Pearson Corp.

National Labor Relations Board - Board Decisions

Sep 25, 1962

138 N.L.R.B. 910 (N.L.R.B. 1962)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent described in section III, above, occurring in
connection with the operations of the employers here involved set forth in sections
I and III, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and, such of them as have been found to be
unfair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in unfair labor practices in
violation of Section 8(b)(4)(i) and (ii)(B) of the Act. Because of the existence
of the subcontractor clause in the Respondent's last contract and the absence of
any evidence of a change in such provision, there is a danger in the future that the
Respondent will engage in similar conduct violative of the Act in order to force
members of the Association to cease doing business with Largent or with other
subcontractors. I shall therefore recommend that the Respondent cease and desist
from engaging in or inducing or encouraging any individual employed by Hansen,
Bartlett, Gladow, or by any other subcontractor, or by any member of the Associa-
tion (including Mills), engaged in construction work within the territorial jurisdic-
tion of the Respondent, to engage in a strike or refusal in the course of their employ-
ment to perform services; and that it cease and desist from threatening, coercing, or
restraining Mills, Hansen, Bartlett, Gladow, or any member of the Association, or
any subcontractor with whom Mills or members of the Association may have con-
tracts for labor or materials and with whom the Respondent has no primary dispute
with the object of forcing or requiring Mills or members of the Association to cease
doing business with Largent or any other person with whom the Respondent has a
primary dispute.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Largent, Mills, Hansen, Bartlett, and Gladow are employers within the meaning
of Section 2(2) of the Act.
2 Largent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
3. Members of the Association (including Mills), Hansen, Bartlett, and Gladow
are individuals and persons engaged in an industry affecting commerce within the
meaning of Section 8(b) (4) (i) (ii) of the Act.
4. Local Union No. 1065, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
5. By inducing and encouraging employees of Mills, Hansen, Bartlett, and Gladow
at the aforesaid 30-unit apartment house project in Salem, Oregon, to engage in
a strike or a refusal in the course of their employment to perform services, and by
threatening, coercing, and restraining Mills, Hansen, Bartlett, and Gladow with
an object of forcing Mills to cease doing business with Largent, Respondent has
engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and
(ii) (B) of the Act. .
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Pearson Corporation and United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO. Cases Nos. 1-CA-3663
and 1-CA-3676. September 25, 1962
DECISION AND ORDER
On May 8, 1962, Trial Examiner Horace A. Ruckel issued his Inter-
mediate Report, finding that the Respondent had engaged in and was
138 NLRB No. 100.
PEARSON CORPORATION 911
engaging in certain unfair labor practices and recommending that it
cease and desist therefrom and take affirmative action, as set forth in
the attached Intermediate Report. He also recommended that cer-
tain other allegations of the complaint be dismissed. Thereafter,
General Counsel and Respondent filed exceptions to the Intermediate
Report together with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. Except as stated
hereinafter, the rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following addi-
tions and modifications :
1. The Trial Examiner found Alfred Rego, chairman of the Rhode
Island Governor's Advisory Board on Refugee Relief, to be Respond-
ent's agent, and consequently held it responsible for certain of his
statements which the Trial Examiner found to be unlawful.' Re-
spondent contends that the Trial Examiner erred in finding that Rego
acted as its agent, and argues that it is "unsupported by law or fact,"
since it neither authorized his talks with employees nor had any
knowledge of them.
Over a period of 3 or 4 years Respondent hired more than 100 em-
ployees on the recommendation of Rego. It allowed him free access
to its plant and personnel, including employees, supervisors, and cor-
porate officers. On many of Rego's visits to the plant, Respondent
frequently used him as an interpreter in communicating with its
Portuguese-speaking employees, especially in grievance matters. On
at least one occasion he obtained a job for an employee with Respond-
ent, and told the employee that he would receive $1.25 per hour. After
the employee had worked for Respondent for 3 weeks at the rate of
$1 per hour, he asked Rego why he was only receiving a $1 per hour
rather than $1.25 per hour. Rego replied that it was probably a
mistake and wrote something on a piece of paper which the employee
submitted to Respondent. Subsequently the employee began receiv-
ing a $1.25 per hour.
On December 13, 1961, after the Union's organizational campaign
had begun, Respondent's president, Clinton Pearson, used Rego as
an interpreter to speak at a meeting with three employees which he had
1 Respondent does not except to the Trial Examiner 's finding that Rego 's statements to
employees violated Section 8 ( a) (1).
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called for the purpose of determining what complaints, if any, they
had against Respondent. Pearson told them after the union campaign
"died down" they could use Rego as an interpreter in communicating
with Respondent concerning their problems. This meeting occurred
after Respondent had received a letter 2 from the Union advising it
that Rego had made those statements which the Trial Examiner found
unlawful.
