Perfecting Service Co.

National Labor Relations Board - Board Decisions

May 29, 1953

105 N.L.R.B. 106 (N.L.R.B. 1953)

106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quiring membership in a labor organization as a condition of employment , as authorized in
Section 8 (a) (3) of the Act.
NEW BIG CREEK MINING COMPANY,
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.
PERFECTING SERVICE COMPANY and UNITED STEEL
WORKERS OF AMERICA, CIO. Case No. 11-CA-502. May
29, 1953
DECISION AND ORDER
On April 13, 1953, Trial Examiner C. W. Whittemore
issued his Intermediate Report in the above - entitled proceed-
ing, finding that the Respondent had engaged in and was en-
gaging in certain unfair labor practices in violation of Section
8 (a) (1), (3), and (5 ) of the Act and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. He also found that the Respondent had not unlawfully
laid off Elbert L. Eagle, Jr., Walter G. Cooper, and Brady E.
Johnson, and recommended dismissal of the complaint as to
them.' Thereafter , the Respondent filed exceptions to the
Intermediate Report; and the General Counsel filed exceptions,
supported by a memorandum , to the Trial Examiner's failure
to find that the Respondent engaged in certain additional con-
duct violative of Section 8 (a) (1) of the Act.
The Board ? has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions, the
memorandum, and the entire record in this case, and hereby
adopts the findings , conclusions , and recommendations of the
Trial Examiner, with the following additions and exceptions.
1. As detailed in the Intermediate Report, we find, as did
the Trial Examiner , that the Respondent engaged in independent
violations of Section 8 (a) (1) of the Act. The General Counsel
has excepted to the Trial Examiner ' s failure to find that the
Respondent also violated Section 8 (a) (1) of the Act by making
additional statements and inquiries not mentioned in the Inter-
i As no exceptions have been filed with respect to the Trial Examiner ' s findings that the
Respondent did not discriminate as to the tenure of Eagle, Jr , Cooper, and Johnson, we
shall dismiss the complaint as to them
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board
has delegated its powers in connection with this proceeding to a three- member panel (Mem-
bers Murdock, Styles, and Peterson]
105 NLRB No. 33.
PERFECTING SERVICE COMPANY 107
mediate Report. These exceptions have merit to the extent
indicated below. Accordingly, we find that the Respondent inter-
fered with, restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act, in violation of
Section 8 (a) (1) thereof, by the following:
(a) Foreman Warren De Young's interrogation of Stanley
Martino, an employee, on two occasions: Once, about a week
or two before June 27, 1952, in which De Young asked, "Has
anybody talked to you about the Union yet"; and, again, "one
morning before the election" of August 14, 1952, when De
Young asked Martino "which way" he "was going in this
election."
(b) About 6 days after the filing of the petition in the repre-
sentation case, as "some pieces that the Company had sent
out to be machined had just been unloaded," Supervisor Foster,
shaking his head, stated to Dominick Cordaro, an employee,
"it is just too bad that this Union had to come up, too bad all
this work had to go out. . . ."
(c) Sometime after the hearing in the representation case
but before the election, Supervisor Manning stated to Cordaro:
"...until this Union business is over, said Eddie Shaw [the Re-
spondent's president and chairman of its board of directors ]
can send all the work out he wants to.... Eddie left Chicago
[where the Respondent's plant was formerly located] because
of the Union and he can leave Charlotte the same way...."
2. As a basis for his conclusion that the Respondent dis-
charged Paul E. McNatt because of his union activity, the
Trial Examiner relied, among other things, on "the Respond-
ent's bitter antipathy toward the Union and its representatives"
as reflected in the Respondent's "objections to the election
filed with the Regional Office" 3 days before McNatt's dis-
charge. We agree with the Trial Examiner that the Respondent
manifested hostility toward the Union and that the Respondent
violated the Act in discharging McNatt, as more fully set forth
in the Intermediate Report. However, unlike the Trial Examiner,
we base our finding as to the Respondent's antiunion attitude
on the following circumstances: (a) The Respondent's unlawful
discharge of Dominick Cordaro for talking about the Union;
(b) Secretary-Treasurer Van Lee Shaw's statement of Septem-
ber 10, 1952, rejecting the majority-rule principle of collec-
tive bargaining; (c) Supervisor De Young's circulation and
solicitation of signatures to an antiunion petition shortly after
an election; and (d) the Respondent's unlawful statements and
interrogation of employees concerning their union sympathies
and activities.
