Olin Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1949

86 N.L.R.B. 203 (N.L.R.B. 1949)

In the Matter of OLIN INDUSTRIES, INC., WINCHESTER REPEATING ARMS
COMPANY DIVISION and 1AARVIN C. GOLD
Case No. 1-"107,-Decided September t9, 1949
DECISION
AND
ORDER
On November 24, 1948, Trial Examiner Charles E. Persons issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed ex-
ceptions to the Intermediate Report, and a supporting brief. The
Respondent also requested oral argument. This request is hereby de-
nied because the record, exceptions and brief, in our opinion, ade-
quately present the issues and the positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.2 The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the exceptions, modifications, and addi-
tions noted below : s
i Pursuant to the provisions of Section 3 (b) of the Act, as amended , the National Labor
Relations Board has delegated its powers in connection with this proceeding to a three-
member panel [Members Houston, Reynolds , and Murdock].
2 The Respondent contends that it was prejudiced by the Trial Examiner's refusal to
admit evidence purporting to show (1) that the Union , which is not in compliance with
the filing requirements of Section 9 (f), (g), and ( h) of the amended Act , requested Gold
to file the instant charges and turned over to him its files and exhibits including the names
and addresses of all the complainants and (2 ) that Gold was not authorized by the com-
plainants to execute a charge on their behalf . The charges on which the instant case is
based were filed by Gold as an attorney at law . It is immaterial that he might be acting
on behalf of the Union and that the Union might derive an incidental benefit from a
finding that unfair labor practices were committed in the case . N. L. R. B. v. Indiana h
Michigan Electric Co., et at., 318 U. S. 9, 17-18; Matter of Augusta Chemical Company,
83 N. L. R . B. 53. Furthermore, no authority to file a charge is necessary. Matter of
Duro Test Corporation, 81 N. L. R. B. 976 and cases cited . Accordingly, we find that the
Respondent was not prejudiced by the Trial Examiner 's rulings and we shall therefore adopt
them.
8 For the reasons stated in Matter of Cathey Lumber Company, 86 N. L . R. B. 157,
we affirm the Trial Examiner 's ruling permitting the General Counsel to amend the com-
86 N. L. R. B., No . 36. 203
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. At the hearing, the Respondent moved to dismiss the complaint
on the ground it was not validly issued under Section 10 (b) of the
amended Act 4 The Trial Examiner denied the motion and the Re-
spondent has excepted to the ruling. In support of its position, the
Respondent argues that copies of the charges on which the complaint
is based were not served upon the Respondent within 6 months after
August 22, 1947, the effective date of the Act. The original charge
was filed on July 30, 1947; an amended charge, on August 4, 1947; a
second amended charge, on August 6, 1947; and a third amended
charge, on August 15, 1947. It appears that the Respondent was
served with a copy of each of the charges before August 22, 1947, and
that a copy of the third amended charge upon which the complaint is
based was served upon Respondent on August 18, 1947. The Board
has previously held that the limiting language of Section 10 (b) should
not be accorded retrocative effect and that a complaint may properly
issue in any case in which the charges were filed and served either before
or within 6 months after August 22, 1947.8 Here, the charges were
filed and served before August 22, 1947, and consequently, the prohibi-
tion of Section 10 (b) is inapplicable. We therefore reject the Re-
spondent's contention and affirm the ruling of the Trial Examiner.
2. The Respondent excepts to the Trial Examiner's ruling deny-
ing its motion that lie disqualify himself and withdraw from the
proceedings. The motion filed a few days after the hearing com-
menced alleges bias and prejudice on the part of the Trial Examiner
and assigns 10 grounds in support of the claim. In its exceptions, the
Respondent elaborates on the 10 allegations of bias described in its
motion and in addition charges the Trial Examiner with other biased
acts in his conduct of the case. It asserts that he made arbitrary
rulings, acted as a prosecutor, and prevented the. Respondent from
making a full record.
plaint by adding the names of Thomas Lipsit and Robert A . Shepard to the employees
listed in Appendix A.
'Section 10 ( b) of the amended Act reads , in pertinent part, as follows:
. . . no complaint shall issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the Board and the service of a
copy thereof upon the person against whom such charge is made. . . .
After the close of the hearing, the General Counsel filed a motion with the Board re-
questing that the record be reopened to permit offer of proof of service of the charge and
amended charges upon the Respondent pursuant to Section 10 (b) of the Act and Section
203.14, of the Board's Rules and Regulations . Thereafter , on March 16 , 1949, the Board
issued a notice giving the parties until March 28, 1949 , to show cause why the Board
should not incorporate in, and make part of the record here proof of service of the charge
and amended charges upon the Respondent . No answers were filed to the notice to show
cause and on April 11, 1949, the Board ordered that the aforesaid proof of service be
incorporated in, and made part of the record herein.
6 Matter of Itasca Cotton Manufacturing Co., 79 N . L. R. B. 1442 ; Matter of Vanette
Hosiery Mills, 80 N. L. R . B. 1116.
OLIN INDUSTRIES, INC. 205
In view of the charges leveled against the Trial Examiner , we have
carefully scrutinized the record and find that the evidence does not
sustain these charges . With respect to the Respondent 's motion to
disqualify, we agree with the Trial Examiner that the 10 allegations
of bias offered in support of the motion are lacking in merit and that
they do not in any case constitute grounds for disqualification. We
are of the opinion that the Trial Examiner conducted the hearing in
this case with commendable fairness and impartiality and that there
is absolutely no basis for any finding of bias or any reason for dis-
qualification . Accordingly , we shall overrule the Respondent 's excep-
tions in this respect.
The Respondent also attacks the Trial Examiner 's findings on the
ground of bias and prejudice . It argues (1) that the Trial Examiner
did not consider all the evidence bearing on certain issues and (2)
that he credited only the witnesses for the General Counsel. As to
the first contention , the failure of the . Trial Examiner to detail com-
pletely all . conflicts in the evidence does not mean, as the Respondent
infers , that this conflicting evidence was not considered . Indeed, the
Trial Examiner stated in the Intermediate Report that his findings
are based upon the record as a whole. Moreover, we have independ-
ently considered all the evidence and, while we do not agree entirely
with the Trial Examiner 's resolution of all issues, we are satisfied that
his findings were made on the basis of all the available evidence and
that he was not prejudiced against the Respondent . As to the second
contention , we find that it is not supported either in the Intermediate
Report or the record . Furthermore , the importance of observation of
witnesses to any finding of their credibility is such that we will not
overrule the credibility findings of the Trial Examiner unless they are
clearly erroneous.7
3. Baldino, Bonito, and Destadio were admittedly discharged be-
cause of their participation in the 15-minute work stoppage which the
rolling mill employees on the first shift called on September 21, 1946.
The Trial Examiner found , and we agree, that the work stoppage was
protected concerted activity and therefore , the discharges of Baldino,
Bonito, and Destadio were a violation of the Act." In its exceptions,
Matter of Minnesota Mining and Manufacturing company , 81 N. L. R. B. 557.
The material facts on which these findings rest are substantially undisputed and were
testified to by several witnesses of both the General Counsel and the Respondent. Among
the accredited witnesses on whom the Trial Examiner relies for these findings is Destadio
whose testimony was taken from a deposition which was made before the hearing began
and which was received in evidence over the Respondent 's objections . The Respondent
excepts to the Trial Examiner ' s reliance on the testimony in the deposition on the ground
that the parties raised objections to certain of the testimony as it was being adduced,
and while the deposition notes these objections, they have never been ruled on . We find
merit to the Respondent ' s contention . Therefore , unlike the Trial Examiner , we place no
reliance on the testimony of Destadio for our findings with respect to the work stoppage
and his discharge or to any other issues on which he gave evidence.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent contends that it was within its rights in dismissing the
three men because the work stoppage was illegal in its objective.
As fully discussed in the Intermediate Report, the work stoppage in
question was called in order to present the grievances of the rolling
mill employees to the Respondent.9 The Respondent argues that the
Union was not the exclusive bargaining representative of the em-
ployees at this time and, consequently, the Respondent was under no
duty to meet with the union committee with respect to the grievances.
While the Respondent was under no legal obligation to meet with the
Union, there is nothing in the Act which removes from its protection
-concerted activity aimed at securing a meeting between the Employer
and the Union to discuss grievances. Accordingly, we find no merit
in the contention of the Respondent that the purpose of the work
-stoppage was illegal.
4. The Trial Examiner found that the Respondent discriminatorily
locked out 10 the employees listed in Appendix A of this Decision,
Group II, during the period from September 21 to September 29,
1946, and that on the latter date, the lock-out was converted into an
unfair labor practice strike when the employees voted to reject the
Respondent's offer of reemployment and to remain away from work
until the Respondent reinstated Bonito, Baldino, and Destadio. He
further found that concomitant with the lock-out an unfair labor
practice strike was being pursued by the following five employees :
-loses Brown, John Raffone, Frank Lonergan, Frank Wilson, and
Patrick Considine. We agree with these findings. The record shows
that Brown, Raffone, Lonergan, Wilson, and Considine voluntarily
left their work shortly after the lock-out was instituted and refused
to return until the locked out employees were reinstated. As unfair
labor practice strikers, these five employees together with the em-
ployees listed in Appendix A Group II who became such strikers on
September 29, 1946, were entitled to immediate reinstatement upon
their conditional application therefor. The Trial Examiner found
that such applications were made on October 21, 1946, and were
refused.
9 For reasons amply set forth in the Intermediate Report, we reject the Employer's
claim that the employees should have resorted to the plant grievance machinery rather
than a work stoppage for the presentation of their grievances.
10 The Respondent contends that it was prejudiced by the Trial Examiner ' s findings with
respect to the lock-out because the complaint does not specifically allege a lock-out. The
issues with respect to the lock-out were fully litigated at the hearing and an opportunity
was afforded the Respondent to adduce testimony to refute the charge that it locked out the
employees in question . Accordingly , we find immaterial any variance between the allega-
tions of the complaint and our present finding thereon . Matter of Fulton Bag & Cotton
Mills, 75 N . L. R. B. 883 ; cf. Matter of Marshall & Bruce Company , 75 N. L. R. B. 90,
footnote 10 and the cases cited therein.
OLIN INDUSTRIES, INC. 207
. Of the strikers who are herein found to have requested reemploy-
ment on October 21, 1946, only 29 appeared and testified at the hear-
ing. As to the requests of these strikers, the Respondent does not take
issue. It contends, however, that proof was not adduced at the hear-
ing'to show that strikers other than those who testified made applica-
tion for reinstatement on October 21, 1946. This contention is lacking
in merit. Numerous witnesses testified without contradiction that
pursuant to a vote conducted at a union meeting, all the strikers went
to the plant on October 21, 1946, to report for work 11 This testimony,
moreover, is to some extent corroborated by one of Respondent's own
-witnesses '12 who estimated that about 250 strikers assembled in front
of the personnel office on October 21, 1946, and that approximately 50
were rehired. In view of this undisputed evidence, further testimony
on this issue would merely have been cumulative. We find that the
record sustains the Trial Examiner's finding that all the strikers herein
involved offered to return to work on October 21, 1946, and accordingly
affirm that finding.12
5. The Trial Examiner recommended that the strikers listed in
Appendix A of this Decision, Group IT, and Brown, Lonergan, Raf-
fone, Wilson, and Considine be made whole by payment to each of
them of a sum of money equal to the amount they normally would
have earned as wages during the period of the lock-out and from the
date of the unconditional offer to return to work to the date of the
Respondent's offer of reinstatement. We disagree with the finding
insofar as it is applicable to Brown, Lonergan, Wilson, and Considine,
because these employees were unaffected by the lock-out. As to them,
we shall order that their back pay run from the date of their uncondi-
tional offer to return to work to the date of the Respondent's offer of
reinstatement.
6. We also disagree with the Trial Examiner's recommendation that
the back-pay periods for Martindale and DelStritto begin to run from
the date of their release from medical care. As set forth in the Inter-
mediate Report, Martindale lost his left hand in a plant accident in
1944 and thereafter he received workmen's compensation benefits until
some time in 1947. He was hospitalized on numerous occasions after
his injury because it was slow in healing. Despite his physical condi-
tion, Martindale was able to resume work at the plant between his
intervals at the hospital. He was working as an inspector in the
rolling mill on the first shift when the work stoppage occurred on
11 These witnesses include Romeo, Morton, Samuels, Evans, Conte, Los, Raffone, Weaver,
Ballard, Reid, Woods, Wilson, Muir, and Martindale.
' willers.
13 In making this finding, we, as the Trial Examiner, and for the same reasons, attach no
significance to the evidence relating to Hovey's activities in connection with the strike.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 21, 1946. On the following day, he went to the plant but
was denied admittance. Since Martindale was qualified to and did
work while he was under medical care, we shall grant him the same
relief as the other employees listed in Appendix A, Group II.
As to DelStritto, it appears that he injured his leg on September 15,
1946, and from that time until his release from medical care on Oc-
tober 7, 1946, he was unable to work. Although fit for duty after
October 7, 1946, he refused to return to the plant and joined the
strikers. He was present at the mass application for employment on
October 21, 1946, but was not rehired. As DelStritto was qualified to
work at the time of his request for reemployment, we shall order that
his back pay begin to run as of that date.
. 7. The Trial Examiner found, as fully set forth in the Intermediate
Report attached hereto, that by certain conduct of its supervisors and
officials, the Respondent violated Section 8 (1) of the Act and 8 (a)
(1) of the amended Act. We agree. We limit the grounds for our
findings, however, to the following :
(a) The conduct of personnel department officials Sullivan and
Willers in soliciting promises from Raffone when interviewing him
for a job, that he would have nothing to do with the Union if he was
hired;
(b) The requests of Sullivan and Willers that Raffone report em-
ployees who engaged in union discussion;
(c) The announcements of Sullivan, Foreman DeSantis, Personnel
Counselor Goin, and Personnel Adviser Pettyjohn to employees 14 that
their activities on behalf of the Union would cost them their jobs;
(d) Pettyjohn's interrogation of employees Perry and Samuels con-
cerning their union interests and the union activities and sympathies
of their coworkers;
(e) The activities of Goin, Pettyjohn, Willers, Supervisor Ray
Smith, and Foremen Daniels and Mitchell 15 in soliciting striking em-
ployees to abandon the strike and return to work and in threatening
the strikers with loss of employment if they were absent from the
plant for more than 2 weeks; 16
(f) Carlson's 17 statement to striking employee Perry on October
21, 1948, when considering Perry's application for reinstatement, to
14 Namely , employees weaver , L. Baldino , Wormley, Evans, Morton, Samuels.
15 We rely only on Mitchell's status as foreman of the flashlight department in holding
the Respondent answerable for his conduct. The record does not sustain the Trial Exam-
iner ' s finding that Mitchell also had a recognized station in the personnel department. We
therefore reject this finding.
16 We agree with the Trial Examiner , for the reasons set forth in the Intermediate
Report , that the plant rule permitting the discharge of employees after 2 weeks of unex-
cused absence was not properly enforced against the strikers.
14 Carlson 's supervisory status is not contested . He is in charge of interviewing, selecting,
and placing new employees.
OLIN INDUSTRIES, INC. 209
the effect that Perry would be expected to forego union activity if he
were reinstated;
(g) Goin's questioning of striking employee Reid concerning his
intention to remain in the Union when Reid offered to return to work
on October 21, 1946.
The Respondent contends that it is not responsible for the acts
and utterances of Goin and Pettyjohn. As more fully set forth in
the Intermediate Report, Goin and Pettyjohn are on the staff of the
personnel department. Goin's duties include interviewing prospec-
tive employees, advising superintendents and foremen on matters
affecting employees who are members of minority groups, and assist-
ing employee's with the solution of personal problems which otherwise
might impair their productivity. Pettyjohn, as personnel adviser,
introduces new employees to their jobs, acquaints them with the plant
benefits and advantages, investigates the absences of employees and
assists them and their families, in the event of accident or death. He
also aids in assessing the value of employees suggestions and in de-
termining the award they deserve. We are of the opinion that the
Respondent's employees had just cause to believe that Goin and Petty-
john were acting for and on behalf of the management in the situa-
tions under dispute and therefore liability for their conduct is properly
attributable to the Respondent.-
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Olin Indus-
tries, Inc., Winchester Repeating Arms Company Division, New Ha-
ven, Connecticut, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in labor organizations, by discrim-
inatorily discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire and ten-
ure of employment, or any term or condition of employment;
(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 any labor organization, to bar-
gain.collettively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargain-
18 Matter of J. S. Abercrombie Company, 83 N. L. R. B. 524 ; International Association of
Machinists v. N. L. R. B., 311 U. S. 72; Cf. Matter of Macon Textiles, Inc., 80 N. L. R. B.
1525.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing or other mutual aid or protection; or to refrain from any and all
such activities except to the extent that such right may be affected by
all agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer all the employees named in Appendix A hereto, immediate
and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges ;
(b) Make whole all the employees named in Appendix A for any
loss of pay each may have suffered by reason of the Respondent's dis-
crimination against him, in the manner provided in the section of the
Intermediate Report entitled "The Remedy" and hereinabove;
Post at its plant in New Haven, Connecticut, copies of the notice
attached hereto marked "Appendix A." 19 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 a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places. where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material;
(c) .Notify the Regional Director for the First Region, within ten
(10) days from the date of this Order, what steps the Respondent has,
taken to comply-herewith.
APPENDIX A
NOTICE TO ALL Ei1IPLOYEES
Pursuant to a Decision and Order of the National Labor Relations,
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist any labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
19 In the event this Order is.enforced by decree of a United States Court of Appeals, there-
shall be inserted in the notice , before the words, "A DECISION AND ORDER" the words,.
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
OLIN INDUSTRIES, INC. 211
pose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of discrimination.
Ruth H. Bucci
Harry H. Gordon
Nora B. Mumford
Frederick J. Baldino
Benjamin Bonito
Frederick J. Destadio
Louis Baldino
Harold Ballard
Wellington C. Beal
Angelo Conte
James T. Evans
Austin Gianelli
Otis Johnson
Otis Adams
Joseph Aranjo
Benjamin Arter
Angelo Bellini
Johnnie Best
Lawrence Birdo
Allen L. Brown
Richard W. Brown
Uga Calderoni
James Carr
Gade L. Carter
Alfred Ciccarelli
Frank Curtin
Robert Daniels
GROUP I
Joseph P. Los
Louis Morton
Joseph L. Ta.rdie
John J. Wayert
William-Weaver
Raymond Woods
Moses Brown
Patrick Considine
Frank Lonergan
John J. Raffone
Frank Wilson
Paul DelStritto
GROUP II
Ozell Gooding
John Grant
John Gray
Jacob Greene
Jimmie W. Greer
Frank Gunn
James Haley
Rudolph V. Heath
William Higgs
Outing Hilliard
William Hugie
Joseph Jarvis
Alvin Jefferies
Dewey Johnson
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Robert E. Green, Esq., and Robert S. Fuchs, Esq., for the General Counsel.
Allan Seserman, Esq., of Boston, Mass., for the Respondent.
Marvin C. Gold, Esq., of New Haven, Conn., for the Charging Party.
STATEMENT OF THE CASE
Upon a third amended charge' duly filed on August 18, 1947, by Marvin C.
Gold, an individual, herein called the Charging Party, the National Labor Rela-
tions Board, herein called the Board, by its Regional Director for the First Re-
gion (Boston, Massachusetts), issued its complaint dated April 8, 1948, against
Olin Industries, Inc., Winchester Repeating Arms Company Division, herein
called the Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act, and of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the Labor Management Relations Act of 1947, 61 Stat.
136, herein called the amended Act. Copies of the complaint and of the third
amended charge, accompanied by notice of hearing thereon, were duly served
upon the Respondent and the Charging Party.
With respect to the unfair labor practices the complaint, as amended at the
hearing, alleges in substance that the Respondent: (1) discharged Nora B.
Mumford on August 6, 1942, Ruth H. Bucci on August 15, 1942, and Harry H.
Gordon on August 19, 1942, and discharged Benjamin Bonito, Frederick J. Baldino
;nd Frederick Destadio on or about September 21, 1946, and has at.all times since
failed and refused to reinstate them, for the reason that they joined or assisted
the Union and engaged in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection; (2) on or about October 1946,
discharged the 100 employees named in Appendix A,2 and has at all subsequent
times failed and refused to reinstate them for similar reasons ; and (3) by other
specified acts interfered with, restrained, or coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act and of the amended Act.
