National Co., Inc.

National Labor Relations Board - Board Decisions

May 4, 1953

104 N.L.R.B. 615 (N.L.R.B. 1953)

NATIONAL COMPANY, INC. 615
NATIONAL COMPANY, INC. and INTERNATIONAL UNION OF
ELECTRICAL, RADIO AND MACHINE WORKERS, CIO.
Case No. 1-CA-1202. May 4, 1953
DECISION AND ORDER
On November 14, 1952, Trial Examiner C. W. Whittemore
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, in violation of
Section 8 (a) (3) and (1) of the Act, and recommending that
it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and
the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner,
with the following modifications2 and additions.
We agree with the Trial Examiner that the Respondent
discriminatorily discharged employees Lloyd M. Powers
and James R. Starr in violations of Section 8 (a) (3) and (1) of
the Act.
Starr and Powers led the IUE organizing campaign at the
Malden plant in 1952.' On the evenings of May 12 and 19 of
that year, they both attended union meetings . At the latter
meeting Powers and Starr obtained membership cards, union
buttons, and stickers to be distributed to employees in the
plant. The next morning Starr and Powers passed out these
materials to other employees at the plant. They themselves
posted 8 or 10 union stickers in their working areas . Starr,
who worked in the welding department, glued several stickers
to his press machine and nearby surfaces. Powers posted
stickers on several chairs and 1 on the door of each of 4 or 5
fuse boxes near his machine. Before the shift began, Starr
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel )Members Houston, Murdock, and
Styles).
2The Intermediate Report contains a minor misstatement of fact which does not affect the
Trial Examiner 's ultimate conclusions of our concurrence therein . Accordingly, we note
the following correction : The Trial Examiner , in referring to events occurring in the union
campaign that took place a year before the campaign involved in the instant case, stated that
they took place in 1950 ; the previous union campaign took place in 1951.
a The background of this case reveals that Starr was active in the union organizational
campaign that took place in the Malden plant in the spring of 1951. During that campaign
he was called in by Bigelow and warned about the use of company materials and machines
in making union campaign signs.
Powers took no part in the 1951 campaign . However, in April or early May of 1952 he
began wearing a large CIO button. Powers' foreman chided him about the button and Bigelow,
sometime in April or May, noticing the button, questioned Powers about the likelihood of
renewed union activity in the plant.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Powers also passed out union-membership cards, and
during the morning many of the other employees signed and
turned these cards back to them. Richard Moore, an employee
in Foreman Sambuceti's welding department, testified that
Sambuceti knew that he had turned a signed card over to
Starr during the morning. And during the coffee break that
morning, Powers received a signed card from Francis Palumbo
in the presence of Sambuceti, who was admittedly aware of
the nature of the transaction. That afternoon Powers and Starr
were called, individually, into Bigelow's office where Bigelow
accused each of them of having posted union stickers in the
plant. Both employees initially denied, then admitted, having
done so. Bigelow told them that by posting union stickers in
the plant they were guilty of having defaced company property,
and for that reason they were discharged. a
The Respondent called only one witness to testify regarding
the stickers posted in the plant and the conduct, or misconduct,
of Powers and Starr on May 20, the day of their discharge.
That witness was George Sambuceti, foreman of Starr's
department, the department immediately adjacent to Powers'
department. Sambuceti testified that when he arrived that
morning he saw a large number of stickers on doors, walls,
ramps, posts , windows, fire extinguishers , and fuse boxes,
particularly in his department. He also saw Starr post a sticker
and Powers prepare one, presumably with the intention of
posting it. On cross-examination, however, he testified that
he did not know who put up the stickers; he did not investigate,
and was not interested in determining who posted them; he
instituted no disciplinary action whatsoever; he spoke to no
official of the Respondent that day concerning Powers or Starr;
and when he left the job at noon on May 20, he did not know that
Powers and Starr were to be discharged that afternoon.