In view of the foregoing we agree with the Trial Examiner that
Rego was acting as Respondent's agent. Even assuming contrary to
fact that Respondent had no actual knowledge 3 of Rego's unlawful
threats, we conclude that the above-cited evidence establishes that
Respondent both clothed and allowed Rego to clothe himself with ap-
parent authority to speak for it in labor relations matters; and that
it would be reasonable, under all the circumstances of this case, for
Respondent's employees to assume that, because of Rego's strategic
position, he spoke for and on behalf of management .4 Consequently,
we find that Rego was Respondent's agent when he unlawfully
threatened certain employees on December 5, 1961, that Respondent
is responsible for his conduct,' and, as the Trial Examiner found,
thereby violated Section 8 (a) (1).
2. General Counsel excepts to the Trial Examiner's failure to make
findings regarding several incidents alleged to be violations of Sec-
tion 8 (a) (1). We find that the record supports the General Counsel
in regard to one of these incidents. Respondent's plant manager,
Charles Pimental, called employee Jose Brum into his office on Jan-
uary 8, 1962. He asked Brum if he had signed a union authorization
card; inquired as to what he (Brum) thought the Union could do for
him; urged him to vote against the Union; and promised him more
money if he did so. We find that this conduct by Pimental constituted
unlawful interrogation and a promise of economic benefit that
amounted to interference, restraint, and coercion within the meaning
of Section 8(a) (1).
2 We hereby reverse the Trial Examiner 's ruling that this letter , which Respondent
concedes it received , was inadmissible and admit it into evidence because we find, unlike
the Trial Examiner , that it is material and relevant to the issue of Rego's agency.
s The Union 's letter (see footnote 2, supra ), advising Respondent of Rego 's unlawful
statements , provided it with knowledge of his activity and, under all the circumstances,
placed Respondent under a duty to disavow his statements . Respondent not only failed
to disavow Rego 's unlawful statements , but subsequently took action tantamount to
ratification of them by using him as an interpreter in the December 13 discussion be-
tween management and certain employees concerning the Union and employee grievances.
By its failure to disavow Rego's remarks and its subsequent use of him as an inter-
mediary in labor relations matters , we further find that Respondent ratified Rego 's threats
and thereby violated Section 8(a) (1). See Southland Manufacturing Company, 94
NLRB 813.
4 Mechem , Outlines of the Law of Agency , sec. 237 ( 3d ed ., 1923)
s In making this finding we do not rely on The Russell Manufacturing Co Incorporated,
at at, 82 NLRB 1081 , cited by the Trial Examiner.
PEARSON CORPORATION
THE RE31EDY
913
Shortly after the unlawful discharge of employee Massa, the Re-
spondent contracted out the work of its upholstery department where
Massa had worked with one other employee. In his Recommended
Order the Trial Examiner, in conjunction with Massa's reinstate-
ment, recommends that the Respondent be required to reestablish its
upholstery department. However, the contracting out is not alleged
to have violated the Act and there is some evidence in the record
showing that several months before the events here involved the
Respondent, for economic reasons, had concerned itself with the feasi-
bility of contracting out its upholstery work. Further, our usual re-
instatement order requiring reinstatement to an employee's "former
or substantially equivalent position" requires the Respondent to re-
establish upholstery work in its plant to the extent necessary to offer
the discriminates such a position, if equivalent work is not available
elsewhere in the plant. In these circumstanecs we find unwarranted
an order absolutely requiring reestablishment of the upholstery de-
partment and do not adopt the Trial Examiner's recommendation to
that effect.
For the reasons stated in Isis Plumbing & Heating Co., 138 NLRB
716, we find that the backpay obligation of the Respondent should
include the payment of interest at the rate of 6 percent to be com-
puted in the manner set forth in the Isis Plumbing case.6
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the following modifications :
(1) A comma will be inserted after the word "activities" in sec-
tion 1(a) and the words "promising benefits as a reward for voting
against the union," followed by a comma, will be inserted between
the word "activities" and the word "or."
(2) The words "reinstate its upholstery department at its plant in
Bristol, Rhode Island . . ." in section 2(a) will be stricken; the word
"offer" will be capitalized and become the first words in that part of
the Order; the period at the end of the section will be deleted and
the words "as modified by the Board's Decision and Order" will be
added at the end thereof.
(3) The second indented paragraph of the notice shall be modified
by inserting after the word "activities" the following, "promise bene-
fits to our employees for voting against the Union."
