Phaostron Instrument and Electronic Co.

National Labor Relations Board - Board Decisions

Apr 23, 1964

146 N.L.R.B. 996 (N.L.R.B. 1964)

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- 3. Within 10 days from the date of the Decision and Determination
of Dispute, Carpenters District Council of St. Louis affiliated with
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, shall notify the Regional Director for the Fourteenth Region, in
writing, whether it will refrain from forcing or requiring the Em-
ployer, by means proscribed in Section 8 (b) (4) (D), to assign the work
in dispute to carpenters rather than to stonemasons.
Phaostron Instrument and Electronic Company and Communi-
cations Workers of America, AFL-CIO. Case No. 921-CA-
5332-1. April 23, 1964
DECISION AND ORDER
On September 24, 1963, Trial Examiner Maurice M. Miller issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief. The Gen-
eral Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings 1 of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, the Gen-
eral Counsel's brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner 2
1 The Respondent excepts to the Trial Examiner 's rejection of its offer of proof con-
cerning testimony of Respondent 's employees Olivo, Shipley , Jason, and Haynes. Accord-
ing to the Respondent , if permitted , these employees would have testified about what
occurred during union meetings held on April 24 and 30 and May 6, 1963, and this evi-
dence would show that no declarations or pledges of mutual assistance were made by those
attending such meetings . We affirm the Trial Examiner ' s rejection of the proffered evi-
dence because , like the Trial Examiner , we find that the spontaneous and simultaneous
nature of the work stoppage herein qualifies it as protected concerted activity. N L R.B.
v. Washington Aluminum Company , Inc., 370 U.S 9. Under these circumstances, there is
no legal prerequisite that there be a prior consensus for mutual support among those who
participated in the walkout.
2 Respondent excepts on the ground that the allegations in the complaint are not ade-
quately supported by the charge filed herein . We find no merit in this contention. See
N.L R B . v. Pecheur Lozenge Co ., Inc., 209 F. 2d 393 (C A. 2), cert. denied 347 U.S. 953 ;•
ef. N.L R.B. v. Indiana & Michigan Electric Company , 318 U.S. 9, 18.
146 NLRB No. 124.
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 997
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
8 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that `Respondent, its officers, agents, successors, and assigns, shall :
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed May 8, 1963, and duly served, the General Counsel of the
National Labor Relations Board, caused a complaint and notice of hearing to be
issued and served upon Phaostron Instrument and Electronic Company, herein
called Respondent. The complaint was issued June 18, 1963; therein Respondent
was charged with unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 61
Stat. 136, 73 Stat. 519. Thereafter, through answer duly filed, Respondent con-
ceded the complaint's factual allegations regarding its participation in commerce,
though a denial was noted with respect to the complaint's legal conclusion that
Respondent is an employer engaged in commerce or a business affecting commerce.
The firm's commission of any unfair labor practice was, likewise, denied.
Pursuant to notice, a hearing with respect to the issues was held at Los Angeles,
California, between July 9 and 11, 1963, before Trial Examiner Maurice M. Miller.
Each of the parties was represented by counsel. Each was afforded a full op-
portunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues. (The testimony of certain witnesses, proffered in
Respondent's behalf, was rejected as cumulative or merely corroborative with re-
spect to some of the factual questions presented for determination. These rulings
have been further considered; my final determinations with respect to the relevancy
and materiality of the testimony proffered will be noted, subsequently, within this
report.) Since the hearing's completion, counsel for the General Counsel and
Respondent have filed briefs; these have been fully considered.
Upon the entire testimonial record, documentary and other evidence received,
and my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged in the manufacture of electrical
measuring instruments and associated measuring equipment. Throughout the
period with which this case is concerned, Respondent has maintained its manufac-
turing plant, principal office, and place of business in South Pasadena, California.
During the calendar year 1962, in the course and conduct of its business operations,
Respondent sold and shipped, from its South Pasadena plant, products valued in
excess of $50,000 directly to out-of-State customers. During the same period,
Respondent, in the course and conduct of its business operations, purchased goods
valued in excess of $50,000 from out-of-State sources.