The Respondent contends principally,5 that Powers and Starr
were discharged for having violated, by posting gummed stickers
in the Respondent's plant, an unwritten but self-evident rule
against defacing company property. However, as pointed out
by the Trial Examiner and admitted by Bigelow on cross-
examination, no rule against the posting of notices or circulars
in the plant had been communicated to Respondent's employees
generally before the discharge of the complainants. The
Respondent theretofore had permitted liberal posting of various
circulars with little or no restraint. Not until 2 days after
Powers and Starr were discharged did the Respondent post
a warning to its employees against "defacing" company
4 The testimony of Starr . Powers, and Bigelow reveals, without contradiction , that no other
reason was given the complainants for their discharges.
5 To justify the dismissal of Powers and Starr . the Respondent makes additional charges
against them , concerning horseplay, the creation of safety hazards, union activities on
company time, and the enlistment of assistance of other employees in posting the stickers,
all occurring on May 20, 1952. These charges find little support in the record and Sam-
buceti's testimony shows that he considered these alleged offenses to be of no consequence.
Bigelow did not mention them to Powers and Starr at the time they were discharged and,
having been raised for the first time in its brief to the Board the charges appear to be
patent afterthoughts on the part of the Respondent.
NATIONAL COMPANY, INC. 617
property, and this ambiguous prohibition was not thereafter
invoked to restrain the practices previously permitted by the
Respondent. It does not appear from the record that any other
employees were ever discharged or otherwise disciplined on
the ground that they had defaced the Respondent's property.
Atkinson, formerly a foreman in Respondent's Malden plant,
testified that he knew of neither the existence nor the enforce-
ment in any other instance of a rule against defacing company
property. Foreman Sambuceti's testimony indicates that he
considered the alleged offenses of such little consequence as to
warrant neither disciplinary action on his part nor notification
of the incident to his superiors. His testimony further indicates
that in discharging Starr the Respondent entirely bypassed
Starr's foreman and immediate superior.
The Respondent asserts that both Powers and Starr had
previously been warned against the posting of campaign
literature in the plant. In support of this assertion it introduced
into evidence a letter sent to employee Kendall during the 1951
union campaign which warned against the use of company
materials to fashion union campaign items; Starr admitted
having seen this letter. The letter, however, does not refute
the testimony of either Powers or Starr that they had received
no warning concerning the mere posting of stickers in the
plant. Moreover, a rule designed to permit the posting of any
notices or circulars except union materials would, in any
event, afford no justification for the Respondent's conduct.6
We find, contrary to the Respondent's contention, that it had
full knowledge of the union activities of both Starr and Powers
at the time of their discharge. We further find on the basis of
the foregoing and the entire record in this case, including the
severity of the discipline accorded Powers and Starr, that the
Respondent seized upon their alleged misconduct as a pretext
to rid itself of the two most active union adherents in the
plant for the purpose of crushing the Union's organizational
campaign at its very inception. The Respondent thereby
violated Section 8 (a) (3) and (1) of the Act.
2. We agree with the Trial Examiner that the Respondent
unlawfully discriminated against Francis Keating by trans-
ferring him to a degreasing job on July 8, 1952, and by laying
him off on July 16, 1952. We do not, however, agree that
Keating was discriminatorily laid off from May 21 to June 9,
1952, or discriminatorily denied overtime.
As indicated in the Intermediate Report, Keating was the
leader of the Union's organizational campaign at the Melrose
plant from its beginning on May 20, 1952. He openly distributed
union leaflets before the plant's single entrance and in the
plant parking lot. He was active in signing up new members
and in distributing union buttons, one of which he himself wore.
It is apparent from the record, and we find, that the Respondent
had knowledge of Keating's union activities at all times
material herein.
0Standard- Coosa- Thatcher Company, 85 NLRB 1358, 1364, and cases cited therein.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 21, 1952, Keating was laid off by the Respondent on
the ground that he had a contagious skin infection. The Trial
Examiner found that this layoff was for the purpose of ridding
the plant temporarily of its union leader. Although the matter
is not free from doubt, we find, contrary to the Trial Examiner,
that the evidence does not preponderate in favor of a finding
that this layoff of Keating was violative of the Act. We also
find that the evidence is not sufficient to warrant a finding
that Keating was discriminatorily denied overtime.