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 Re-
spondent, Perfecting Service Company, Charlotte, North Caro-
lina, its officers, agents, successors, and assigns, shall:
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
1. Cease and desist from:
(a) Interrogating employees concerning their union sympa-
thies, membership, or activities.
(b) Circulating, or soliciting signatures to, any antiunion
petition.
(c) Discouraging membership in United Steel Workers of
America, CIO, or in any other labor organization of its em-
ployees, by discriminatorily laying off, discharging, or re-
fusing to reinstate any of its employees, or by discriminating
in any other manner in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(d) Refusing to bargain collectively concerning rates of pay,
wages, hours of employment, and other terms and conditions
of employment with United Steel Workers of America, CIO,
as the exclusive representative of all its production and main-
tenance employees at its Charlotte, North Carolina, plant, ex-
cluding office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
(e) 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 the
above-named or any other labor organization , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, 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) Upon request, bargain collectively concerning rates of
pay, wages, hours of employment, and other terms and con-
ditions of employment with United Steel Workers of America,
CIO, as the exclusive representative of all the employees in
the above-described appropriate unit, and embody any under-
standing reached in a signed agreement.
(b) Offer immediate and full reinstatement to Paul E. McNatt
and Dominick Cordaro to their former or substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make them whole, in the manner set
forth in the section of the Intermediate Report entitled
"The Remedy," for any loss of pay that theymay have suf-
fered by reason of the discrimination against them.
(c) Make available to the Board and its agents all records
necessary for a determination of back pay due under this
Order.
t (d) Post at its plant in Charlotte, North Carolina, copies of
the notice attached hereto and marked "Appendix A." b Copies
8In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
PERFECTING SERVICE COMPANY 109
of said notice, to be furnished by the Regional Director for the
Eleventh Region, shall, after being duly signed by the Re-
spondent, be posted by it immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eleventh Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges that the Respondent
discriminated with respect to the tenure of employment of
Elbert L. Eagle , Jr., Walter G. Cooper, and Brady E. Johnson.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, wE hereby notify our em-
ployees that:
WE WILL bargain collectively, upon request, with
United Steel Workers of America, CIO, as the exclusive
representative of the employees in the bargaining unit
described below with respect to rates of pay, wages,
hours of employment, and other conditions of employment,
and if an understanding is reached, embody such under-
standing in a signed agreement . The bargaining unit is:
All production and maintenance employees at our
Charlotte, North Carolina, plant, excluding office
clerical employees , guards, professional employees,
and supervisors within the meaning of the Act.
WE WILL NOT discourage membership of our employees
in the above-named or any other labor organization, by
discharging , laying off, or refusing to reinstate any of
them, or by discriminating in any other manner in regard
to their hire or tenure of employment, or any term or
condition of their employment.
WE WILL NOT interrogate our employees as to their
union affiliation or activities, and we will not circulate
or authorize our supervisors to circulate , or solicit sig-
natures to, any antiunion petition.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of the right to
self-organization , to form labor organizations , to join or
assist the above-named or any other labor organization,
to bargain collectively through representatives of their
1 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such ac-
tivities , except to the extent that such right may be af-
fected 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 Paul E. McNatt and Dominick Cordaro
immediate and full reinstatement to their former or sub-
stantially equivalent positions , without prejudice to any
seniority or other rights and privileges previously en-
joyed, and we will make them whole for any loss of pay
suffered as a result of the discrimination against them.
All our employees are free to become, remain , or to re-
frain from becoming or remaining members of the above-
named or any other labor organization , except to the extent
that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act.