On May 12, 1948, the Respondent duly filed its answer in which it admits
the facts alleged in the complaint as to its corporate organization, the nature
and extent of its busipess, and that it is engaged in commerce within the meaning
of the Act. It further admits that the six employees named above were dis-
charged "as alleged in the complaint." It denies, however, that the Union is
a labor organization within the 'meaning of the Act, and further denies the
commission of any unfair labor practices. It states certain affirmative defense
phrased as follows :
Further answering the respondent says that the Board has no jurisdiction
over the subject matter of the complaint since the alleged unfair labor
' At the hearing Respondent called for the submission of all charges filed preceding that
on which the complaint was based. The General Counsel thereupon produced and offered :
the original charge docketed July 30, 1947 ; the amended charge, docketed August 4, 1947,
and the second amended charge, docketed August 6, 1947. Respondent objected to the
receipt of these documents insisting that they had never been served on the Respondent.
The General Counsel thereupon produced from his file and showed to the Respondent's
counsel carbon copies of letters sent to Respondent and its counsel transmitting copies of
all charges filed.
2 This list includes Thomas Lipsitt and Robert A. Shepard , added by amendment at the
hearing, and omits Nicholas I+ranco struck by consent of the parties . The 6 employees
named and the 100 listed in Appendix A are herein jointly referred to as the complainants.
OLIN INDUSTRIES, INC. 213
practices are barred by Section 10 (b) of the amended Act which reads as
follows :
That no complaint shall issue based upon any unfair labor practice occur-
ring more than 6 months prior to the filing of the charge with the Board and
the service of a copy thereof upon the persons against whom such charge
is made, etc.
And assigns for reasons therefor the following:
1. All the charges in the present complaint were filed more than 6 months
after the occurrence of the alleged unfair labor practices, and
2. Since the complaint was issued by the General Counsel on behalf of
[the Board] on the 8th day of April 1b48, the complaint was issued under
the authority of the amended Act and, therefore, the Board is barred by the
Statute of Limitation contained in said amended Act.
Pursuant to notice, a. hearing was held on dates beginning May 17, 1948, and
ending July 15, 1948, before the undersigned, Charles E. Persons, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The General Counsel, the
Respondent, and the Charging Party were represented by counsel. Full oppor-
tunity to be heard, to examine and cross-examine witnesses and to introduce
evidence bearing on the issues, was afforded all parties. At the beginning of the
hearing the General Counsel moved to amend the complaint by adding the names
of employees Thomas Lipsitt and Robert A. Shepard to those listed in Appendix
A. This motion was granted over Respondent's objection. On Respondent's
motion it was ruled by the undersigned that the rule for exclusion of prospective
witnesses from the hearing room would be enforced. At this time also Respond-
ent moved to quash the proceeding and dismiss the complaint on grounds stated
in its answer and quoted above. After hearing argument at some length ad-
dressed to the reasons given, this motion was denied. Respondent thereupon
requested the Board to review this ruling.' By orders dated May 25, 1948, and
.July 1, 1948, the Board dismissed Respondent's request for leave to appeal.' In
the earlier of these orders the Board granted a motion of the Respondent to limit
sessions of the hearing "to the extent that the Trial Examiner shall schedule
no session on Saturday except by consent of all parties." On May 20, 1948, dur-
ing the hearing, Respondent filed a Motion for Disqualification of Trial Examiner.
Acting under Section 203.37 of the Board's Rules and Regulations the under-
signed, after due consideration, ruled that the motion was filed with due diligence
but was insufficient on its face. Accordingly he declined to disqualify himself,
so ruled on the record, stating the grounds for his ruling and proceeded with the
hearing.' Respondent moved the Board for leave to appeal this ruling. By
order dated June 21, 1948, the Board denied this motion, stating that it would
"consider the Trial Examiner's ruling in reviewing the entire record upon
exceptions."
3 Respondent further moved for an adjournment to prosecute injunction proceedings on
this issue in the Federal Courts. This motion was denied. This matter inter alia is set
forth in Appendix B.
3 Respondent further moved to dismiss the complaint on the ground that the Board has
exceeded its authority by spending funds to conduct this hearing contrary to the rider
attached to the applicable Appropriation Act." This matter was deferred at the time pend-
ing Respondent ' s production of the exact language of this Appropriation Act. Since this
was not done and since the Act referred to has no such provision , the undersigned assumes
that no ruling is here necessary.
Respondent ' s Motion for Disqualification and the undersigned' s statement of grounds
for ruling that he would not disqualify himself are appended in extenso as Appendix B.
867351-50-vol. 86-15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before presenting its witnesses the Respondent moved to dismiss the complaint
and each significant paragraph thereof for failure of proof and other reasons
stated. This motion was orally argued at length and denied by the undersigned
as to the complaint as a whole and as to each paragraph assailed. At the close
of the hearing the General Counsel moved, and was joined by the Charging Party,
to strike from Appendix A the name of Nicholas Franco. This motion was
granted.
All parties waived the opportunity to argue orally before the undersigned.
A brief was filed with the undersigned by the General Counsel and a memo-
randum by the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Olin Industries, Inc., Winchester Repeating Arius Company Division, is a Dela-
ware corporation engaged in the manufacture of ammunition, guns, and radiators
at New Haven, Connecticut. During the year 1947, finished products valued at
more than $10,000,000 were shipped from the New Haven plant, of which approxi-
mately 95 percent was transported to points outside the State of Connecticut.
"Approximately 90 percent of the raw materials used at the plant annually,
consisting chiefly of copper, zinc, steel, and wood, is shipped there from points
outside the State of Connecticut e During the period material here the Respond-
ent was largely engaged in the production of munitions for the United States
and allied foreign governments.
The Respondent admits, and the undersigned finds, on the basis of these data
and of the entire record, that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of -America, affiliated with the
Congress of Industrial Organizations, and its Local No. 2S2, are labor organiza-
tions admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and related proceedings before courts , the Board and other
administrative agencies
The Union began its organizational campaign in Respondent ' s plant in the fall
of 1941. The Board first became involved in matters material here on May 8,
1942, when a charge was filed by the Union alleging violation of Section 8 (1)
and (3 ) of the Act.' The earliest charge alleged but one 8 ( 3) violation. Sue-
6 The data in this paragraph are quoted from Section I of the Board 's Decision in Case
No. 1-R-1732, handed down on May 6, 1944. The parties stipulated at the hearing that
there had been no material change in these facts for the calendar year 1.947.
71n Case No. II-C-4569, Matter of Western Cartridge Company, Winchester Repeating
Arms Company Division and United Electrical, Radio ct Machine Workers of America,
C. I. 0. The name of the Respondent has been changed to that appearing in the caption
of this Intermediate Report. The area in which the case arose was transferred to the
Board's First Region. By order, dated April 29, 1943, this case was transferred to that
Region as Case No. 1-C-2213. Throughout this section the undersigned has discussed
Board cases with reference to the original records.
OLIN INDUSTRIES, INC. 215
cessive charges b increased the number of violations alleged under this section
to 27. The amended charge filed on August 17, 1942, included Mumford. The
second amended charge of August 25, 1942, added Bucci and Gordon among
others.
The Union appealed late in 1942 to the recently established National War
Labor Board, herein called N. W. L. B. On February 5, 1943, that Board
issued its Directive Order ° which, among other matters not material here, di-
rected that grievance machinery should be established by the Respondent for all
employees and that the "cases of the employees who recently have been discharged
for whom the Union has filed charges with the [Board] shall be referred to and
handled through" this grievance machinery. In this order the N. W. L. B.
adopted the recommendations, as amended, of its mediation panel which pre-
viously had been received.
The Respondent petitioned N. W. L. B. on February 9, 1943, for reconsideration
of the case. By letter dated March 5, 1943, N. W. L. B. denied Respondent's
petition as of that date. It further substituted in the earlier order the following
paragraph with reference to the employees covered by the Union's charges filed
with the Board:
With respect to the employees who were recently discharged by the
[Respondent] and whose discharges are the basis of unfair labor practice
charges filed with [the Board], the Union shall have the option of request-
ing permission from that Board to withdraw their charges and, if such
permission is granted, of submitting the discharges to the grievance and
arbitration procedure provided by [N. W. L. B.'s Directive Order].
Under this authorization the Union withdrew its charges" filed with the
Board's Regional Office and the cases of Bucci, Gordon, and Mumford, among
others, were processed as grievances and submitted for settlement to an arbitra-
tor, Judge Henry Ellenbogen, appointed by N. W. L. B. His "final and binding"
arbitration awards were made on October 30, November 26, and November 27,
1943. The Respondent, "contending that the arbitrator exceeded his authority
in determining the grievances," refused to comply. On May 1, 1943, N. W. L. B.
issued its Supplemental Directive Order, unanimously directing that the Re-
spondent comply immediately with its prior directive order. On May 11, 1944,
a hearing was held before N. W. L. B., "at which the parties presented their
respective views as to compliance with the arbitration awards." That Board,
industry dissenting, found "that the arbitrator did not exceed the scope of his
authority in determining the grievances presented to him." ' On May 11, 1944,
N. W. L. B. issued a further Directive Order embodying the findings just quoted.
The Respondent, however, did not comply and N. W. L. B.'s Directive Order was
still unfulfilled when that body's activities were terminated.
Somewhat earlier than that date the Union resumed its activities before the
Board. On its petition duly filed, after hearing held on March 23 and 30, 1944,
the Board found that a unit of the Respondent's rolling mill employees did not
8 As the Board ' s records disclose these charges were filed on August 17 and 25, 1942,
September 11, 1942, and February 9, 1943.
° In Case No . 443. In its final order of May 11, 1944 , N. W. L. B. gives the Case No.
2571-CS-D.
"The Board ' s record shows that the charges were withdrawn and the case closed on
May 27, 1943, "in compliance with Directive Order of N. W. L. B. (Case No. 443)."
11 The quotations in this paragraph are from the Directive Order of N. W. L. B. dated
May 11, 1944.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute an appropriate unit for bargaining purposes and dismissed the Union's
petition." In an order issued on May 27, 1944 , the Board denied the Union's
request for reconsideration of this action.
Respondent insisted at the hearing on including in the record reference to
an earlier proceeding in which the Board handed down its decision on August
14, 1942 . 11 This decision was enforced by the United States Circuit Court and
certiorari was denied by the Supreme Court ." The Respondent resisted the
decree of the Circuit Court and on December 12, 1944 , was adjudged in contempt.
At this time the matter of back pay was remanded to the Board . On January
18, 1945, the Circuit Court denied Respondent 's application for an order purging
it of contempt . A hearing was thereafter held on the matter of computing back
pay. On August 13, 1945, a stipulation , entered into by the Board ' s and Re-
spondent ' s attorney , was approved by the Board covering the back pay of
employee Michael R . Amato, one of the three claimants involved . The other
claimants , Charles H . Thompson and Ernest A. Cruze were on overseas service
at this time . Upon certification of compliance by the Board with respect to
Amato, the Circuit Court purged the Respondent of contempt as to him on
October 4 , 1945 . After similar proceedings as to Cruze and Thompson the Circuit
Court on November 6, 1946, issued its final order purging the Respondent of
contempt."
The Union filed a petition 1' on March 22, 1.945 , for investigation and certfica-
tion of representatives in a unit defined as including all maintenance machinists,
helpers, and blacksmiths in Respondent ' s plant. This petition was dismissed in the
Board's First Regional Office on grounds that the unit desired was inappropriate.
On October 21, 1946 , the Union again petitioned " for a unit including all pro-
duction and maintenance employees in the plant . The Respondent sought to en-
join Board action in the United States District Court for the District of Massa-
chusetts contending that the Board had not fulfilled certain requirements of the
Administrative Procedure Act of 1946 . In a memorandum decision'" handed
down on June 11, 1947, the Court dismissed the action . A Board hearing was
held on June 19, 1947 . On July 28, 1947, the Union requested leave to withdraw
its petition . This was done in accord with the Union ' s declared policy to bypass
the amended Act. On July 31, 1947, the Board issued its order granting the
request of the Union to withdraw its petition and closing the case.
On charges duly filed by the Union, the Board issued a complaint against
the Respondent on April 21 , 1947, alleging unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and ( 3).19 The allegations under
Section S ( 3) included the discharges of Mumford , Bucci, and Gordon in 1942;
those of Bonito , Baldino, and Destadio in 1946; and the discharge "on or about
October 1946" of 140 employees named in the complaint . The names listed in-
clude many of those included in Appendix A of the instant proceeding. The
matter came to hearing on June 30 , July 23, 24 , and 29, 1947 . On the second
day of hearing the Union requested leave to withdraw its charges in Case No. 1-C-
2924 which comprised the discharges in 1946. Its representative stated that this
In Cases Nos. 1-R-1732 and 1-R-1804 , 56 N. L . R. B. 332 , May 6, 1944.
13 Case No. C-2165, 43 N. L. R. B.. 179.
14138 F. 2d 551 ( C. C. A. 2 ), cert . denied 321 U. S. 786.
1 This account is based on the original documents in the Board ' s formal file in Case No.
C-2165.
1a This was Case No. 1-R-2376.
1v Case No. 1-R-3422.
11 79 N. L. R. B. 455. 20 LRRM 2270.
as Cases Nos. 1-C-2924 and 1-C-2822.
OLIN INDUSTRIES, INC. 217
was done oil instruction of the Union's general counsel and in pursuance of their
policy "to have nothing to do with the Taft-Hartley Law," which the Union
proposed to bypass. On the fourth and final day of the hearing, the Union en-
larged the scope of its requests to cover all charges at issue. After considera-
tion the Board's counsel supported the motion of the Union and moved to strike
the complaint "without prejudice to any of the rights of the private individuals
involved." The Trial Examiner granted the motion of the Union to withdraw its
charge and the motion of the Board to strike the complaint.20
The occurrences at Respondent's plant with which this proceeding is concerned
gave rise to various court actions to which frequent reference occurs in this
record. The Respondent sought an injunction in the New Haven County Supe-
rior Court restraining the Union and the striking employees from picketing the
plant 2' Witnesses 22 were heard on October 24, 30, 31, and on November 4, 1946.
Judge Mellitz handed down a Memorandum of Decision on November 7, 1946,
in which he found that "two specific incidents involving unlawful acts in the
course of picketing . . . alleged in the complaint were supported by evi-
dence." He further found that "so far as the evidence discloses the picketing,
except for the two incidents referred to, has been peaceful and has been con-
ducted in a lawful manner." Since he regarded these incidents as "isolated and
dissociated incidents of abuse" and because he found "nothing in the situation to
cause the Court to apprehend that future picketing by the defendants will be con-
ducted in other than a lawful manner," Judge Mellitz denied the application
for an injunction. For convenience, this proceeding is referred to herein as
the Mellitz case.
The Respondent brought suit in the United States District Court for the Dis-
trict of Connecticut for damages in the sum of $300,000 against Local 282 and 16
named employees.23 When the cause came on to be heard, on March 31, 1947,
the parties agreed that a consent decree night be entered against the defendants
with judgment of $10 without costs against each of the 16 employees and the
local." This case is referred to herein as Civil 1893.
Proceedings were instituted in the same court under the Selective Training and
Service Act against the Respondent in behalf of certain veterans whose employ-
ment had been terinniated as a result of the work stoppage on September 21,
1946.25 Hearings were held beginning June 23, 1947, and closing on July 2, 1947,
before Judge Caroll C. Hincks. At the close of the plaintiffs' presentation, mo-
tions by the Respondent to dismiss were granted. 2' This proceeding is referred to
herein as the Hincks case.
Events following the work stoppage also gave rise to hearings before the Un-
employment Commission for the Third Congressional District. Two of these
hearings are referred to in the record of the instant proceeding. On April 17
and 18, and on May 5, 1947, the Unemployment Commission heard a group case
20 This account is drawn from the transcript of testimony taken in the proceeding.
n Matter of Olin Industries, Inc. v. Vincent J. Romeo et at., Case No. 68640.
22 Among the witnesses heard were complainants F. Baldino , Destadio , James Evans,
John -Monroe, Louis It. Morton, John J. Raffone, and Robert E. Samuels.
23 In Matter of Olin Industries, Inc. V. Vincent Romeo et at., Case No. 1893 Civil.
24 Complainants involved were Bonito, F. Baldino, Destadio , Angelo Conte , James T.
Evans, Louis Morton, John J. Raffone, John H. Wayert, and William Weaver.
25 In the Matter of Destadio et at . v. Olin Industries Inc., Civil 1988.
26 Witnesses heard for the plaintiffs included the following complainants : F. Baldino,
Destadio, Allen L. Brown, Jimmie W. Greer, Frank Gunn, Alvin L. Jeffers, Ruben E. Kaiser,
Lawrence LaPan, Joseph P. Los, William S. Muir, James P. O'Connell, Marlin J. Shore,
Louis E. Stanford, Simpson Washington , and Raymond G. Williams . Other complainants
involved were Fred Persico , Henry M. Williams , John E . Grey, and Hudie Moye.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving 53 employees of the Respondent who had appealed from rulings of the
Commission's examiners 27 This proceeding is referred to herein as Group Un-
employment case.
Bonito, P. Baldino, and Destadio appealed from a ruling of an Unemployment
Commission examiner that their claims for benefits were invalid since their un-
employment was due to the existence of a labor dispute at Respondent's plant.
On October 30, 1947, after hearing held, the Commission rendered decision
that their claims were valid and modified its examiner's rulings accordingly.
B. Procedural matters
Certain procedural matters are of sufficient importance and aid understanding
of the record to an extent that justifies brief exposition. Collecting these topics
in this section avoids breaking the continuity of the general discussion. Mat-
ters included here are in addition to those referred to in Appendix B.
In the cross-examination of the first witness, Romeo, Respondent's counsel
quoted from the Mellitz proceeding, as follows :
Well, you testified in the Superior Court, Mr. Romeo, in which you said,
"Besides holding the regular large (enlarged) organizing committee meet-
ings which we held every other week, we also held some other meetings,
some departmental meetings of the Winchester brass rolling mill employees
who are members of our Union." And you were asked, "How often were
there meetings held?" And you said, "Oh, since July they were held fre-
quently." Question, "Well, what do you call frequently?" Answer, "Well,
I would say on the average about once every week."
Respondent's counsel then pointed out a seeming discrepancy in this final state-
ment with testimony Romeo had just given, that such meetings had not been held
weekly. The General Counsel asked to see the transcript from which the quota-
tion was read. Respondent's counsel declined to accede but stated, "The wit-
ness may see it any time." Romeo then asked for the transcript and read into
the record an omitted final phrase, "once every ten days."
Mumford, the second witness heard, testified in direct examination that she
did not join the Union until after her discharge on August 8, 1942. Under cross-
examination Respondent's counsel read excerpts, which he stated were from
sworn testimony by Mumford before Judge Ellenbogen, which stated that she
joined the Union in June 1942. When confronted with this, Mumford said,
"Listen, they've got that wrong. I was asked if I would join the union, but I
did not join the union." The excerpt was then submitted to Mumford and to
the General Counsel and found to have been correctly read. On objection by
the General Counsel based on the fragmentary nature of the quotation from a
document, exceeding 40 pages in length, the undersigned asked Respondent's
counsel whether the record was. to receive the entire document. Counsel re-
plied, "I don't know at this time whether you are or not, but this is cross-ex-
amination. This witness has made a statement under oath." After further
interchange, the undersigned, with the Romeo incident in mind, stated, "It's a
seeming inconsistency," but unless we have the whole document we will not
know. I suggest that you agree to put in the whole document later. This is
27 Among the witnesses heard were complainants F. Baldino, Louis Baldino, Angelo Conte,
Paul DeiStritto, and Louis Morton.
28 Matter of Baldino et al. v. Olin Industries , Inc., Cases Nos. 3489, 3458, and 3503-C-46.
28 Mumford became a member of the Union August 8, 1942, after paying the initiation
fee. This is shown by her due books in evidence.
OLIN INDUSTRIES, INC. 219
mainly for your protection [Counsel]." When Counsel did not agree to this
suggestion, the undersigned granted the motion of the General Counsel to strike
the quotation and answer involved, subject to the proviso that the matter struck
would be restored if the whole transcript from .which the quotation was read,
were offered as an exhibit 3° Respondent's counsel did not proffer this document
as an exhibit during the hearing. At the time the undersigned stated, "the
rule is that if we get quotations taken that way from any transcript we will
require the whole transcript."
