation to recognize and deal only with Local
22045. As a matter of strict contract law, the weakness in this approach lies in
the fact that no complaint is made in this case , although there may be some
evidence to that effect, that the Respondents actually refused to bargain with
Local 22045 on any bargainable matter during the contract term . Nor does
it appear that the Respondents committed an anticipatory breach by aiming to
supersede the bargaining agent during, rather than at the end of, the contract
term . In view of these circumstances , the General Counsel's argument, that
the Respondents violated their contractual obligation to bargain and deal with
Local 22045 appears to me to be strained . There would seem to be far more
substance to his added argument that where an employer and a union enter
into a collective-bargaining contract , otherwise silent on that subject, each
impliedly agrees not to engage in any illegal practices violative of the rights
of the other or of the employees under the Act, so that if either commits an
unfair labor practice , it is a violation not only of the law but of the contract
as well."
But in determining whether the Respondents ' illegal course of conduct that
provoked the strike excused the employees from their "no-strike" contract com-
mitment, I think it unnecessary , and indeed wrong, to rest decision on strict prin-
ciples of contract law. The law of labor relations is sui generic , and is not to
be shaped by woodenly assimilating to it principles of common law evolved to
govern other fields and to regulate other relationships . Of course , the Board
may not effectuate the policies of the Act with such myopic vision as wholly
to blind itself to conflicting principles or objectives of equal or greater importance
arising from the application of other laws. But that does not mean that in
all cases where rights granted in the Act come into competition with legal rights
*a Cf. Armour Packing Co. v. United States, 209 U. S 56, 62, where the Court, holding
certain provisions of the Interstate Commerce Act to be by implication of law part of an
agreement executed under the authority of that statute , stated :
The statute being within the constitutional power of Congress, and being in full
force when the contract was made, it is read into the contract and becomes a part
of it.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise conferred, those of the Act must give way. Where such conflicts
arise, the competing interests must be accommodated one to the other , if possible,
and if that is not possible, then the judgment of which shall prevail must be
made by balancing equities and according recognition to that interest which
in the circumstances of the case will best effectuate public policy. An equitable
principle frequently given decisive weight, although not perhaps expressed as
such, is that of the "clean hands" doctrine. He who would claim an impairment
of another's normal legal right must not himself be wilfully guilty of illegal
or improper conduct inducing the situation that is claimed to have brought
about the impairment. This approach has often been followed by the courts
and the Board and, indeed, lies at the heart of the Scullin-Dyson doctrine itself.
An illustration that readily comes to mind is Frank Bros. Company v. N. L. R. B.,
321 U. S. 702, 704, where the Supreme Court upheld the principle that an em-
ployer should not be permitted to profit by his own wrong, by pleading as a bar
to a bargaining order a loss of the union's majority which resulted from his
own illegal acts. Another is N. L. R. B. v. Mackay Radio d Telegraph Co., 304
U. S. 333, where the Supreme Court, while holding that an employer in a strike
situation has "the right to protect and continue his business by supplying places
left by strikers" and "is not bound to discharge those hired to fill their place
upon the election of the latter to resume their employment," at the same time
made clear that the right of replacement applies only to an employer himself
"guilty of no act denounced by the statute." On the other side of the coin, the
Court and the Board in a variety of familiar situations have held that employees
who in their strike activities employ methods or seek objectives that are illegal
or otherwise indefensible as a matter of public policy may not raise their rights
under the Act as a shield against an employer's normal right to discharge em-
ployees for misconduct"
Unless an employer's technical contract rights are to be exalted over employees'
statutory rights in all situations and without regard to the respective equities
involved, the same balancing of equitable considerations would seem applicable
in a situation such as appears in the instant case. Surely, an employer, who,
like the Respondents here, by his own wilful, deliberate, widespread, and grave
unfair labor practices, has caused his employees to protest in a traditional
way his disposition to violate the law, should not be allowed to assert that his
employees forfeited their normal rights to statutory protection, because of an
alleged contract violation flowing from the very strike for which he was respon-
sible. To hold that such employer misconduct does not excuse employee per-
formance of a "no-strike" clause would be offensive both to the spirit of the
Act and to one's sense of right. More than that, it would-in the words of
Chairman Herzog in his concurring opinion in the National Electric Products
case-be "likely to encourage the commission of [employer] unfair labor prac-
tices of such provocative magnitude that, human nature and the Board's delays
being what they are, employees can reasonably be expected-or intended-by
their employer to turn to what may prove to be suicidal self-help."