(4) The following note shall be added to the bottom of the notice
immediately below the signature :
9 Member Leedom dissents from the inclusion of Interest in the backpay obligation for
the reasons stated In the dissent In the Isis Plumbing case.
914' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge in Case No. 1-CA-3663 filed on December 7
and 11, 1961, respectively, and a charge and amended charge in Case No. 1-CA-3676
filed on January 3 and 4, 1962, respectively, by United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, herein called the Union, the Regional
Director for the First Region of the National Labor Relations Board, herein called
the Board, on January 19, 1962, issued a consolidated complaint against Pearson
Corporation, herein called Respondent. The complaint alleges, in substance, that
Respondent, by its agents, interrogated employees concerning their union activities,
threatened them with discharge if they joined the Union, and promised them benefits
if they did not; and discharged or laid off Joseph Cirillo, Charles Lane, and Anibal
Massa, and laid off or suspended Jorge Cabral, Michael D'Allessio, and James
DaSilva, because of their union activities, thus violating Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, and follow-
ing), herein called the Act. Respondent's answer denies the commission of any un-
fair labor practices.
Pursuant to due notice, Trial Examiner Horace A. Ruckel conducted a hearing
at Bristol, Rhode Island, on February 26, 27, and 28 and March 12 and 13, 1962,
at which all parties were represented by counsel.
At the conclusion of the hearing the parties waived oral argument and have filed
briefs, which I have considered.' Upon the entire record, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is a Rhode Island corporation having its principal office and place of
business at Bristol, Rhode Island, where it is engaged in the manufacture and sale
of boats at five plants in the Bristol area. It purchases and transports large quan-
tities of wood and plastic from and through various States of the United States other
than the State of Rhode Island, and annually sells and transports in interstate com-
merce from its plant in Bristol large numbers of boats of a value in excess of $50,000
annually. Respondent's answer admits that it is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act
and admits employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On December 1, 1961, Massa, Cabral, D'Alessio, and DaSilva met at the home of
Michael Tamburro, field representative for the Union, to discuss the organization of
Respondent's employees. A second meeting at Tamburro's home took place on
December 3 attended by the same employees, with the addition of Charles Lane
and several others not named in the complaint. At this meeting the men signed
union membership applications and took others for distribution among the em-
3 After the close of the hearing Respondent filed a' motion with the Trial Examiner to
reopen the hearing to show that Charles Lane is unable to work, that Joseph Cirillo has
been reemployed , and that Anibal Massa is doing subcontracting work for Respondent.
The General Counsel filed a motion in opposition thereto . Respondent 's motion is here-
with denied.
PEARSON CORPORATION 915
ployees. Massa passed out 40 to 50 cards, Cabral and D'Alessio about 25 apiece,
and Cirillo and Lane a lesser number, and obtained signatures.
This activity soon became known to Respondent. Charles Kinnane, a receiving
clerk who had been changed from a salary to an hourly wage basis, testified that
on December 5 Everett Pearson, Respondent's treasurer, charged him with being
active in the Union and told him that if he remained "loyal" to Respondent, which
Kinnane understood to mean if he did not work with the Union, and that if business
improved, Respondent would restore him to a salary basis. Pearson admitted talk-
ing with Kinnane about the Union and asking him if he knew who was passing out
union cards, but denied mentioning his returning to a salary basis.
Anibal Massa, whose termination as an employee is hereafter discussed, testified
that on,the evening of December 5, Manuel Jamero, admittedly a supervisor, called
at Massa's home, and told him that Everett Pearson had accused him (Janiero)
of passing out union cards and stated that he (Pearson) knew that Massa had done
so, and that Respondent was "going to get" Massa. Janiero, called as a witness by
Respondent, first testified on direct examination that although he talked with Massa
at his home and discussed the Union he did not tell Massa that Pearson said Re-
spondent was "going to get" him, or that Pearson had said so to him. He admitted
that Pearson had asked him if he was distributing union cards, and that he told
Pearson that Massa was doing so. On cross-examination Jamero stated that he did not
remember whether he had mentioned Massa's name to Pearson, and in the next
breath that he had He then stated that he could not recall whether he had expressed
fear that if he testified he might be out of a job, then that he had not so expressed
himself, then that he could not remember, and then that he did not think he had
done so.
Janiero, as a witness, was a study in contradiction and trepidation. I do not credit
either his denial that Pearson told him that Respondent was "going to get" Massa,
or his denial that he had so reported to Massa. I find that Janiero made the state-
ments attributed to him. Everett Pearson, while testifying that he spoke to Janiero
on several occasions about the Union, and that on one occasion Janiero mentioned
Massa as being active, denied that he had said that Respondent was "going to get"
Massa. I do not credit his denial.
