Northeastern Dye Works, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1973

203 N.L.R.B. 1222 (N.L.R.B. 1973)

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northeastern Dye Works , Inc. and Textile Workers
Union of America, AFL-CIO. Case 1-CA-8331
June 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On November 6, 1972, Administrative Law Judge
James V. Constantine issued the attached Decision in
this proceeding. Thereafter, counsel for General
Counsel and for Respondent filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent had violated Section 8(a)(1) of the Act by its
discharge of Richard Bertholdt on March 24, 1972; by
an illegal poll which commenced on March 27, 1972;
by announcing to the employees sometime in April
1972 that there would be no more "favors" extended
to them. Finding further that the Union enjoyed ma-
jority status in an appropriate unit when it requested
recognition and bargaining of Respondent on March
24, 1972, the Administrative Law Judge concluded
that the unfair labor practices he had found were of
such a pervasive nature as to affect the Union's major-
ity and make a fair election an unlikely possibility.
Therefore, the Administrative Law Judge concluded
that a Gissel t bargaining order was appropriate on the
basis of the unfair labor practices he had found.
We agree with the Administrative Law Judge, for
the reason he notes, that Respondent's polling of the
employees , conducted as it was with no assurances
given against reprisal and, in part, by nonsecret bal-
lots, violated Section 8(a)(1) of the Act since it did not
conform to the applicable standards set out in our
decision in Struksnes Construction Co.2 However, un-
like the Administrative Law Judge, we find no viola-
tion in Richard Bertholdt's discharge and further we
cannot agree with the Administrative Law Judge's
finding that Respondent "announced" to "employ-
ees" that certain favors were being abolished. Finally,
1 N L R B v. Gissel Packing Co, Inc, 395 U S. 575 (1969)
2 165 NLRB 1062
although we agree the poll was an 8 (a)(1) violation, we
do not believe , for the reasons noted infra, that, by
itself , it furnishes a sufficient basis to warrant a bar-
gaining order.'
The Discharge of Richard Bertholdt
Bertholdt was hired by Respondent in August 1971
and was discharged on March 24, 1972. Bertholdt
testified that on the latter date, a Friday, he wanted
to leave early and asked supervisor Robert Dennigan
for his paycheck around 10 a.m 4 When Respondent's
president, Robert Nelson, was told this by Dennigan,
he testified he was upset at Bertholdt's desiring to
leave so early and, for this reason, and because of
Bertholdt's constant complaining, and because Ber-
tholdt was due to be let go in a short while anyway
when another employee returned, he decided to termi-
nate Bertholdt at this time.
Although finding that Bertholdt was not discharged
for union activity,' the Administrative Law Judge
concluded that Bertholdt's discharge was in violation
of Section 8(a)(1) of the Act because it was motivated
in substantial part by conduct of Bertholdt which he
found was protected activity under the Act.6
In disagreement with the Administrative Law
Judge, we find Bertholdt's complaints were not pro-
tected activity under the Act. Since we are in agree-
ment with the Administrative Law Judge that
Bertholdt's discharge was not a violation of Section
8(a)(3) of the Act, we therefore find no violation of the
Act in his discharge.
The Administrative Law Judge found as protected
activity Bertholdt's complaining about employee
Donald Smith's loafing, Smith's leaving the job with-
out punching out, and his punching in for employee
Dennigan before Dennigan actually started the day.
The Administrative Law Judge characterized these
3 We note that a consent election was held on April 28, 1972, in the unit
in which the Union claimed majority status. The Union lost that election with
the vote being five votes for and seven votes against the Union with one
challenged ballot The Union thereafter filed timely objections to the elec-
tion Included as an objection was the poll the Administrative Law Judge
found violative of Sec. 8(a)(l) In this decision , the Administrative Law
Judge, who had before him the various objections to the election (the repre-
sentation case having been consolidated with the unfair labor practice case)
recommended that the election be set aside because of the poll. The Adminis-
trative Law Judge then severed the representation case and remanded it to
the Regional Director for further action pursuant to the consent election
procedures On March 21, 1973, the Regional Director set the election aside
on the basis , inter aba , of that poll.
Respondent 's workday begins at 5 a in.
5 We note, as did the Administrative Law Judge, that Bertholdt's union
activity was limited to his signing an authorization card; that there is no
evidence Respondent knew he signed a card , and that other employees who
signed cards were not discharged or otherwise discnmmatonly treated. Fur-
ther, we note that Nelson and his bookkeeper testified without contradiction
that Nelson had not seen the union 's letter requesting bargaining before the
discharge
6 This is the "constant complaining" to which Nelson referred
203 NLRB No. 159
NORTHEASTERN DYE WORKS
complaints as an active espousal of the quality of
treatment of employees. However, as Bertholdt ad-
mitted, all his complaints to Nelson concerning affairs
in the plant had to do with employee Smith's activities
only. Further, Nelson testified that Bertholdt com-
plained to him about other activities of Smith which
were not related to work problems. Thus, Nelson stat-
ed that Bertholdt told him that Smith had broken the
aerial on Bertholdt's car, had stolen the car, and had
broken into his house. Bertholdt admitted telling Nel-
son of the problems with his aerial and car. Although
he denied telling Nelson that he thought Smith was
responsible for these problems, he did admit telling
Nelson that he thought it was "funny" that every time
he had an argument with Smith something happened
to him.
Bertholdt stated that he told Nelson of Smith's ac-
tivities because he thought he was helping Nelson
save money. He contended that he could not see Nel-
son paying a man for not being on the job when
everyone else was working. Bertholdt admitted, how-
ever, that all was "not well" between him and Smith
and that he was then engaged in a personal feud with
Smith that was of long duration.
The Administrative Law Judge concluded that
Bertholdt's feud with Smith related principally to
working conditions and that it was protected because
Bertholdt made his complaints on behalf of all em-
ployees other than Smith. We think the record evi-
dence supports a different conclusion, namely, that
any of Bertholdt's complaints which related to work-
ing conditions were asserted by Bertholdt for reasons
of his own pursuant to a personal feud with Smith.
The fact that certain of the complaints about Smith
may have pertained to working conditions and that
Nelson may have taken steps to correct certain of
them does not serve to cloak them with the mantle of
protected activity in the attendant circumstances.