The majority holding in the National Electric Products case need not, and does
not in my view, constitute controlling authority at variance with the positions
46 See, e g, N. L R B. v Fansteel Corp., 30,6 U. S. 240 (illegal plant seizure ) ; Southern
Steamship Co. v. N. L. R. B., 316 U. S. 31 (mutiny ) ; N. L. R. B. v. Sands Mfg. Co., 306
U. S. 332 (breach of contract, not involving unfair labor practices by employer ) ; Inter-
national Union U. A W. v. Wisconsin E. it. B., 336 U. S. 245 (intermittent work stoppages) ;
N. L. it. B. v. Montgomery Ward, 157 F. 2d 486 ( partial strike while remaining on plant
premises and drawing pay) ; Thompson Products, Inc., 72 NLRB 886 (unlawful objective) ;
Elk Lumber Cc, 91 NLRB 333 (slowdown ),; N. L. R. B. v. Kelso Corp., 178 F. 2d 578
( serious acts of violence).
MASTRO PLASTICS CORP. 559
being taken here. In that case the unfair labor practice that caused the strike
was confined to a single discharge, which was specifically required by the con-
tract, though it was discriminatory under the Board's Rutland Court precedents
as they were then applied.'?
In that case, there was a complete absence of employer mala-fides. There the
employer, without any wilful and deliberate design itself to defeat employee
rights under the Act, acted simply as the instrument of the will of the estab-
lished collective-bargaining agent which had insisted upon the discharge as
performance of the employer's contractual obligation. On the particular facts of
that case, a majority of the Board as it was then constituted did not believe it
would effectuate the purpose of the Act
to regard this employer's unfair labor practice as sufficient justification for
overriding the salutary objective of a "no-strike" clause,
and concluded that
under the circumstances here present, the purposes of the Act can best be
effected by requiring employees to honor their "no-strike" commitments and
rely on the remedial purposes of the Board. (Emphasis supplied.)
The factual situation in the cited case was thus entirely different from the one
now before the Board. The discharge there was one specifically required by the
contract, though then forbidden under the Board's interpretation of the law, and
one, therefore, that might reasonably be said to have fallen within the contem-
plated scope of the "no-strike" clause. Moreover, the isolated, technical, and in
a sense, innocent, unfair labor practice committeed by the employer in that case
is scarcely to be compared to the widespread and wilful unfair labor practices
engaged in by the Respondents here-unfair labor practices of such grave and
provocative magnitude as might well be anticipated to force employees to resort
to self-help measures to defend before it was too late their self-organizational
rights. Thus, although the Board in the National Electric Products case was able
to conclude, upon a balancing of conflicting considerations, that the employer's
unfair labor practices in that case did not justify the employees in denouncing
the contractual "no-strike" clause, I think the scales here tip the other way. In
view of the limiting language quoted above, I do not read National Electric
Products as establishing a general principle of unrestricted application that no
matter what the character of the unfair labor practices may be, and no matter
what the parties may have contemplated when they agreed to a "no-strike"
clause ; employees who in the face of such a clause engage in self-help to protest
unfair labor practices are to be denied the normal rights of strikers under the
Act. It is no answer to say that even where, as here, the unfair labor prac-
tices are of a serious and provocative character, the employees still have open
to them the avenue of the Board's remedial processes. That is true even in the
absence of a "no-strike" clause ; yet no one questions the principle, firmly im-
bedded in the law, that employees who in such a situation turn to self-help to
protest unfair labor practices are entitled not only to immunity from discharge
but to protection against replacement. To require employees in a situation such
as appears in the instant case, where time is of the essence, to forego self-help in
favor of the time-consuming remedial processes of the Board, or, if they would
engage in self-help, to risk discharge, is to invite them to court disaster which-
ever way they turn.
47 Rutland Court Owners, 44 NLRB 587, 46 NLRB 1040. The Rutland Court doctrine
was subsequently overruled by the Supreme Court in Coigate-Palmolive-Peet Co., v.
N. L. R. B., 338i U. S. 355.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do I consider it a defense, in this case, that the contracting union did not
formally invoke the contract's arbitration procedure to review Ciccone's dis-
charge. As has been found, the discharge was merely the climactic aspect of
the Respondents' illegal course of conduct. And as an unfair labor practice, it
was outside the scope of the arbitration provision, not only because it did not
involve a difference as to the meaning, interpretation, operation, or application
of any clause of the contract, or any breach thereof, but because as a matter of
law the forum for unfair labor practice adjudication is not contract arbitration
but the Board.48
For the reasons indicated, I find no merit to the Respondents' alleged breach
of contract defense.
c. The Section 8 (d) defense
The collective-bargaining contract which was in force on November 10, 1950,
when the strike began, carried a November 30, 1950, expiration date. Although
there had been some prior discussions between the parties concerning a new con-
tract, Local 22045 did not serve a written notice of its intention to terminate
or modify the then existing contract until September 29, 1950. Under the pro-
visions of Section 8 (d) (4) the parties were thus required to "continue in full
force and effect, without resorting to strike or lock-out, all the terms and condi-
tions of the existing contract for a period of sixty days after such notice...."