Alfred Rego, who the complaint alleges is an agent of Respondent who threatened
employees with reprisals if they supported the Union, is chairman of the (Rhode
Island) Governor's Advisory Board on Refugee Relief. About half of Respondent's
employees are Portuguese or of Portuguese origin. Respondent over a period of
3 or 4 years has employed over 100 such persons on Rego's personal or official rec-
ommendation. He lives in the community and has extensive personal and social
contacts with Respondent's employees. He has visited the plant frequently and has
had free access to Respondent's supervisors as well as to rank-and-file employees
Clinton Pearson, Respondent's president, testified that the relationship has been a
`.very informal thing," and that when visiting the plant, which was "many, many
times," Rego would come to him or to Everett Pearson or go directly into the various
departments. Respondent's officers and supervisors have over a long period of
time used him as interpreter in communicating with its employees, particularly when
they have had grievances or complaints arising from their work.
In early December 1961, after the Union's organizing campaign got under way,
President Pearson, according to his own testimony, "used (Rego) to speak to a
number of employees." On at least one occasion, acoording to his own account,
Pearson gathered together a group of employees and discussed "some difficulties"
they had, as well as the Union's organizing campaign. He told them, Rego serving
as interpreter, "that after the campaign died down if the employees wished to see
him they could do so and Rego would interpret."
Rego, however , did not confine his activities to such occasions as these. There
is evidence in the record that on one or more ocassions Rego talked with groups
of employees concerning the Union when no official or supervisor of Respondent
was present. For example, during the lunch period on December 5, Rego approached
a group of 5 to 10 employees, including Massa, Cabral, and D'Alessio, and told them
that a few Americans were trying to organize them into a union, that it was "no
good" for Portuguese employees, and that if they voted for the Union the plant
would close down. He urged them to vote against it. Cabral testified that that
evening as he was passing Rego's home, Rego called to him, told him that things
were not going well at the plant, and repeated that if the Union came in the Portu-
guese would lose their jobs. Cabral replied that America "isn't only built on the
Company belonging to Pearson," but Rego told him to think it over.
662353-63-vol 138-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rego was not called as a witness and the testimony of Massa, Cabral, and
D'Alessio as to these statements by Rego stands uncontradicted. I find that he made
them. It is clear that Rego enjoyed a special status in Respondent's plant. Repond-
ent used his services in obtaining over 100 employees over a period of years. During
the same period Respondent used him in discussing complaints and grievances with
employees arising from their work. After the appearance of the Union, Respondent
used him to discuss with employees the progress of the Union's organizing cam-
paign. The nature of the community in which Rego's activities took place, and
the size of the plant throughout which he had carte blanche to roam were such as
to warrant an inference that his acts were matters of common knowledge, and could
not have escaped the attention of Respondent. I find that Rego acted directly or
indirectly as agent of Respondent and that Respondent was responsible for his Acts?
By questioning employees concerning their union membership and activity, and
by threatening them with loss of employment if they participated therein, Respond-
ent interfered with, restrained, and coerced its employees in the exercise of their
rights under Section 7 of the Act, in violation of Section 8(a)(1) thereof.
B. The alleged discriminatory discharge and layoffs
1. The discharge of Anibal Massa
Massa came to work for Respondent in November 1958. From January 1960 to
December 1961 he worked as an upholsterer in the upholstery department. Assisted
by a helper, he made up canvas covers, pilot seats, cushions, and other accessories
to Respondent's boats. Massa joined the Union on December 3, 1961, and became
its most active advocate Massa was one of the group of employees whom Rego
told on December 5 might lose their jobs if the Union came into the plant, and whom
Supervisor Janiero individually warned that evening.
At the close of work on the following day, December 6, Everett Pearson told
Massa that Respondent was going to contract out work on cushions and that he was
"through." At the time, Massa was working on mattresses and had on hand 20
to 25 work orders for this accessory, some of them not started, others in various
states of production, and some marked "rush." On the following evening, December
7, Richard Tisdale, Respondent's purchasing agent, called Massa at his home and
asked him for quotations on the cost of making cushions at his home on a contract
basis. Massa had on previous occasions done such work at his home for Respond-
ent and others, while working as a full-time employee at the plant. Massa refused
Tisdale's request for quotations, stating that if he worked for Respondent it would
be only as an employee.
Respondent defends its termination of Massa on the ground that the elimination
of upholstery work was necessitated by its need to economize. The record shows
that Respondent lost $236,000 during the first 8 months of 1961, and that in October
it determined to cut costs as much as possible. All Respondent's officers and most
of its supervisors took salary cuts, and some employees were laid off. On October
20 there were about 250 employees in the work force. By December 5, 32 employees
had been terminated and 11 new employees hired, with a consequent net reduction
of 21 employees.