Bertholdt's activity was not unprotected, of course,
because of the lack of a formal organization and the
fact that he may not have been formally authorized as
spokesman for the employees.7 But in order for his
complaints to have been protected, they must have
related to the correction of working conditions which
were of concern to the group of employees allegedly
being represented by him and he must have been
speaking for the benefit of the interested group, not
merely for himself.' We do not think Bertholdt's com-
plaints satisfy these requirements.
Thus, we note that Bertholdt's complaints all cen-
tered about an employee with whom Bertholdt had a
longstanding personal feud and encompassed a wide
7 Carbet Corporation , 191 NLRB 8928 Hugh H. Wilson Corporation , 171 NLRB 1040, enfd . 414 F.2d 1345 (C.A.
3, 1969); Guernsey -Muskingum Electric Cooperative, Inc, 124 NLRB 618
1223
range of alleged personal grievances, and we are not
convinced by this record that Bertholdt registered
these complaints on behalf of anybody but himself.
This is not activity protected by the Act and his dis-
charge therefore would not be in violation of the Act.
The Alleged Withdrawal of Benefits
The Administrative Law Judge also concluded that
Respondent violated Section 8(a)(1) of the Act for the
reason that some time in April 1972, President Nelson
"announced" that favors such as Thanksgiving tur-
keys and bonuses were being abolished. The record,
however, shows that the only evidence in support of
this finding is the testimony of employee John Scha-
deck relating to a conversation between himself and
Nelson, who happened to walk past the employee's
work station. Schadeck was unsure whether the state-
ment that there would be no more favors was made
before or after the election and there is no evidence
which links this alleged statement to the presence of
the Union. Under all the circumstances, we do not
think the record is sufficient to support this 8(a)(1)
finding of the Administrative Law Judge.
In sum , we are left with a finding that Respondent
violated Section 8(a)(1) by its poll of the employees
shortly after the Union requested bargaining. In such
circumstances, it is our view that the evidence fails to
establish that a bargaining order is warranted even
though we agree with the Administrative Law Judge
that the Union did obtain valid authorization cards
from a majority of Respondent's employees.9
The Supreme Court, in setting forth general princi-
ples applicable to the issuance of bargaining orders,
has held that the Board has authority to issue bargain-
ing orders to remedy unfair labor practices " so coer-
cive that, even in the absence of an 8(a)(5) violation,
a bargaining order would have been necessary to re-
pair the unlawful effect of those [unfair labor practic-
es]." 10 In addition, the Court approved the Board's
authority to issue a bargaining order " in less extraor-
dinary cases marked by less pervasive practices which
nonetheless still have the tendency to undermine ma-
jority strength and impede the election processes." 11
But the Court also stated that the Board did not have
the authority to issue a bargaining order in the catego-
ry of cases where the unfair labor practices are "minor
or less extensive" and which because of "their mini-
mal impact on the election machinery, will not sustain
9 The Administrative Law Judge found that Respondent had obtained 8
valid authorization cards in a unit of 13 employees when it sought recogni-
tion . In arriving at a figure of 8 the Administrative Law Judge counted as
valid Bertholdt's card, since he found his discharge was discriminatory. Since
we have found Bertholdt 's discharge was valid, this reduces the number of
valid cards to 7 while reducing the unit to 12, still a majority for the Union.
10 N L R. B v Gissel Packing Co, supra.
11 Id at 614
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a bargaining order." 12
In our view, this case is properly included in that
category of cases where the Court has indicated that
the unlawful conduct will not sustain a bargaining
order. Respondent's unfair labor practices as found
were neither pervasive nor extensive. The poll was not
attended by any threats or coercive statements and its
purpose appears to have been solely to determine the
Union's claim of a majority. Although the election of
April 28, 1972, has been set aside partly because of the
poll," there is, in our view, substantial likelihood that
application of our traditional remedies will erase the
past effects of this unfair labor practice and ensure the
holding of a fair second election. Accordingly, we
shall also dismiss the 8(a)(5) allegation of the com-
plaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that Respondent, Northeastern
Dye Works, Inc., West Warwick, Rhode Island, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Requesting employees to express their desires
towards having a union in its plant in any manner
requiring them to disclose to Respondent what such
desires are.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed to them by Section 7 of the Na-
tional Labor Relations Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its plant in West Warwick, Rhode Is-
land, copies of the attached notice marked "Appen-
dix."'' Copies of said notice, on forms provided by
the Regional Director for Region 1, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
" Id at 615.
13 See In 3, supra
14 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the Company, the Union, and
the General Counsel of the National Labor Relations
Board participated and offered evidence, the Nation-
al Labor Relations Board found that we violated the
law and ordered us to post this notice and we intend
to carry out this Order of the Board and abide by the
following:
WE WILL NOT solicit our employees to express
their desires towards having a union in our plant
in any manner requiring them to make known to
us what those desires are.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of rights guaranteed to them by Sec-
tion 7 of the National Labor Relations Act.
NORTHEASTERN
DYE WORKS, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Bulfinch Building, Seventh Floor, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This is
a consolidated case consisting of an unfair labor practice
case and a representation case. In Case 1-CA-8331 a charge
NORTHEASTERN DYE WORKS 1225
was filed on May 8 , 1972, against Northeastern Dye Works,
Inc., herein called Respondent or the Employer , by Textile
Workers Union of America , AFL-CIO, herein called the
Union . Upon such charge the General Counsel of the Na-
tional Labor Relations Board , by the Regional Director for
Region I (Boston , Mass. ), issued a complaint on June 30,
1972, alleging in substance that Respondent committed un-
fair labor practices violating Section 8 (a)(1), (3), and (5),
and affecting commerce as defined in Section 2(6) and (7),
of the National Labor Relations Act, herein called the Act.
Respondent has answered admitting some facts but denying
that it committed any of the unfair labor practices ascribed
to it.
In the representation Case 1-RC-12,062, the Union on
March 27 , 1972, filed with the Board a petition to be certi-
fied as the bargaining representative of the Employer's em-
ployees in a specified unit . At the election held on April 28,
1972, the Union did not prevail . Thereafter the Union time-
ly filed objections to the conduct affecting the results of the
election . On June .15, 1972, the Regional Director directed
a hearing on said objections before a Trial Examiner and a
decision thereon by said Trial Examiner . Said Regional
Director on June 30 , 1972, further ordered that the hearing
on the unfair labor practice case be severed from the unfair
labor practice proceeding and remanded to him for further
action.