Upon the complaint's jurisdictional allegations, which are conceded to be ac-
curate, I find that Respondent is now, and at all material times has been, an employer
within the meaning of Section 2(2) of the Act, engaged in commerce and business
activities which affect commerce within the meaning of Section 2(6) and (7) of the
Act, as amended. With due regard for the jurisdictional standards which the Board
presently applies-see Siemons Mailing Service, 122 NLRB 81, and related cases-
I find assertion of the Board's jurisdiction in this case warranted and necessary to
effectuate the statutory objectives.
H. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO, is, and has been at all times
material herein , a labor organization within the meaning of Section 2(5) of the
Act, as amended , which admits Respondent 's employees to membership.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
The testimony proffered with respect to several aspects of the present case reveals
serious, direct conflict. Detailed consideration of the record has convinced me,
however, that such conflicts, considered in context, cannot be resolved by simple
credibility determinations . Within Respondent's plant , the situation which gave
rise to the present case developed under circumstances reasonably calculated to
cause significant emotional reactions; such being the case, to.al recall by some
particular person directly concerned, with respect to various remarks made and
each participant's course of conduct, could hardly be expected. Rather, my review
practically compels a determination that most of the witnesses presented-both by
General Counsel's representative and Respondent's counsel-possessed partial recol-
lection at best; with respect to some of these witnesses, further, subconscious
rationalization may well have colored memory. Such a record, necessarily, would
call for factual determinations based, not upon testimony proffered by particular
witnesses deemed credible, but upon some reasonable synthesis derived from the
complete testimonial record, with due regard for the natural logic of probability. Cf.
Southeastern Motor Truck Lines, 113 NLRB 1122, 1124-1127, citing N.L.R.B.
v. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2). My determinations rest
upon such a synthesis; whenever necessary, reasons for particular findings, bottomed
upon considerations of probability, will be noted.
B. Background
Sometime during March or April 1963, union representatives began their orga-
nizational campaign at Respondent's plant. Handbills were distributed and
designation cards solicited. Some of the Respondent's workers-their number has
not been specified-signed and submitted such cards.
The Union's first organizational meeting was held April 24; there were approxi-
mately 25 to 30 workers present, shortly after 5 o'clock, when the meeting began.
Union Representatives Bruce and Cassidy briefly stated the meeting's purpose;
questions from the floor, with respect to the Union or plant problems, were then
invited. Statements were made-by way of reply-with respect to the Union's
campaign objectives; various benefits which Respondent's workers might derive
through union representation were cited. One union spokesman-whether Bruce,
Cassidy, or one of the two other union representatives present no one could say-
circulated a sheet of paper which Cassidy had prepared; Respondent's employees
present were invited to signify their attendance by subscribing their names, addresses,
and telephone numbers. Further, such signers were invited to declare their will-
ingness or reluctance to be designated members of the organization's "CWA-
Phaostron Organizing Committee" by check marks within one or the other of
two "Yes" or "No" columns, opposite their names. The purposes which such a
committee would serve were described.
Testimony proffered by Union Representative Cassidy and General Counsel's
other witnesses, considered in its totality-should it be found credible-would war-
rant a determination that, before signing, one of the Respondent's employees, Lala
Pacheco, declared her willingness to become a committee member, but stated
that, should such a plant committee be formed, she would not consent to serve
unless committee members would promise to "stand together" and "support" her or
fellow workers who might experience difficulty within the plant because of com-
mittee participation. Further, such testimony would warrant a factual determination
that another company worker, Celia Cinquini, declared herself to be of similar
mind; that several other girls then declared their willingness to promise such sup-
port; and that most of the plant workers present, thereafter, signified their willing.
ness to participate as committee members.
Respondent, however, proffered several witnesses-people who had signified
their willingness to serve as committee members during the meeting in question-
who could not recall any mutual support pledge requested or given while volunteers
for the plant committee were being solicited; Counsel's offer of proof that four
additional witnesses would provide similar testimony was rejected , since such testi-
mony would have been merely cumulative.
With matters in their present posture, resolution of the testimonial conflict thus
presented would not seem to be required. Should some factual determination with
respect to the question be deemed necessary, however, my disposition would be
to credit the testimony of Pacheco, Cinquini, and General Counsel's further witnesses
PIIAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 999
that some promise of mutual support was, essentially, solicited for the benefit of
prospective committee members, and that several of the girls present did declare-
though without formality-their willingness to pledge such support.