PERFECTING SERVICE COMPANY,
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.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing thereon
having been issued and served by the General Counsel of the National Labor Relations Board,
and an answer having been filed by the Respondent Company, a hearing involving allegations
of unfair labor practices in violation of Section 8 (a) (1), (3), #nd (5) of the National Labor Re-
lations Act, as amended , 61 Star. 136, herein called the Act, was held in Charlotte, North
Carolina, before the undersigned Trial Examiner, on February 17, 18, and 19, 1953. There-
after, pursuant to agreement of the parties and order of the Trial Examiner, a deposition of
one witness was taken on February 26, 1953, before a hearing officer designated by the Re-
gional Director for the Eleventh Region. Said deposition is hereby made a part of the record
in this case.
In substance the complaint alleges and the answer denies that: (1) Since on or about Septem-
ber 19, 1952, the Respondent has refused to bargain collectively with the Union although that
labor organization has been, at all times since August 14, 1952, the exclusive bargaining
representative of all employees in an appropriate unit; ( 2) at various dates between June and
September 1952, the Respondent discriminatorily discharged and/or laid off eight named em-
ployees,! to discourage membership in the Union, and (3) bl the foregoing and other conduct
the Respondent interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act.
I During the course of the hearing the Trial Examiner granted a motion of General Counsel
to dismiss the complaint as to Ernest G Hamby and David C. Robinson, and near the close of
the hearing granted the motion of the Respondent to dismiss as to Bobby Stogner Evidence as
to the five remaining individuals will be discussed hereinafter.
PERFECTING SERVICE COMPANY i l l
At the hearing all parties were represented, were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to
argue orally upon the record, and to file briefs and proposed findings of fact and conclusions
of law. Both oral arguments and briefs were waived.
At the taking of the deposition on February 26, General Counsel objected to the introduction
of Respondent's Exhibit No. 8, a document prepared from the company records. The objection
is overruled and the exhibit is received.
Disposition of the Respondent's motion to dismiss the complaint, urged at the close of the
hearing and upon which ruling was reserved, is made by the following findings, conclusions,
and recommendations.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Perfecting Service Company is a North Carolina corporation, having its principal place of
business in Charlotte, North Carolina, where it is engaged in the manufacture and sale of
metal rotary units.
In the conduct of its business the Respondent causes a substantial amount of raw materials,
equipment, and supplies to be purchased, transported, and delivered in interstate commerce
from and through States other than North Carolina, and causes a substantial amount of finished
products, valued at more than $25,000 annually, to be transported and delivered in interstate
commerce to and through States other than North Carolina. The Respondent concedes that it
is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steel Workers of America, CIO, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and major issues
One of the major issues in this case, the alleged refusal to bargain, stems from a Board-
conducted elections held on August 14, 1952, as a result of which the Regional Director for
the Fifth Region certified the Union as the exclusive bargaining representative of all of the
Respondent's employees in an appropriate unit. The Respondent objected to the election, and
for reasons discussed in a later section the Board, on September 18, 1952, rejected the Re-
spondent's appeal from the Regional Director's action. Since that time the Respondent has
continuously refused to bargain with the Union.
On June 27, 1952, the Respondent laid off several employees, among them 3 who, General
Counsel contends, were discriminatorily terminated to discourage union membership. In
August and September the Respondent discharged 2 other employees, and their dismissals are
in issue.
B. The refusal to bargain
The complaint alleges, the answer does not deny but in an agreement for consent election
signed by E. C. Shaw, president of the Respondent, he agreed, and the Trial Examiner now
finds, that a unit of the Respondent's employees appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act is composed of all production and
maintenance employees at its Charlotte, North Carolina, plant, excluding office clerical em-
ployees, guards, professional employees, and supervisors within themeaning of the Act.
Pursuant to the aforesaid election agreement the Board conducted an election by secret
ballot among the employees of the Respondent in the above-described unit on August 14, 1952.
On the same day representatives of the Respondent certified that the "balloting was fairly
conducted, that all eligible voters were given an opportunity to vote their ballots in secret,
and that the ballot box was protected in the interest of a fair and secret vote." Of the 36 votes
2Case No. 34-RC-419.