In the cross-examination of Bucci, the next witness, the same procedure was
followed by Respondent's counsel. He read excerpts from a document which
he stated to be a transcript of Bucci's testimony before Judge Ellenbogen. He
refused to show the document to the General Counsel who objected strenuously
to this procedure. At this time the undersigned restated his ruling as follows :
The rule of the hearing will be that documents from which witnesses
are questioned, unless good cause is shown to the contrary, will be entered
in evidence.
When question was raised by the Respondent's counsel as to the basis for
this ruling the undersigned quoted Section (2) of Rule 63 from the Rules of
Civil Procedure, regarding the power of masters and examiners, reading :
He may require the production before him of (vidence upon all matters
embraced in the reference, including the production of all books, papers,
vouchers, documents, and writings applicable thereto.
Thereafter the examination proceeded under the procedure challenged. At
the conclusion of the cross-examination the General Counsel renewed his de-
mand for an opportunity to read the transcript from which excerpts had been
quoted. Respondent's counsel again refused to submit it.
In the cross-examination of employee Louis Baldino a similar incident oc-
curred. Quotations were read by Respondent's counsel from a transcript stated
to be of an unemployment compensation hearing on December 19, 1946. This was
not submitted to the parties nor to the Trial Examiner, although the witness,
who had no memory of the testimony quoted was offered and declined an oppor-
tunity to read the excerpt quoted. Baldino stated that he had applied for
unemployment compensation. His testimony, as of April 18, 1947, in the group
unemployment case is in evidence. However, it does not contain the excerpt read
by Respondent 's counsel.
Since the Respondent did not comply with the undersigned's repeatedly stated
instruction, buttressed with competent authority, and produce the documents
used in cross-examination during the four incidents referred to above, it be-
comes a justified reference that consideration of the complete document would not
support its contention. The undersigned so finds and has given no weight to
these incidents as affecting the credibility of Romeo, Mumford, Bucci, and L.
Baldino.
During the hearing, in cross-examination of witnesses called by the General
Counsel, Respondent's counsel made frequent use of the transcripts in the Hincks
30 Respondent's counsel stated on the record : "I have been experienced enough at the bar
to know what you have in mind. And it is not my intent to take excerpts of the testimony
that are beneficial to the Respondent when later on the witness might possibly have cor-
rected herself. I assure you, Mr. Trial Examiner, that I don't conduct these types of
examinations , and if anywhere in this transcript there appeared, to my knowledge, any
retraction of that statement I would not have made the examination I did. I may, when
I am through with the witness, offer it as an exhibit."
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in the Mellitz case. This was done with intent to discredit or impeach the
witnesses' direct testimony. These transcripts are in evidence. The under-
signed has examined and correlated all the passages used in this manner. As
a basis for the statement of his conclusions after such study, illustrative pass-
ages from the transcript in the instant proceeding are quoted.
F. Balclino testified under direct examination that Boak said during the work
stoppage on the first shift, quoting in part only, "You fellows don't know what the
hell you want. You've got the best damn job in the State of Connecticut." Under
cross-examination the parallel passage reads, "You got the best damn jobs in the
State of Connecticut. You don't know what the hell you want." Respondent's
counsel questioned the ascription of the use of the word "hell" to Boak in the fol-
lowing fashion :
Q. Did Mr. Boak use the word "hell"?
A. I am most certainly sure he did.
Q. You are positive of that?
A. I'd say he most certainly did.
* * * * * *
Q. In the [Hincks case] this is what you said Mr. Boak said, "I want
you colored people to realize that you've got the best damn jobs in the State
of Connecticut, and after this blows over, you want to know what you're
going to do.
Q. You didn't use the word hell then, did you?
Later Respondent's counsel referred to the transcript in the Mellitz hearing,
reading inter alia, the following excerpt:
You fellows have the best damn job in the State of Connecticut.
You don't know what the hell you want.
* * * * * *
Q. And the word "hell" was used in the Superior Court before Judge
Mellitz, wasn't it, according to what I read?
A. Yes.
The undersigned finds in these comparisons of testimony taken on three rather
widely separated occasions no "impeachment" of the testimony of F. Baldino,
rather he is impressed by the accuracy of his memory and the verisimilitude
of the language in which he has clothed his remembrance of events. After
consideration of the entire record and of the demeanor of this witness the under-
signed finds him worthy of credence.
Samuels had testified in direct examination that he had served as chairman
of the picket committee "all during the picketing period," i. e., from September
23 to December 8, 1946. Respondent's counsel during his cross-examination
quoted the following question and answer from the Mellitz case :
Q. How long were you picket captain or chairman?
A. About 3 weeks.
Respondent's counsel then called attention to the variance in testimony,
querying, "Well, if you said that, that wasn't true, was it?" and pointed out
that Samuels' "mind was pretty fresh on events in 1946" at the time of the
Mellitz proceeding.
The undersigned notes that Samuels' testimony in the Mellitz case was given
on November 4, 1946. Since Samuels began his duties as chairman of the picket
OLIN INDUSTRIES, INC. 221
committee on September 22, 1946, his earlier testimony was given about 6 weeks
thereafter. Further, Samuels testified under Respondent counsel's cross-exam-
ination in the Mellitz case as follows :
Q. How many union meetings have you had since September 21?
A. That I wouldn't venture to say. I had a little sickness in my family
that kept me very close to home since these three weeks that I left the
plant. I have had to stay home, and from time to time I would call or
run into some of the fellows and they would tell me what was going on. I
think Mr. Romeo will tell you I haven't been down in two or three weeks.
Sainuels suggested in retorting to Respondent's challenge to his veracity that he
could explain. Opportunity to do so was not given. The undersigned finds in
the testimony just quoted, joined to correlation of the dates of the hearings,
adequate explanation for any seeming discrepancy in Samuel's testimony at the
two hearings about his service as chairman of the picket committee.
Again, employee Conte had testified in his direct examination that he went to
the plant to get his pay on his regular pay day which was "the Thursday after
the 21st" of September. Respondent challenged the testimony in the following
fashion
Q. You remember distinctly when you went in to get your pay?
A. I went in to get my pay, yes.
Q. You know that isn't the truth.
The undersigned sustained an objection and warned Respondent's counsel "to
avoid such statements on the record." It developed that the challenge was
based on a hand-written undated order which Conte admittedly gave his son, also
an employee of the Respondent, authorizing him to get a pay check. Willers
identified this order as "an authorization to pay out a pay check which I obtained
from my files" and stated, "These are filed chronologically and as I remember it
this came out of the file for September of 1946." Conte testified as to the author-
ization, "That is my signature, but this was not handed in on the day after I
went out, because my boy got the pay for me once before when I was sick . . .
my boy went down there, before this trouble came up." Conte's employee record
card is in evidence and shows that he was out sick on Thursday, August 22, 1946.
On this basis and in view of the fact that Conte's demeanor was that of a care-
ful and truthful witness, while Willers' dating of the authorization lacked in
certainty, the undersigned credits the explanation given by Conte, and finds that
this incident does not weaken the evidentiary value of his testimony.
In the cross-examination of employee Louis R. Morton, Respondent's counsel
read the following excerpt from the Mellitz case transcript :
Q. Did you ever hear him [Romeo] say, "Mr. Boak is no damn good?"
A. [Well] he's not the only one I heard say that.
Morton had answered a similar question in the instant proceeding, "I'll answer
it the same as I did before; I never heard Mr. Romeo say anything of the kind
but I heard a lot of other people say it." The record was not further extended.
However, the undersigned finds that the Mellitz record continues directly as
follows :
Q. Did you hear him say that?
A. Not right directly, no.
Q. You never heard him say that?
A. Not directly.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With this legitimate and desirable addition to the record the undersigned finds
that it casts no discredit on Morton's credibility as a witness.
Without further quotations on this matter the undersigned will state on the
basis of his laborious study and correlation of all such instances that, speaking
generally, discrepancies pointed out were merely verbal or on incidental and
immaterial matters. They do not discredit or impeach the witnesses. Rather,
they demonstrate that the witnesses were testifying from their current memory
rather than from memorized, or well-conned previous testimony. They illus-
trate frequently the proverbial infirmities of the human memory with which all
well-experienced judges and examiners acquire familiarity. Except as here-
inafter expressly noted the undersigned has acquired, and feels his extensive
labors have entitled him to express, a conviction that witnesses in the instant
hearing met this exacting test with conspicuous success.
Controversy developed at the hearing over the unemployment termination
slips given the employees who were on compensation. This matter requires
resolution here. In the following exposition the employees concerned are dis-
cussed in the order of their testifying. Employee Paul De1S•tritto testified that
he received his final pay on September 26, 1946, and that he was given a termina-
tion slip at that time marked "left work voluntarily." Respondent's counsel pro-
duced two other termination slips one of which carried this notation. They
were made out however, after the close of the compensation period. DelStritto-
had no remembrance of receiving either of these later termination slips. Under
cross-examination he stated that he was "not sure" of the receipt of this slip
on September 26, 1946," since he "couldn't find it and didn't know what happened
to it." Employee Louis R. Stanford testified very positively that on collecting
his final pay, he received a slip with the legend "left work voluntarily" and
that he turned it in to the Unemployment Commission. At this point in the
hearing, on application to Respondent's counsel, he produced another termina-
tion slip issued November 25, 1946, and giving as the reason for unemployment,.
"compensation discontinued." At counsel's insistence that this was the only
work slip issued to Stanford, it was later received in evidence. James P..
O'Connell similarly testified very positively that on the occasion when he col-
lected his final pay on Friday following September 21, he received a termination
slip marked "Left work voluntarily." Respondent's counsel stated on the record.
that a termination slip was not given O'Connell on that date.'2 The witness pro-
tested and stated that a photostat copy of the slip might be found in the record
of the Hincks case. After he had left the stand the clerk of this court was-
11 This date was fixed by reference to a receipt for his photo pass which DelStritto pro-
duced for the record.
" O'Connell's testimony was that he went to the plant to get his final pay on the Friday
following September 21, 1946, i. e., on September 27, and at that time received "a little-
yellow slip saying I left work voluntarily." The record continues :
By GENERAL COUNSEL. Do you have the UC 16 A, Mr. Seserman, of this man at this
time?
RESPONDENT'S COUNSEL. There was no slip given him on Friday, on September 21.
GENERAL COUNSEL. You mean you have none in your files?
RESPONDENT'S COUNSEL. There was none given to him on September 21.
TRIAL EXAMINER. He said the Friday following September 21st.
RESPONDENT'S COUNSEL. There was none given him on Friday following September
21st.
GENERAL COUNSEL. That would be the 26th or 27th. You have none?
RESPONDENT 'S COUNSEL. There was none given.
The undersigned notes that in this interchange Respondent's counsel must be understood
to be speaking professionally.
OLIN INDUSTRIES, INC. 223
called as a witness, and the exhibit produced. This fully confirmed O'Connell's
testimony. William S. Muir testified that he refused, without reading, a slip
proffered him when he collected his final pay on the understanding that it
was similar to others which he had previously seen. He told the clerk that
he was on compensation and after consultation with her superiors, she told
Muir, as he testified, "You won't need that." Muir's employee record card is in
evidence and carries the notation: "LOA," 9/21/46." William Martindale testi-
fied that he went for his final pay in the next week after September 21, 1946,
and was given a termination slip with the reason for unemployment checked as
"left work voluntarily." Respondent's counsel thereupon stipulated that this
testimony was correct. In this state of the record the undersigned concludes
and finds that each of the five employees under compensation were given termi-
nation slips on or about September 26, 1946, which stated the cause of unem-
ployment as "Left work voluntarily."
During the examination of employee Louis R. Morton, Respondent introduced
court records showing that he was convicted of perjury on February 23, 1921,
after a jury trial. He was duly sentenced "to be confined for 6 months and to pay
costs amounting to $155." Execution of the sentence was suspended and Morton
was placed on probation for 6 months. On September 27, 1921, the execution
of the sentence was indefinitely suspended. The undersigned notes that this
conviction was remote in time. Nothing in the record suggests that Morton had
been guilty of similar offenses, or indeed of any offense, in the 27 years inter-
vening before his appearance as a witness in the instant proceeding. Neverthe-
less, because of the serious nature of his offense and its significance in assessing
his credibility as a witness, the undersigned has considered his demeanor as
a witness with particular care and has compared his testimony with that of other
witnesses testifying to the same events. Practically all of Morton's testimony
was corroborated by that of other witnesses found worthy of credence herein.
After full and careful consideration of Morton's testimony in the setting of the
entire record the undersigned has found no reason for discrediting him on any
statement made by him which is material to the determination of the issues in
this proceeding.
The Respondent contends that the judgment rendered against Local No. 282
and certain complainants in Civil 1893 should be given weight in assessing the
credibility of the complainants involved 84 This contention the undersigned finds
without merit. The judgment was in an amount, $10 per individual, without
costs, which can not be held to indicate a serious offense, nor was it based on
evidence received from which the acts of those fined may be judged.
On the twentieth day of the hearing, after taking testimony of 32 witnesses
and compiling nearly 4,000 pages of testimony 36 and after repeated efforts to
shorten the hearing through stipulations by the parties had largely failed, the
undersigned, after mature deliberation, instructed the General Counsel to con-
clude his presentation within 2 days. This instruction was based on Rule I of
the Rules of Procedure for the District Courts of the United States which pre-
scribes that the rules shall be construed to insure the "just, speedy and inex-
pensive determination of every action." As the undersigned stated, "the recent
testimony has been cumulative and highly repetitious, adding very little to the
8' LOA indicates, "Left of own accord."
84 Those fined were Bonito, F. Baldino, Destadio, Angelo Conte, James T. Evans, Louis
R. Morton, John J. Raffone, John H. Wayert, and William Weaver.
"The record contained in addition the deposition of Destadio which contained over 300
pages.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facts we have at hand." The General Counsel's representative fulfilled this
instruction under protest, maintaining the position consistently that he .was of
right entitled to call each of the complainants. He declined to state that he
rested his case but assented to the statement by the undersigned, after present-
ing 7 additional witnesses, "Under the ruling laid down by this Trial Examiner
you have nothing further to offer."
C. Discharges in August 1942
Nora B. Mmmford was hired by the Respondent in October 1941 and was dis-
charged on August 8, 1942. When terminated she was operating an automatic
machine in the primer shop. There is no suggestion in the record that Mum-
ford's work as an employee was not entirely satisfactory.
On August 6, 1942, Mumford signed a union application for membership card
`outside the gate" of the plant. On August 8, 1942, immediately after her dis-
charge, she visited union headquarters and while there paid her initiation fee
and was inducted into membership. She had previous experience in union acti-
vities having joined an AF of L organization in 1923. Miunford's home was
immediately adjacent to the plant. She was accustomed to go home for lunch
and on occasion was accompanied by other employees. After her discharge she
gave out four or five union cards to employees who came to her home. As her
dues book shows, Muunford maintained her standing with the Union to the date
of the hearing in the instant proceeding. She was duly transferred to Local
243 on December 16, 1946, on taking up employment in a plant where that local
had jurisdiction.
On August 8, 1942, Mumford on reporting at 7 a. in. was instructed by her
supervisor, one Van Sickle, not to punch the clock but to sit in his office. About
8 o'clock Van Sickle took Mumford to the office of Personnel Superintendent
Albert F. Snyder. Mumford's testimony as to what occurred there is recorded
as follows :
[Snyder] said I was there because I had been passing out union cards, and
I told him I'd never passed a union card out, because I didn't have any.
And lie said a report from one of the girls was that I had, and I asked him
to bring the girl in so that she could tell me and I could see her, and he refused
to do that. He asked me for my badge, I gave it to him, and he told me I was
discharged.
Then lie asked Mr. Van Sickle what I was doing, so Mr. Van Sickle told
him he didn't know when I could pass out cards as I had to be at my ma-
chine-I was at that time operating a big Henry Wright Primary-and he
said he'd only known that I left the machine once a day, and I had to call
the head adjuster to tend my machine while I went to the ladies' room.
And he [Snyder] said he didn't care, he was discharging me for it.
* * * * * * *
Then he [Snyder] told me if I would give him the names of the girls that
belonged to the union that I would be reinstated.
* * * * * * *
And I told him I didn't know any of the girls. And Mr. Van Sickle came
as far as the corner of Munson and Winchester Avenue with me, and Mr.
Van Sickle told me that if I wanted to be a good fellow and give him the
names of the girls that had joined the union that he would take and give
me back my job right away. Then I told Mr. Van Sickle, I said, "I'm no
OLIN INDUSTRIES, INC. 225
squealer , and I don't know who the girls are." He told me that he was very
sorry that I had to go.
The Respondent called employee Harriette G. Flynn as a witness , who testi-
lied that on an occasion in June or July 1942 Mumford , whose machine was
temporarily down , came to her while she was operating her machine and asked
if she would like to join the Union. Flynn replied that she did not think she
cared to join since she was a new employee and did not know how long she would
be working . Mumford then suggested that Flynn take the card home and think
the matter over. It was Flynn's further testimony that her work was not inter-
rupted during this conversation and that Mumford cautioned Flynn not to let
anybody see her sign the card or return it to Mumford. Next morning as they
were coming to work Mumford met Flynn and asked if she had signed the card.,
Flynn replied that she had not.
Flynn testified that she did not report this incident either to her supervisors
or to any member of the personnel department . However, she discussed the
matter to some extent with fellow employees . Presumably as a result of such
discussion she was called to the personnel department "around August" of
1942 and questioned about the matter. At that time, as she testified , she signed
it statement which she had not seen since . However , her memory had been re-
freshed before testifying by reading an affidavit which she signed at a later (late.
As her testimony reads That is how I happn n to remember what I do of it."
Snyder was also called as a witness . He testified that several employees, in-
cluding Flynn , had reported to him that Mumford was soliciting for the Union
during work time 36 He had very slight independent recollection of his inter-
view with Mumford . However, lie testified that she denied soliciting during
working hours although she admitted that she had done so "outside but not on
company time ." He did not deny Mumford 's testimony relative to his proposi-
tion that she would be reinstated if she would disclose the names of female
employees who belonged to the Union . Van Sickle was not called as a witness.
No evidence of his unavailability was entered on the record . In consequence
Mumford's testimony relative to a similar proposition made to her by Van Sickle
is uncontroverted.
Ruth H. Bucci was first hired by the Respondent in the spring of 1941 . At this
time her work required constant standing. Finding this requirement burden-
some, Bucci quit after ineffectual efforts to secure a transfer to it position which
allowed her to sit while working. She was later rehired and worked continuously
on the 11 p. in . to 7 a. m. shift until discharged on August 15, 1942.
Bucci signed an application card for the Union , as her credited testimony
states, on August 12 , 1942, and on the next day paid her initiation fee and was
given a union dues book . At this time Claire Niekind, who was union repre-
sentative at that time , appointed her a steward. She was given a book of
instructions as to a steward's duties and both a union and steward 's button.
She wore these under the lapel of her coat . This was not necessarily for con-
cealment . As Bucci stated , they were not the most ornamental things to wear.
She had been instructed by Niekind that it was legitimate to solicit employees
to join the Union , "anytime, any place , except during working hours. " In con-
formance to this instruction Bucci passed out cards during lunch and recess
periods and, as she admitted during cross-examination, "covered the department
pretty well ." Bucci admitted that there was one exception to this procedure
11 In cross-examination Snyder testified that "Flynn testified regarding this Bucci."
'226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the case of Florence Robecki;' who worked on a gas annealing job. As Bucci
testified Robecki had asked for a card and was given one at the beginning of
the shift. At recess time Buccl approached Robecki, who was still operating
her machine, about the question of signing the card. It was Bucci's testimony
that the conversation did not interrupt Robecki's work.
Robecki, as Respondent's witness, testified that Bucci first approached her
"shortly after [she] started to work about 10 minutes or so after" and asked
if she would sign an application to join the Union. Robecki further testified
that Bucci returned about 5: 30 in the morning and brought a card which Robecki
refused to sign and tore up. It was Robecki's testimony that she reported the
incident to her foreman, Harold Haye.'e At this point Robecki's testimony
reads :
He said he didn't know there were any union activities in the shop. He
said he would take care of it ; he said he would talk to us about it later.