As the same subsection elsewhere provides that
Any employee who engages in a strike within the sixty-day period specified
in this subsection shall lose his status as an employee of the employer
engaged in the particular labor dispute. . . .
it would have clearly followed, if the strike' s purpose had been to compel a
change in the then existing contractual terms and conditions, that the employees
engaging in it forfeited their status as employees, and with it their right to claim
illegal discrimination on the basis of the Respondents' action in discharging
and later refusing to reinstate them.
But, as found above, the purpose of the strike was to protest and seek to remedy
the Respondents' unfair labor practices. The record does not support a finding
that the strike also had as an additional objective the termination or modification
of the existing contract. It is true that demands for contract changes had pre-
viously been presented to the Respondents, and there had been some discussion
at meetings of Local 22045 or Local 3127 of a possible strike if such demands
were not met. But no strike vote on that issue had ever been taken, nor was
any strike action otherwise determined upon. On the record as a whole, I am
fully satisfied, and I find, that the strike which immediately followed Ciccone's
discharge was unplanned and began as a spontaneous demonstration by em-
ployees of their protest of the Respondents' unfair labor practices. Nor does
the record reflect that its character changed after it began to one where the
strikers were seeking to compel changes or modifications in economic terms or
conditions of employment. There is no evidence that any negotiations were con-
ducted or overtures made along such lines at any time after the commencement
of the strike. The Respondents at the hearing made no such claim, and offered
no evidence to establish that the strike had any purpose other than, or in addi-
tion to, that claimed by the General Counsel. The principle of law is applicable
here, that where the record supports a finding that an employer's illegal conduct
under the Act has led to a strike and is at least one of the causes of that strike,
the employer, if he would avoid the legal implications flowing therefrom, has
48 See Monsanto Chemical Company, 97 NLRB 517, and cases there cited.
MASTRO PLASTICS CORP. 561
the burden of showing that the strike would have taken place even if the unfair
labor practices had not been committed. N. L. R. B. v. Remington Rand, Inc.,
94 F. 2d 862, 872 (C. A. 2) ; N. L. R. B. v. Barrett Company, 135 F. 2d 959, 961-
962 (C. A. 7). This the Respondents have not done.
The question to be decided, then, is whether unfair labor practice strikers
lose their status as employees because their strike happens to occur during the
60-day period specified in Section 8 (d) (4).
That question can be answered in the affirmative only by extracting the last
sentence of Section 8 (d) from its context and giving it a rigid, literal construc-
tion. But that is not how statutes are to be read. In determining the legislative
intent, the particular inquiry must be directed not to the abstract force of the
words, but to the sense in which they were intended to be used in the Act. Con-
sideration must be given to the ends Congress sought to achieve by the particular
provision. Norwegian Nitrogen Products v. United States, 288 U. S. 294. "There
is need to keep in view also the structure of the statute, and the relation, physical
and logical between its several parts" Duparquet v. Evans, 297 U. S. 216, 218.
The rule should be followed that a statute should not be extended beyond the
purpose intended. United States v. McElvain, 272 U. S. 633. And that is par-
ticularly true where, as here, a statutory forfeiture is involved. United States v.
One 1986 Model Ford, 307 U. S. 219.
From a reading of Section 8 (d) as a whole, it is apparent that Congress
intended the employee status forfeiture provision appearing in the last sentence
to implement and carry out the purposes of the earlier provisions of that' section.
As for the broad purposes of that section, the Board in United Packinghouse
Workers (Wilson & Co.), 89 NLRB 310, at p. 316, had the following to say:
It is apparent that the prime purpose of Section 8 (d) was to prevent
so-called "quickie" strikes designed to secure termination or modification of
collective agreements. To accomplish this purpose, Congress in Section 8 (d)
provided for a mandatory 60-day "cooling off" period during which a labor
organization that is a party to a collective bargaining agreement is forbidden
to strike to enforce its demands to modify or terminate the contract.
(Emphasis supplied.)
The last sentence of Section 8 (d), read in "relation, physical and logical" to the
balance of the 'ection, can only be interpreted as designed to provide an addi-
tional sanction to enforce the broad purposes of the section, by insuring against
its circumvention through unauthorized strikes conducted during the "cooling
off" period to compel changes in the contract status quo. Nothing in the language
of the section suggests that Congress intended to do more than to delay for the
60-day period economic strikes arising from bargaining differences that might
better be settled about the conference table. Nothing in it suggests that Congress
intended Section 8 (d) to reach out to condemn an unfair labor practice strike,
otherwise legal, simply because it occurs at the end rather than at the beginning
of a contract term, and especially so where, as here, the strike is wholly uncon-
nected with demands to modify or terminate the contract. Indeed, any such
interpretation would stretch the scope of the statute beyond what clearly appears
to be its restricted purpose-to insure peaceful and uninterrupted negotiations
on contract issues for a period of at least 60 days before resort is had to economic
warfare. To apply the forfeiture provision to employees engaged in an unfair
labor practice strike unrelated to the negotiations would be to extend that provi-
sion beyond its intended purposes, at variance with both the letter and spirit of
Section 8 (d) when read as a whole.