Respondent asserts that the termination of Massa, which I find to be a discharge,
and the transfer of his helper to other work, were the result of its decision to sub-
contract its upholstery work for economic reasons. In pursuit of this stated object,
Respondent wrote three manufacturers inquiring if they would be "interested" in
making seat cushions. Replies were received from two companies prior to December
6, the date of Massa's discharge , suggesting that a sample cover be furnished so that
quotations might be made. It does not appear that samples were sent, or any bids
received, or any other steps taken to contract out the manufacture of covers, prior
to December 6. Clinton Pearson testified that it was difficult to find subcontractors
because it was necessary to do business "with a person who has very fine character-
istics, namely, they have to be very flexible and have to maintain excellent quality,
and this is a very difficult thing to find."
Respondent also submitted in evidence an anlysis of the cost of operating its
upholstery department. This study was based upon the cost of a set of 11 cushions
made by a manufacturer in May 1961. Late in December 1961, Respondent did
contract out its cushions at a labor cost substantially above that set out in the cost
analysis, although assertedly still under the cost of manufacturing them in Respond-
ent's plant.
2 See The Russell Manufacturing Co., Incorporated , et al, 82 NLRB 1081.
PEARSON CORPORATION 917
I am not impressed with Respondent's asserted reason for discharging Massa. As
has been stated, Respondent's November letters to makers of cushions did not result
in any price quotations. None were, in fact, requested. The letters were no more
than an inquiry as to whether these manufacturers would be "interested" in making
cushion covers. When it was suggested that samples be submitted, the Respondent
did not follow up the suggestion until late December when Respondent did place
orders with outside firms after Massa had said he was not interested in making them
as a private contractor.3
Moreover, Respondent's cost analysis did not reflect Massa's overall work, since
he was engaged in work other than making cushions, and the analysis pertains only
to work on cushions. Moreover, the labor costs in the analysis are not comparable
as they do not adequately reflect a reduction in Massa's wages in October, and which
could confidently be expected to continue at the reduced rate for the foreseeable
future.
I am convinced that the reason for Massa's discharge was based on considerations
other than Respondent's desire to economize. He was the most active of the employ-
ees in the organization of the Union in Respondent's plant. His interest in the
Union was known to Respondent. Respondent had made known its opposition to
the Union, and through Rego and Janiero had warned Massa, among others, that
their continued activity in the Union would imperil their jobs. Massa's discharge
on December 6 immediately followed Janiero's warning to Massa on December 5
that Respondent would "get" Massa. I find no merit in the argument, made in
Respondent's brief, that Respondent's offer of work on a contract basis is incon-
sistent with his discharge for union activities. It is clear from the record that Massa
met the high standards of efficiency required of an upholsterer as described by
President Pearson, and that such a workman was hard to find. But Massa, as a
skilled craftsman doing work for Respondent outside the plant on a contract basis,
was one thing. Massa, working as an employee in contact with other employees
interested in union organization, was another. I find that Respondent, by dis-
charging Massa on December 6, 1961, discriminated against him in regard to his
hire and tenure of employment in violation of Section 8(a) (3) of the Act.
2, The layoff of Charles Lane
Lane was hired in May 1961 as a motor mechanic. He joined the Union on
December 5 and that day obtained the union application of one other employee,
and talked with Vargas, another mechanic, and unsuccessfully solicited his applica-
tion. At the close of work that day his foreman, John Tiplady, told Lane that he
was laid off on the order of Clinton Pearson. At this time, as for some time past,
Lane had been working on motors for the Triton line of sailboats. Vargas, another
mechanic, was working on a 27-foot powerboat, the engine to which was bigger
and more complicated than the auxiliary engine on the Triton. Lane testified that
he asked Tiplady why he was being laid off and Tiplady, in return, asked him what
he had said to Vargas. There was no further conversation. Tiplady, while testify-
ing, denied asking Lane what he had said to Vargas. The implication is that Tip-
lady derived information as to the conversation between the two men from Vargas
himself. Vargas, however, was not called as a witness. I credit Tiplady's denial
Clinton Pearson testified that Respondent had experienced a loss of around $50,000
on the line of 27-foot powerboats and had determined to eliminate this line when
work on the boat then in construction was completed. Tiplady testified that the
line was approaching completion. When the motor mechanic, Vargas, had com-
pleted his work on the last boat he was assigned to the Triton line, and Lane laid
off. Vargas had been in Respondent's employ longer than Lane and, according
to both Pearson and Tiplady, was ,a better mechanic.
On January 29, 1962, Respondent recalled Lane and assigned him to work as a
motor mechanic on a 35-foot sailboat, work which he was doing at the time of
the hearing.