Pursuant to due notice this consolidated case came on to
be heard , and was tried before me, at Providence, Rhode
Island, on August 7 and 8 , 1972. All parties were repre-
sente(1 at and participated in the trial, and had full opportu-
nity Lo adduce evidence , examine and cross -examine
witne ses, file briefs , and present oral argument. Briefs have
been =bceived from Respondent and the General Counsel.
Upol the entire record in this case , and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent, a Rhode Island corporation, is engaged at
West Warwick, Rhode Island, in processing, dyeing, and
finishing cotton cloth and related products. Annually it pur-
chases raw materials valued in excess of $50,000 directly
from points outside said State. I find that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material has been , a labor
organization within the meaning of Section 2(5) of the Act.
benefits because of their activities on behalf of or member-
ship in the Union.
2. Whether Respondent discharged employee Richard
Bertholdt because he joined or assisted the Union or en-
gaged in other concerted activities for the purpose of collec-
tive bargaining, or other mutual aid or protection.
3. Whether (a) the Union represented a majonty of
Respondent's employees in an appropriate unit and, if so
(b) Respondent unlawfully refused to bargain collectively
with it as the exclusive bargaining representatives of all the
employees in said unit.
B. In the representation case the issues are:
.1. Whether Respondent engaged in conduct interfering
with the election by: (a) coercively interrogating employees
whether they signed union cards; and (b) requesting em-
ployees to sign statements that they did not want the Union.
2. Whether Respondent discharged employee Richard
Bertholdt "several days after union petitioned National La-
bor Relations Board."
IV THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
1. As to the alleged 8(a)(5) violation
Respondent is a service company which performs custom
dyeing of cloth goods "for other outfits."
It was stipulated at the hearing that at least 12 persons
were employed on March 24, 1972, in the unit described
below and admitted in the answer to be appropriate. (See
G.C. Exh. 2 for a list of such employees.) It was further
stipulated that if Richard Bertholdt was unlawfully dis-
charged his name should be added to the list of employees
composing that unit. Such unit consists of all production
and maintenance employees of Respondent employed at its
West Warwick, Rhode Island, plant, excluding office and
plant clerical employees, professional employees, guards,
and all supervisors as defined in Section 2(11) of the Act.
By letter dated March 23, 1972, the Union wrote to Re-
spondent claiming that the former represented a majority of
the employees of the latter and asked to meet with Respon-
dent to negotiate a collective-bargaining agreement. Said
letter also offered to have an impartial person conduct a
card check if Respondent doubted said majority. (See G.C.
Exh. 3.)
As stated elsewhere herein employee Schadeck signed a
union card (see G.C. Exh. 5) and obtained signed cards
from other employees. (See G.C. Exhs. 6, 7, and 8.) Employ-
ee Sayles also signed one. (See G.C. Exh. 9.) Sayles also
obtained a signed card from employees Gagnon (see G.C.
Exh. 10) and De Noncour (see G.C. Exh. 11). Another
employee who signed a card for the Union is Bertholdt (see
G.C. Exh. 12).
III. THE ISSUES
A. In the unfair labor practice case the issues are:
1. Whether Respondent (a) interrogated its employees
concerning their activities on behalf of or on membership
in the Union; and (b) threatened its employees with loss of
2. As to the discharge of Richard Bertholdt
About 10 a.m. on March 24, 1972, Superintendent Robert
Dennigan informed Robert Nelson, Respondent's presi-
dent, that employee Richard Bertholdt had to leave early
and desired to receive his pay before so leaving. Bertholdt's
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanting to leave early "kind of upset" Nelson, so that Nel-
son thereupon discharged Bertholdt as of 10:30 a.m. and
instructed Mrs. Esten, Respondent's bookkeeper, to prepare
a check for Bertholdt. In terminating Bertholdt, Nelson told
him that "I [Nelson] was too old and life is too short to get
aggravated and he [Bertholdt] would be better off some-
place else and I [Nelson] would be better off without him.
This decision to discharge Bertholdt was prompted by the
following circumstances, according to Nelson. When em-
ployee Mark Dale was injured in July or August 1971, Ber-
tholdt was hired to take Dale's place until Dale returned,
and Nelson so informed Bertholdt. But the duration of em-
ployment was not mentioned in this conversation. At that
time the doctor anticipated that Dale would be out of work
about 3 months. However, Dale remained away for about
6 months, and came back on April 6, 1972. But in March
1972, Dale indicated he was recovering and would soon
come back to work.
Another reason given by Nelson for terminating Ber-
tholdt is that "he had fist fights in the place and ... he had
problems with some of the help," including "a continual
running battle with [employee] Smith" and "a clash of per-
sonalities . . . between Bertholdt and whoever he was hav-
mg problems with."
In fact, Bertholdt "came in continually trying to influence
me [Nelson] to get rid of Don Smith," because Smith was
"sitting around and doing nothing [but] smoking cigarettes
... and all the other fellows are working hard." Bertholdt
also complained that Smith "punched somebody else in on
the time clock," but, Nelson insisted, "a number of [other
employees]-were doing that." As a consequence Respondent
"put up a sign that said no one will punch anyone else in."
Another complaint made by Bertholdt to Nelson was that
Smith often "would go out and get some coffee or some-
thing or went back home to drive his wife some place"
during working hours without punching out. Nelson further
testified that "Bertholdt was continually complaining to me
about something or other and that was one of the main
reasons why I let him go." However, Nelson insisted that
Bertholdt "was due to go any way as soon as Mark Dale got
back." Yet at the time Bertholdt was terminated Dale had
not returned, according to Nelson.
Nelson's decision to terminate Bertholdt not only flowed
from the foregoing conduct of Bertholdt but also was based
on-the-fact that Bertholdt "would come in early specifically,
so he could get out early and go to the racetrack .... so
when all these things culminated, when he wanted to get off
that particular day at 10:00, I [Nelson] said to hell with him,
I have had it." Nevertheless, Nelson conceded that when
Bertholdt went to the racetrack Nelson many times gave
him money to play the "double" for Nelson at the track.