The events following these incidents, however, are in a
different posture. Keating had been employed over a 2-year
period successively by the Respondent as an assembler, an
inspector, an assembler at $1.l0anhour,andas an assembler-
instructor at $ 1.17 an hour. The work for which his assembly
line operated was nearing completion during the latter part of
June 1952. The record indicates that other assemblers in his
department were gradually transferred to assembly lines on
the second and third floors of the Melrose plant. Keating had
not been transferred by the time his work was completed on
July 8. On that date he was sent for reassignment to John A.
Bigelow, manager of industrial relations for the Respondent.
When Keating arrived at Bigelow's office in the Malden plant,
the latter told him that there were only four jobs open in the
Respondent's plants at that time: electronics technician, spot
welder, toolmaker , and a degreasing job. Bigelow was aware
that Keating was not qualified to fill any of the first three
positions but nevertheless asked Keating specifically about
each one. As to the degreasing job, Bigelow testified that
"it was a job that I hated to offer him, I didn't think he was
going to like it. . . .-7 Bigelow offered either to put Keating
on the degreasing job until a more suitable one turned up or
to put him on a preferred hiring list and recall him when a
more suitable job was available. Keating expressed displeasure
with the cut in pay, from $1.17 an hour he had been receiving
as an assembler-instructor to $1.02 an hour for degreasing,
but he decided to take the degreasing assignment rather than
be laid off. Bigelow permitted Keating to continue for the
remainder of the week at $1.17 an hour but told him that he
would receive the regular $ 1.02 rate after that.
Keating worked in degreasing the remainder of that week.
On Tuesday of the following week he became ill at work. He
was told to see Bigelow the next day about another job and then
sent home. The following day, July 16, Keating saw Bigelow
and asked for another job, stating that he didn't care to go
back to the degreasing job because it would probably make
him ill again. Bigelow told him there were no other jobs
available at that time and put Keating on layoff status, saying
that he would recall Keating when there was an opening in a
position for which Keating was qualified. Since the time of
his termination, Keating has not been contacted by the Respond-
ent nor offered reemployment in any position whatsoever.
7 Bigelow conceded at the hearing that he may have characterized the job as "dirty."
NATIONAL COMPANY, INC. 619
At the hearing Bigelow testified on direct examination that
when Keating was transferred to degreasing , "We were
perfectly willing to offer him anything he was capable of doing,"
but "there was no work in the particular occupation that he
was experienced in or had had experience in," except for the
"four jobs." He also stated that he didn't believe that the
Respondent had, since July, hired anyone for jobs Keating was
capable of performing. As described above, Bigelow told Keating
at the time of his transfer and layoff that there were no jobs
available, other than the four offered him. However, Bigelow
admitted, on cross-examination, that at the time of Keating's
transfer and termination the Respondent was advertising for
new assemblers, trainee assemblers, and inspectors.$ He
further admitted that at that time the Respondent needed, and
there was work available for, inspectors, trainee assemblers
and class Aassemblers,19 the latter classification paying $1.107
an hour. Finally, Bigelow admitted that since the time of Keat-
ing's termination on July 16, the Respondent had hired new
employees in jobs which Keating was capable of performing,
including assemblers and trainee assemblers.
The record shows, and Bigelow further admitted in his
testimony, that at the time of Keating's transfer and layoff,
Keating had more seniority than employees employed by the
Respondent as assemblers in other departments. The record
also shows that it was the policy of the Respondent in laying
off employees to release those with the least seniority, without
regard to departmental lines.