1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cast, 4 were challenged. Of the 32 unchallenged votes, 18 were cast for the Union and 14
against. Thus it appeared, that in the eventeach of the 4 challenged ballots were to be counted
against the Union, the vote would be tied.
Despite the Respondent's certification that the election was fairly conducted on August 14,
2 days later , on August 16, the Respondent filed with the Regional Office "Objections to the
Conduct of the Election or Conduct Affecting the Results of the Election." In this document
it claimed that the Union had threatened employees with bodily harm if they did not vote for
it, and that the day after the election, on August 15, the Respondent received a petition pur-
portedly signed by 22 employees. The text of this petition read, according to the Respondent's
claim.
We, the undersigned employees of Perfecting Service Company, after having heard the
results of the election this day, August 14th, we are not satisfied with the results, as we
have reason to believe some of the voters have been coerced and influenced by mis-
representation of facts, benefits, etc., by Union representatives. Because of these
reasons, we petition Perfecting Service Company to act in our behalf and take steps to
have this election set aside.
Following investigation, and pursuant to the consent agreement previously referred to, the
Regional Director on September 8 issued his report on challenges and objections. He found
no merit in the Respondent's objections and overruled them. He overruled 3 of the 4 chal-
lenges of ballots and ordered that they be opened and counted. On September 11 the Respond-
ent filed its exceptions to the Regional Director's report and the following day wired the
Regional Director requesting postponement of countingofthechallenged ballots. On September
15 an agent of the Board denied the request and , on the same day, issued a revised tally of
ballots, finding that of the 35 valid votes, 20 had been cast for the Union and 15 against. Also
on September 15 the Regional Director certified the Union as the exclusive representative of
the employees in the appropriate unit. On September 18 the Board, by letter of its Assistant
Executive Secretary, acknowledged the receipt of the Respondent's exceptions to the Regional
Director's report, and stated that it would "not entertain an appeal from the Regional Di-
rector's action in the matter." The Board pointed out that the election was held pursuant to
an agreement for consent election, which provided:
... the determination of the Regional Director shall be final and binding upon any ques-
tion ... raised by any party hereto relating in any manner to the election.
On September 22 the Respondent filed an "amended statement " of its exceptions . On Sep-
tember 24 the Board again declined to review the Regional Director's action.
At the hearing the Respondent offered no credible evidence to support claims made in its
objections to the election. As noted more fully hereinafter, it appears that the purported
petition, referred to in its objections , was circulated by a representative of management.
The Trial Examiner specifically finds no merit in the Respondent's denial, voiced in its
answer, that "a majority of the employees ... desire to be, or have desired to be repre-
sented by the Union."
It is concluded and found that at all times since August 14, 1952, the Union has been desig-
nated by a majority of employees in the appropriate unit as their collective -bargaining repre-
sentative and that since that date the Union has been the exclusive bargaining representative
of all employees in the above-described appropriate unit.
On September 19, 1952, two union representatives and a committee of employees went to
the company offices and asked to negotiate a contract. Van Lee Shaw, secretary of the Re-
spondent, informed them bluntly that the Respondent would not bargain with the Union, then or
ever, and that it would accept neither the first nor the second ruling of the Board--rulings
noted above.
Thereafter, on two occasions, in September 1952 and January 1953, without consulting with
the Union, the Respondent granted general wage increases.
The Trial Examiner concludes and finds that at all times since September 19, 1952, the
Respondent has refused to bargain collectively with the Union as the exclusive representative
of all employees in the above-described appropriate unit, and that by such refusal the Re-
spondent has interfered with, restrained , and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act.
PERFECTING SERVICE COMPANY 113
C. The layoffs and discharges
1 Elbert L. Eagle, Jr , Walter G Cooper, and
Brady E. Johnson on June 27, 1952
Since all three employees were laid off on the same day their cases will be treated in a
group.
On June 27, 1952, the Respondent reduced its force by laying off 12 employees. No credible
evidence was adduced from which it may be inferred that the reduction itself was discrimina-
tory or for the purpose of discouraging union membership or activity. Seven employees were
laid off from the machine department. None of these layoffs is here involved Five em-
ployees were laid off from the assembly department. Of these 5 the above-named 3 are claimed
by General Counsel, apparently, to have been discriminatorily selected.