About 2 weeks before March 24, 1972, Bertholdt irritated
Nelson with "something about his [Bertholdt's] house was
burglarized or something." As a result, "we had some sort
of argument in my [Nelson's] office" which caused Nelson
to tell Bertholdt, "Why the devil don't you find some place
where you could be happy." This culminated complaints in
the preceeding months made by Bertholdt to Nelson "about
one thing after another."
Bertholdt had previously worked for Respondent in 1968
or 1969. He left at that time following an argument over the
nature of work assigned to him. Nelson was not sure wheth-
er Bertholdt quit or was fired on that occasion. But Nelson
testified that even during that first period of employment
Bertholdt gave Nelson problems arising from Bertholdt's
"arguments with the help of some sort or other." Notwith-
standing this Nelson rehired Bertholdt about August 1971,
because the latter was a good worker. In fact Bertholdt was
a good worker when Nelson fired him on March 24, 1972.
However, Nelson finally conceded when pressed by the
General Counsel that Bertholdt was not terminated because
Bertholdt had a fight with Smith.
On March 30, 1972, Respondent hired LeMoi as a new
employee. However, at some later date LeMoi "suddenly
didn't show up any more." It also hired as new employees
the following: Gerald Benoit on May 22, Clarence Davis on
May 2, and Karl Lenson on June 5, 1972. Benoit was taken
on a temporary basis to help the maintenance crew, Davis
permanently to assist in the shipping department, and Len-
son temporarily to work in batching and receiving while
Davis was absent. Lenson is not working for Respondent
now, but Davis is still employed by it.
The foregoing is a summary of Nelson' s testimony as a
witness for the General Counsel.
Bertholdt also testified for the General Counsel. A con-
spectus of his testimony follows. He was twice employed by
Respondent, the first time from 1969 to early 1970, when he
quit. He reentered Respondent's employment in August
1971, under the following circumstances. One day in Au-
gust, while visiting the plant, Bertholdt offered to work fort
President Nelson "if you [Nelson] need some help." ; fftei,
reflecting thereon Nelson accepted Bertholdt's offe, and
hired Bertholdt on the spot. Nelson also said, "for c-vying
out loud, don't quit on me this time." But Nelsoi-i said
nothing about the job of Bertholdt being a tempora,.,y one.
Neither was Bertholdt told he was replacing Mark Dale.
Bertholdt's duties required him to wrap rolls, run a batch,
run a rolling machine, and to substitute for others in run-
ning a tender frame when such others were abseilt. This is
his testimony. President Nelson (tr. p. 26) said that Ber-
tholdt assisted in shipping, receiving, and some general
maintenance and principally assisted John Stanley "in the
area of shipping."
About March 21, 1972, Bertholdt signed a card for the
Union. (See G.C. Exh. 12.)
While so employed in 1971 and 1972 Bertholdt "several
times" complained to President Nelson "about problems in
the plant." One problem involved employee Smith's punch-
ing in employee Dennigan's timecard so that the latter
"would come in an hour and a half or two hours later."
Nelson thereafter posted a notice on the bulletin board
forbidding one employee from punching another
employee's timecard.
Another situation about which Bertholdt, in the presence
of other employees, complained to Nelson related to
Smith's taking off an hour or so every morning at a time
when employees could not have a coffeebreak in the morn-
ing. (However, such break occurred at about 11:30 a.m.)
Bertholdt also complained about this to boss dyer, Robert
Dennigan, and said to Dennigan, admittedly a supervisor,
that the employees had agreed not to work until Smith
returned the next time Smith took off. In fact the employees
NORTHEASTERN DYE WORKS 1227
did not work during the time Smith went "off" one morning
after that and resumed work only when he came back. As
a result President Nelson put up a notice on the bulletin
board that employees leaving the plant had to punch out on
such occasions.
It had been Bertholdt's practice to leave early on Fridays
for about 2 weeks prior to March 24, 1972, because "things
had been a little slow." As no change in this situation had
occurred on Friday, March 24, 1972, Bertholdt asked super-
visor Robert Dennigan shortly after 10 a.m. for his pay-
check and permission to leave. Soon Dennigan returned to
inform Bertholdt that President Nelson desired to see him.
When Bertholdt called on Nelson the latter gave Bertholdt
two pay envelopes and, at the same time, told Bertholdt that
he Nelson had to lay him off because Bertholdt "was mak-
ing a lot of trouble" for Nelson.
Bertholdt replied that he thought he knew why Nelson
was "doing this" and added, "but you've got the wrong guy
I will go to the Labor Board." Nelson's reaction was
to say, "That proves you are a trouble maker." As he left
the plant Bertholdt removed his timecard from the rack.
(See G.C. Exh. 13.) On it was written his name and the
words "April 1, 1972"; i e., it was "for the forthcoming
week."
On cross-examination Bertholdt did not deny that, when
work was light, he left work and went to the racetrack. This
usually occurred once a week As a result, employee Stanley
had to unload trucks alone "once or twice" although
Bertholdt's duties in part required him to assist Stanley on
these trucks.
3. As to the alleged 8(a)(1) violations
John L. Schadeck, who operates the tender frame for
Respondent, testified substantially as follows. About late
February 1972, Schadeck discussed organizing Respondent
with employees Gelinas, Jacques, and Ralph, and Bob
Sweet, an employee of Warwick Dye. As a result, Sweet
spoke to Joe, the president of the union at Warwick Dye.
A few days later Sweet handed Schadeck some union cards
and the latter, in turn, distributed them to Respondent's
employees on about March 21. Schadeck also signed one of
these cards. (See G.C. Exh. 5.)
On March 24, 1972, Nelson announced that "the raise the
fellows asked about two days ago" would be put into effect
the following Monday. Later in the same morning Bertholdt
told Schadeck that the former had been laid off. The follow-
ing Monday employee John Stanley passed out "some
sheets of paper" which employees were asked to sign. Each
paper had a place for a signature and contained the words,
"Do you want the Union in this plant? Yes or No." (See
G.C. Exh. 4a) Schadeck did not sign it although Stanley
told him that "Mr. Nelson wants us to sign these because
he needs them for his lawyer."
A few days later President Nelson asked Schadeck to sign
a paper similar to General Counsel's Exhibit 4a and at the
same time asked Schadeck, "What do you want from me?"
Schadeck replied that he preferred a "closed ballot;" i.e., an
unsigned ballot which could be placed in an envelope
Some time thereafter Nelson told the employees that
"from now on" there would be no more "favors," among
which he mentioned Thanksgiving turkeys and bonuses.