On the basis of these facts we are persuaded, and find, that
a job as an inspector or assembler was open at the time
Keating was offered the less desirable job of degreasing and
that he would have been transferred to one of the former jobs
but for his union activities. We find that, by transferring
Keating to the degreasing job and eventually laying him off,
the Respondent discriminated against him for the purpose of
discouraging union activities in its plant and thereby violated
Section 8 (a) (3) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices as set forth above, we shall
order that it cease and desist therefrom and that it take
9At one point in his testimony Bigelow justified his failure to offer Keating a job as an
assembler on the ground that Keating had indicated an intention to accept only a job paying
$1.17 an hour or more and that Keating would therefore not have considered an assembler's
job at $1.10 an hour . This position is untenable because Bigelow did offer Keating a less
desirable job paying only $1.02 an hour , which Keating accepted and only later gave up
because he thought it made him ill.
9 Although these admissions were specifically made by Bigelow , when pressed on cross-
examination as to whether he told Keating that a job as an inspector was open, Bigelow
replied, "No, because it wasn't vacant." His testimony in this and other respects was
self-contradictory and singularly lacking in candor . However, Bigelow appeared and testified
as a responsible official of the Respondent; we shall therefore accept so much of his testi-
mony as'may be considered admissions against interest.
62 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the Respondent, by the discharges
described above, has discriminated against Lloyd M. Powers
and James R. Starr. We shall order the Respondent to offer
these employees immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights or privileges, and make
them whole for any loss of pay they may have suffered by
reason of the 'discrimination, to be computed in the manner
set forth in the section of the Intermediate Report entitled
"The Remedy."
We have found that the Respondent did not unlawfully dis-
criminate against Francis Keating by temporarily laying him
off between the dates of May 21 and June 9, 1952, and by denying
him overtime work. We shall not therefore order that Francis
J. Keating be made whole for any loss in wages he may have
suffered as a result of this conduct. We have found that the
Respondent discriminated against Francis J. Keating by failing
to offer to him certain positions of employment on July 8 and
at various times thereafter, as described above. We shall
therefore order the Respondent to offer him employment in
the position, or one substantially equivalent thereto, which
he would have had if the Respondent had not discriminated
against him on July 8, 1952, without prejudice to his seniority
or other rights or privileges, and to make him whole for any
loss of pay he may have suffered by reason of the discrimina-
tion, which sum shall be computed in the manner set forth in
the section of the Intermediate Report entitled ''The Remedy."
We have found that the Respondent has violated Section 8 (a)
(3) and (1) of the .Act. In our opinion, the commission of unfair
labor practices generally is reasonably to be anticipated from
this unlawful conduct in the past. We shall, therefore, order
the Respondent to cease and desist not only from the unfair
labor practices herein found, but also from inany other manner
infringing upon the rights of the employees guaranteed in Section
7 of the Act.
ORDER
Upon the basis of the above findings of fact and the entire
record in this case, and pursuant to Section 10 (c) of the
N :`ional Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, the National
Company, Inc., its officers, agents, successors, and assigns
shall:
1. Cease and desist from:
(a) Discouraging membership in International Union of
Electrical, 4Radio and Machine Workers, CIO, or any other
labor organization of its employees, by disc riminatorily laying
off or discharging any of its employees, or by discriminating
in any other manner in regard to their hire or tenure of
employment, 6r-,any term or condition of employment.
NATIONAL COMPANY, INC. 621
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
International Union of Electrical, Radio and Machine Workers,
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage
in 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 may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized inSection8 (a) (3) of the Act, as guaranteed
in Section 7 thereof.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Lloyd M. Powers and James R. Starr immediate
and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority and other
rights and privileges.
(b) Offer to Francis J. Keating immediate employment in
the position, or one substantially equivalent thereto, which he
would have had if the Respondent had not discriminated against
him, without prejudice to his seniority and other rights and
privileges.
(c) Make whole the same employees, in the manner set forth
in the section above entitled "The Remedy," for any loss of
pay they may have suffered as a result of the discrimination
against them.
(d) Upon request make available to the Board or its agents,
for examination and copying, all payroll records, social-
security payment records, personnel records and reports,
and all other records necessary to analyze the amounts of
back pay due.