Each of the three was told on June 27 that the layoff would be temporary. Each of the three
(as well as others laid off from the assembly department) received a letter dated July 15,
1952, which stated:
On June 27th when we closed down operations in the assembly department for an in-
definite period, we had hopes of reopening this department at some later date. However,
due to a change in operation methods, we regret to inform you that it has been decided
to discontinue this department.
In your endeavor to gain employment elsewhere, you may feel free to use this company
as reference.
The testimony of James E. Rezak, superintendent, is undisputed that no one has been hired
since June 27 to take the place of any of these 3. There were about 54 employees on the pay-
roll at the time of the layoff, and at the time of the hearing only 35.
Evidence adduced by the Respondent permits, at the most, only a vague suspicion that
management might have transferred 1 or more of the 3 to some other department, on June 27,
and laid off 1 or more others. The mere possibility that judgment as to relative ability may
differ according to the individuals exercising it, however, does not warrant the conclusion that
the selection was purposely discriminatory and violative of the Act.
In any event, the Trial Examiner is not persuaded, by the preponderance of credible evi-
dence, that any management official, responsible for selecting these three employees for
layoff, was aware of the union adherence of any of them.3 Neither Eagle nor Johnson appears
to have engaged in any union activity other than to sign authorization cards. The Trial Ex-
aminer concludes and finds that the evidence does not sustain the allegations of the complaint
as to the layoff of Eagle, Johnson, and Cooper.
2. Paul E. McNatt
McNatt is a trained machinist. He was employed by the Respondent in March 1952. He was
discharged on August 19, a few days after the election.
McNatt signed a union-authorization card in July. On August 1, management, in the person
of President E. C. Shaw, became plainly aware of his union adherence when he appeared as
a member of the union committee at a conference resulting in the signing of the consent-elec-
tion agreement. (Cordaro, whose discharge early in September followed that of McNatt, was
also a member of that union committee.)
in the afternoon of Tuesday, August 19, Supervisor Manning assigned to McNatt a task of
burring certain reams with a hand file Although Manning was near McNatt all afternoon, he
made no criticism of McNatt's work. Late in the afternoon, however, Superintendent Rezak
walked by McNatt, told him he was slow, and went on into his office. Ten minutes later Rezak
summoned the employee to his office, handed him his paycheck for the first 2 days of the
week, and told him he was being let go because he "had been too slow on the job." The next
day McNatt returned to the plant and received a termination slip stating that he had been hired
on a temporary basis and did not qualify for the job.
3The undisputed testimony of Cooper is to the effect that on one occasion Foreman John
Sebek asked him how he and others felt about the Union, and that he replied that he would
vote for it. Cooper was unable to fix the time, without prompting, as nearer than sometime
in 1951 or 1952. Upon his vague testimony on this point the Trial Examiner can place no
reliance.
1 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No credible evidence was offered by the Respondent to support a finding that McNatt was
dismissed on August 19, in the middle of a payroll week , for the reason given him by the
superintendent or for the reasons stated on his termination slip . Rezak admitted that he never
informed McNatt he had been hired on a temporary basis . The fact that McNatt operated
various machines during his service with the Company refutes the vague and unsupported
claim that he was unqualified as a machinist . The job he was performing at the time he was
discharged was plainly not one requiring the skill of a trained machinist , since it was merely
removing roughness from metal with a hand file.
Rezak's claim that McNatt had been warned "three or four times" about his slowness is
not credited by the Trial Examiner as trustworthy . He was vague as to whether or not he had
ever made written notations of such occurrences , or as to whether or not such notations had
been shown to McNatt. Rezak claimed that he "talked to Mr . McCall " about McNatt 's slow-
ness , on August 19, and finally admitted that McCall had left the Respondent 's employment
long before August 19. He claimed , then, that he talked to Manning about it and that Manning
then took McNatt off the job and put someone else on it . Rezak's testimony lacks the support
of Manning ; it is unrefuted that it was Rezak himself who called McNatt from the job and dis-
charged him . Rezak admitted that before dismissing McNatt he talked with Shaw, who had been
present at the Board conference a few days before . The Trial Examiner finds that credible
evidence fails to support any of the various claims of the Respondent as to its reasons for
discharging this employee . All lack merit.