Somewhat later Robecki was called to Snyder's office to whom she repeated
her version of the matter and for whom she signed an affidavit. Bucci testified
that the morning rest period was from 5 to 5: 10 a. in. Her memory was clear
that she conversed with Robecki while free from employment during this rest
period. The record shows that Robecki had no certain remembrance as to the
time when the morning rest period occurred. She admitted that she, on occa-
sions, continued her operations throughout the rest period.
After considering this conflict of testimony in the light of the entire record and
of the demeanor of the witnesses the undersigned credits Bucci's testimony.
On August 15, 1942, about 6: 45 a. in. Foreman Haye came to Bucci's machine
and instructed her to shut it down. He told her that Snyder had directed
him to take up her pass and that she was to go to Snyder's office. Bucci's testi-
mony as to her interview with Snyder reads as follows :
Mr. Snyder told me I was being discharged, and I asked him why and
he said that because of union activities that I could no longer work for
the Company, that it was against the rules. When I told him I had read
the union rule book, and I figured that it was practically the same as the
Company rule book in regard to procedure, I couldn't see anything wrong in
belonging to a union. He says, "But you've been passing out cards, and
it's against the Company policy and we can't have you here any more."
They wanted me to have my dismissal slip immediately. I asked them if
I should give up union activities in all ways if I could have my job. He
said, "No, you've disobeyed the rules, you cannot." I said my work record
attendance was good, but he could do nothing about it.
Mr. Snyder said I definitely was breaking Rule 21 because I was on
company time and property. I was paid for straight 8 hours, and was
employed by the Company for a straight 8 hours. Rest periods were not our
own, they were subject to Company rules and time.
I said that I thought that the rest periods belonged to us. As he ex-
plained it, we are hired at a daily rate of a certain amount per hour which
included 8 hours, in my case 11 p. in. to 7 a. in. in the morning.
34 Bucci gave the name as "Beckman" or "Beckwith." However , the record makes clear
that the reference was to Robecki.
28 This name frequently appears in the record as Hayes.
OLIN INDUSTRIES, INC. -227
Snyder's testimony as to . this interview with Bucci . reads :
Well I .questioned this Bucci girl in regard to what had been reported to
me.
That she had approached these girls during working hours regarding join-
ing the Union, gave them cards, and, something of that sort as I recall.
* * * * * * *
Well I : .. questioned her about it and she denied that she had done
so but the information I got from these other girls, why, I thought that was
sufficient reason for discharge.
Snyder, as Respondent's witness, admitted that he had no memory of the details
of this interview. Even after his memory had been refreshed by perusal of a
record made by himself in August 1942 he could not testify with specificity as to
his interview with Bucci. Under these conditions the undersigned credits the
clearly stated testimony of Bucci which was unshaken under lengthy and search-
ing cross-examination.
Harry H. Gordon was hired by the Respondent in July 1941 and was discharged
on August 19, 1942. He worked on the 11 p. in. to 7 a. in. shift. The Respondent
'makes no claim that his services as an adjuster during the final 4 months of his
period of employment were not performed efficiently nor that his deportment and
attendance records were not entirely satisfactory.
Gordon signed a union application-for-membership card on August 3, 1942. On
that same night Niekind appointed him a steward. Gordon was given a union
button, which he did not wear, and a supply of union cards. He gave out five or
six of these cards according to his credited testimony, during the rest period while
outside the building "within the next couple of days."
About 6: 30 a. m. on August 19, 1042, Foreman Henry Ayre 30 came to Gordon
and instructed him to see General Foreman Frank McQueeny 40 before leaving the
plant. McQueeny accompanied Gordon to Snyder's office and told Gordon that
Snyder wished to ask "something about union activities." With reference to
his interview with Snyder, Gordon's testimony is recorded as follows :
Mr. Snyder said that he heard that I handed out union cards during
working hours, "that you're a union steward," and he started telling me
that the time I was hired he gave me a blue book . . . he took out his
book and he pointed out the Rule 21 that there couldn't be any solicitation
of anything without any consent, written permission from them, and he
said, "That's subject to grounds of dismissal for handing out cards during
working hours."
Mr. Snyder, as I recall, said that he had witnesses that I gave out cards
during working hours, to some colored hustler, or something . . . of that
sort; claimed that I gave out cards during working hours. I told him I
didn't give out any during working hours... .
In reference to smoking periods, [McQueeny] told me that-when I told
him that I gave it out during lunch period-he said, "Well, you get paid for
89 This name is sometimes spelled Eyres in the transcript of testimony.
40 Gordon gave this name as MacDonald in his direct testimony. Under cross-examina-
tion he corrected this statement, stating that he knew this supervisor only as "Mac."
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
your lunch period, that's Company time. I says, "Well you don ' t pay when
you don't work." He says, "Well, that's still the Company' s time."
Gordon further testified that McQueeny told him, "It was a pity that I got mixed
up with the union, and that my work was very satisfactory, and he was sorry
to see me go."
The Respondent called as a witness, David W. O'Neil, an employee who had
been transferred to work on machines of the type which Gordon adjusted on or
about August 13, 1942. O'Neil testified that Gordon came to him while at work
about a day or two after his transfer. O'Neil's testimony as to their conversa-
tions reads as follows :
Well, it is a long time ago, but as best as I can remember, lie [Gordon]
came over and told me that Andrew Westbrook, who was the adjuster on
my particular machines, had told him to come and speak to me about being
in the Union, and if my memory doesn't fail me, I was handed a Union card
to join.
We got in quite a heated argument. Among other things, I asked him
who was the top steward at the shop and Gordon informed me that he was.
First thing I knew, Westbrook came over and told us to shut up, said they'd
see me outside the clubhouse after lunch the next morning to talk the matter
over. Neither one showed up. That was the last time I saw Gordon until
I saw him at the last hearing.
This testimony may be compared with O'Neil's sworn statement made on
August 15. It reads :
On Saturday morning, August 15th, at approximately 4: 30 a. m. I was ap-
proached at my machine at H.31 by a fellow employee by the name of Harry
Gordon, an adjuster on an indenting machine, who asked inc to join the
C. I. O. Union. Gordon said that Andrew Westbrook sent him over to talk
to me about the Union, so I said I hadn't asked Westbrook anything about the
Union. So I went over to see Westbrook-while I was talking to Westbrook,
Gordon came over and asked me why I hadn't got into the Union. I told him
I would think it over and he said that he would meet me outside after lunch.
When Gordon was asked during cross-examination whether he had ever ap-
proached O'Neil on union matters, he vigorously denied having done so. He
characterized O'Neil as a "company stooge" and declared that he had knowledge
of this at the time O'Neil was transferred to his department. Without passing
on the validity of Gordon's characterization of O'Neil the undersigned is im-
pressed by the sincerity of Gordon's belief that it was correct. It is inherently
improbable that Gordon would mention union matters to an employee of whom he
entertained such beliefs. It is noted further that Gordon's acknowledged activ-
ity in giving out cards occurred some 10 days earlier. If O'Neil's testimony is to
be accepted, Gordon's approach to him stands as an isolated incident and its oc-
currence during working time was exceptional. No evidence was adduced to
show that Gordon approached any other employee during working time. More-
over, Westbrook was called by the General Counsel as a rebuttal witness. He
fully corroborated Gordon and specifically denied the actions ascribed to him by
O'Neil. In this state of the record, considering the manifest discrepancies be-
tween O'Neil's testimony and his sworn statement, dated 4 days before Gordon
was discharged, and influenced by a distinctly unfavorable impression of O'Neil's
credibility gained from his demeanor as a witness, the undersigned credits the
OLIN INDUSTRIES, INC. 229
testimony of Gordon and Westbrook and rejects such testimony of O'Neil as it
is in conflict therewith.
It was Snyder's testimony that lie told Mumford and Bucci the names of
these who reported them as soliciting for the Union on company time. As to
Mumford he stated, "As I recall. I told her these people had told me that she had
solicited them . . . I also told them the names of the peop'-e. Ile also answered
affirmatively when asked whether he told Bucci the names of her accusers. Both
Muinford and Bucci testified positively that Snyder refused to give them this
information. As stated above Mumford challenged Snyder to bring in her
accuser. It will be remembered that her testimony was that Snyder spoke of
but one and that lie refused to call her in. Bucci's testimony in point here was
specific. She testified that Snyder told her he had two signed affidavits and
further "He did not tell me any girls, he said he had signed affidavits to that
effect, but lie did not mention any mines." - Similarly Gordon testified that while
Snyder stated lie had affidavits from employees that Gordon had been soliciting
union members on company time lie did not reveal their names. In view of this
strong preponderance of creel:ble evidence, after consideration of the demeanor
of these witnesses and the specific character of their testimony, the undersigned
accepts the testimony of Mumford, Bucci, and Gordon on this point and rejects
such testimony of Snyder as conflicts therewith.
Contention, of the parties and conclusions
Each of these complainants testified credibly that his or her discharge was
stated on the termination slip, given them when discharged, to be based on
"infraction of company rules." These rules were printed in a booklet given
them when hired. As Snyder and these complainants agreed the applicable rule
was No. 21. It reads: "Engaging in propaganda or organizing activities during
working hours or on company property without specific permission of the man-
agenment." Applicable penalties are set forth in a general statement as follows,
"Violation of any of the rules of the company is regarded as ground for penalty
ranging from reprimand to immediate discharge." It is noted that the extreme
penalty of discharge is not definitely attached to Rule 21. In the individual
interviews preceding the discharges Snyder called the attention of each of the
three to this rule. Copies of the termination slips given them when discharged
were not produced. The Respondent did produce a termination slip for Bucci
signed on December 24, 1942. This document specifically states that her
discharge was foA "Infraction of Rule #21." It states that her last day of
employment was August 15, 1942.
It will be noted that the rule strictly construed forbids all propaganda or
organizing activity on company property whether or not carried on in working
time. The Board's policy in this matter has been given definite statement and
is well established. The Board said in Peyton Packing Company, Inc.:
The Act, of course, does not prevent an employer from making and en-
forcing reasonable rules covering the conduct of employees on company time.
Working time is for work. It is therefore within the province of an em-
ployer to promulgate and enforce a rule prohibiting union solicitation during
working hours. Such a rule must be presumed to be valid in the absence of
evidence that it was adopted for a discriminatory purpose. It is no less
true that time outside working hours, whether before or after work, or during
luncheon or rest periods, is an employee's time to use as he wishes without
unreasonable restraint, although the employees are on company property.
867351-50-vol. S6---16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is therefore not within the province of an employer to promulgate and
enforce a rule prohibiting union solicitation by an employee outside of
working hours, although on company property. Such a rule must be pre-
surned to be an unreasonable impediment to self-organization and therefore
discriminatory in the absence of evidence that special circumstances make
the rule necessary in order to maintain production or discipline"
As the quoted testimony above indicates the Respondent's representatives
interpreted "Rule 21" to apply to all union activity on company property. Since
lunch and rest periods were covered by the hourly wage paid for the full time
of the shifts, it was their ruling that such time was "company time" and might
not be used by the employees in union activities. As clearly stated by the Board
in the Peyton Packing decision the respondent's representatives were in error
in this interpretation of "company time." Respondent, in effect, admitted this
error through the testimony of Works Manager Boak and Assistant Personnel
Director Willers who stated that the interpretation of the rules had been changed
shortly after August 1942 and as changed explicitly permitted employees to
engage in union activities during their lunch and rest periods.
Boak testified that he instructed both Willers and Snyder in late May or early
-June 1942 as follows :
That we must not discharge anyone for soliciting on Company property
as on Company property only. I told . . . the Personnel Department that
they could reprimand for soliciting on Company property but in case of
discharge it must be determined that the solicitation took place on Company
time, actual working time, not smoking periods [or] lunch periods. I was
very definite on that.
Willers' testimony, in general corroborates Boak at this point. However, all
.Respondent's witnesses agree that Snyder was directly responsible for the
discharges of Mumford, Bucci, and Gordon. Snyder's testimony does not refer
to such an instruction from Boak nor does it convey such an understanding
of the application of Rule 21.
Unrefuted and credited testimony by Mumford indicates that solicitation for
other than union activities was freely carried on in Respondent's plant during
1942. Mumford testified that she spent practically an entire shift, on Respond-
ent's time and pay, soliciting membership in the women's auxiliary of the ex-
servicemen's club, and collecting the dues therein. This was done with the
knowledge and expressed approval of supervisors, Van Siokle and Kramer.42
Mumford further testified that she made other solicitations for an employee,
for a female employee's wedding gift and for a female employee who was leav-
ing her employment. Although these activities were known to her supervisor
and she had not requested permission, she did not incur discipline. Snyder
confirmed this testimony stating that solicitation for tuberculosis and similar
associations and collections for sickness and for marriages were never questioned.
Of the three complainants only Mumford was ever offered reinstatement and
this offer was speedily withdrawn. On the 'day of the hearing in the Judge
.Ellenbogen arbitration case adverted to above, Mumford was told by a "man
from the plant"" that she could come back to work. Mumford went to the
4149 N. L. R. -B. 828 at 843. Enf'd (C. A. 5) 142 F. 2d 1009. Cert. denied 323 U. S.
'730.
42 Mumford described Kramer as the "head boss" In her department . She had secured
:his permission before beginning her canvass of the employees.
11 Not otherwise identified in the record.
OLIN INDUSTRIES, INC. 231
Respondent's employment office and verified this statement with one Miss Olson,
.an employee in Respondent's personnel department. Acting on Olson's advice,
Mumford secured her release from her employer at the time. However, when
she returned later that sauce day and showed Olson the release, Olson told her,
"she was very sorry but she couldn't give [her] no job, couldn't give [her] no
work." "
Conclusions and contentions of the parties
Gordon signed a union application card, which is in evidence, on August 3,
1942. That same night he was asked by Union Organizer Claire Niekind to
become a steward. He gave out five or six union application cards during
smoking periods within the next "couple of days." The only suggestion in the
record of other union activities is the allegation in O'Neil's affidavit and testi-
mony regarding matters on August 15, 1946. Gordon was discharged on August
19, 1942. Mumford signed a union card outside the plant on August 6, 1942.
She paid her initiation fee and became a member on August 8, 1942. On that
same day she was discharged. Bucci signed a union card on August 12, 1942.
On the next day she paid her initiation fee and Niekind appointed her a steward.
Thereafter she actively solicited application for union membership and was
discharged on August 15, 1942. Thus the action material here took place within
the 2 weeks period August 3 to 19, 1942. The three discharges are thus mani-
festations of the same underlying Respondent's policy. Each of these com-
plainants had been carefully instructed by union officials not to carry on union
activities in working time. After consideration of the record and of the de-
meanor of the witnesses concerned it is the considered judgment and finding of
the undersigned that these complainants, with very minor exceptions, fulfilled
that instruction. However, they did solicit memberships and present union
arguments in lunch and rest periods while on Respondent's property. They were
discharged for so doing. The Respondent presented no evidence to show that
their records were not otherwise free from criticism. In finding that they were
discriminatorily discharged the undersigned has been influenced by the undenied
and credited testimony of Mumford, who was first to incur this extreme penalty,
that both Personnel Director Snyder and Foreman Van Sickle promised her
immediate reinstatement if she would reveal the names of union adherents. It
would be difficult to imagine actions more revealing of animus against union
organization or of the basis for a discharge. Similar animus and a like basis
must be inferred to attach to the discharges of Bucci and of Gordon which were
closely associated as to time and attendant circumstances. -
Respondent contends as to the Mumford, Bucci, and Gordon discharges that :
(1) since charges were filed in 1942 and withdrawn in May 27, 1943 "with the
consent of the Board" the Board was guilty of laches, and again (2) that since
the Board gave over control of these cases to N. W. L. B. this act constitutes a
bar to reopening the case later; (3) since there was a "complete and adequate
remedy in Connecticut to protect" these complainants of which they did not take
advantage before they were barred by the statute of limitation, they are estopped
from later application to the Board; and (4) that the action of the United
States Circuit Court in final settlement of an earlier case finding that the Re-
spondent was in compliance with Section 8 (1) and 8 (3) of the Act estops the
Board from prosecuting similar charges filed prior to this Court's final order.
"Findings in the paragraphs are based on uncontroverted and credited testimony by
Mumford.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These contentions will be considered seriatim: (1) the Board has heretofore
held "that the equitable principle of laches does not apply to the Board in its
administration capacity as an agency in the government." 45 In accord with this
pronouncement by the Board the undersigned finds no merit in this contention
of the Respondent.
(2) As set forth above the Board's first Regional Office did not authorize
withdrawal of the charges in the cases of Mumford, Bucci, Gordon and others
until May 27, 1943. This action was taken on the understanding that the Re-
spondent was in compliance with N. W. L. B. directive order in Case No. 443.45
It will be noted that the action of the Board's Regional Office was taken after the
issuance of N. W. L. B. Supplementary Directive Order which unanimously di-
rected that Respondent comply immediately with its directive order of February
5, 1943. Since acceptance of this contention of the Respondent would require
the undersigned to assent to the doctrine that a munition plant in time of war
could evade its responsibilities under the Act by the simple expedient of stub-
bornly refusing to obey the orders of the agency set up by the United States
Government with intent to insure speedy determination of these matters, he
can find no merit in this contention.
(3) The Act declares as to the Board's power in preventing unfair labor
practices affecting commerce :
This power shall be excluaive, and shall not be affected by any other means
of adjustment or prevention that has been or, may be established by agree-
ment, code, law or otherwise"
The statute, then, compels the finding that there is no merit in Respondent's
contention relative to applicability of a Connecticut statute.
(4) The Board early established the policy and has since consistently main-
tained it in a long line of decisions, that it would not disturb action taken by its
agents in settlement agreements or stipulations.48 The Board record shows
that the 8 (1) charge in the original case involving Mumford, Bucci, and Gordon
was still open pending action by the Circuit Court on May 21, 1943. This case was
closed by the Board 6 days later, before as set forth above, the Circuit Court
issued its decision of November 3, 1943, enforcing the Board's decision. gore-
over, the Board's policy has a corollary to the effect that if the Respondent
renews its unfair labor practices at a later date, the Board will then reexamine
any prior action of the Respondent of like character.49 As set forth below the
Matter of Baker Manufacturing Co., 75 N . L. R. B. 1012 , 1013. See also Matter of
Gibbs Corporation, 74 N. L. R. B. 1182 and cases cited there in footnote No. 1.
4c Regional Office Closed Case Report in Case No. 1-C-2213. Docketed by the Board
June 2, 1943.
4T Section 10 (a) of the Act.
48 Matter of Shenandoah-Dives Mining Go., 11 N. L. R. B. 885 and Matter of Godchaux
Sugars Inc., 12 N. L. R. B. 568. Both were issued in 1939. Later decisions are Matter
of Canyon Corporation, 33 N. L. It. B. 885 and Matter of Golden Turkey Mining Co., 34
N. L. It. B. 760.
19 See for a recent statement of this policy, Matter of Rice-St iv of Arkansas , Inc., 79
N. L. R. B. 1333. Decision issued October 1.5, 1948, in which the Board said :
It is the Board ' s established practice not to consider as evidence of unfair labor
practices conduct of a Respondent antedating a settlement agreement , unless the
Respondent since the settlement has engaged in independent unfair labor practices.
For a clear statement of this policy, see Matter of General Fireproofing Co., 59 N. L. R. B.
375 where the Board said, "We have consistently refused to give effect to a settlement
or compromise of unfair labor practices" "where [the] employer violates it or continues
a course of unfair labor practices."
OLIN INDUSTRIES, INC. 233
Respondent is found to have engaged in unfair labor practice under Section 8 (1)
and (3) in 1946. Hence under this well established Board policy the Respondent
may be held accountable for similar acts committed in 1942. Under these cir-
cumstances this contention of the Respondent is without merit.
The undersigned finds that by the discharge of Nora B. Mumford on August 8,
1942, of Ruth H. Bucci on August 15 , 1942, and of Harry H. Gordon on August 19,
1.912, and its subsequent failure and refusal to reinstate them, the Respondent
discriminated in regard to their hire and tenure of employment and the terms
and conditions of their employment and discouraged membership in a labor
anion. By these discharges and by the acts and statements of Personnel Direc-
tor Snyder and Supervisor Van Sickle, as set forth above, the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and of the amended Act.