(e) Post at its plants in Malden and Melrose, Massachusetts,
copies of the notice attached to the Intermediate Report and
marked "Appendix A." 10 Copies of said notice, to be furnished
by the Regional Director for the First Region, shall, after
being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days in con-
10 This notice , however , shall be, and it hereby is, amended , first, by striking from the
first paragraph thereof the words , "The recommendations of a Trial Examiner " and sub-
stituting in lieu thereof the words , "A Decision and Order," and, second, by substituting
for the last sentence of the first paragraph thereof the following sentence:
WE WILL offer to Lloyd M. Powers and James R. Starr immediate and full rein-
statement to their former or substantially equivalent positions , and to Francis J.
Keating employment in the position , or one substantially equivalent thereto, which
he would have had if we had not discriminated against him , without prejudice to their
seniority and other rights and privileges , and make them whole for any loss of pay
suffered as a result of the discrimination against them.
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. "
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered , defaced,
or covered by any other material.
(f) Notify the Regional Director for the First Region in
writing within ten (10) days from the date of this Decision
and Order, what steps the Respondent has taken to comply
therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges violations of the Act different from those found in this
Decision and Order, be, and it hereby is, dismissed.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served , a complaint and notice of hearing thereon
having been issued and served by the General Counsel of the National Labor Relations
Board , and an answer having been filed by the above-named company, herein called the
Respondent , a hearing involving allegations of unfair labor practices in violation of Section
8 (a) (1) and (3) of the National Labor Relations Act, as amended , 61 Stat . 136, herein called
the Act, was held in Boston, Massachusetts, on October 1 and 2, 1952, before the under-
signed Trial Examiner
In substance the complaint , as amended , alleges and the answer , as amended , denies that:
(1) On May 20, 1952, the Respondent discriminatorily discharged employees Lloyd M.
Powers and James R. Starr , and discriminatorily laid off, transferred , and thereafter
discharged, on May 21, July 8, and July 16, respectively, employee Francis J. Keating,
because of their union activity ; and (2) by said conduct and by interrogation , threats , and sur-
veillance interfered with, restrained , and coerced its employees in the exercise of rights
guaranteed by the Act.
At the hearing all parties were represented, and were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to introduce evidence pertinent to the
issues , to argue orally upon the record , and to file briefs and proposed findings of fact
and conclusions of law . A brief has been received from the Respondent.
Disposition of a motion to dismiss the complaint , made at the close of the hearing , is made
by the following findings , conclusions , and recommendations . Allegations as to surveillance
were dismissed , upon motion , during the hearing.
Upon the entire record in the case , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
National Company, Inc., is a Massachusetts corporation engaged in the manufacture of
radio and radar type of equipment . It operates 2 plants, one in Malden, the other in Mel-
rose , both in Massachusetts . The Respondent has gross sales of more than $ 1,000,000
annually , and products valued at more than $ 100,000 are annually shipped directly to points
outside Massachusetts . The Respondent is extensively engaged in defense work for the
United States Government.
The Respondent concedes that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical . Radio and Machine Workers , CIO., is a labor organiza-
tion admitting to membership employees of the Respondent.
NATIONAL COMPANY, INC.
III. THE UNFAIR LABOR PRACTICES
A. Facts and issues
623
All major issues arise from an organization campaign openly begun by the Union at both
plants on May 20 , 1952 . At the Maiden plant the employee leaders were Lloyd M. Powers
and James R. Starr . while at the Melrose plant the employee leader was Francis J . Keating.
Before working hours on May 20, at the Malden plant Powers and Starr passed out union
campaign material to other employees and also pasted several stickers , measuring about
31 by 4 inches, in various places near and on their machines . The stickers bore the printed
legend "Let's Go. IUE-CIO, IUE-CIO-GE Organizing Committee." Both Powers and Starr
were summarily discharged during the afternoon of May 20 by John A. Bigelow, manager
of industrial relations . Bigelow told each he was being dismissed for "defacing " company
property.