For the reasons indicated I find the Respondents' Section 8 (d) defense to be
without merit.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. Finding of discrimination
It is concluded and found on the record as a whole that by discharging the
employees listed in Schedule A on December 11, 1950, the Respondents dis-
criminated with regard to their hire and tenure of employment , thereby discourag-
ing membership in Local 3127, encouraging membership in Local 318, and inter-
fering with , restraining , and coercing their employees in the exercise of the
rights guaranteed in Section 7 of the Act . It is further found that the Respond-
ents also violated Section 8 ( a) (1) and 8 (a) (3) of the Act, by refusing to
reinstate said employees following the unconditional application made on their
behalf on March 9, 1951.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in
connection with the Respondents ' operations described in section I, above, have
a close, intimate , and substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices
in violation of Section 8 (a) (1), (2 ), and (3 ) of the Act , it will be recommended
that they be ordered to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondents discriminated in regard to the hire and
tenure of employment of Frank Ciccone, by discharging him on November 10,
1950, and thereafter refusing to reinstate him, and having further found that
the Respondents discriminated with regard to the hire and tenure of employ-
ment of the employees listed on Schedule A, hereto attached , by discharging
them on December 11, 1950, and refusing to reinstate them on and after March
9, 1951 , following their participation in a strike caused and prolonged by the
Respondents ' unfair labor practices , it will be recommended that the Respondents
be ordered to offer Frank Ciccone and the employees listed in Schedule A full
reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges . If there are not
sufficient positions available in appropriate job classifications , the Respondents
shall make room for the employees ordered reinstated by dismissing to the
extent necessary employees occupying such classifications who were hired after
November 10, 1950 . If after such dismissal there are still not sufficient positions
available , all existing positions in the appropriate job class , fication shall be
distributed among the employees ordered reinstated and other employees who
were hired on or before November 10, 1950, without discrimination against any
of them because of his union affiliation or strike or concerted activities , follow-
ing such system of seniority or other nondiscriminatory practices as would
normally have been applied by the Respondents to determine job retention rights
upon a reduction of force . All employees remaining after such distribution,
including those ordered reinstated , for whom no employment is immediately
available , shall be placed upon a preferential list and offered reemployment as
work becomes available in a suitable classification , and before other persons
are hired for such work , in the order required by the Respondents ' normal
seniority system or other nondiscriminatory practices.
It will be further recommended that the Respondents be ordered to make
whole Frank Ciccone and each of the employees listed in Schedule A for any
MASTRO PLASTICS CORP. 563
loss of pay they may have suffered as a result of the discrimination against
them. In the case of Frank Ciccone the back-pay-period shall run from No-
vember 10, 1950. In the cases of the employees listed on Schedule A, the back-
pay period, for reasons earlier stated in this report, shall run from March 9,
1951. In the case of each employee ordered reinstated, back pay shall run to
the date of the Respondents' compliance as to him with the reinstatement pro-
visions hereof. Consistent with the policy of the Board enunciated in F. W.
Woolworth Company, 90 NLRB 289, losses of pay shall be computed on the basis
of each separate calendar quarter or portion thereof during the appropriate
back-pay period. The quarters shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting from a sum
equal to that which the employees normally would have earned for each quarter
or portion thereof, their net earnings, if any, in their employment during that
quarter.49 Earnings in any particular quarter shall have no effect upon the
back-pay liability for any other quarter. It is also recommended that the
Respondents be ordered to make available to the Board upon request payroll
and other records to facilitate the checking of the amount of back pay due.
It is further recommended that the Board reserve the right to modify the
back-pay and reinstatement provisions, if made necessary by a change of cir-
cumstances since the hearing or in the future, and to make such supplements
thereto as may hereafter become necessary in order to define or clarify their
application to a specific set of circumstances not now apparent.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Local 22045, American Federation of Labor ; Local 3127, United Brother-
hood of Carpenters and Joiners of America ; and Local 318, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
3. By rendering unlawful assistance and support to Local 318, International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Frank
Ciccone and the employees listed in Schedule A, thereby discouraging member-
ship in Local 3127 and encouraging membership in Local 318, the Respondents
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (a) (3) 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.
6. The strike which began on November 10, 1950, was caused, and thereafter
prolonged, by the aforesaid unfair labor practices.
[Recommendations omitted from publication in this volume.]
4° See Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation , v. N. L. R. B.,
311 U. S. 7.