D. 1Vork stoppage in the rolling mi ll; discharge of Frederick Destadio, Benjamin
Bonito, and Frederick J. Baldino; lock-oat and strike
Events in 1946 of concern to this proceeding arose from certain work schedule
changes in the rolling mill. Operations there were continuous and shifts were
scheduled on an "around the clock" basis. The first shift went on at 7 a. m. ; the
second at 3 p. m. and the third at 11 p. m. In January and February 1946, as
employee record cards in evidence show,"0 the practice was to work Monday
through Saturday with frequent additional shifts on Sunday. The employees
were paid on the basis of a 40-hour week, with time and a half for Saturday
hours and double time for Sunday. In general, weekly hours were reduced,
beginning March 10 and continuing through April 27, 1946, to 5 consecutive days
normally of 8.3 "' hours giving employees 41.5 hours per week.
On April 28, 1946, a new schedule became effective. A fourth, or swing shift,
was added and a somewhat complicated system of shift schedules was in-
augurated. These were planned on a basis of a 4-week cycle. The first shift
operated on a cycle of 2 days off, 7 days on, 2 off, 6 on and 2 off, followed by
7 on and 2 off.12 Since payment was made on the basis of calendar weeks and
antler this cycle no more than five shifts fall in any calendar workweek, the men
who worked but 41.5 hours each week received no Saturday or Sunday bonus
pay. However, they worked three periods of six or seven consecutive shifts
and were at work three Saturdays and three Sundays in each 4-week period."
Similarly the second shift under the new schedule worked a cycle composed
of two shifts on, 2 off, 7 on, 2 off, 6 on, 4 off and 5 on in each 4-week period. The
last period of five working shifts is followed by two shifts on in the following
cycle. These workers also never had more than five consecutive shifts in any
calendar week and so were paid no overtime pay beyond that for the 11/2 hours
20 In interpreting these schedules it must be borne in mind that shifts are assigned to the days in which
they begin. Thus employees working the 11 p. m. to 7 a. m. shift are recorded as working on the day in
which they work but 1 hour.
31 The.3 hour represented 18 minutes "wash up time" at the close of the shift.
52 Since the next cycle begins with two shifts off these employees had four consecutive shifts off at this
point.
83 A sample cycle for the 7 to 3 shift, introduced by the Respondent follows: Dates are for the Sunday
beginning the week.
21.
Sun.
9-11-46------------------ Off
Mon.
Off
Tues.
7-3
Wed.
7-3
Thurs.
7-3
Fri.
7-3
Sat.
7-3
22. 9-22-46------------------ 7-3 7-3 Off Off 7-3 7-3 7-3
23.9-2946------------------ 7-3 7-3 7-3 Off Off 7-3 7-3
24. 10-6-46------------------ 7-3 7-3 7-3 7-3 7-3 Off Off
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per week in excess of 40. They also had but one free Saturday and one free
Sunday in each 4-week period °i
The third shift cycle was more irregular as shown in the margin." No more
than five shifts were scheduled for each calendar week. While each Saturday
is marked off, it must be remembered that employees on this shift worked from
midnight to 7 a. in. on' each of these 4 days. Per contra while they are carried
on the schedule as working a shift on three Sundays they were actually at work
on this day only for an hour between 11 and 12 p. m.
The swing shift schedule, as shown below, was comparable to that of the
third shift in irregularity. On two occasions the 4 weeks' cycle called for a
single shift to be worked after 2 days off. In each case this isolated shift was
followed by another shift off. The schedule had two periods of seven consecu-
tive shifts; one in the third and fourth week and the second where the last
two shifts of the cycle were followed by the first five shifts of the next 4-week
period. Workers on this shift had but one Sunday free each month and two
Saturdays. Their work entailed the additional hardship of working during each
calendar week at the hours scheduled for each of the three shifts.66
These schedules, which joined a substantial increase in the requirement for
week-end work and frequent demands for 7 consecutive clays of labor, with the
withdrawal of bonus payments for consecutive work beyond five shifts and for
Saturday and Sunday work, aroused dissatisfaction among the employees af-
fected. Individuals, as undenied and credited testimony of witnesses called by
the General Counsel shows, made frequent inquiry and protests to Larry Thorud,
superintendent of the rolling mill," John Boris, general foreman, to their im-
mediate foremen; to Ray (Pickles) Richards, grievance man for returned
veterans, and to Edward H. Goin, personnel counselor for colored employees
attached to the Respondent's personnel department. None of the witnesses testi-
fied that he had entered a written grievance under the formal grievance pro-
cedure. Unrefuted and credited testimony by Dietrich K. Willers, assistant
superintendent of personnel and assistant to Works Manager Thomas I. S. Boak 6s
and by Boak himself, shows that none was presented in the period pertinent here.
Early in September 1946, a self-constituted committee of S or 10 employees
from the first shift including Destadio, Bonito, F. Baldino, Joseph Los, James
64 The Respondent introduced the following schedule for the 3 p. m. shift:
21. 9-15-46-------------------
Sun.
3-11
Mon .
3-11
Tues.
Off
Wed.
Off
Thurs.
3-11
Fri.
3-11
Sat.
3-11
22. 9-22-46------------------- 3-11 3-11 3-11 3-11 Off Off 3-11
23. 9-29 -46------------------ 3-11 3-11 3-11 3-11 3-11 Off Off
24. 10-6-46------------------ Off Off 3-11 3-11 3-11 3-11 3-11
sa Third, or 11-7 shift:
Sun. Mon . Tues. Wed. Thurs. Fri. Sat.
21. 9-15-46-- -----------------11-7 11-7 11-7 11-7 Off 11-7 Off
22. 9-22-46----------------- Off 11-7 11-7 11-7 11-7 11-7 Off
23. 0-29-46 -- ---------------- 11-7 Off 11-7 11-7 11-7 11-7 Off
24. 10-0-46 11-7 11-7 Off 11-7 11-7 11-7 Oft
66 Swing shift schedule:
Su Mon esT wed Thurs Fri Sat
21. 9-15-46 ------------------
n.
7-3
.
7-3
.u
3-11
.
3-11
.
11-7
.
Off
..
Off
22. 9-22-46------------------ 11-7 Of 7-3 7-3 3-11 3-11 Off
23. 9-29-46 ------------------ Off 11-7 Off 7-3 7-3 3-11 3-11
24. 10-6-46------------------- 3 -11 3-11 11-7 Off Off 7-3 7-3
67 Thorud's employment was terminated about August 23, 1946 ; thereafter Boris became
acting superintendent.
61 Willers' position as assistant to Boak dates from about October 1946.
OLIN INDUSTRIES, INC. 235
T. (Teddy) Evans, and Ernest Ruby 69 assembled the majority of the men on
the shift in the washroom where discussion on grievances arising out of the
schedule was carried on. A subsidiary question arose over the scheduling of
4 hours' overtime. This was proposed by the Respondent following the institu-
tion of a 45-hour week in the plant generally. However, in the complicated
schedules in force in the rolling mill the addition of these hours called for the
4 additional hours in some cases to be added to a single shift. Moreover, such
addition sometimes fell on a Saturday or a Sunday shift. Destadio addressed the
meeting. It was decided that a committee composed of Destadio, Los, and
Russell Diedrickson 60 should approach Boris and, through him Works Manager.
Boak for a conference on the issues.
The committee 'net with Boris on or about September 8, 1946, at 3 p. in. in
Boris' office.B1 Destadio and Los testified as to their interview with Boris. Their
credited testimony agrees that Boris' attitude was that the schedule as fixed
by management must be worked 62 Los and Diedrickson thereupon withdrew
and later reported to their fellow employees on the shift that they "couldn't make-
no headway with Boris." Destadio persisted in his protest to Boris and an-
nounced his intention to carry the matter to Boak. Boris, who was newly
appointed acting superintendent, was averse to such action and persuaded
Destadio to allow him [Boris] to consult with Boak. After doing so he showed
Destadio a new schedule stating that it was to be posted on September 15, 1946.
On examination, aided by explanation by Boris, Destadio found this schedule
made improvements over that currently in effect. As he testified, it required no
more than five consecutive shifts and provided for an additional Saturday and
Sunday off in each 4 weeks. Destadio promised Boris that he would explain
the changes to the men and expressed his opinion, as his testimony reads, "I am
pretty sure they will like it in comparison to what we have now. I don't
imagine we will have too much trouble convincing them."
Boris testified that on the occasion when the committee called on him he had
explained that the schedule in effect was temporary and would be modified when
production covered the work in process. This he anticipated would be "in two
weeks, possibly three or four." He further testified that he was working on a
new schedule to bring the rolling mill in line with a 45-hour week recently in-
stalled in the plant generally. Los and Diedrickson then left ; Destadio remained
and asked whether the new schedule was to be effective soon. When assured by
Boris that it would be, Destadio, as Boris' testimony reads, said : "That's fine,
don't worry about it. I will take care of that with the fellows downstairs."
The undersigned has considered this conflict of testimony in the light of the
full record. He is influenced by the detailed and exact character of the testi-
mony by witnesses called by the General Counsel and their successful withstand-
ing of lengthy and searching cross-examination. Boris' testimony by contrast
was lacking in specificity. He was evasive in cross-examination and exhibited
a faulty memory on matters pertinent here. The undersigned credits the testi-
w All those named, except Ruby, are complainants in this proceeding.
60 Diedrickson was not a complainant and was not called as a witness.
01 Boris fixed the date as the Saturday or Sunday following Labor Day. This would be
September 7 or 8, 1946.
"Los ' testimony reads, "[Boris ] said that is the way it is going to be. If you guys
like it, all right ; if you don't you know what to do . It was all one sided ." Destadio's
testimony was to similar effect. It reads , "[ Boris ] said , You are going to work them
hours whether you like it or not, or you are going to get out . I am not firing you. but
you know what you can do , either work or quit."
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of Los and Destadio as to the matter and rejects such testimony by Boris
as conflicts therewith.
A new schedule was posted and became effective September 15, 1946. Destadio
testified that the schedule was less desirable, in his opinion, than the one in effect
prior to that date. He testified that he immediately protested to Boris. At this
point his credited testimony reads as follows:
I said [to Boris], "What are you doing, that ain't the schedule you say we
would work with." He said, "Well, that is the one you are going to work."
I said, "This one here makes it worse than the old one. This . . . adds a
clay to each week. We are working 6 and 7 now. Your new schedule calls
for 7 and 8." He said, "Well you are either going to work or quit, . . . I
expect a few guys to quit-so what . . . I can hire men to take their places."
Destadio, as he testified, thereafter lodged a protest with Richards who made a
written record to which, after requesting and receiving authorization, he signed
Destadio's name. Richards stated to Destadio that he had presented the matter
to Hoak. On further inquiry Richards intimated to Destadio that this protest
was ineffectual. This unrefuted testimony by Destadio was corroborated by F.
Balclino and is credited by the undersigned.
The exact nature of the changes made by the schedule posted on September
15, 1946, was not disclosed fully at the hearing. Boris testified that as acting
superintendent of the rolling mill lie was responsible for working out the new
schedules. He testified that the only change made was to give the employees an
opportunity to work 4 hours' overtime in each week. When asked whether, in
the schedule posted, the employees at times were required to work eight consecu-
tive shifts, he replied, "I don't remember that close, but it was 6 or 7 is the way
the schedule was made up in my recollection." F. Baldino, in his testimony, gave
the clearest statement of the changes made on September 15. His testimony
in point here, reads :
The [schedule] ran practically the same as the last, only instead of work-
ing two off, seven, two off, six, four off, they just took two clays off the four
days off and just brought it up forward. So, instead of working six and
seven, we'd be working seven days, two off, eight days, two off, and continued
right on.
The record contains 17 employee record cards, with a good distribution among
the four shifts. These show the changes made by the new schedule in the first
week that it was effective. By this evidence the first shift is shown to have
worked an additional shift on Monday, September 16. Employees who worked
full time are credited with 49.8 hours for the week. Moreover, six witnesses,
from this shift, testified unanimously that they were scheduled for a Sunday
shift and reported at the plant gate before 7 a. m. that day. By analogy with
the earlier schedule they would also have worked a Monday shift making the
eighth consecutive shift. Employee record cards for the second shift show no
change during the first week's operation of the new schedule. Full-time em-
ployees made 41.5 hours as before.
However, the schedules for the third and for the swing shift indicate that the
third shift did not report for their Sunday shift on September 20. They are
credited with but 33.2 hours for full time in the week. Under the previous
schedule they had reported for a Friday shift in each of the 4 weeks in the
cycle. The swing shift employees gained by the shift subtracted from the
third shift. Employee record cards, confirmed by the record of Moses Brown
read into the record, show that they worked an additional shift on Friday,
OLIN INDUSTRIES, INC. 237
September 20, 1946, and that those who worked full time made 49.8 hours in the
week ending September 21, 1946.63 This evidence further shows that members of
this shift worked 8 consecutive days from Friday, September 13, to Friday, Sep-
tember 20, both inclusive.
It will be manifest from this statement that Boris' testimony regarding the
change made was incorrect. Although the evidence is incomplete it refutes with
finality his statement that the only effect of the change was to give each em-
ployee an additional 4 hours of overtime. By the same token the available
evidence supports the testimony of Baldino and Destadio that the change in-
creased the number of consecutive shifts to be worked and correspondingly
reduced the number of free days. The undersigned, on this record, credits their
testimony and rejects so much of Boris' testimony as conflicts with them on this
point.
The record reflects that the posting on September 15, 1946, of the new schedule
and operation under its severer requirements brought to a head the discontent
of the rolling mill employees. The employees on the first shift, after further
washroom conferences, went to the union headquarters as a group. There they
sought and received advice from Union Representatives Vincent J. Romeo, Harry
Kaplan, and Joseph Squires. It was determined to call a general meeting of
rolling mill employees. Such a meeting of the three shifts not working was held,
on or about, September 20, 1946. At this time under guidance and advice by
Romeo, Kaplan, and Squires, demands were formulated for presentation to the
Respondent reading as follows :
DEMANDS OF ROLLING MILL WORKERS
1. Time and one-half for all work over 8 hours in any working day.
2. Time and one-half for all work on Saturday as such.
3. Double time for all work on Sunday and holidays.
NOTE.-That, for the purpose of computing overtime, 12 Midnight shall be
the beginning of the work-day.
4. That all charities be itemized, and that workers choose the charities
they want to contribute to and the amount they wish to give.
A committee, composed of seven members, was elected from each shift by vote
of employees present." It was decided that a work stoppage of 15 minutes'
would be held on each shift following the 1a-minute lunch period at which time
the committee, each member of which was given a copy of the Demands, was in-
ca This shift in Friday's assignment caused some confusion, manifest in the testimony
of employees affected who appeared as witnesses: They remembered the normal schedule
better than that effective for a single week.
64 Complainants on these shift committees, so far as disclosed by the record were :
First Shift
Frederick Baldino
Bejamin Bonito
Frederick Destadio
Tames T. Evans
Joseph Los
Third Shift
Louis Baldino
during work stoppage)
Second Shift
Harold Ballard
Angelo Conte
Louis R. Morton
Joseph Tardie
William Weaver
(Substitute for Ballard
11 The Respondent contends that the plans made included further lengthening of the work
stoppages by 15 minutes on each succeeding day. After full consideration of all evidence
and the full record the undersigned concludes and finds that plans definitely voted upon,
went no further than the third shift on September 21, 1946. The parties stipulated that
the plans for stoppage covered the three shifts working from 7 a. m. September 21 to 7 a. in.
September 22, 1946.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
structed to present them to the management. Employees who attended con-
veyors serving the rolling mills and those attending furnaces were instructed to
continue their duties lest machinery or materials be damaged.
In accordance with this plan, the employees on the first shift on September 21,
1946, did not return to their jobs when their lunch period closed at 12: 15 p. in.
Instead they assembled in the vicinity of the washroom. When Foreman William
Lloyd ordered them to return to work, Destadio stated that they would not do so
until they had an opportunity to talk with Boris or Boak. Lloyd left and on
returning said that neither would come and repeated his order that they
return to work. When they (lid not do so, Boris and Boak shortly arrived. Re-
garding what then transpired the record contains some conflict of testimony.
Destadio's testimony, given late in his cross-examination after his memory had
been somewhat stimulated, is recorded as follows :
Bill Lloyd came in. He says, "Come on you fellows let's go back to
work here. It is time to go back." So I went up to him and told him,
"You better get John Boris and Mr. Boak because we are not going back
to work until we see them." He walked out, turned around and came
right back in again and said, "John [Boris] and Boak are standing outside
or something like that." He says, "They ain't going to see you until you
go back to work." We laughed-I did anyhow. I told him, "You better
.get them, that the men weren't going back to work until [we] saw them. . . .
Just as he walked out Mr. Boris and Boak walked in. . . . Boak said, "Come
on, get back to work, get back to work, call the guards," and he went
through that for a few minutes. He jumped up on the bench alongside
the wall and kept repeating, "Go on back to work. I will call the guards
and throw you all out." Then he said, "You colored fellows, if you don't
work here where are you going to work in New Haven?" This one fellow
[James T. (Teddy) Evans] answered back, "Yes, we have been figuring that
out for about 300 years." And he [Boak] turned around and said, "That's
enough from you, funny face. Go on, go on back to work." He says,
"There are a bunch of tough guys in the crowd, but I would like to take on
anyone of [you] all alone outside."
Then the chief of police came in and he started to talk to us and asked us
to go back to work." We got to talking back and forth with him and
about that time the fifteen minutes was up so I turned around and says,
"Let's go fellows, let's go back to work," and we all filed out and went
back to work.
Elsewhere in his testimony Destadio stated that on Boak's first appearance
he [Destadio] approached him and said, "Mr. Boak, I am a representative of
a committee of the men," and tried to hand him a copy of the Demands. There-
upon, as Destadio further testified, Boak said, "Who are you? I don't recognize
anybody. I don't recognize you as long as the mill is shut down. I won't
.recognize anybody."
Destadio's testimony in general outline is corroborated by that of employees
of the first shift who were called as witnesses by the General Counsel. It will
be remembered that these witnesses testified independently ; the rule for
66 The reference is to Francis McCartin, chief of police of the Winchester Protective
Service. This name is frequently reported as McCarthy in the transcript of the testimony.
Further credited testimony as to McCartin's intervention shows that he deprecated violence
and was assured there would be none. Baldino, who knew McCartin well, told him the
purpose of the stoppage and asked for 2 minutes further time to allow the men to confer.
McCartin granted the request.
OLIN INDUSTRIES, INC. 239
segregation of the witnesses being in effect. Boak's testimony in point here,
conflicts with that just stated in several material respects. His version reads
as follows :
So [Boris] and I . . . went into the washroom and three men pushed
themselves up to me ahead of the rest and said, "We represent the Union.
We want to tell you what we want." And I said, "There is no Union in
this plant, and furthermore the NLRB in 1944 held that the mill is not an
appropriate bargaining unit, you fellows go back to work." And one of
them said, "We have some things we want to talk about." I said to them,
"You fellows know that we have a well-established grievance procedure in
this plant. You should make use of it." And the biggest man of the bunch
that I after[wards] learned was Destadio said, "We ain't going to follow
the grievance procedure. We are going to work that this way." I said,
"Well you can't, you have got to go back to work.. . . I will give you two
minutes to get back to work or I will call the guards and ask them to take
charge."
Well he [Destadio] commenced jumping up and down and ranting and
raving, "to hell with the guards, we eat the guards up." And the three
or four guards came in with the supervisor [Mr. McCartin].
Boak in his testimony admitted applying the appellation "funnyface" to a negro
employee. He was vague in his testimony regarding the exchange with this
employee who was identified as Evans. Testimony by Evans and others present
fully supports the version given by Destadio. Boris in his testimony identified
the three men who approached Boak as Bonito, Baldino, and Destadio. His
testimony supports Boak's version in stating that they announced they were a
union committee ; that Boak referred to the Board ruling that the rolling mill
was not an appropriate unit ; and advised the committee to use the grievance
procedure. Further Boris stated that Destadio spoke defiantly regarding the
guards. The undersigned finds no support for this testimony of Boak and
Boris after consideration of the full record. Bonito, Baldino, and Destadio each
testified that they were a committee selected by the employees and that they
advanced no claim in speaking to Boak during the stoppage that they repre-
sented the Union or had been selected by or authorized by the Union. The
testimony of various other employees called by the General Counsel corroborates
this testimony. Similar preponderance of credible testimony enforces the con-
clusion that the record does not substantiate Beak's testimony that he, at this
time, referred to the Board's ruling that the rolling mill was not an appropriate
unit ' or that he advised the committee and the employees that they must use
the established grievance procedure. This testimony by Boak and Boris is
rejected by the undersigned.