The Respondent 's bitter antipathy toward the Union and its representatives was recorded
clearly 3 days before McNatt 's discharge , in its objections to the election filed with the Re-
gional Office.
The preponderance of credible evidence supports the allegations of the complaint as to
McNatt . It is concluded and found that he was discriminatorily discharged on August 19, 1952,
because of his activity on behalf of the Union , and to discourage union membership , and that
by such discrimination the Respondent interfered with , restrained , and coerced its em-
ployees in the exercise of rights guaranteed by the Act.
3. Dominick Cordaro
Cordaro was hired by the Respondent as an experienced machinist in March 1952. He was
summarily discharged on September 10, 1952.
In July Cordaro became the most active employee leader in the union campaign before the
election . He called and attended meetings . He was on the union committee at the meeting with
the Respondent and Board agents when the consent -election agreement was signed . He was a
union observer on election day, August 14. His ballot was challenged by the Company on the
wholly unsupported ground that he had told some unidentified person or persons that after the
election he expected to get another job . The evidence is overwhelming that the Respondent
well knew, by September 10, of Cordaro 's leadership in the Union.
It is undisputed that immediately after the election his supervisors , Manning and Foster,
repeatedly gave him conflicting and confusing orders as to the nature of his assignment and
manner of its performance.
On September 10, Van Lee Shaw assembled all employees , summoning them from their
work , and informed them that despite the publicly advertised claim of the Union, the day
before , to the effect that it represented the employees, "there would not be a union in the
shop until 1001o of the people wanted it ." That afternoon Cordaro was called into Rezak's
office and discharged , being told that this action was taken because of "insubordination and
disobedience ." Cordaro asked what he meant , but Rezak did not answer.
Rezak testified that he discharged Cordaro for disobeying his order not to talk about the
Union to anyone during working hours. He gave the order to this employee, he said , because
he had received complaints from 3 or 4 others about Cordaro's "bothering" them. Only 1
of the claimed 3 or 4 was brought forward as a witness to support Rezak's testimony . Harris
said that he "didn 't want no part of the Union ," and for this reason reported to his super-
visor on the morning of September 10 that Cordaro had "pestered " him to join. There was
no claim by Harris, however, that Cordaro's "bothering" him interfered in any way with his
work , and no claim by Rezak that such interference was the cause of the discharge . Herman
Lee Shaw, production engineer , admitted that there is no posted or oral rule at the plant
prohibiting employees from talking about any subject.
Particularly in view of Van Lee Shaw 's assembly of all employees that same morning, to
tell them that there would be no Union in the shop , it is clear that even if Rezak's testimony
is accepted at face value (testimony to the effect that he ordered Cordaro not to talk about
the Union) the order itself was discriminatory and illegal.
PERFECTING SERVICE COMPANY 115
The purposes of the Act plainly would be negated if an employee 's failure to observe an
illegal or an illegally imposed rule ( here, there is no evidence that Rezak issued his "order"
to anyone but Cordaro) were to be held to be meritorious grounds for a "good- cause" dis-
charge.
Furthermore , even if Rezak's order were to be construed as a legitimate "no-solicitation"
rule, and that Cordaro violated it, the Trial Examiner is convinced and finds that the reason
advanced by Rezak for his discharge is not the true reason , but only a pretext.4 The treat-
ment accorded Cordaro by his supervisors , immediately after the Union won the election, is
plainly indicative of management 's effort to rid itself of the employee union leader.
The Trial Examiner is convinced and finds that the real reason for Cordaro 's discharge
was his leadership in the Union, and that it was effected to discourage membership in it. Such
discrimination , and Shaw' s statement to all assembled employees the same day to the effect
that the Respondent would not deal with any union unless all employees wanted it , constituted
interference , restraint , and coercion of employees in the exercise of rights guaranteed by
the Act.