This occurred after March 24 but before the election held
on April 28, 1972. Although Schadeck hesitated on cross as
to whether this statement was made after the election, I find
that, upon assessing his testimony as a whole, it was uttered
after March 24 and before the election held on April 28.
Ralph Sayles, a frame tender for Respondent, also testi-
fied for the General Counsel. An abridgment of his testimo-
ny ensues. He signed a card for the Union. On March 27,
1972, employee Stanley asked Sayles and Gagnon each to
sign a document similar to General Counsel's Exhibit 4a;
i.e., a paper expressing their desire towards having a union
at the plant. Despite the fact that Stanley told them that this
was done because "President Nelson wanted to know if you
wanted a union in and to sign it," Sayles refused to sign it.
Other employees were also asked to sign such a paper. See
General Counsel's Exhibit 4a to 4i for the papers of those
who signed.
Several days later President Nelson asked Sayles to sign
a paper similar to General Counsel's Exhibit 4a. When
Sayles answered in the negative Nelson asked for a reason.
Thereupon Sayles said he would only execute "a secret bal-
lot." Continuing, Nelson told Sayles that Nelson needed it
because Nelson's lawyer wanted it. Notwithstanding this,
Sayles did not sign it. Finally, Nelson asked Sayles to re-
quest Gagnon to sign such a paper, and Sayles promised to
do so. But when Sayles asked Gagnon to sign it the latter
refused because it was not a "secret ballot in the box."
About April 5, 1972, Sayles reported to President Nelson
that Gagnon would not sign. When Nelson again asked
Sayles to sign the latter protested that "it was not legal and
that you [Nelson] would know how we voted." But Sayles
assured Nelson he would execute an unsigned paper and
drop it in a box. This caused Nelson to remark that he
"would have that done tomorrow morning."
Roughly 2 days later Nelson told Sayles that "you don't
want a union in here, do you?" Sayles replied that he did
not know, but that a union was all right "if it is right."
Continuing, Nelson observed, "You know what it [a union]
did to the man upstairs." But Sayles responded, "The Union
didn't do that." That afternoon, as Sayles was departing
from the plant, Sayles executed, but did not sign, a ballot
and placed it in an envelope similar to that exhibited in
General Counsel's Exhibit 4j-4m. Employees Schadeck,
Gagnon, and DeNoncour also marked similar unsigned
statements and each placed his in an envelope. (See G.C.
Exh. 4j to 4m.) After sealing the envelope it was returned
by each to Respondent at its request. Such statements and
envelopes were distributed to employees by Respondent
with a request that each employee designate whether he was
for or against the Union.
During one of the above conversations between Sayles
and Nelson the former felt that he was "threatened by . . .
a reprisal" in that Nelson told him "that would be the end";
i.e., favors were being discontinued.
B. Respondent's Defense
Arthur Soucy, who signed a union card (see G.C. Exh. 6),
testified substantially as follows. Although someone filled in
the date of 3/21/72 on it, Soucy insisted that he executed
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it about a week after March 24 at the request of John
Schadeck. In addition, he was only asked to sign it but in
no way was the card explained to him. Schadeck also told
him "we will get the rest fixed" after it was signed. Soucy
added, "I can't read what is on there" because "I can't read
good."
On cross-examination Soucy asserted that, when he was
asked to sign, he was also told that they "would see if they
could get the Union in there" and that the purpose of sign-
ing was "to try to get them [the Union] in." He also admitted
that he knew he was signing a union card and that the
intended by signing "to get a union in." Finally, he said he
thought an election would be held.
Respondent's bookkeeper, Mrs. Helene D. Esten, also
appeared as a witness for it. A summary of her testimony
is set forth at this point. She handles all records, including
payroll and personnel records, and the mail. In August
1971, Bertholdt was hired "after Mark Dale got hurt to
replace Mark Dale. She was called often by Dale and Mrs.
Dale who reported to her the progress of his injured hand.
In late February or early March 1972, Dale called her to say
that he was "coming back very shortly." Mrs. Esten then
communicated this information to President Nelson.
Since Mrs. Esten handles the timecards she is cognizant
of each employee's absenteeism. From examining
Bertholdt's timecards Mrs. Esten stated that he "did leave
frequently early . . . quite often."
In handling incoming mail, Mrs. Esten first sorts the or-
ders and sends them to supervisor Dennigan so that work
can be started on them. Then she gives President Nelson his
mail when he comes in. This usually occurs between 9:30
and 10:15 a.m., when Nelson comes in. At 9:30 or 9:45 a.m
on March 24, 1972, but before Nelson had arrived at his
office, supervisor Dennigan asked Mrs. Esten for
Bertholdt's pay because Bertholdt wanted to leave early.
But she was unable to comply because Nelson had not yet
signed the payroll. However, Nelson did sign it upon arriv-
ing at 10 or 10:15 a.m. Nelson had an argument at this time
with Bertholdt and then gave Bertholdt his pay for that
week. Then Bertholdt left At this time Nelson had not yet
opened his mail.
Mrs. Esten also explained that Bertholdt's timecard (see
G.C Exh. 13) had April 1, 1972, written on it when she put
it in the rack on Friday, March 24, because all employee
timecards for the following week had been placed in the
rack. It was her usual procedure to place each week 's time-
cards in the rack on the Friday preceding such week. Desig-
nating April 1 on the timecard meant that the week for
which wages were computed ended on that day.
Mrs. Esten testified on cross-examination that Mark Dale
operated the Palmer machine (However, Bertholdt testified
that he did not know how to run a Palmer.) Further, on
cross-examination, Mrs. Esten stated that although Ber-
tholdt was hired to replace Dale, she was not present to hear
what Nelson told Bertholdt when Bertholdt was hired in
August 1971. Finally, on cross-examination, Mrs. Esten ad-
mitted that the personnel records kept by her did not dis-
close that Bertholdt held a temporary job after August 1971,
when he was hired for the second time.