The parties stipulated that :
on September 21, 1946, the employees of the rolling mill department in-
volved in these proceedings employed on the first shift, at 12: 15 p. in. in ac-
cordance with a plan failed to return to their work though the time allotted
by the Company for a lunch period had elapsed and the usual signal for a
return to work had been given ; that the said employees of the first shift
continued their failure to return to work until approximately 12: 30 p. in.
' Each of these three committee members corroborates , as appears below, Boak 's testi-
mony that in their termination interviews he called their attention to this ruling by the
Board.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though Thomas I. S. Boak, Respondent's Works Manager, and others of the
Respondent's supervisory personnel, directed such employees to return to
work ; that about 12: 30 p. in. all of the employees returned to their work
at a signal given by Frederick A. Destadio and continued at their usual
employments -until 3 p. in., the usual quitting time for that shift. It is the
further understanding of the parties that there are some individuals in-
volved in these proceedings who allegedly did not participate in these
stoppages clue to the fact that they were employed in continuous operations.
This stipulation does not preclude such employees from testifying in these
proceedings, nor are the parties in.su,ch cases bound by this stipulation.
Between 2 and 3 o'clock on the afternoon of September 21, 1946, Boric sum-
moned Bonito to his office. Baldino and Destadio were brought there im-
mediately after the close of the shift at 3 p. in. They were interviewed singly.
As to the material facts in these interviews there is substantial agreement.
Soak's own testimony as to the Bonito interview in point here reads :
I told Bonito that in my opinion he was acting very foolish in what he
had done, that as I saw it the act that those three men had led had been
entirely, illegal without any basis of action and I asked him whether he was
familiar with the fact that at a hearing held in March 1944, a decision of
the [Board] had been that the mill division was not an appropriate bar-
gaining unit for the [Respondent].
* e s s * * 4'
He said, "Oh, to hell with that, we are running this now," and I said,
"If you have grievances, which I assume you have, you have got a procedure
which you can follow," and I said, "We are going to do it this way." Next
I said, "Well, if you had this to do over again, would you do the same as
you have donr: now? I am talking to you personally." He said. "Yes, I
would." I sail, "In that case, I can't do anything other than to recommend
to the employment office that you be discharged."
It was Boak's further testimony that he "went practically through the same
chain of conversation" with Baldino. He ascribed to Destadio, however, cer-
tain "profane and personally insulting language." For this there is no corrobora-
tion in the record. Boris testified that he was present throughout these
termination interviews and that they were alike in character. It is palpably
improbable that the use of personal invective directed to the works manager would
have failed to attract Boris' attention and lodge securely in his memory. In
this state of the record the undersigned rejects this testimony of Boak. There
is further conflict in the testimony at this point in that each of the three men
discharged testified postively with persuasive detail that Boak definitely dis-
charged each man while Boak's testimony was that he told each of them he
would recommend the discharge to the personnel department. Thus Bonito's tes-
timony reads :
Anyway, lie told me how I was an instigator and participated in an illegal
work stoppage. He said, he told Mr. Willers and Mr. Sullivan "' to take
me out of the office, to take my pass away, that I was all through.
Similarly Baldino's testimony reads in part:
"You know," [Boak] says, "you're breaking the laws of the land." I told
him, well maybe we were, maybe we weren't. I didn't know. Then he says,
11 Austin F. Sullivan, a supervisor in the personnel department, subordinate to Willers.
OLIN INDUSTRIES, INC. 241
"Well you leave me no other alternative but to fire you." I asked him what
he fired me for. "Well," he says, "because of an illegal work stoppage."
Destadio's testimony is of like tenor. It reads :
So he says, "Well, I am going to have to fire you. I am going to discharge
you. You don't leave anything up to me." I says, "As long as you are
going to fire me, let's cut out all this bull and let me get out of here." He
didn't answer me.
It was Destadio's testimony corroborated by Boak and Boris that at this time he
left his copy of the Demands on Boak's desk.
The testimony of Boris, who was present at the Bonito interview, in part,
reads, "Mr. Boak told him [Bonito] that he would have to discharge him for
insubordination. Bonito said lie didn't care. He was taking orders from the
Union." °D Boris was asked if Boak consulted him regarding these discharges
and answered, "He (lid not." The examination continues:
Q. The first you heard about it was when you were called in and heard
Mr. Boak say he would have to discharge them?
A. That is absolutely right.
WTillers testified that Boak recommended the discharges to him after the
three were interviewed by Boak and before their passes were taken up. He
further stated that Boak's recommendation was made after he had stated to
these employees that he had no recourse except to discharge them. Under
these circumstances the undersigned concludes and finds that Bonito, Baldino,
and Destadio were summarily discharged just prior to 4 p. in. on September
21, 1946, and that this was done without the usual procedure of review by the
discharge section in the personnel department."
Sometime after the second shift reported at 3 p. in. they learned that Bonito,
Baldino, and Destadio had been discharged as a result of the work stoppage at
12:15.' It was then decided by the shift committeemen in consultation with
other employees that they would make an additional demand on Boak that these
three employees be reinstated, when they presented the demands previously
formulated. Events which occurred following the lunch period ending at 7: 15
p. m. were clearly stated by employee Angelo Conte. His credited testimony at
this point reads :
"With reference to the Baldino interview Boris ' testimony reads : "The conversation
was just about the same. In fact , it was the same." As to Destadio , Boris testified, "I
brought Mr. Destadio up and the conversation was just about the same as it had been with
Baldino and Bonito except that Destadio was more vehement ." When asked , " What did
he [Destadio ] say and what did he do that was different ," Boris replied that Destadio
threw the Demands on Boak's desk before leaving the office.
'0 The undersigned attaches significance to the fact that when it was pointed out to
Boris that previous testimony indicated that all discharges were made by the personnel
department , Respondent 's counsel intervened saying :
I think, Mr. Trial Examiner , you might be a bit confused . I think you will find
out before this hearing is over that Mr. Boak himself didn ' t actually discharge the
men himself ; that they were recommended for discharge by him through Personnel
and they were cleared there.
Boak ' s testimony on the following day was in line with this prediction.
71 Employee Conte , a committeeman , testified that Bonito told him about 3 : 30 p. in. that
he had been discharged . Bonito , at the time , was collecting his belongings preparatory
to leaving the mill . Employee Harold Ballard , also a committeeman , testified that Baldino
and another man, not identified by name, called to him through the window of the rolling
mill about 5 p. in. and stated that they had been discharged.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And at [7: 15 o'clock] when [John Boris] told us to go to work nobody
moved.
We said no, we want to see Mr. Boak. Mr. Boak didn't bother to coln&
over. He grabbed a man by the name of Tyler-I believe that is his name-
and he took him by the arm and said, "Get to work." The guy was confused
and he stood there. He grabbed him again and he said, "All right, take this,
man over." and then . . . Goin'2 came out and took him by the arm and led
him out to the door. Then Mr. Boak went over and grabbed another fellow
by the name of Joe, a big husky colored fellow, and he started grabbing him
and he said, "All right, guards, take this man out."
Then Nick [Proto] 73 stepped up and said, "Listen, I am the spokesman:
for the committe. Here is the grievances." and Mr. Boak said, "I don't
want to bother with that. I don't want no paper. I don't need them." '".
And he asked who-to Boris, I guess-"Who is this man?" Boris was stand-
ing next to him and he said, "That's Nick." He [Boak] said, "What does
he do?" and John Boris said, "He runs a roll." He [Boak] hollered, "Well,
take him out." So Boris walked back to get the guards and some one" in
the crowd said, "If you take him out, you will have to take us all out." and
then finally I believe it was Louis Morton who said, "Let's go in the wash-
room. There is a machine running here and it makes so much noise we
can't hear ourselves think."
At this time the employees retired to the washroom and remained there until
11 p. M.
Credited testimony by Willers, referring to the. time when Boak entered the
will, reads as follows :
Just beside me was Nick Proto and he hollered to Mr. Boak that he was
going to do the talking and before the men went back to work he, meaning
Mr. Boak, had to reinstate Baldino, Bonito, and Destadio.
Unrefuted and credited testimony by Boak confirms this statement. He testi-
fied that one of the men stated to him, "Well, we aren't going back to work until
you rehire the men you fired this afternoon."
Shortly after the employees congregated in the washroom, Sullivan came there
and announced that Proto, Morton, and William Weaver were to go to Boak's
office. Morton's testimony at this point reads :
So, Proto was the spokesman of this committee but I didn't give him any
chance to speak that time. I told him [Sullivan], "No, no, we're not going
to Mr. Boak's office. We have several offices here in the rolling mill, we
have the washroom, and the rolling mill is a big, large place, here's where we
want to see Mr. Boak at." So they couldn't get us to go out to Mr. Boak's
office, so they go away again.
Testimony by employee Robert E. Samuels corroborates Morton at this point.
Samuels stated, "Well, they said they didn't want to go up to his office because
72 Edward H. Goin, a personnel counselor.
73 Proto was not a complainant and was not called to testify.
79 It will be remembered that Boak had been given a copy of the Demands by Destadio'.
Boak testified that he did not know the names of anyone with whom he had contact on the
second shift.
75 Identified by Committeeman Louis Morton as employee John Longhorn. Longhorn
was not a complainant and did not testify.
OLIN INDUSTRIES, INC. 243.
the three fellows in the morning had done that and they were fired." Boak:
further stated that he made up his mind about 25 minutes of 8 that the employees.
would not return to work. About this time McCartin said that he [McCartin]
thought he could persuade the employees to return to their duties. Boak then
said he had no objection to his trying to do so. Boak returned to his office..
Around 8: 30 o'clock either McCartin, Willers, or Sullivan called Boak and
reported that the attempt to induce the men to go back to work had failed..
Boak's further testimony reads :
After that I should say probably about quarter of nine I got ahold of
McCartin to tell the guards that the mill would not work on the eleven to.
seven shift. At the same [time] I told him to tell the guards who came on
Sunday morning that the mill would resume work at seven a. m. Sunday.
The record shows that McCartin ordered the men either to resume work or-
leave the mill. At this time Committeeman Morton told McCartin that the em-
ployees had been warned by Goin and Pettyjohn that failure to report for work
on the Saturday or Sunday shift would result in their being "automatically
fired." Because of such threatened action Morton, as he testified, proposed that
they remain until the end of the shift at 11 p. m.'0 It was Conte's credited
testimony that on McCartin's stating that he had orders "to take us off the prop-
erty," "I told him that if we were going to be taken off the property they should
give us a written agreement from Mr. Boak that everything was okay before we
left." Conte further testified, "I told Mr. McCartin, myself, as long as there
were machines running, they [the employees] were going to stay there and see
everything was all right before we left the plant." When Harold Ballard, a
committeeman who, as an annealer in charge of two furnaces, had remained at
work, came to the washroom and reported "Everything is okay," " the men
changed their clothes and went home. Boak's testimony was that while the men.
were told to leave "no physical effort was made to get them out."
Although attempts to arrange a stipulation covering events on the second shift
failed, the parties did agree that it was not disputed that "there was no work
performed [on this shift] except for those on continuous operations from 7: 15
p. in. until the end of the shift at 11 p. in., that the employees "were asked by
competent supervisors to go back to work' and they didn't" ; and then "they were
asked by the chief of police, Mr. McCartin, to leave the plant, and they did not
until 11 o'clock." 78
.76 Morton ' s testimony relative to his conversation with McCartin , is worded as follows :
[McCartin ] came in and he says, "Well, you men will have to get out of here, we're
going to close the will down."
"No," I says , "We're not going until 11 o 'clock ." He says, "Why?" I says, "Well,.
the report was around all week , Goin had even met me in the club and he told me that
we'd better come to work Saturday . If we didn't come to work Saturday and Sunday
we'd be fired ." Pettyjohn stood right by the clock each and every afternoon , practically
all that week , and every time that we came in he would say, "Don 't you boys forget to
be here Saturday and Sunday because if you don ' t be here Saturday and Sunday you'll
be dismissed."
Pettyjohn was a personnel advisor , subordinate to Willers.
77 This quotation is from Conte ' s testimony . Ballard gave testimony but was not ques-
tioned about this incident.
'8 Respondent 's counsel fixed the hour of McCartin ' s request as "about 9 o'clock." The
General Counsel demurred to this stating he was not sure it was "definitely fixed" at that
hour. It was Boak's testimony that he gave orders to prepare the mill for a shut-down
"between 8 : 15 and 8: 30" p. in.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is agreed that the rolling mill was fully prepared for a shut-down and that
the men reporting for the third shift were informed that the mill was closed and
were not permitted to enter. Boris described the operations necessary to shut
down the mill as "greasing up the rolls so they would not rust, preparing the
furnaces . . . to pull the metal that was being milled ; also to shut them down
to prevent explosions ." These operations took considerable time. As Boris
explained in his testimony some of the material in the furnaces takes 4 or 5
hours to anneal . His further testimony reads :
The furnaces had to be cooled down and the metal had to be taken out
and that would take anywhere from two to three hours to take out alone.
Number three furnace takes approximately two hours and twenty min-
utes . . . to empty out.
Boris further testified that some of the machinery "was not shut down until mid-
night." Nothing in the record suggests that the employees on the second shift
made any attempt to interfere with the process of shutting down the rolling mill.
Those on continuous operations aided in these operations ; the others remained in
the washroom.
Although Boak testified , as stated above , that he had instructed McCartin to
inform the guards that the mill would resume operations at 7 a. in. on Sunday,
September 22, the record discloses that such resumption was of a very limited
character . Numerous witnesses testified that on reporting for their shifts that day
they found the gates at which they were accustomed to enter closed and were
refused admittance by the guards. It was Boak ' s testimony that he had ordered
the guards doubled and that admittance was permitted only through the doors
of the guards ' shanty.7ll These precautions were taken , as he further testified,
because of rumors, to which he gave credence , that plans were afoot to rush
the gates and smash the machinery . Boak was at the gate around 7 a. in. on
Sunday, Monday, and Tuesday mornings . Consideration of the complete record
.enforces the conclusion that admission to the plant on each of the shifts on both
Sunday and Monday was limited to such employees , as were approved by Re-
spondent's officials . On Monday new passes , different in color, were issued to
.employees at work . After that day other workers could gain admittance only
after going through a process equivalent to rehiring . Boak fixed the number at
.work on Sunday on all 3 shifts at 119. The normal number would have been over
300. It is obvious that those not admitted were, in effect, locked out.
Los testified that he reported for work on Sunday morning and found Willers,
.Sullivan , Boak , and Boris "all standing on the right hand side" of the hospital
gate. One of them said, "you can't get in there, Joe." It was Los' further, un-
refuted and credited testimony, that he saw three employees of the rolling mill,
whom he named , admitted through the guards' shanty after being beckoned by
Boris and after talking with 71im 80 Some 40 or 50 other employees at the gate,
however, were not admitted.
Employee Moses Brown of the swing shift, worked the third shift 11 p. in.
Friday, September 20 to 7 a . in. September 21, 1946. On Sunday Boris came to
Brown 's home about 9 or 10 p. in. and gave him a special pass to return to the
-rolling mill . Brown was a minor supervisor , or leadman , and directed the work
of a gang comprising four to six men. On Boris ' solicitation , Brown returned to
78 Willers , however, testified that he was present Sunday morning, and saw Boak at the
hospital gate , which was open.
w Employees Weaver, Evans, and Milner testified that they saw some employees admitted
,on Sunday through the guards' shanty at the hospital gate.
OLIN INDUSTRIES, INC. 245
his job and worked the following Monday and Tuesday. On Wednesday, how-
ever, Brown told Supervisor Ray Smith, as Brown's unrefuted and credited
testimony reads, "I'm going home, I ain't going to work, when the men come to
work I'd be back."
Unrefuted and credited testimony by employee John J. Raffone, is in point
here. Raffone also worked on the swing shift. His last recorded shift on his
record card is for Friday, Septembet 20, 1946. Raffone testified the swing shift
on that date worked the 11 p. in. to 7 a. in. shift. This means they quit work at 7
a. in. on Saturday. Thereafter, Raffone did not come to the plant until shortly
before 7 a. in. on Monday, September 23, 1946. This was in time for his next
scheduled shift. He was accompanied by Frank Lonergan,"1 another complain-
ant. After finding their usual gate closed they went to the hospital gate.
Raffone's testimony reads:
So we went down to the hospital gate. We figured we might get in that
way . . . and as we were going toward the hospital gate we saw Kerwin
Daniels [a foreman] crossing Winchester Avenue from the hospital gate, and
he says, "Lonergan, Itaffone go down to the Personnel office and get a special
pass so you can go in."
Lonergan and Raffone did as directed. Willers gave them special passes and
told Raffone that they would have to go "through the shop and over to the roll-
ing mill." When Raffone inquired the reason, Willers said, "Well, we had some
trouble down there and the men are not working." On hearing this Raffone and
Lonergan returned their passes and left the plant. Neither Daniels nor Loner-
gan were called as witnesses. Wellers did not refute Raffone's statement.
Frank Wilson, of the second shift, testified that when he reported for work
before 3 p. in. on Sunday, September 22, 1946, the guard told him that he might
enter through the guard shanty. Wilson did not do so. His testimony in point
reads:
Q. And you chose not to?
A. That's right.
Q. You made that decision at that moment., did you?
A. Well just didn't go through.
It is found on this record that employees Moses Brown, Lonergan, Raffone, and
Wilson were not locked out but, in effect, joined the strikers on the dates set
forth above. With these exceptions, that of employee Considine, and the five
compensation cases detailed below, all the complainants, who testified stated
that on reporting for their regular shifts after the events occurring on the first
81 Boris testified that Frank Lonergan, on it date not specified , had been upgraded to a
supervisory position. He further testified that Lonergan had not worked in 'the rolling
mill since September 21, 1946. The issue of Lonergan's supervisory status was not raised
at the hearing and the record does not contain data which permit a finding under the
definition of "supervisor" in Section 2 (11) of the amended Act. Moreover, it is not
clearly shown that Lonergan was performing the duties of a supervisor on September 21,
1946. Admitting, arguendo , but not finding, in the absence of evidence, that Lonergan
was a supervisor on September 21, 1946, he nevertheless would lose none of his right to
reinstatement because of that fact. See Matter of Marshall and Bruce Co., 75 N. L. R. B.
90; Matter of Republic Steel Corp. (Upson Division), 77 N. L. R. B. 1107; and Matter of
Fred Volandri et al., d/b/a Califruit Canning Co., 78 N. L. R. B. 112. In this last case the
Board said "notwithstanding the exclusion of supervisors from the coverage of the Act as
amended, [the Board] retains the authority to order reinstatement of supervisory em-
ployees discriminated against in violation of the Act in force at the time of the discrimi-
nation."
867351-50-vol. 86--17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and second shifts on September 21, 1946, they were not allowed to enter the
rolling mill. It is found that they were locked out.
On Monday Boak, as his credited testimony shows, consulted with Boris rela-
tive to the Demands left on his desk on Saturday by Destadio. Beak's testimony
relative to this conference reads:
It was to the effect that if the ulen°were objecting to the swing shift,
that we would have to just face up to the fact that we couldn't produce brass
as we had said we would. We would have to reexamine and reallocate our
production and work 135 hours a week rather than 160 hours a week, .. .
In line with this conclusion Boak composed a letter, under date of September
24, 1946, which he instructed Willers to send to the employees.$2 After stating
that the "misunderstandings and happenings of the last four days" could have
been avoided by application of the "well established" grievance procedure the
letter's concluding paragraphs read :
When the grievance was made known to me, notwithstanding the two
unlawful work stoppages, neither of which were necessary, consultation was
had between. Management and Supervision and a new schedule of hours
worked out which does not involve Sunday work. The present working
schedule is 3 8-hour shifts of 5 days each and one 5-hour shift on Saturday;
each employee working 45 hours, plus the regular authorized clean-up or
wash-up time.
The Brass Mill Department is operating and will continue to operate.
Accordingly, all employees of the Brass Mill Department are invited to
report for work at once on their respective shifts.