I conclude and find that Lane was laid off not because of his union activities,
which were minimal, but for legitimate business reasons.
3. The termination of Joseph Cirillo
Cirillo came to work for Respondent in February 1960. His employment was
terminated on December 8, 1961, at which time he was doing rough carpentry work
3A letter from one of the three firms which Respondent wrote, dated December 8, 19G1.
refers to a telephone conversation of December 7 regarding cushions, and expresses inter-
est in "samples of which you are forwarding to us" Both the telephone conversation
and the letter followed Massa's discharge.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the carpenter shop, cutting big pieces of plywood into smaller pieces for panels
and doors to be fitted into walls in boats. After Cirillo had cut these pieces they
were sent to another department for more finished carpentry work , sanding, finish-
ing, and installation . Cirillo also did varnishing and other jobs around the plant
as the occasion arose. He was not among those employees who attended the De-
cember 1 and 3 meetings at Tamburro 's home, but about December 4 signea a
union application card and on that date distributed cards to from 5 to 10 others.
On December 8 Tiplady, Cirillo 's foreman , told him that he was terminated and
Clinton Pearson confirmed this, telling Cirillo that business was slack, that Respond-
ent had to let someone in the carpenter shop go, and that Cirillo was the one. '
Respondent defends Cirillo's termination on the ground, previously alluded to,
that reductions in force were necessary because of the financial situation . Pearson
testified that Cirillo was selected for termination rather than Silva, a carpenter who
had been hired only a month prior to Cirillo 's termination , and rather than some
other in the shop, because Cirillo was an indifferent carpenter and a marginal em-
ployee whose work was rough carpentry not requiring any particular skill, and which
anyone else could do . In addition , Cirillo had no dependents . Cirillo was re-
hired in February 1962 for 2 weeks, arranging stock in the stockroom and driving
a truck.
I find Cirillo to have been a marginal employee selected for layoff for the reasons
assigned by Respondent , and not because of his union activity.
4. The layoff of Jorge Cabral, Michael D'Alessio, and Jaime DaSilva
On December 7, 1961, the Union filed a representation petition in the Board's
Boston office (Case No. 1-RC-6737) and the matter was set down for hearing on
January 3, 1962, before a Board hearing officer, and Respondent duly notified. On
December 29, 1961, the Union wrote Respondent as follows:
This communication is for you to release from their work on January 3rd,
1962 , the following employees who are scheduled to participate in the hearing
on the petition for certification election at the National Labor Relations Board,
in Boston on the above date.
namely. Michael D'Alessio
Jorge Cabral
Jaime DaSilva
On January 2, following the receipt of this letter, Clinton Pearson asked Tiplady,
foreman of the Constitution Street plant, according to Tiplady's testimony, "it (he)
needed all the men who were working." According to Tiplady, Pearson did not
give any reason for his inquiry, or mention the name of any particular employee, or
that their presence at the representation hearing had been requested. Tiplady re-
plied ,that he needed every one "to work every day." Pearson, along with Tiplady
and an interpreter, then spoke to the three employees separately at their work sta-
tions. Pearson told them that Respondent needed them at work and refused per-
mission for them,to go to Boston on the following day. He warned them that if
they went they would do so at their own risk and would be subject to disciplinary
action.
The three employees attended the hearing in Boston . They were not subpenaed
and they did not testify. They were,, however, in the hearing room and on occasion
conferred with Tamburro, the Union's representative, and a Board representative,
concerning the supervisory or nonsupervisory duties of certain employees in the
proposed appropriate unit. Pearson was also present and of course saw Cabral,
D'Alessio, and DaSilva. When they reported for work the next day, Pearson laid
them off for 30 days for disobeying instructions.
Conclusions
There can be no doubt that Cabral, D'Alessio, and DaSilva, in attending the rep-
resentation hearing on January 3, 1962, were exercising the rights guaranteed them
by Section 7 of the Act to "self-organization," to "assist labor organizations," and
"to engage in" concerted activities for "collective bargaining or other mutual aid
or protection ." The question presented is whether Respondent 's denial of time off
for this purpose and the subsequent disciplinary layoff were in reprisal for this pro-
tected activity or were in exercise of an employer's normal right to hire, discharge,
or determine the conditions of employment of its employees.
PEARSON CORPORATION 919
There is no evidence in the record that the presence of these men in the plant on
January 3 was required for production purposes. Nor in fact is it so contended.