President Robert Nelson, who had been called as a wit-
ness by the General Counsel, also testified for the Respon-
dent. His latter testimony follows. Nelson hired Bertholdt in
August 1971, after Dale had been out for about 3 weeks,
because "we were shorthanded and couldn't find anyone
... He [Bertholdt] was hanging around the plant quite
often." When Bertholdt was hired Nelson told him "Mark
Dale would be out at least three or four months and we
could see where we go from there and if [you, Bertholdt]
want to come back to work, . . come ahead." Although
Nelson did not say anything further about Dale to Bertholdt
at the time, Nelson intended to hire Bertholdt as a replace-
ment for Mark Dale
Dale was originally a jigger but later was transferred to
the Palmer frame. However, Bertholdt did not run the Palm-
er. Consequently, during Dale's absence due to his injured
hand employees Thomas Dennigan and Soucy alternated in
running the Palmer frame. Nevertheless "the fact that Mark
Dale was out made us shorthanded in some place . . . We
had to move men around so we were short in the shipping
department."
Nelson stated that after Bertholdt was hired in August
1971, the latter "started this feud with [employee] Smith,"
and "constantly," i.e., once or-twice a week, came to talk to
Nelson "about these incidents with Smith." But at no time
did Bertholdt see Nelson "about working conditions in the
plant " Nor did any employee, to Nelson's knowledge refuse
to work "if Don Smith wasn't there."
About 2 weeks before March 21, 1971, Bertholdt told
Nelson "about something that happened at his [Bertholdt's]
house or his car or something." Although Smith' s name was
not mentioned, Bertholdt "was trying to convey to me [Nel-
son] that Smith might have been involved. It was just repeti-
tion of previous complaints." Consequently, Nelson advised
Bertholdt "why don't you look for a place where you would
be happy, find a job where you will be happy." At that time
Nelson was "contemplating terminating his [Berthold'ts]
work at Northeastern Dye."
When Nelson arrived at the plant on March 24, 1972,
supervisor Bob Dennigan informed him that Bertholdt
needed his paycheck immediately as Bertholdt was leaving
at that moment. So Nelson at about 9 50 or 9:55 a.m. asked
Mrs. Esten, Respondent's bookkeeper, to make out a check
for Berthold's pay as of 10.30 a m. and also another one for
Bertholdt. Then Nelson gave the checks to Bertholdt and
discharged the latter because "I [Nelson] had had it. I didn't
want to continue the relationship."
Nelson received the Union's request for recognition (see
G.C. Exh. 3) after he discharged Bertholdt on March 24. In
addition, Nelson was unaware that any employee had
signed a union card until he saw such cards at the hearing
herein on August 7, 1972. Nor was Nelson cognizant of any
union activity by any employee, including Bertholdt, at the
plant.
However, 3 or 4 weeks before March 24, 1972, employees
Schadeck, Sayles, and Gagnon jointly asked Nelson for a
raise in wages, stating that a year had elapsed since their last
increase. Since it was Respondent's policy to grant yearly
raises Nelson gave them an increase in pay after checking
the records to ascertain "that the year was right." But there
was nothing unusual about this increment.
Nelson denied that he told any employee that there would
no longer be any bonuses in the plant, or that Thanksgiving
NORTHEASTERN DYE WORKS
and Christmas turkeys would be abolished, or that "some
benefits" would be "taken away" because employees were
engaged in union activity. Nor did he ever threaten to dis-
charge or make "some financial threats" to any employee
if he engaged in union activities.
On cross-examination Nelson maintained that sometime
in February 1972 he decided "to let [Bertholdt] go [because]
Dale was coming back and also the fact that [Bertholdt] was
leaving early and Stanley was burdened by taking ship-
ments in by himself and so forth, various things." Neverthe-
less, although Nelson knew that Bertholdt had developed a
habit of leaving work early Nelson never criticized or other-
wise warned Bertholdt to refrain from this conduct. In fact
Nelson conceded that he sometimes had Bertholdt play the
daily double for Nelson when Bertholdt left early to go to
the races.
Finally, Nelson freely admitted that, after receiving the
Union's letter requesting recognition on March 24, 1972
(see G.C. Exh. 3), he called his attorney about it; the attor-
ney told him to poll the employees; and such polling took
place on the following Monday.
V CONCLUDING FINDINGS AND DISCUSSIONS
A. As to the 8(a)(5) Violation
The parties do not question, and I find, the following unit
to be appropriate for the purposes of collective bargaining
within the meaning of Sections 8(a)(5)and 9(a) and (b) of the
Act:
All production and maintenance employees of Respon-
dent at its West Warwick, Rhode Island, plant, exclu-
sive of office and plant clerical employees , professional
employees, guards, and all supervisors as defined in
Section 2(11) of the Act.
Further, I find that said unit is composed of the 12 em-
ployees which the parties agree belong therein (see G.C.
Exh. 2), and Bertholdt, making a total of 13. Bertholdt is
included therein as I have found elsewhere in this Decision
that he was unlawfully discharged on March 24, 1972. Addi-
tionally, I find that whether the Union enjoyed a majority
in that unit is to be ascertained as of March 24, 1972, when
Respondent received its request for recognition and bar-
gaining.
Finally, I find that Respondent did represent a majority
on March 24, 1972, as I find it had by then obtained eight
valid authorization cards. (See G.C. Exhs. 5, 6, 7, 8, 9, 10,
I l,and 12.) I find that although the employees (other than
Schadeck) signing such cards did not insert the words "poor
wages and working conditions" at the top thereof, such
words represented their sentiments in talking to the employ-
ee obtaining their signatures. In any event , I find that these
words are innocuous , do not constitute a restriction upon
the authorization granted to the Union, and do not destroy
the validity of the card.
In addition, I find that Soucy's card (see G.C. Exh. 6) is
valid although his ability to read was limited. This is be-
cause I find that no misrepresentation was uttered to him
to induce him to sign, and that he knew it was a union
authorization card. It is true that he testified that he thought
an election would be held, but it is significant that he did
1229
not contend that he signed only to obtain an election. I also
find that the date inserted in his card is 2 or 3 days earlier
than the date he signed . But since the date on the card is not
crucial , absent evidence to indicate that it is stale , I find that
the slightly incorrect date does not undermine such card.
Even if I disregard and therefore do not count Soucy 's card,
I find that the Union 's majority has not been destroyed
thereby as it would then have seven cards in a unit of 13.
Notwithstanding that the Union had a majority in an
appropriate unit Respondent was not required to recognize
it without an election being held unless Respondent en-
gaged in conduct rendering a fair election inappropriate.