Pacheco, with 5 years' seniority, was a long-time company worker, relatively
speaking; her period of employment had begun during a time when Respondent's
employees were represented by a labor organization. While a witness, she clearly
demonstrated a decisive, outspoken manner. Such personal qualities-displayed
by a person with some degree of prestige derived from her plant seniority and
presumptive knowledge regarding the fate of the Union's predecessor as bargaining
representative-persuasively suggest that Pacheco might well have solicited pledges
of mutual support from her fellow workers as some sort of condition precedent for
her committee membership. Certainly, such a solicitation would have been in
character. Her testimony that she did declare herself, which others corroborated,
has not been convincingly countered. Helen Turner, summoned as Respondent's
witness, did testify that she did not hear Pacheco or Cinquini speak about committee
members supporting one another or sticking together; during cross-examination,
however, she conceded that she had observed Pacheco-during this portion of the
April 24 meeting-speaking to nearby fellow workers. Turner, further, conceded
that she left her seat, signed the Union's paper "pretty close to the top," and left the
meeting forthwith. Within the list of committee members printed on union handbills
her name preceded those of Pacheco and Cinquini; I find it conceivable that she may
have missed their declarations because of her quick departure. Ruby Hamilton,
likewise, testified that she could not recall a discussion about committee members
sticking together or supporting one another; at one point, however, her denial
with respect to the matter was noted before Respondent's counsel completed his
question. During cross-examination, further, Hamilton conceded that, when the
Union's signup paper was passed, she was not paying attention to everything going
on in the hall. Leta Johnson, who testified that no pledges of mutual support were
solicited or given during the union meetings which she attended, conceded that she
had not been present at the April 24 meeting.
Assuming, arguendo, that four more witnesses, producible by counsel for the
Respondent, would have testified that no discussion regarding the need for promises
of mutual support took place during the meeting in question, such testimony, reviewed
with due regard for the record as a whole, would still merit rejection. Note should
be taken of Union Representative Cassidy's testimony-which Turner confirmed-
that prospective committee members were advised, while the subject was under dis-
cussion, to let Respondent's management know they were union supporters, since
they would then have greater assurance of legal protection if subjected to discrimina-
tion. Such advice would most logically have been given within a context of dis-
cussion about possible harassment within the plant; within such a context, further
reassurances of mutual support could reasonably have been sought and given.
Additionally, Mary Hart and Dora Herrera-both of whom struck me as sincere
witnesses free of guile-credibly corroborated Cinquini's testimony that, during
subsequent conversations with them, she (Cinquini) mentioned the prior consensual
undertaking of plant committee members to support each other should anything un-
toward develop. And Tom Powell, concededly a supervisor, testified credibly with
respect to Pacheco's subsequent statement-during a period of stress to be noted
subsequently in this report-that "we all said we would leave if this happened."
Such post hoc references to some prior mutual consensus regarding the readiness of
committee members to support each other-cited for the record without contradic-
tion-would persuade me that such a consensus, despite its lack of formality, was
really reached.
Further union meetings were held on April 30 and May 6. Before the meeting
called for the later date, union representatives distributed a handbill, over the signa-
ture of "Your CWA-Phaostron Organizing Committee" which reported that the
Union's "petition for representation rights" had been filed the previous Friday, May 3,
following a meeting with Respondent's management. Thirty-three company em-
ployees were listed on the leaflet's left-band margin as plant committee members;
each of the workers with whom this case is concerned was among those listed.
C. The May 8 walkout
Shortly after work began on Wednesday, May 8, Respondent's president, Irwin
Eisenberg, came to building #4 of Respondent's plant, consistently with his practice
on some occasions previously, to review the work being done on the firm's motor
assembly line. (Respondent's plant, so far as the record shows, consists of six build-
ings. Three of these-buildings #2, #3, and #4, specifically-were described
as directly contiguous, with connecting doors. Directly behind this building complex,
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent maintains a parking lot; the driveway from the Respondent's parking
lot to the street runs between building #2 and its neighbor.) Louis Martel, member
of the Union's plant committee, was one of the workers checked. Shortly after
Eisenberg's surveillance of Martel began, Respondent's president summoned his
building #4 supervisor, Tom Powell. Powell was advised that Martel was ad-
justing some motor parts too tightly; that she was "smashing" pivots; and that her
work methods could be the source of the firm's "trouble" with excessive rejects.