To this invitation to "all employees" there were three admitted exceptions:
Bonito, Baldino, and Destadio. As Willers testified these three were not con-
sidered to be employees since they had been discharged. Willers further testi-
fied that he gave instructions to clerks under his supervision to mail copies of
Boak's letter to all employes on the pay roll covering September 21, 1946. It is
impossible to credit this testimony in view of the preponderance of conflicting
credible testimony.
As set forth in detail below, 13 employees were listed by the Respondent as dis-
charged. Eight of them gave testimony. Each stated positively that he had not
received Boak's letter of September 24, 1946.a Their testimony is detailed and
persuasive. Thus, Conte's testimony reads: "No sir, I did not. . . . I have
seen this copy from one of the other fellows, that's how I know." Woods, after
stating that he had not received the letter, added, "I never received any letter
whatsoever of any kind." a During Willers' testimony evidence was presented to
show that 7 copies of the letter, and no more, were returned to the Respondent
because the post office was unable, for various reasons, to Wake delivery. Six of,
the letters so returned were addressed to complainants in the instant proceeding.'
None of the 6 appeared as a witness. The undersigned concludes and finds that
ea When asked whether he dictated or composed this letter . Boak replied , "I did : dictated
it. composed it, corrected it six times."
sa L. Baldino, Ballard , Conte . Evans, Los, Morton. Weaver , and Woods.
"`- Evans credited testimony was, "I heard they sent it [ Soak's letter] to some of them.
All of then didn ' t get it." Los testified that he did not receive the letter but knew of it
because, "other fellows had it."
a Gad [or Gade ] Carter, Alvin Jeffers [ Jefferi's]. Ruben Raise [Kaiser], Eddie Murphy,
Robert A. Shepard , aid Simpson Washin gton.
OLIN INDUSTRIES, INC. 247
the letter was not sent by the Respondent to employees discharged in consequence-
of events on September 21, 1946.
When the employees found the gates closed on Saturday at 11 p . in. and Sun-
day at 7 a. in ., they were advised by union organizers of a union meeting called
for Sunday morning. At this meeting reports were made of happenings on the
first and on the second shifts . It was decided that a parade , or demonstration,
would be held Monday noon and plans were made to establish pickets at the
plant gates on a 24-hour basis . The demonstration consisted of an orderly parade
up and down Winchester Avenue which extends through the center of the plant.
Under Boak 's direction still and moving pictures were made of this parade.
Representatives '6 of the Respondent , who were acquainted with the rolling
mill employees , on study of these pictures , identified 235 employees of the rolling
mill as participants in the parade.
Picketing -at the mill gates began after the parade. It continued until December
8, 1946, with two short interruptions ; the first on October 21 and 22, 1946, when
the strikers reported for reinstatement in accordance with a vote to abandon the
strike as described below, and again preceding November 7 , 1946, at the time
of the injunction proceedings instituted by the Respondent.
On September 27, 1946 , Respondent 's counsel Seserman , the employee's Execu-
tive Committee ," and Romeo , Kaplan, and Squires , as union representatives, met
with United States Mediation Commissioner Charles Ray and Perley M. Hovey
of the Connecticut Division of Mediation and Arbitration , in an attempt to
compose differences . Seserman at this time read Boak's letter of September 24,
1946, and, gave assurance that the Respondent would employ all those on the
pay roll on September 21, 1946, except Bonito, Baldino, and Destadio. Members
of the employees ' Executive Committee stated that they were instructed to refuse
any settlement which did not include the reinstatement of Bonito, Baldino, and
Destadio. At a meeting of the striking employees held on September 29, 1946,
this action of the Executive Committee was ratified by a vote of the employees
present.
Late in October Hovey came to New Haven and made efforts to settle the
strike. He conferred with Romeo , Kaplan, and Squires and on October 20,
1946, addressed a meeting of the strikers ' At that time the employees present
understood that the Respondent had assured Hovey of its willingness to rein-
state all the strikers , except Bonito , Baldino, and Destadio, on their application.
After discussion the employees voted to withdraw the pickets and report for
work at Respondent 's personnel office next day. The natter of the three dis-
clyarges was to be submitted to the Board on charges to be formulated. by the
Union. Accordingly , striking employees to an estimated number of 250 to 300
assembled at the personnel office about 8 a. in. October 21, 1946. There they
were lined up on the street and Willers and Ray Smith , a roiling mill foreman,
selected certain employees for interview . It was Willers' testimony that he
had no previous information regarding this development and that the as-
sembling of the men was a complete surprise to him. He was directed by Boak
to select for rehire a sufficient number to fill all requisitions for labor in the
88 Boak testified that Goin , Pettyjohn , McCartin, Willers, and others assisted in this
identification.
87 Members of this committee so far as they are identified by the record are Bonito,
Destadio , Frederick Baldino , Louis Baldino , James T. Evans , John J . Raffone, Carl Russell,
and Frank Lonergan . All are complainants in this proceeding.
88 The undersigned infers that Hovey at this time also called on Boak as stated in Boak's
testimony set forth below.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rolling mill on file in his department. The process of selection and interview
was slow and there was growing disappointment and discontent in the ranks
of the applicants. Their impression, as expressed by those called as witnesses,
was that relatively few were being chosen. Willers testified that there were
available "75 to 100" jobs and that "approximately 50" were filled the first day
and "pretty near the same number" on the following day. It is obvious that
these figures cannot be regarded as an accurate statement of the result reached.
At the close of the second day the employees concluded that their applications
were unsuccessful. They withdrew and picketing was resumed.
Complainants who gave testimony that they attended the meeting addressed
by Hovey declared that he stated in plain terms that lie had assurance that the
Respondent would rehire everyone except Bonito, Baldino, and Destadio. They
were supported by the testimony of Romeo which was especially detailed and
forceful to this effect. It reads:
All he [Hovey] told us was that he did reach an understanding with the
management of Winchester that they would reinstate everybody in the
rolling mill with the exception of the three people that had been fired if
they reported to work on October 21, 1946. Now he told this to us; that
is to Richard Linsley, who was in charge of the Union work in Connecticut.
He told it to Joseph Squires, a field organizer. He told that to Harry
Kaplan, a field organizer. And he told that to,myself. And he also said the
same thing at a membership meeting of the rolling mill employees, that if
they would report back to work as October 21, 1946, that they would all
be reinstated.
Romeo's testimony is corroborated by several witnesses who attended the mem-
bership meeting.
Raffone, a member of the employees' Executive Committee, for example,
testified :
We were called for a special meeting that . . . Hovey was going to
address us.
At the meeting we were informed by . . . Hovey that he had got in touch
with the authorities that be at Winchester, and it was all right with them
if we all went back to work outside of the three men and the three men
later were going to be taken care of by the [Board] . . . and the union.
The Respondent denies that any promise to rehire the employees had been
given to Hovey or to anyone else. It was Boak's testimony that Hovey made a
call on him on a date not fixed in the record. Boak further testified that
Respondent's counsel attended a conference held at Hartford, Connecticut, at
the request of the Union, about 4 weeks after September 21, 1940. What trans-
pired at this conference was not placed in evidence.
A letter from Hovey to Seserman, dated July 8, 1948, was entered as an exhibit
by the Respondent. It reads :
This is in reference to your telegram dated July 7, 1948 which states in
part, "Claim has been made that on October 20, 1946 you informed union
at union meeting that you had made agreement with Winchester for
reinstatement of all strikers on October 21, 1946."
Please be advised that I have made no such statement at a union meeting
on October 20, or to anyone on any other date. No such agreement was
OLIN INDUSTRIES, INC. 249
made between the representatives of the Winchester Repeating Arms Com-
pany and myself during the dispute.
Hovey was averse to testifying because of the confidential nature of his
work. It was stated that regulations of the State Division of Mediation and
Arbitration forbade him to appear as a witness. It is manifest that his letter,
not being a sworn statement and not submitted to cross-examination, can not
equal in evidentiary value the sworn testimony received which asserts that he
did make the statement alleged. However, no finding need be here made, and
none is made, that Hovey and the Respondent reached the understanding stated.
Two findings are made which are sufficient for the purposes of this proceeding:
first, that on October 21, 1949, striking employees made an unqualified offer to
return to their employment on the basis of conditions then effective in the rolling
will and foregoing their demand for the reinstatement of Bonito, Baldino, and
Destadio; and, second that the Respondent rehired such strikers as it chose to
rill posts then vacant." As to other matters in conflict here no findings are
made and no recommendations will be made in this Intermediate Report.
Certain difficulties developed in the course of the hearing as to the status
of those terminated following the events of September 21, 1946. Most of them
were "cleared" i. e., terminated on September 26 and 28, 1946, and given slips
for presentation to the Connecticut Unemployment Commission. Under statutes
of the State of Connecticut, the employer is directed to give such a statement to
the employee within one business day upon: "Definite termination, as by dis-
charge or resignation" or on "Layoff without pay unless the employee" is notified
of a date for resumption of work within 7 days of his lay-off. Such notice is
to be given within 7 consecutive calendar days if the employee is absent for an
unknown cause.
Acting Superintendent Boris testified that he knew of no discharges, besides
Bonito, Baldino, and Destadio, resulting from the events on September 21, 1946,
and that he had not recommended any nor heard of any. Boak testified that
he did not recommend any discharges except the three on the first shift and that
he had no knowledge that other discharges were made. Willers testified that
some additional discharges were made and that it was his "thought . . . that
[he] had knowledge of the review" and "went over the thing before we reached
[a final determination]." However, he professed complete inability to remember
the basis on which six individuals,` about whose cases lie was directly ques-
tioned, were discharged. He stated "it was quite possible" that membership on
the strikers' committee was a consideration in reaching such a decision and that
prominent activity in the work stoppages "might have been a consideration that
was given." Direct quotation from Willers' testimony at this point is helpful :
Q. A number of the employees other than Bonito, Baldino, and Destadio
received discharge slips reading wilful misconduct. Some of them with
a note of "violation of Company rules," some of them with a note "instigat-
ing and participating in an illegal work stoppage." Do you recall that?
A. That-there was some, yes.
Q. What was the great majority, I understand, received slips reading
"voluntarily quit or left on their own accord." Isn't that correct?
A. That is correct.
89 As noted below the men rehired were not "reinstated" as the Board defines that term.
90 L. Baldino, Angelo Conte, Louis Morton, James T. Evans, Harold Ballard, and William
Weaver.
250 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Q. What was the line of division? How (lid you determine which would
receive which kind of slip?
A. At that time there were several facts that we had that determined.
Q. What were those facts?
A. I don't recall offhand. Information came to us in regard to something
that they had clone at the time which I don't recall.
Q. At the time, at what time?
A. In the period of their terminations.
Q. What sort of information, that certain persons had done?
A. I am not too clear as to the details on that.
Q. Do your best to recall.
A. I don't pick anything definite as to what the definite facts were in any
case.
Willers professed inability to pick from the list of complainants any one who
was discharged. Thereafter he was instructed by the undersigned to determine
from Respondent's records the names of complainants who were discharged and
the date of discharge. He was further instructed to bring in work records cards
of 8 named complainants : L. Baldino, Harold Ballard, James T. Evans, Joseph
P. Los, Louis 11. Morton, John J. Raffone, William Weaver, and Raymond L.
Woods. Both Willers and Respondent's counsel manifested considerable re-
luctance to comply with this instruction. However, the work records were
furnished and it list of 1.3 complainants who had been discharged was compiled.
This included all of the 8 employees whose work record cards had been demanded
with the exception of Raffone. The effective date of discharge of each of the
1.3 was stated to be September 21, 1946, except for September 18 in the case of
L. Baldino and September 20 for Wellington Beal. The practice of Respond-
ent was to date terminations as of the last day worked. L. Baldino worked the
shift beginning at 11 p. m. on Tuesday and ending on Wednesday, September 18,
1946, at 7 a. in. According to the schedules in evidence he should have reported
Friday, September 21. Baldino's memory was positive that he did so. However,
both his work record card and his unemployment termination slip carry Septem-
ber 18, 1946, as the last date worked 91 His termination slip under "Cause for
Discharge" has a check mark on "Discharged for Wilful Misconduct" and the
added notation, "Violation of company rules." The work record card has the
notation: "Dis[charged]. Violation of Co[mpany] Rules." Notations for Bal-
lard are similar to those for L. Baldino. The work record cards of Conte, Evans,
Los, Morton, Weaver, and Woods carry the notation : "Discharged, Instigating
and/or participating in an illegal work stoppage." 92 The unemployment termi-
nation slip of Morton which carries a similar notation is in the record. During
the hearing it was stipulated that the slips of Weaver and Conte carried the same
notations as that of Morton. The remaining 5 complainants who were ad-
mittedly discharged : Wellington Beal, Austin Gianelli, Otis Johnson, Joseph L.
Tardie, and John H. [J.] Wayert did not give testimony. For them neither
employee record cards nor unemployment termination slips are in evidence.
Beal was discharged as of September 20; the other 4 as of September 21. The
91 The undersigned finds here an example of the confusion arising because of the new
schedules posted on September 15, 1946 . Baldino 's memory was correct as applied to the
prior schedule . The new schedule which did not call for Friday 11 p. in. reporting had
been effective for the current week only.
12 This is the same notation as that on the termination slip for Bonito except for the
omission of "and insubordination."
OLIN INDUSTRIES, INC. 251
undersigned finds it a justified inference th;mt these 5 employees were discharged
because of participation in concerted activities September 21, 1946. It was
Boak's testimony that "an employee who is discharged would have a much
harder job to get back into the Company because of his record than one who is
simply cleared." The other complainants in Appendix A, so far as the record
shows, were given clearances with the notation "Left of Own Accord." This is
usually entered on employee record cards as "LOA."
Some further exposition is necessary in the cases of five complainants who
were receiving workmen's compensation benefits at the time of the work
stoppages. For these employees certain data can be conveniently presented in
tabular form. The names are listed in the order in which these complainants
appeared as witnesses .
Name Nature of injury Compensation Period
Paul DelStritto------ Leg injury ------------- Sept. 15, 1946-Oct. 7, 1946
Louis R. Stanford___ Arm cut--------------- Sept. 17, 1946-Nov. 25, 1946
James O'Connell_____Cut finger_____________ Sept. 18, 1946-Nov. 17, 1946
William S. Muir -----Smashed finger --------- Sept. 19, 1946-Nov. 18, 1946
William Martindale- Left hand severed------ 1944-1947
The dates for Martindale's compensation period were not definitely fixed in
the record. He was first injured in 1944 and thereafter was nine times hos-
pitalized since his injury was slow in healing. He continued to work in the
plant between visits to the hospital and to the extent of his ability until
September 21, 1946. He continued on compensation until some time in 1947
when a lump sum settlement was made. None of these employees worked after
shifts in which the work stoppages occurred. Stanford had been attending for
three shifts following his accident although, as he freely admitted in his testi-
mony, he did little or no work. Muir left about 1: 30 p. in. September 21, 1946,
after the stoppage on the first shift, on the advice of the plant nurse and with
the permission of Boris, because his finger was throbbing.
Each of these complainants except DelStritto, who at the time was on crutches,
reported for their next scheduled shift. Each stated that he found the gate
closed. Martindale's testimony was that he went to the usual gate on Sunday,
September 22, 1946, "and the cop wanted to know where I worked. I said, the
rolling mill. He said, `You can't go in.' They wouldn't let us in. That's all."
With the exception of DelStritto each of these five employees participated in
the demonstration on Monday. Muir testified that he picketed 5 or 6 weeks,
O'Connell, until some time in November. The others participated until pickets
were withdrawn about December 8, 1946. DelStritto testified that after con-
sultation with the plant nurse and doctor he was told on October 7, 1946, that
he was able to return to his employment. His testimony, in point here reads:
So I told the doctor and nurse, both of them, that I wasn't going to go
back to work until these people settled. So I went out and joined the picket
line as soon as I could walk around a little.
He further testified :
I don't remember anybody coming up to nie personally and asking me if I
would join them, because I had my own mind and I knew what I was going
to do.
13 This is the date that O'Connell was reported fit for duty. He incurred a permanent
disability for which he made a lump sum settlement . Final payment was made December
24, 1946.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances the undersigned finds that DelStritto, in effect, joined
the strike on October 7, 1946. His case should, therefore be handled on the same
basis as that of the other strikers on and after that date. The undersigned will
so recommend.
Each of these five employees was in attendance during the mass application
for employment on October 21 and 22, 1.946. Only DelStritto was at that time
fit for full employment. Martindale was capable of the same work he had per-
formed before September 21, 1946, and was available for reemployment on that
basis. Willers called O'Connell in on October 21, but after an interval spent in
the office waiting Willers said to him, "Well, O'Connell, I don't think we have
anything for you today. We'll see you later." O'Connell responded, "Well, I'm
on compensation." '4 Muir was asked in cross-examination whether he had gone
to the plant on October 21, 1946, for the purpose of going to work. His reply
reads:
Well, the way I figured it out, there was a lot of men up there and their
status was the same as mine. If they all went back, I maybe would have.
If they didnt, I didn't.
When asked in redirect, "What did you figure your status to be at the time that
yellow slip was handed or pushed through the window to you?" 95 Muir replied,
"I figured I'd been fired." Muir, Standford, and O'Connell were claimants in
the Hinclcs case. Martindale made application for reemployment about Januaiy
25, 1948. At the time he was interviewed by Everett Carlson 98 and filled out an
application form. Martindale was told to come back later and did so repeatedly
but consistently was told there were no jobs open.°T
Stanford made application for return to employment, shortly after he was
notified that his compensation was to be discontinued on November 25, 1946.
As his testimony is recorded:
I took it [the notification] over to the personnel office and showed it to
Carlson and Carlson told me I'd have to see Willers. So when I gave the
form to Willers, he then in turn told me that I had kicked him . . . and
there wasn't anything that he could do for me and the form meant nothing.
So I walked out.
Stanford had previously encountered Willers while on the picket line. At this
time Willers told him, "Louis, you're foolish," and invited him to come in any
time to talk with him. Later when Stanford was in the line of applicants on
October 21, 1946, Willers told Stanford that he "was seen too much." It is
significant that Stanford regarded Willers as his best friend. In this state of
the record it is a justified inference, made by the undersigned that Willers' re-
fusal to reinstate Stanford shortly after November 25, 1946, was caused by
Stanford's prominence in collective activity and his presence on the picket line.
Another exceptional case was that of Patrick J. Considine, who was a specialist
working on repair of electrical instruments . His group worked alternate weeks
on either the first or the second shift. While Considine did not certainly remem-
ber, he accepted the statement drawn from the company records that he worked
5.3 hours on September 21, 1946. He worked a full shift on Monday and Tues-
day and 7.3 hours on Wednesday, September 25, 1946. On Sunday and the fol-
91 These quotations are from O'Connell's unrefuted and credited testimony.
06 It will be remembered that Muir refused the slip without reading it.
91 Carlson was a subordinate of Willers and had charge of interviewing, selecting, and
placing new employees.
97 This finding is based on Martindale 's unrefuted and credited testimony.
OLIN INDUSTRIES, INC. 253
lowing days he entered the plant through the guards' booth. Considine testified
that the gate was closed. Oh Tuesday he was given authorization by Squires,
representing the Union, to pass the pickets. This privilege was withdrawn on
the next day and thereafter Considine did not enter the plant. As he testified,
"I couldn't see going in there when the rest of the fellows were out." He joined
the pickets around September 27 and did picket duty, as he testified, "probably
5 or 6 times for a three hour period." On October 21, 1946, lie was present dur-
ing the forenoon when the strikers applied for reinstatement. After that date
he applied for reemployment about January 1, 1947, and again in June 1948. On
the first occasion he saw Willers and on the second Carlson, for whom he filled
out an application form. Willers told Considine nothing was open and at the
date of his testimony he had not heard from his written application. On this
statement of fact the undersigned concludes and finds that Considine was not
locked out but, in effect, went on strike on September 27. After that date he is
entitled to receive the same treatment as is recommended for the general group
listed in Appendix D.
Plenny C. Wright " testified that on October 21, 1946 be was called from the
line of applicants and interviewed by Carlson. Wright's account of happenings
thereafter reads:
Mr. Carlson told me that my job was no longer open, that I would be
employed as a new man, that if there were any vacations or Christmas
bonuses that I may not be included, and these bonuses are the privilege
of old employees, the same as vacations. My pay. would be reduced to a
beginners rate, and I 'd be entirely a new man.