On May 20, also, the organizing campaign began at the Melrose plant with Keating as
chairman 'of the employees ' committee . During the lunch hour that day Keating busied him-
self in and around the plant passing out union cards . The next day the Melrose plant manager,
Harold F. Watts , through the company nurse , ordered Keating to go to see the company
doctor, Dr . Lynch, despite the employee ' s protest that he had , but a few days before, been
to the same clinic upon ,his own volition and the company nurse's advice , and by that doctor's
written clearance , brought back to the nurse , had been permitted to return to work. It
appears that Keating had some type of fungus infection on his hand . The doctor whom he first
visited, upon the company nurse's instructions , told him only to cover his hands, and put
salve upon them. The Company provided him with gloves , which he wore until Watts sent
him back to the doctor. This time Dr. Lynch gave him the same treatment provided by the
other doctor, but advised the Company , in effect , that Keating should not be permitted to
work . In his letter to the Company, dated May 21, Dr. Lynch stated that he had examined
Keating "at your request." When Keating returned from the doctor 's office on May 21,
however , he was told by the company nurse that Watts had already been informed of the
doctor 's "advice ," and he was immediately sent to see Bigelow , at the Malden plant . Bigelow
gave him his check and laid him off. After a couple of weeks of the treatment prescribed
by Dr. Lynch, which failed to clear the trouble, Keating went to another doctor , of his own
selection , and the infection promptly was cured . Dr. Lynch finally permitted him to return
to work about June 9. During the period of his layoff Keating had continued his union activity
outside the plant . On Friday of the week of his return he asked his foreman , Herbert Thomp-
son, for overtime work the next day, since he had been laid off so long . Thompson told
him that Watts had instructed him not to give Keating any more overtime , ' and said that while
Watts had not mentioned it, he figured it was because Keating was too wrapped up in the
Union . The foreman advised him he had better "get another job."
At this time Keating was an assembler - instructor on an assembly line . Early in July the
contract covering the material being assembled on that line ran out . A number of other
employees on the line were transferred to other departments . Keating was instructed to
"stay around" and when the job was completed he would be put in the stockroom to help
with inventory. When the job was finished , however, Watts sent him to Malden to see Bigelow.
Bigelow told him, despite the fact that , according to his own admission , the Company was at
the same time advertising for assemblers and inspectors for work which Keating had per-
formed before being promoted to instructor , that hehad only one job open for him, so "dirty"
he probably would not want it . It was a "degreasing" job, working over acid fumes.
Keating took the job, despite its considerable reduction in pay. Within a few days, how-
ever, after having given blood to the Red Cross, on July 14, the fumes made him ill and he
had to go home on July 15. He came in the following morning and told Bigelow that he would
be sick again if he had to return to the degreasing room . Bigelow replied that there was no
other work available , and laid him off.
Although Bigelow, as a witness , admitted advertising for new help and admitted that since
Keating's layoff in July there have been vacancies Keating is capable of filling, the employee
has not been offered reemployment in any capacity.
The treatment accorded to the three union leaders is in issue.
B. Conclusions
It is concluded and found that before the Respondent took any action against the 3 employees
it was aware of their union activities . All 3 engaged openly in such activities on May 20.
1 Thompson, still a foreman at the plant, admitted that he had told the employee Watts
had given such instructions.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no dispute as to the facts that Powers and Starr were discharged by Bigelow
and that his action followed their putting up, in the plant, stickers advertising the Union.
The Respondent claims that such discipline was involved because the stickers "defaced"
company property; General Counsel contends that it was exercised to discourage union
membership.
Severe doubt upon the validity of the Respondent's claim is cast by the fact that the Com-
pany had long permitted, and continues to permit, the posting of many kinds of notices at
various places on walls and doors, other than bulletin boards., Such material includes notices
regarding the Red Cross, fund-raising drives, baseball pools, barroom advertising, an-
nouncements by employees of personal property for sale, campaigns by individuals for votes
in seeking office on recreation committees, bowling scores, and newspaper clippings. Such
notices are put up by thumbtacks, scotch tape, and nails. The preponderance of evidence
establishes, and the Trial Examiner finds, that the Respondent discriminated as to the type
of material it permitted employees to put up.