Tiplady, department foreman, did not so testify, nor did Pearson. They testified
only that when Pearson asked Tiplady "if (he) needed all the men who were work-
ing," Tiplady replied that lie did. This is of course, not evidence as to the sub-
stantive fact, but only as to what Tiplady said to Pearson. Pearson, as has been
found, did not give any reason for his inquiry nor did he mention Cabral, D'Alesiso,
or DaSilva as employees whose absence was countemplated. Both question and
answer were in general terms. So far as Tiplady knew, Pearson could have had
in mind further layoffs and not, as he in fact had, simply an absence of three em-
ployees for 1 day. Nor is there any evidence that as a result of the absence of
Cabral, D'Alessio, and DaSilva, production was in anyway interfered with. Neither
of them was replaced, and there is no evidence that others did the work which
they would have performed. Indeed, it is difficult to see how their presence was
necessary in view of the fact that their services were dispensed with for 30 days
with no apparent difficulty.
The record reveals no fixed policy with respect to granting employees time off
from work. Clinton Pearson testified, and I find, that "quite a few" employees took
time off for various personal reasons without obtaining permission and without dis-
ciphnary action being taken, although never before had employees done so after
having asked permission and having been refused. It is difficult to avoid the con-
clusion that the denial of time off on January 3 was a disparate application of Re-
spondent's usual practice of granting time off for a variety of reasons.
It is apparent from the record that Respondent resented what, in its brief, it
characterized as the Union's "high handed methods," that is, the language of Tam-
burro's letter of December 29 which it characterizes as a "mandate." If "a proper
approach had been made" says the brief, "these untutored employees would not have
paid for the Union's high handed methods by the loss of a month's pay for their
insubordination." I translate this to mean that if Tamburro's letter had been couched
in more polite language-if instead of saying "this communication is for you to
release," etc., it had used words less imperative-permission to attend the representa-
tion hearing would have been granted?
I view this as the nub of the matter, or close to it. Respondent, in my opinion,
resented the Union's letter because it resented the Union. It opposed the appearance
of its employees at the representation hearing, an essential preliminary step to an
election and ,to certification, because it opposed the Union as the bargaining repre-
sentative of its employees. Respondent made no secret of this opposition, and I
have found that it interfered with, restrained, and coerced its employees by inquiring
as to their union activity, by threatening them with discharge if they associated
themselves with it, and by discharging Massa, the Union's principal advocate in the
plant.
The factual circumstances of this case closely parallel those in Chautauqua Hard-
ware Corporation, 103 NLRB 723, enfd. 208 F. 2d 750 (C.A. 2), cited by the Gen-
eral Counsel in his brief, where employees were laid off for 4ih days for attending
a Board representation hearing after the employer refused permission for time off.
The disciplinary action imposed in that case is in contrast with that imposed here.
Moreover, there was not, in that case, any background of independent 8(a)(1)
violations, such as there is here, clearly revealing the employer's hostility to col-
lective activity. I do not find apposite N.L.R.B. v. Superior Company, Inc., 199
F. 2d 39 (C.A. 6), setting aside 94 NLRB 586, upon which counsel for Respondent
relies. In that case employees absented themselves after permission was requested
and denied, for the purpose of attending an informal conference between representa-
tives of the Board and the union, at which it was known beforehand that the em-
ployer would not be present. The court held the trip useless and productive of no
information which could not have been gained from correspondence, by telephone,
or after working hours. That was not the case here. As the Board noted in the
Chautauqua case, a formal hearing before the Board has a higher status than an
informal conference between an employer, a union, and representatives of the Board.
It cannot be conducted by correspondence, or as a rule after working hours, and
the Board's determination must be spread "upon the record of such hearing." 5
&A letter from Tamburro dated December 5, which alerted Respondent to the subse-
quent request of December 29, was more parliamentary in tenor
Section 9 ( c)(1) of the Act.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is irrelevant that the Union might have subpenaed the three employees, but
'did not. The court in N.L.R.B. v. Fulton Bag & Cotton Mills, 180 F. 2d 68, 70
(C.A. 10), said with respect to an employee:
If the Company laid him off and refused to reinstate him for a period of
time because of his membership and activities in the union and because he
was absent to attend proceedings before the Board, it is no valid excuse for the
company to say that the Board might have issued a subpena for his attendance.
In view of all the circumstances of this case, I conclude and find that Respondent,
by denying time off, was not motivated by legitimate business considerations, but
rather by its hostility to the Union as revealed by this record, and a desire to interfere
with the organizational activities of its employees. Since its refusal to grant time
off to Cabral, D'Alessio, and DaSilva was violative of the Act, it follows that the
disciplinary action which followed was also violative. By denying the request of
these employees, and by imposing a disciplinary layoff upon them, Respondent inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed
by Section 7 of the Act, thereby violating Section 8(a) (1) and (3) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes affecting commerce and the free flow of
commerce.