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 ( 1969). I find
that the unfair labor practices found elsewhere herein are of
such a nature as to be pervasive so as to affect the Union's
majority and to make a fair election an unlikely possibility.
Hence , I find that on March 24, 1972, Respondent was
legally obligated to recognize and bargain with the Union
as the exclusive collective -bargaining representative of the
employees in said unit , and that its failure to do so contra-
venes Section 8(a)(5) of the Act.
B. As to the Discharge of
Richard Bertholdt
It is my opinion, and I find, (a) that Bertholdt was dis-
charged for engaging in activity protected by the Act, i.e.,
complaining about Smith's loafing, leaving the job without
punching out, and protesting Smith's punching in for em-
ployee Dennigan before Dennigan actually started the day;
(b) that the reasons given by President Nelson at the trial
for terminating Bertholdt are a pretext to disguise the true
reason; and (c) that Bertholdt was not discharged for being
a union member or for engaging in activity on behalf of the
Union. This ultimate finding is based on the entire record
and the following subsidiary findings, which I hereby find
as facts.
In arriving at these facts I have observed and adhered to
the rule that the General Counsel has the burden of proving
his case and that he is not aided in sustaining such burden
by any evidence of Respondent which I have not credited.
"The mere disbelief of testimony of itself establishes noth-
ing." N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A.
1, 1966). Accord: Council of Bagel and Bialy Bakeries, 175
NLRB 902, 903. Further, I recognize that no burden is
imposed on Respondent to disprove any of the allegations
of the complaint, and that the burden of proof resting upon
the General Counsel does not shift to Respondent at any
time during or after the trial. I also am aware of, and have
followed, the principle that protected activity neither con-
fers immunity, nor is a guarantee, against being discharged
for cause (Charles L. Hawkins v. N.L.R.B., 358 F.2d 281,
283-284 (C.A. 7, 1966)); and that the Board may not substi-
tute its judgment for the Respondent's business judgment in
dismissing an employee. N.L.R.B. v. United Parcel Service,
Inc., 317 F.2d 912, 914 (C.A. 1, 1963); Thurston Motor Lines,
Inc., 149 NLRB 1368, at 1368.
1. Bertholdt engaged in protected activity by grieving
against the disparate treatment accorded to Smith. It is
protected because Bertholdt made his complaints on behalf
of all employees other than Smith. It is no defense that
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent considered Bertholdt's complaint as a feud be-
tween Bertholdt and Smith , for I find that such feud related
principally to working conditions . Hence I find that
Bertholdt's actions, even if they originated from animosity
towards Smith , nevertheless related to working conditions.
That said feud may have also involved personal feelings not
related to working conditions is of no consequence, for
admittedly Respondent did correct Bertholdt's complaints
insofar as they were based upon working conditions.
2. Bertholdt at no time was told or warned that he was
being hired temporarily only for the purpose of substituting
for Mark Dale . I credit Bertholdt on this aspect of the case.
Failure to so notify him warrants the inference-and I draw
it-that Bertholdt was taken on as a permanent employee.
3. The abruptness of the discharge indicates , and I find,
that discriminatory motives prompted Bertholdt's dis-
charge . Bertholdt was summarily discharged in the middle
of the workday. "The abruptness of a discharge and its
timing are persuasive evidence as to motivation ." N.L.R.B.
v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2,
1957), cert. denied 355 U.S. 829 (1957). It is true that neither
protected activity nor the mere abruptness of a discharge
will immunize an employee from being discharged for
cause . But in Bertholdt's case I find that the suddenness of
the decision to terminate him, when appraised together with
the other facts found herein , points to the conclusion that
his conduct would not have led to his discharge if he had
not been so active in espousing the equality of treatment of
employees . Cf. N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835,
837 (C.A. 7, 1964).
It is true that I may not inquire into the severity of disci-
pline imposed by an employer, for the penalty to be meted
out for transgressions unacceptable to an employer may not
be reviewed by me. "It is elemental that a company may
discharge an employee for a good reason, a bad reason, or
indeed for no reason at all." N.L.R.B. v. United Parcel Ser-
vice, Inc., 317 F.2d 912, 914 (C.A. 1, 1963). Nevertheless,
"The mere existence of valid grounds for a discharge is no
defense to a charge that the discharge was unlawful." N.L.
R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A.
7, 1964).
4. After Bertholdt was eliminated , new employees were
hired . If, as Respondent insists , Bertholdt was terminated
because Mark Dale would soon return to work, it is difficult
to understand why Bertholdt was not transferred to other
work. Admittedly Bertholdt was a good worker. Not retain-
ing him, but hiring new employees instead , under the cir-
cumstances discloses a discriminatory motive in discharging
him.
5. Assuming that Bertholdt's taking time off in the past
to attend the races would have resulted in his being dis-
charged, I find that Respondent condoned or overlooked
such conduct by neither taking any action against him or
even warning him that he exposed himself to the risk of
discharge thereby. Midwest Towel & Linen Service, Inc., 143
NLRB 744, 754, enfd. 339 F.2d 958 (C.A. 7, 1964). Not only
did Respondent ignore Bertholdt's past visits to the races,
but its president , Nelson, actually utilized him on some of
such occasions to place bets for said president . Consequent-
ly, it is reasonable to assume that Bertholdt's asking for
permission to go to the races did not cause his discharge.
Rather , I find it was "seized upon by Respondent to serve
a discriminatory purpose ." N.L.R.B. v. West Side Carpet
Cleaning Co., 329 F .2d 758 , 761 (C.A. 6, 1964).
6. Finally , in order to find a discriminatory intent it is not
imperative to find that Bertholdt 's protected activity was the
only ingredient responsible for his discharge . It is sufficient
to find that he was unlawfully terminated if his protected
conduct was a motivating or substantial ground for his dis-
charge notwithstanding that a valid ground may have ex-
isted for invoking disciplinary measures . N.L.R.B. v.
Whitin Machine Works, 204 F .2d 883 , 885 (C .A. 1, 1953).
And I find that his said protected activity was a substantial
or motivating-but not necessarily the only-ground for
Bertholdt's discharge.