Credible evidence establishes, and it is also found, that until after the discharge of Powers
and Starr, the Respondent never informed employees generally that it objected to the posting
or pasting up of any kind of notices elsewhere than on bulletin boards. On May 22 Bigelow
posted a notice stating in part:
In accordance with Company policy any employee who is found defacing Company
property will be subject to immediate discharge.
It appears that "Company policy ," if any , was established on May 20, in discharging Powers
and Starr , and that the "defacement of" company property was to be considered by employees
to mean only the posting of union stickers . The evidence is clear that no one else has ever
been fired for posting anything else, and other types of material have continued to be posted
generally . If the definition of "defacement" is to be limited , as apparently it has been by the
Respondent , to include only the posting of union stickers , then the rule as inaugurated on
May 20 is discriminatory and illegal.
Such being the case, small space need be devoted here to the Respondent ' s claim that
Bigelow warned both Powers and Starr , individually , before the event , that no signs must
be hung "around the plant ." Bigelow was an untrustworthy witness on this point. As to
Powers , he said he "thought" he had warned him, and he could not remember when it was.
As to Starr , he said warning was given sometime in 1950 . During the 1950 organizational
campaign no stickers were used and no occasion would have arisen for such a warning.
Finally, had any occasion actually arisen for the giving of specific warnings , before the
event, it is reasonable to believe that Bigelow would have made the warning general and
would have posted a notice . Yet no notice was posted until after the discharge of Powers
and Starr . The Trial Examiner specifically finds that neither Powers nor Starr was warned
that his job would be in jeopardy if he pasted up union stickers.
The preponderance of credible evidence establishes , and the Trial Examiner finds, that
Powers and Starr were discriminatorily discharged on May 20. 1952 , in order to discourage
union membership , and that by such action the Respondent interfered with , restrained, and
coerced employees in the exercise of rights guaranteed by the Act.
Equally summary treatment , although of a different nature, was visited upon Keating at
the Melrose plant, the day after he openly began the organizational campaign there. No
credible explanation was adduced by the Respondent for Watts ' orders that he be sent back
to see the doctor . Only Bigelow , whose office was at the other plant , said he had been "ad-
vised" by the nurse at Melrose that Keating had not been " following the treatment pre-
scribed" and 'that because a "number of people" working beside Keating "were disturbed,"
"we" sent him back to the doctor . Bigelow has already been found to be an untrustworthy
witness . His testimony on the matter finds no support in surrounding circumstances, since
he was at the Malden , not the Melrose , plant ; and no one at the Melrose plant whom Bigelow
involved in his testimony--the nurse , the foreman , the doctor , or any employee--was
called to testify on the matter.
The Trial Examiner is aware that two doctors may honestly disagree as to treatment of
the same patient . Where neither doctor is brought forward , however, as a witness, the
credibility of neither is possible of determination. Bigelow, the one company witness, on
the matter , is discredited by his own confused and contradictory = testimony . The facts
2 At one point in the record, within a space of 3 or 4 questions , Bigelow both denied and
admitted hiring new men for jobs which Keating is capable of performing . At another point.
within the space of 8 answers , he both admitted and denied there were vacancies open for
inspectors , at about the time of Keating 's final layoff.
NATIONAL COMPANY, INC. 625
as related by Keating stand without credible refutation. From them the inference is clear,
and the Trial Examiner finds, that it was at the Respondent's "request" that Dr. Lynch
provided it with the letter of May 21, and with a pretext to rid the plant temporarily of its
union leader. It is therefore found that the layoff beginning May 21 was discriminatory,
to discourage union membership.
Support for the foregoing conclusion is found in the fact, admitted by his foreman, that upon
his return to work he was told Watts had ordered that he be given no more overtime The
state of the record is such, however, that the Trial Examiner is unable to determine precisely
how much, if any, overtime Keating was thereafter actually deprived of. No recommendation
as to back pay for such overtime will be made. Thompson's statement to Keating, however,
that he was not to be given overtime on Watts' orders, and Thompson's advising him that he
"figured" it was because he was "wrapped up" in the Union, and his recommending that the
employee seek another job, all and separately constitute interference, restraint, and coer-
cion.