Powell, in turn , called over Mary June Smith, Martel's leadlady. In words or
substance , Eisenberg told Powell and Smith that Martel might not have the requisite
"feel" for the motor part adjustments required at her station, and that she would
have to be properly trained or replaced. Respondent's president then "walked away"
momentarily. Martel, thereupon, asked Powell and Leadlady Smith-who had
meanwhile been called-how Eisenberg wished her job done. Powell attempted a
response ; while he did so, Martel studied the motor parts with a so-called "eye-loupe"
similar to a jeweler's magnifying lens. At this point Eisenberg returned; somewhat
brusquely, he questioned Martel's use of such a visual aid. When she explained that
she was observing the part "spacing" which her adjustments would be required
to maintain , Respondent's president declared, with noticeable heat, that the part
"spacing" could be studied without magnificat.an. (Eisenberg may or may not have
declared-during this portion of their conversation-that Martel was "blind" and
that he, with one eye, could see the part "spacing" without a magnifier. Some
testimonial conflict did develop regarding the nature of his remarks. For present
purposes, Board resolution of that conflict does not appear to be necessary. With the
record in its present posture, determination seems warranted, however, that Eisen-
berg did address Martel with some vehemence; I so find.) Martel, considerably
agitated, then declared, "Well, if you can do the job better than I, then you do it."
With these words, she picked up her purse and personal possessions and started to
leave. -
The record reveals considerable testimonial conflict with respect to subsequent de-
velopments. Some witnesses, President Eisenberg included, declared that he promptly
directed Martel to report to Respondent's personnel department; others reported that
Respondent's president directed Foreman Powell to take her to the personnel office;
there were others who testified that she declared, "I quit," and that she was then
directed by Eisenberg to report to personnel. (Leadlady Smith, called as Respond-
ent's witness, recalled Martel's protestation, inter alia, that Eisenberg wasn't worried
about how her work was done, but that he was "standing there" because of her union
membership. Eisenberg, according to Smith's testimony, replied that he was just
concerned with her work.) Martel, herself, was not called to testify. Since General
Counsel makes no contention that her termination constituted a statutory violation,
no resolution of the testimonial conflict noted, with respect to her precise remarks,
would seem to be required. There can be no doubt, however, that her verbal ex-
change with Respondent's president reflected agitation or nervous tension on both
sides; I so find.
At this point, Pacheco, Martel's fellow committee member-who worked at the
next station-rose from her seat, took Martel's arm, and, as closely as Respondent's
departmental foreman could recall, said, "Come on We all said we would leave if
this happened." She, too, started to leave. (Most of those who testified with respect
to this situation seem to have been somewhat startled by the developments in ques-
tion. Though their testimony-seemingly proffered with that cool dispassion which
frequently derives from memory softened by retrospection-tends to suggest that
matters proceeded with relative calm, most of those present and concerned clearly
were, more or less, disturbed. None, really, displayed a comprehensive iecollection
with respect to developments. Memories varied with respect to the source and se-
quence of particular remarks. Pacheco, for example, seems to have had a variant re-
collection regarding the sequence of Martel's remarks, and could not r,-call the
statement, noted previously, which Powell declared she (Pacheco) made. With
the record in its present posture, however, Respondent's departmental supervisor
seems the person most likely to have recalled Pacheco's verbal reaction accurately.)
Celia Cinquini, seated diagonally opposite Martel's work station, thereupon rose to
leave, likewise, telling a fellow worker, Mary Hart, that she was leaving in support
of Martel; she asked Hart to bring her "things" to her later. The latter, also, left her
station. (Hart confirmed Cinquini's testimony that she was requested to get the
latter's sweater, which had been left at the end of their work table; she testified, how-
ever, that she did not acknowledge or comply with Cinquini's request, but, rather,
picked up her purse without saying a word and walked out behind the latter, leaving
her own sweater behind. Such testimony clearly reflects Hart's agitation, generated
by the reactions of her fellow committee members to Eisenberg's conduct.) The
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 1001
four girls-Martel , Pacheco , Cinquini , and Hart-did not, however , leave Respond-
ent's building #4 through its rear door , where the firm's timeclock was located.
Though the door in question-since it led to the Respondent 's parking lot-would
have been a normal route for their departure , they proceeded , instead, to Re-
spondent's building #2; while on their way they passed through building #3,
so far as the record shows, without a word.