4. Other acts of interference , restraint , and coercion
The testimony of employee Northcutt is undisputed and it is found that shortly before the
election Foreman Sebec interrogated him as to his union " feelings" and that President Shaw
asked him "are you for us this time or against us?"
Credible testimony is undisputed and it is found that Foreman Warren De Youngs interro-
gated employee Twitty as to whether he was for or against the Union, and on the day of the
election asked him how many attended the union meeting the night before. Immediately after
the election De Young brought to Twitty, for his signature , a petition to have the election set
aside De Young 's own name was signed to this document which, it is reasonably inferred, is
the petition referred to by the Respondent in its objections to the election filed 2 days after
that event. 6
The Trial Examiner concludes and finds that the interrogation of employees by Sebek,
Shaw, and De Young , and the solicitation by De Young of signatures to the antiunion petition
constituted interference , restraint, or coercion of employees in the exercise of rights guaran-
teed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection with
the operations of the Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce in the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act
Having found that the Respondent has discriminated in regard to the hire and tenure of
employment of Paul E . McNatt and Dominick Cordaro, the Trial Examiner will recommend
that it offer them immediate and full reinstatement to their former or substantially equiva-
lent positions , without prejudice to their seniority and other rights and privileges , and make
them whole for any loss of pay they may have suffered by reason of the discrimination against
them by payment to each of them of a sum of money equal to that which he would have earned
4 See Dixie Furniture Company, Inc ., 101 NLRB 1295.
5Counsel for the Respondent contended during the hearing that De Young was not a super-
visor Not only the credible testimony of several employees , but that of President Shaw
himself, supports the finding that De Young was a supervisor within the meaning of the Act.
Shaw testified that he included De Young with Rezak, McCall , and Sebek as the four " super-
visors" whom he "excluded" from the number of employees on the payroll June 27, 1952.
6 The actual petition was not offered in evidence by the Respondent , although in the objec-
tions to the election Shaw claimed that the document bearing 22 signatures , 21 of which were
of "eligible voters in the ... election," was in the custody of counsel for the Respondent.
1 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as wages from the date of the discrimination to the offer of reinstatement, less his net
earnings during said period. T Back pay due shall be computed in accordance with Board
policy set out in F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent, from September 19, 1952, has unlawfully re-
fused to bargain with the Union as the exclusive representative of employees in an appropri-
ate unit. The Trial Examiner will therefore recommend that the Respondent, upon request,
bargain collectively with the Union as such representative and, in the event that an under-
standing is reached, embody such understanding in a signed agreement.
In view of the nature of the unfair labor practices committed, the commission by the Re-
spondent of similar and other unfair labor practices may reasonably be anticipated. The
remedy should be coextensive with the threat. It will therefore be recommended that the
Respondent cease and desist from infringing in any manner upon the 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, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steel Workers of America, CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. All production and maintenance employees at theRespondent's Charlotte, North Carolina,
plant, excluding office clerical employees , guards, professional employees , and supervisors
within the meaning of the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. United Steel Workers of America, CIO, was on August 14, 1952, and at all times since
then has been the exclusive representative of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on September 19, 1952, and at all times thereafter to bargain collectively
with the aforesaid Union as the exclusive bargaining representative of its employees in the
aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Paul E. McNatt and
Dominick Cordaro, and thereby discouraging membership in the above-named labor organi-
zation, the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has engaged in no unfair labor practices within the meaning of the Act
as to Elbert L. Eagle, Jr., Walter G. Cooper, and Brady E. Johnson.
[Recommendations omitted from publication.)
7Crossett Lumber Company, 8 NLRB 440.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. AND NATIONAL
SHIRT SHOPS OF MIAMI, INC. and DEPARTMENT AND
SPECIALTY STORE EMPLOYEES UNION, LOCAL NO. 1666,
RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. of
L. Case No. 10-CA-1387. May 29, 1953
DECISION AND ORDER
On March 25 , 1953, the Board issued its Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order in
the above - entitled proceeding , a copy of which is attached
105 NLRB No. 24.