The Trial Examiner concludes and finds that Keating was discriminatorily transferred, on
or about July 8, 1952, to the admittedly dirty and lower-paid job as a degreaser, in order to
discourage his union activity. The Respondent was advertising for new help, at this time, on
jobs Keating was capable of filling.
As to the ultimate and final layoff of Keating, the conclusion is inescapable that the Re-
spondent, failing by other methods of discrimination to discourage Keating's continued union
activities, finally forced him into a dirty and disagreeable job at reduced pay, resulting in
illness. Discrimination in the layoff is established beyond question. Keating had been long
trained in assembly work; he was of sufficient capability to have been recommended by his
foreman as a leader , and had been serving as an instructor . Yet he was let go, from a plant
admittedly engaged in defense work, at a time when the Respondent was advertising for men
to do and to learn precisely the sort of work which Keating had long and satisfactorily been
performing . The layoff of Keating on July 16, 1952, was, in effect, a discriminatory dis-
charge, for the purpose of discouraging union membership, which thereby interfered with,
restrained, and coerced employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection
with the operations of the Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
It has been found that the Respondent has engaged in and is engaging in unfair labor prac-
tices It will be recommended that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
It has been found that the Respondent, by the layoff, transfer, and discharges described
above, has discriminated against certain individuals in regard to their hire and tenure of
employment. It will therefore be recommended that the Respondent offer Lloyd M. Powers,
James R Starr, and Francis J. Keating immediate and full reinstatement to their former or
substantially equivalent positions, 5 without prejudice to their seniority or other rights and
privileges , and make them whole for any loss of pay they may have suffered by reason of
the discrimination by payment to each of them of a sum of money equal to that which he would
normally have earned less his net earnings, 4 which sum shall be computed on a quarterly
basis during the period from the discriminatory discharge to the date of a proper offer of
reinstatement. 5Also, in the case of Keating, payment to him shall include a sum equal to
that which he would normally have earned during the discriminatory layoff beginning May 21,
less the amount of insurance received by him, this amount to be returned to the insurance
company. It will also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of the amount of back pay due.
The discrimination found herein indicates a purpose to limit the lawful rights of the
Respondent's employees. Such purpose is related to other unfair labor practices, and it is
SThe Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
4Crossett Lumber Company, 8 NLRB 440.
5F. W. Woolworth Company, 90 NLRB 289.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that the danger of their commission is reasonably to be apprehended . It will therefore
be recommended that the Respondent cease and desist from in any manner interfering with,
restraining , or coercing its employees in,the exercise of rights guaranteed by the Act.
Upon the basis of the above findings of fact and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Electrical , Radio and Machine Workers, CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Lloyd M. Powers,
James R. Starr, and Francis J Keating, thereby discouraging membership in a labor or-
ganization , the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act
[Recommendations omitted from publication. ]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act as amended,
we hereby notify our employees that:
WE WILL NOT discourage membership in International Union of Electrical , Radio and
Machine Workers , CIO, or in any other labor organization of our employees , by dis-
criminatorily laying off, discharging , and refusing to reinstate any of our employees,
or in any other manner discriminating in regard to their hire and tenure of employment
or any term or condition of employment.
WE WILL NOT in any manner interfere with , restrain , or coerce our employees in
the exercise of the right to self-organization , to form labor organizations, to join or
assist , the_ above-named union or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted activities for
the purpose (if, 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 may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to Lloyd M. PowersJames R. Starr , mill Francis J. Keating immediate
and full reinstatement to their former or substantially equivalent position without
prejudice to their seniority and other rights and privileges , and make them whole for
any loss of pay suffered as a result of the discrimination against them.
All our employees are free to become or remain members of the above - named union of
any other labor organization . We will not discriminate in regard tb their hire and tenure of
employment or any term and condition of employment because of membership in or activity
on behalf of any such labor organization.
NATIONAL COMPANY. 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.