Meanwhile, back in Respondent' s building #4, Dora Herrera, seated at her
work table 20 to 25 feet from Martel's station, had overheard the final heated portion
of the conversation between the latter and Respondent 's president . She had , further,
seen Martel, Pacheco, Cinquini, and Hart leave. Herrera's testimony, which I
credit, reveals that she sat still "for a good while" until President Eisenberg left
building #4, following the girls; then she decided that she, too, would leave.
(During cross-examination, Herrera testified that she left her work station 3 or
4 minutes after Martel's departure. Most of the witnesses however-with their
powers of observation distorted by agitation-revealed poor temporal sense and
poor judgment with respect to distances. With the record in its present posture,
I am satisfied that the time interval between Martel 's departure and that of Herrera
must have been less than stated.) Within a subsequent May 13 letter to Respondent,
wherein she requested her job back, Herrera declared that she had "walked out
from work for the simple reason that I was so upset and just lost my head not know-
ing that I was wrong." While a witness, she conceded the correctness of this post-
walkout statement regarding her conduct. So far as the record shows, however,
Herrera spoke to no .one regarding her mental state. She secured her purse, and
left through building #4's rear door. She did not, however, punch out, though
she passed Respondent's timeclock.
There were further developments, thereafter, within Respondent's plant. When
Martel, Pacheco, Cinquini, and Hart reached building #2, Elvira Gonzalez,
seated at her work table, asked Pacheco what had happened. Pacheco thereupon
reported, in words or substances, that there had been "trouble" in their building
#4 department; that Respondent's president had "discharged" Martel because of
purported ineptitude; and that she and the other girls were "walking" with their
discharged fellow worker. (Hart, likewise, told another worker-not fully named-
that President Eisenberg had abused Martel because of her plant committee role,
and that the girls were "protesting" in Martel's behalf.) Concurrently, I find,
Cinquini told Lupe Diaz, another building #2 worker, that "what we were
afraid of" had happened and that she (Cinquini) could not take it any longer.
In words or substance, Cinquini declared that Eisenberg had "fired" Martel, and
that "We are standing up for the girls." With the record in its present posture,
determination would be warranted that she had no chance to discuss her plans or
purpose further.
President Eisenberg, meanwhile, had closely followed the girls. Upon reaching
building #2, he observed Pacheco in conversation with Gonzalez; Armida Baker
and Grace Portillo were seated at Gonzalez' work table, within hearing distance.
Proceeding toward Pacheco, Eisenberg queried her vehemently, "Are you still here?"
without waiting for a reply, however, he directed that the girls "get out" forthwith.
(While a witness, Eisenberg declared that he merely observed the Pacheco-Gonzalez
and Cinquini-Diaz conversations, but heard nothing said; he testified, categorically,
that-while standing just inside building #2's door-he remained motionless and
silent "for a few minutes" until the girls left. His testimony in this respect, how-
ever, lacks persuasive power. Martel's departure from her work station, with
Pacheco, Cinquini, and Hart behind, had climaxed a heated exchange; Respondent's
president, clearly, had been both startled and disturbed thereby. His decision to
follow the girls could not, realistically, be attributed to mere curiosity. With due
regard for logical probability, I have concluded that Eisenberg did direct Martel,
Pacheco, Cinquini, and Hart to leave building #2 forthwith, and that he took
the step because of his desire to forestall a possibility that their verbal reports
relative to building #4 developments might generate a more widespread work
stoppage. No credence, however, can be given the testimony, proffered by some
witnesses, that Respondent's president "grabbed" Pacheco's arm when he demanded,
rhetorically, whether she was still there. Though I have rejected Eisenberg's
testimony that he remained a silent, motionless spectator of building #2 develop-
ments, testimony calculated to convey the suggestion that he went so far as to
lay hands on Pacheco fails to persuade.) Several of the building #2 workers
did testify that Respondent's president, seemingly, looked directly at them when
he shouted his "get out" command. • Such a directive, however, would most rea-
sonably have been addressed to building #4 workers who had already made clear
their intention to cease work. Gonzalez, Portillo, Baker, and Diaz, nevertheless,
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left their work stations forthwith; together with Martel, Pacheco, Cinquini, and Hart,
they walked out through building #2's rear door, without punching Respond-
ent's timeclock. Turning down the nearby driveway, toward the street, the group
of eight girls finally gathered on the sidewalk before Respondent's plant. Within
a short time Herrera joined them there.