V. THE REMEDY
It having been found that Respondent engaged in unfair labor practices in viola-
tion of Section 8 (a) (1) and (3) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
I have found that Respondent discontinued its upholstery department and dis-
charged Anibal Massa on December 5, 1961, to penalize him for having selected the
Union as bargaining agent. This constituted a clear violation of Section 8(a)(3)
and (1). Manifestly, the most meaningful way in which Respondent could remedy
this wrong would be to reinstate its upholstery operations and reinstate Massa.
Accordingly, I shall recommend that Respondent reestablish its upholstery depart-
ment 6 and offer to Massa reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and privileges. I shall
also recommend that Respondent make him whole for loss of earnings suffered be-
cause of its discrimination against him. Backpay shall be based upon the earnings
which he normally would have received from the date of his discharge to the date of
Respondent's offer of reinstatement, less any net interim earnings, and shall be com-
puted on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90
NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
I have also found that Respondent discriminatorily laid off Jorge Cabral, Michael
D'Alessio, and Jaime DaSilva for 30 days in violation of Section 8(a)(3) and (1).
I shall recommend that Respondent make them whole for loss of earnings suffered
by them. Backpay shall be based upon the earnings which they would normally
have received from the date of their layoff to the date of reinstatement, less any
interim net earnings.
It will also be recommended that Respondent preserve and, upon request, make
available to the Board payroll and other sources to facilitate the computation of the
backpay due.
As the unfair labor practices committed by Respondent involved discrimination
and are therefore of a character striking at the root of employee rights safeguarded
by the Act, it will be recommended that Respondent cease and desist from infring-
ing in any manner upon rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
See Town & Country Manufacturing Company, Inc, and Town & Country Sales Com-
pany, Inc., 136 NLRB 1022.
PEARSON CORPORATION 921
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of the Act.
2. By interrogating employees concerning their union membership and activity
and by threatening to discharge employees if they joined the Union, Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act.
3. By discharging Anibal Massa on December 5, 1961, and by laying off Jorge
Cabral, Michael D'Alessio, and Jaime DaSilva on January 4, 1962, thereby dis-
criminating in regard to their hire and tenure of employment and discouraging
membership in the Union, Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Contrary to the allegations of the complaint, Respondent did not commit un-
fair labor practices by discharging or laying off Charles Lane and Joseph Cirillo.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Pearson
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, or in any other labor organization of its employees,
in regard to their hire and tenure of employment, or the terms and conditions of
their employment, or by interrogating employees as to their union activities or
threatening to discharge them if they joined the Union.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other
concerted activities for the purpose of mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Reinstate its upholstery department at its plant in Bristol, Rhode Island,
and offer to Anibal Massa immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make Anibal Massa, Jorge Cabral, Michael D'Alessio, and Jaime
DaSilva whole for any loss of pay suffered by them in the manner set forth in the
section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due.
(c) Post in all its plants in Bristol, Rhode Island, copies of the notice attached
marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Di-
rector for the First Region, shall, after being duly signed by Respondent or its
representatives, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places in such
plants, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered, defaced,
or covered by other material.
7 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order " shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order " shall be substituted for the words
"Pursuant to a Decision and Order."
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps Respondent has
taken to comply herewith.8
It is also recommended that the Board dismiss allegations of the complaint that
Respondent committed unfair labor practices by discharging or laying off Joseph
Cirillo and Charles Lane, and insofar as the complaint alleges acts and conduct in
violation of Section 8(a) (1) of the Act not specifically found to be violative of that
section.
8In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director, In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, or any other labor organization of
our employees, by discriminatorily discharging or laying off our employees or
by discriminating in any other manner in regard to their hire and tenure of
employment or any term or condition of employment.
WE WILL NOT question, in an unlawful manner , our employees concerning
their union affiliation and activities or threaten them with reprisals if they
engage in protected union or concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self- organization , to bargain collectively
through representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent ,that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a)(3) of the Act,
as amended.
WE WILL offer to Anibal Massa immediate and full reinstatement to his
former or equivalent position, without prejudice to his seniority or other rights
and privileges, and make Anibal Massa, Jorge Cabral, Michael D'Alessio, and
Jaime DaSilva whole for any loss of pay suffered by them because of the dis-
crimination against them.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of the United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, or any other labor organization, execept 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 not discriminate in regard to hire or tenure of employment or any term or con-
dition of employment against any employee because of membership in or activity on
behalf of any such labor organization.
PEARSON CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 23 School Street, Boston 8, Massachusetts, Tele-
phone Number, Lafayette 3-8100, if they have any question concerning this notice
or compliance with its provisions.