Wright refused the job under the conditions stated by Carlson but was persuaded
by Goin to reconsider. Goin said , as Wright's unrefuted testimony reads :
You should forget what has happened. Go back to work and you can
work this out another year and you'll be back probably where you started
from.
After a day's experience under the new conditions, however, Wright left and
had not since been employed by the Respondent.
The parties stipulated that six complainants : Johnnie E. Best, Lawrence
Birdo, Ugo Calderoni, William S. King, Eddie J. Murphy, and William Wilenski,
were rehired by the Respondent on October 21, 1946, or shortly thereafter, and
not reinstated as "reinstatement" is used in the Board's decisions. Under this
stipulation, it is found that the status of the six complainants so rehired does
not differ from that of other complainants who were hired by other employers.
These six complainants are entitled to reinstatement and to back pay based
on their earnings prior to October 21, 1946. The undersigned so finds.
In addition to those of Martindale and Stanford, individual applications,
all of which were refused by the Respondent, were made by several complainants.
These will be set forth in approximate chronological order.
Employee James M. Myles, made application on or about November 1, 1946.
At this time he was interviewed by Carlson and Goin. His unrefuted testimony,
in point here, reads its follows :
I asked Mr. Carlson if there were any chance of getting my job back. He
looked up in the files and I guess lie looked at the records, and he said there
wasn't any work available.
11 Wright was not a complainant.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When there was, he would send me a letter calling me, and that was
all with hint. So I went back to see Mr. Goin . . . I asked Mr. Goin if
there were any chance of geting my job back. He said practically the same
thing Air. Carlson said, that there wasn't any work available. So we talked
further, and he told me, he said, "Why don't you colored fellows use your
head. The CIO union as a whole is pretty good but this particular union,
UE, is not any good for negroes"
Employee Patrick Considine made an application on a date fixed as approxi-
mately December 1946.100 He talked with Willers asking him "if there were any
chance of coining back to work." He was told "there was nothing open at that
time." In June 1948 Considine again went to the plant and filed an application
with Carlson who promised to refer it to Willers. Considine had heard nothing
from the Respondent when he gave testimony.
L. Baldino testified that he applied for reinstatement "a couple of months after
the pickets were withdrawn." This would place the date in February 1947. He
was interviewed by Carlson. Baldino's testimony regarding the incident reads :
[Carlson] said, "Your name is Baldino, isn't it'?" I said, "Yes." He
says, "Well, there is nothing I can do for you. I can't help you out. There
is nothing I can do for you." He wouldn't even give me a chance to speak.
When I started to leave he says, "If you want to see Mr. Willers, I will go
and have a talk and see if he will speak to you." I said, "Sure, I would
like to speak to Mr. Willers."
So I says to Mr. Willers, "How about giving me a job back in the rolling
mill?" He says, "Sorry, can't give you no job." I says, "How about a job
anywhere in the factory? I have worked here as an adjuster. I have done
a few other jobs in this plant that I worked on." He says, No, I can't
help you out." So I says, "Well, what's the idea? What's the reason?"
He says, "You took part in that demonstration, didn't you? You was in a
parade, we have a picture of you in that parade." I says, "Yes, I did take
part in that." So I says, "Well, as long as you are not hiring me I may as
well go." So I walked out.
A few days later Baldino returned to the plant. After requesting permission
of Carlson to see Willers, he was again refused employment. On his own sug-
gestion he filed an application with Willers. After waiting a few days and
having heard nothing Baldino made still a third trip to the plant, and asked
Willers "for a job anywhere in the plant, any job at all." Willers replied, "I
can't help you." When Baldino asked for a letter of recommendation as an aid
in getting employment elsewhere, Willers said, "I am sorry that is not the policy
of our company to give out letters or recommendations." It should be noted in
this connection that Baldino was a member of the third shift committee and of the
employees Executive Board, and had been discharged , effective September 18, 1946.
Employee Robert Daniels applied for reinstatement in April 1947. He talked
with Carlson and described the interview , in his testimony , as follows :
[Carlson] said, "What happened?" I said, "Well, after the lockout I
haven't been employed since." So he got a card and he said there wasn't
98 Myles conversation with Goin is further discussed in the following section of this
Intermediate Report.
100 It was Considine 's testimony , given June 25, 1948 , that this application was made
"about maybe a year and a half ago to be exact."
OLIN INDUSTRIES, INC. 255
no lockout. It looked like lie got angry. He said there wasn't no lockout.
"You boys all had the chance you want. Well, I haven't got anything to
show you today."-01
Sometime in December 1947, Daniels made another application ; because, as he
testified, "The boys told me they were hiring over there." He talked with
Carlson again and filled out an application form. Carlson said, "I haven't got
anything to show you. You can come back in it clay or two." Daniels, however,
did not return.
Employee I?obert Samuels had occasion to go to the plant in the fall of 1947
on a political mission. While there lie requested to see Carlson and asked him
"Whether or not there was any work." After consultation with Willers, Carlson
said, "I am sorry, Mr. Samuels, we don't have anything for you."
Employee ]loses Brown interviewed Carlson and Willers regarding reemploy-
ment in the fall of 1947. His testimony thereto is recorded as follows:
"W:11," I said [to Carlson] ''Flows chances of getting it job'?" lHe said,
"Nothing doing. Come back tomorrow." I came back tomorrow morning,
he said, "I'm sorry, Brown, nothing yet, nothing showed up." So lie told
me to come back next morning, and I went back next morning and lie said
the same thing. "Nothing doing" so I went to see Air. Willers. He said, "Mr.
Brown, well, you walked out with the union, nothing we can do for you now."
I said, "\Vell, I can't get a job nowhere else. If I go, people will turn me
down."
He said there was nothing lie could for me.
Employee Jrofes Haley made application for reemployment in November of
1947. He was referred to Carlson by Goin. Carlson stated that the only jobs
available were as sheet metal workers. Haley had worked as helper in the No. 7,
furnace and received $125 an hour. Sheet metal workers were paid 85 cents an
hour. Carlson advised Haley that "the best thing for [him] to do was to look
some place else."
Contentions of the parties and conclusions
As shown above, the Respondent contends that the work stoppage from 12:15
to 12:30 p. m. in September 21, IJ46, was illegal and justified the discharge of
Bonito, Baldino, and Destadio, as well as those of employees James T. Evans and
Joseph Los from the shift, whom the Respondent admittedly discharged, and
whose record cards carry the notation : "Instigating and/or participating in an
illegal work stoppage.s 112 The Act provides .in Section 7 that employees shall
have the right "to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection." It further declares in Section 13,
"Nothing in the Act shall be construed so as to interfere with or impede or
diminish in any way the right to strike." These provisions of the Act effectively
disposa of this contention of the Respondent. Measured against this language
it has, and can have, no merit. Much hearing time and transcript space was
expended in discussing the Respondent's grievance procedure and the extent of
101 Under cross-examination Daniels testified that Carlson said, "You boys had your
chance, you got letters to come back to your job and you didn ' t cone."
102 The undersigned cannot, on the basis of the record , determine the shifts on which
Wellington Beal, Austin Giannelli , Otis Johnson, Joseph L. Tardie, and John H. Wayert
worked . Since their record cards are not in evidence the cause assigned for their discharge
by the Respondent is not known.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complainants' familiarity and experience therewith. Since these complainants
have the statutory right to act concertedly and to use their strike weapon, these
discussions have no bearing on matters at issue here. The Respondent mani-
festly may not set up provisions for handling grievances on an individual basis
and nullify the statutory provisions quoted which authorize concerted and strike
action, by requiring its employees to use this grievance procedure in presenting
their grievances. Nor are the rights established by the Act confined to majority
groups within units found appropriate by Board decisions. Rather, they are
inherent rights of all free men and employees. After consideration of the full
record, the undersigned finds that the discharges of employees on the first shift
in Respondent's rolling mill, for participation in the work stoppage on September
21, 1946, were discriminatory, in derogation of rights guaranteed by Section 7 of
the Act, and violative of Section S (3) of the Act and Section S (a) (3) of the
amended Act.
The Respondent further contends that the work stoppage on the second shift
from 7: 15 to 11: 00 p. m. and the refusal of the employees to leave the plant dur-
ing that period was an illegal work stoppage, in effect a sit-clown strike and,
further, that it was violative of the War Labor Disputes Act, which provided for
prior notification of certain State and Federal officials in the case of all strikes
in plants engaged in war production. It is noted that the work stoppage on the
second shift departed from the prearranged plan. The employees had learned
of the discharge of Bonito, Baldino, and Destadio for participation in that plan.
The decision to prolong the work stoppage and to add a demand that Bonito,
Baldino, and Destadio be reinstated as a prerequisite to returning to work, was
made before 7: 15 p. m. by the employees on that shift while in the mill. Nothing
in the record suggests that they were influenced in so deciding by advice from
the Union or any of its agents. As just found, these discharges were clearly
discriminatory under the Act. It follows that the work stoppage on the second
shift and the strike thereafter from September 29 to October 21, 1946, were
unfair labor practice strikes.
The Board has definitely passed on the matter of unannounced strikes under
the provisions of the War Labor Disputes Act. In the Republic Steel Corpora-
tion case,10 after full examination of the evidence and of the legislative history
of the War Labor Disputes Act, the Board said :
We conclude that Congress did not intend specifically, or generally as part
of its legislative policy, that the rights of employees, whether they be rank
and file or representatives under the [Act] be affected by the War Labor
Disputes Act. Although we do not condone the conduct of the strikers here
involved, we are of the opinion and find that the policies of the Act and our
wartime labor policy as a whole will best be effectuated by according to
them the protection of this Act.
This pronouncement of the Board must be regarded as established doctrine
since it was upheld by the United States Circuit Court in the Kalamazoo Sta-
tionery case 104 and certiorari was thereafter denied by the Supreme Court. It
should be noted that in this case two employees had been discharged because
while representing a minority of the employees they instigated and participated
103 Matter of Republic Steel Corporation (98" Strip Mill), 62 N. L. R. B. 1008, 1026 ; cf.
Matter of Bolan Aluminum of Brass Corp., 67 N. L. R. B. 847.
101 See Matter of Kalamazoo Stationery Co., 66 N. L. R. B. 930, enfd. (C. A. 6). 160 F.
(2d) 465, cert. den. 332 U. S. 762. The Court cases are reported sub nomine Hamilton v.
N. L. R. B.
OLIN INDUSTRIES, INC. 257
in a wildcat strike. The Company contended that in so doing they violated the
War Labor Disputes Act and so were subject to discharge. In passing on this
contention the Circuit Court said:
But it does not follow that a violation . . . of the War Labor Disputes
Act deprives an employee of his rights under the National Labor Relations
Act. There is no provision in the War Labor Disputes Act to that effect.
Section 10 of the National Labor Relations Act specifically recognizes the
right to strike. It deals with employment generally, not merely war pro-
duction. The War Labor Disputes Act is limited to war production and is
not an attempt to amend or modify the National Labor Relations Act. Its
legislative history shows that it was not intended to curtail in any way the
rights and protection accorded employees under the National Labor Rela-
tions Act.
As.to Respondent's contention that the work stoppage on the second shift
constituted a sit-down strike, the undersigned finds absence of any of the usual
ior,dieia of such an illegal strike. There was no violence, nor threat of violence,
and no interference with plant operations beyond abstention from work. Con-
tinuous operations were manned-under the plans laid down by the employees.
In one case a shift committee man, Ballard, remained at his post until 11 p. in.
when his machines were safely closed down. The strikers were aware that the
'plant was being prepared for a shut-down of unannounced length. There is no
suggestion in the record of any interference with this operation. The men with-
drew from the operating area to the -washroom and remained there. Their
announced purposes : to confer with Respondent officials regarding their demands
and the added matter of the discharges, known to them, on the first shift; to
remain until the end of the shift in order to fulfil Respondent's requirements that
Saturday and Sunday scheduled shifts be met ; and to insure that no damage to
machinery and materials be ascribed to their absence, are all unexceptional.
Conditions existing, as shown by this record, are so closely analogous to those
found in the American Manufacturing Company case 106 that the undersigned
finds the definitive rulings of the Board and the Courts therein determinative
of the issue here. In passing on the matter of an alleged sit-down strike the
Circuit Court said:
We do not regard the action of these or other employees in standing around
the premises for a period of not more than two hours while an attempt was
made to persuade the Company to fix a date for collective bargaining with
T. W. O. C. as in the nature of a sit-down strike which would permit the
termination of the employee relationship. They certainly were not claim-
ing to hold the premises in defiance of the right of possession of the owner
and we regard the case as no different from that of an ordinary strike where
work has ceased because of an unfair labor practice.
In the light of these pronouncements by the Board and the Courts, the under-
signed finds these contentions of the Respondent to be without merit.100
. It is further noted that the discharges made, and the reasons assigned, prove
that the discharges were not based on the allegedly illegal acts of the strikers
306 5 N. L. R. B. 443, enf'd. (C. A. 2) 106 F. 2d 61, 69. Affirmed with modifications,
not material here, 309 U. S. 629.
"'In this connection the undersigned has considered the consent judgment rendered in
Civil 1893, by Justice Hineks. Because of the Board's plenary control in remedying unfair
labor practices, it is found that this judgment has no bearing on the issues here.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but rather that the discharges were made because those employees were believed
by the Respondent to be responsible for the plans for work stoppages. Ballard
remained at his post during the work stoppage on the second shift. His record
card carries the notation: "Discharged. Violation of Company rules." For
this notation the Respondent furnished no explanation. The record card of
Louis Baldino, of the third shift, carries a similar notation. He took no part
in a work stoppage for the sufficient reason that he, with all his shift, admittedly
were locked out of the plant for the 11 p. in. to 7 a. in. September 22, 1946, shift.
It is significant that both Ballard and L. Baldino were committee members. The
discharge, in each case, became effective as of the last day worked. Since the
Respondent failed to give a reasonable explanation for these discharges, it is a
justified inference, made by the undersigned, that Ballard and L. Baldino were
discharged for the part they took in the plan for work stoppages. It is found
that the 13 employees listed in Appendix G were discriminatorily discharged
for participation in the work stoppages on September 21, 1946.
Since the strike initiated on September 29, 1946, was induced and prolonged
by the discriminatory discharge of Bonito. haldino. and Destadio, the strikers
were entitled to reinstatement on making, on October 21, 1946, an unconditional
offer to return to their employment. Such right to reinstatement was uncondi-
tional whether or not others had been hired to fill their places. By refusing on
that date and thereafter to reinstate them the Respondent discriminated in regard
to their hire and tenure of employment and the terms and conditions of their
employment. The six employees rehired but not reinstated, Lawrence Birdo,
Ugo Calderon!, William S. King, Eddie J. Murphy, and William Wilenski, made
no exception here. 107 They are entitled to full reinstatement and like the others
listed in Appendix D are entitled to recover any loss of pay suffered because of
Respondent's discrimination, after, as well as before, their reemployment.
The record clearly shows that the Respondent closed the rolling mill during the
11 p. m. to 7 a. m. shift on September 21, 22, 1946, and that thereafter it locked out
the complainants listed in Appendix D until they concertedly went on strike on
September 29, 1946. After these employees unconditionally applied for reinstate-
ment on October 21, 1946, the Respondent refused to rehire them because of their
concerted activities before and on September 21, 1946, and subsequent to Sep-
tember 29, 1946. Further light is thrown on Respondent's refusal to reinstate
by its treatment of individual applicants. The five employees on compensation
were refused reinstatement when their compensation period expired. Other
individual applicants were consistently refused reinstatement. In the case of
Employees Myles, L. Baldino, Daniels, and Moses Brown, such refusal was
expressly based on the employees concerted activities. By such lock out and
refusals to reinstate, the Respondent is found to have discriminatorily deprived
them of employment in violation of Section 8 (1) and (3) of the Act and of
Section 8 (a) (1) and (3) of the amended Act.
The rights of such employees, listed in Appendix D, as did not testify are not
thereby diminished. The parties stipulated that all individuals named in Ap-
pendix A were on the pay roll of the Respondent for the week ending September
21, 1946. These employees, with exceptions noted, were locked out by the Re-
spondent on that date. None of them was reinstated on October 21, 1946, when
an unconditional application for reinstatement was made after a meeting held
and vote taken by the striking employee.s. Under such circumstances the Board
307 The parties so stipulated.
OLIN INDUSTRIES, INC. 259
consistently holds as it stated in the Capital City Candy Co.""" case, reversing its
Trial Examiner.
Under the circumstances, we perceive no valid reason for denying imme-
diate relief from the discrimination against these three employees, even
though they were unable to testify concerning their union membership.
The Trial Examiner found, and we agree, that the respondents terminated
the employment of the group of employees here involved in order to elimi-
nate the Union from the plant. Inasmuch as the respondents' objective was
violative of the Act, it is immaterial that in carrying it out, some of the
victims of the respondents' discrimination may not have been union mem-
bers. Discrimination in regard to hire or tenure of employment of a group
of employees, including non-union members of the group, tends to discourage
union membership and activities, no less than discrimination directed against
union members alone. Non-union victims of discriminaton are, in such cases,
entitled to the same relief under the Act as are the union members.
In the Central Minerals Company 108 case the Board ordered the Respondent to
make whole each and every employee whom it deprived of employment during a
6-day lock-out. Not only did these employees not appear as witnesses ; they were
not even identified on the record.
It is found that Respondent's refusal to reinstate the 87 employees listed in
Appendix D was a discriminatory act, violative of Section 8 (1) and (3) of the
Act and of Section 8 (a) (1) and (3) of the amended Act.
.
On the basis of the foregoing findings of fact and of the entire record, the
undersigned concludes and finds: thut. Refused to work after September 22, 1946.
Subject to limited services as of September 21, 1946.
"Compensation discontinued November 18, 1946.
7 Compensation discontinued November 17, 1946.
8 Compensation discontinued November 25, 1946.
8 Not locked out. Refused to work on and after September 22, 1946.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams, Otis Haley, James Oronzo, Luigi
Aranjo, Joseph Heath, Rudolph V. Palmisano, Pasquale
Arter, Benjamin Higgs, William Perry, Percy E.
Baldino, Louis Hilliard, Outing Persico, Fred
Ballard, Harold Hugie, William Polden, Fred
Beal, Wellington C. Jarvis, Joseph Radcliffe, William
Bellini, Angelo Jefferies, Alvin Raffone, John J.
Best, Johnnie Johnson, Dewey Ragozzino, Frank
Birdo, Lawrence Johnson, Otis Reid, Jerry
Brown, Allen L. Jones, James J. Robinson, William F.
Brown, Moses Kaiser, Ruben Robinson, William H.
Brown, Richard W. King, William S. Russell, Carl W.
Calderoni, Ugo LaPan, Lawrence Samuels, Robert
Carr, James LaPorte, Paul Shepard, Robert A.
Carter, Gade L. Lipsit, Thomas Shore, Marlin
Ciccarelli, Alfred Lonergan, Frank Smith, Percy E.
Considine, Patrick Los, Joseph Stanford, Louis R.
Conte, Angelo Manning, Minton Taragowski, Joseph
Curtin, Frank Martindale, William Tardie, Joseph
Daniels, Robert McElya, Westley Tolbert, Lambert J.
DelStritto, Paul McLean, Neal A. Treadwell, Lawrence
DeMatteo, Virgilio Milner, Alex Walker, Lemuel
Douglas, James H. Monroe, John Washington, Simpson
Evans, James T. Morgan, Reginald Watson, George
Fisher, Ernest L. Morton, Louis R. Wayert, John J.
Ford, John T., Jr. Moye, Hudie Weaver, William
Funderburg, Otha Moye, Theodore Wilenski, William
Gianelli, Austin Muir, William S. Williams, Henry
Gooding, Ozell Murphy, Eddie Williams, Raymond G.
Grant, John Murphy, William Wilson, Frank
Gray, John Myles, James Woods, Raymond
Greene, Jacob Newton, James Wormleq, Livingston
Greer, Jimmie W. O'Connell, James P.
Gunn, Frank Oglesby, Richard
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
OLIN INDUSTRIES, INC.
WINCHESTER REPEATING ARMS COMPANY DIvISION,
Employer.
Dated--------- By -----------------------------------------------------
(Itepresentative) (Title)
NOTE.--Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatment upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.