7. I further find that Bertholdt was not discharged for
union activity , as the record discloses that his said activity
was limited to his signing a union card . Since other employ-
ees who also signed such a card were not discharged or
otherwise discriminatorily treated , I find that he was not
discharged for signing such card. Also, there is no evidence
that Respondent knew he signed such a card . The small
plant rule, which attributes to an employer knoweldge of
union activity within his plant employing a small number of
employees (see N. L.R.B. v . Joseph Antell, Inc., supra,
882-883) in my opinion does not apply to the facts in this
case.
C. As to the Alleged 8(a)(1) Violations
On March 24, 1972, President Nelson announced a raise
in pay for some employees effective the following Monday.
While this occurred contemporaneously with the advent of
the Union at Respondent's plant, I find that it was not put
into effect to dissuade employees from manifesting an inter-
est in the Union. This is because I find that, about 2 days
before said March 24, the employees themselves asked for
a raise and Nelson complied therewith. In addition, I credit
Nelson that these employees received such raise pursuant to
Respondent's practice of granting them periodic annual
wage increases and that the time had arrived for such in-
creases to be granted to them since the last ones a year
before. Accordingly, I find that such increases do not con-
travene Section 8 (a)(1) of the Act.
However, Nelson admittedly also asked some employees,
both directly and through employee Stanley (who was di-
rected to do so by Nelson), to sign an instrument requesting
them to express a desire respecting "a union in this plant.
Yes or No." Patently this constitutes interrogation or a poll
of employees regarding their attitude towards a unioniza-
tion of the Respondent's plant. Such a poll is coercive and
therefore violates Section 8(a)(1) of the Act unless assur-
ances are given against reprisals , and the employees are
polled by secret ballot. See Johnnie 's Poultry Co., 146 NLRB
770, 771 , enforcement denied 344 F.2d 617 (C.A. 8, 1965);
Struksnes Construction Co., Inc., 148 NLRB 1368, 1370-71
and 165 NLRB 1062, 1063.
It is my opinion and I find that the document presented
to employees to sign (see G.C. Exh. 4a-4i) is not a secret
ballot. And I further find that no assurances against repri-
sals were given to employees when requested to sign said
document. Accordingly, I find that asking employees to sign
NORTHEASTERN DYE WORKS
it and obtaining signatures of employees thereto transgress-
es Section 8(a)(1) of the Act.
Employees also were asked to mark unsigned ballots and
to place them in a sealed envelope . (See G.C. Exh. 4j-4m.)
I find nothing coercive about this action as the secrecy of
the ballot was preserved.
About April 7, 1972, President Nelson stated to employee
Sayles, "you don ' t want a union in here , do you?" I find that
this question is not coercive and therefore is not prohibited
by Section 8(a)(1) of the Act.
Sometime in April 1972, President Nelson announced
that no more "favors" would be extended to employees, and
mentioned Thanksgiving turkeys and bonuses as included
among the favors being abolished . I do not credit Nelson's
denial thereof . I find that , since the Union was in the picture
at the time , this constitutes a threat of reprisal if employees
demonstrated an interest in or selected the Union to repre-
sent them . Accordingly, I find that it is prohibited by Sec-
tion 8(a)(1) of the Act.
VI. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
Those activities of Respondent set forth in section V,
above, found to constitute unfair labor practices occurring
in connection with its 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 obstruct-
ing commerce and the free flow of commerce.
VII. THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices , I shall recommend that it be ordered to
cease and desist therefrom and that it take specific action,
as set forth below, designed to effectuate the policies of the
Act.
In view of the finding that Respondent unlawfully termi-
nated Richard Bertholdt , it will be recommended that it be
ordered to offer him immediate and full reinstatement to his
former position , or, if such is not available , one which is
substantially equivalent thereto , without prejudice to his
seniority and other rights and privileges . It will also be
recommended that Bertholdt be made whole for any loss of
earnings suffered by reason of his being terminated.
In making Bertholdt whole Respondent shall pay to him
a sum of money equal to that which he would have earned
as wages from the date he was terminated to the date he is
-reinstated or a proper offer of reinstatement is made, as the
case may be, less his net earnings during such period. Such
backpay, if any, is to be computed on a quarterly basis in
the manner established by F. W. Woolworth Company, 90
NLRB 289, with interest thereon at 6 percent calculated
according to the formula set forth in Isis Plumbing & Heat-
ing Co., 138 NLRB 716. It will further be recommended that
Respondent preserve and make available to the Board or its
1231
agents , upon reasonable request, all pertinent records and
data necessary to aid in analyzing and determining whatev-
er backpay may be due. Finally, it will be recommended
that Respondent post appropriate notices.
The discriminatory termination of Bertholdt goes "to the
very heart of the Act." N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4,194 1). Accordingly, the Board's order
should be comprehensive enough to prevent further infrac-
tion of the Act in any manner; and I shall so recommend.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sec-
tion 2(2), and is engaged in commerce within the meaning
of Section 2(6) and (7), of the Act.
3. By terminating Richard Bertholdt for engaging in ac-
tivity having for its purpose the submission, presentation,
and processing of grievances Respondent has engaged in an
unfair labor practice within the meaning of Section 8(a)(1)
of the Act.
4. By requesting employees to execute and sign a nonse-
cret ballot expressing their desires as to whether they want-
ed a union in the plant and abolishing free Thanksgiving
turkeys and bonuses in order to discourage employee inter-
est or sympathy towards the Union, Respondent has com-
mitted unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. An appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 8(a)(5) and 9(b) of the
Act comprises all production and maintenance employees
of Respondent employed at its West Warwick, Rhode- Is-
land, Plant, excluding office and clerical employees, profes-
sional employees, guards, and all supervisors as defined in
Section 2(11) of the Act.
6. On March 24, 1972, and at all times material thereaf-
ter, the Union has represented a majority of the employees
in the above unit and since has been, and is now, the exclu-
sive collective-bargaining representative of all the employ-
ees in said unit; and Respondent is now, and has been at
all times material since March 24, 1972, legally obligated to
recognize and bargain collectively with the Union as such
representative.
7. By failing and refusing to recognize and bargain col-
lectively with the Union in regard to the employees in said
appropriate unit on and since March 24, 1972, Respondent
has engaged in an unfair labor practice prohibited by Sec-
tion 8(a)(5) and (1) of the Act.
8. The above-described unfair labor practices affect
commerce within. the contemplation of Section 2(6) and (7)
of the Act.
9. Respondent has not committed any other unfair labor
practices as alleged in the complaint.
[Recommended Order omitted from publication.]