Cinquini, forthwith, left the group to telephone the union office; she told the
clerk who responded, I find, that "they" were having some trouble at Respondent's
plant, and requested him to have Cassidy and Bruce come out.
Meanwhile, some workers from different departments had come out of Respond-
ent's plant, during the first of the firm's two regularly scheduled morning "coffee"
breaks. When Respondent's president observed-presumably from his office win-
dow-that the girls who had "walked out" were still congregated on the sidewalk
and that some few workers had joined them, he requested a company supervisor,
Sabina Arnold, to disperse the group. (Testimony proffered by Arnold-which
Cinquini tangentially corroborated-would warrant a finding that she had pre-
viously seen the girls leaving and had asked them what happened; she may or
may not have received a reply.) Arnold found the girls gathered in two, rather
loose, groups. Approaching, she exhorted both groups, "Let's break it up, the
bell has rung, let us go back to work." Several girls-presumably engaged in
conversation, previously, with the designated "walkout" group-did leave to resume
work. At this point, however, according to Supervisor Arnold's testimony, Pacheco
declared, "I am sick of being treated like a slave. All I hear is more production,
more production," and "This isn't Russia yet. I have quit," and "If you slaves
want to go back and work, you are a bunch of chicken " These remarks, al-
legedly, were made loudly, within the presence of the entire "walkout" group.
(Pacheco denied making any remarks of such tenor. With due regard for the
inherent probabilities, I am satisfied that she-being highly articulate-may well
have expressed dissatisfaction with her work. Upon the entire record, however,
Arnold's testimony that Pacheco capped her protestations with a declaration that she
"quit" cannot be considered credible. Should a determination to the contrary be
deemed more logical, I would, nevertheless, conclude that Pacheco merely referred
to her cessation of work, and that her remark was not calculated to suggest a
resignation) Arnold made no reply. When some employees present heeded
her request to resume work, she followed them into the plant.
About 10 o'clock, Cassidy and Bruce reached the plant's vicinity; they found nine
girls waiting for them before a nearby refreshment stand. When they asked what
had happened, they were greeted with a hubub; finally, however, they were able to
gather that President Eisenberg had abused Martel while engaged in surveillance
of her work, and that the other girls had "stood up" and "walked out" to "support"
her. Cassidy asked them if they wished to resume work and received an affirmative
reply. The union organizers then said that they would seek a conference with
Respondent's president, to see if they still had their jobs.
Cassidy and Bruce then repaired to Eisenberg's office. Respondent's president was
advised of their understanding that Martel believed herself to have been the victim
of an unfair labor practice, and that eight other girls had "walked out" in Martel's
support . By way of reply, however, Respondent 's president first challenged their
right to speak for the girls, since, he claimed, the Union did not "represent" them.
(Cassidy and Bruce had met Eisenberg previously on May 2 or 3, when they had
presented a union demand for recognition, prior to their filing of the petition for
certification previously noted.) Cassidy tacitly conceded his organization's inability
to demonstrate "representative" status, within the statutory sense, but declared, "We
have nine girls that work here," either in words or substance. "They don't,"
Eisenberg replied shortly. When asked whether the girls could resume work, Re-
spondent's president replied negatively , saying: (1) they had all "walked off" the
job; (2) Martel had, essentially, resigned; and (3) she had "gathered the others along
with her" when she suit. Despite Cassidy's declaration that the Union would "have
no recourse" but to file unfair labor practice charges, Respondent's president insisted
that the nine girls had "walked off" their jobs . Queried with respect to what Respond-
ent's attitude would be should the union representatives "walk them back" voluntar-
ily, Eisenberg replied, substantially, as follows:
I don't know bow I may feel about it tomorrow or the next day, but as of now,
they don't have a job. They left it this morning. They walked off and said
_ they were quitting . They made remarks ... .
Pressed to state whether he would put the girls back to work, they report
the following morning, Eisenberg declared , substantially , that in his then "frame
of mind" he did not consider them Respondent 's employees , and that they wouldn't
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 1003
have a job the next day. When Cassidy conceded-for the purpose of his reinstate-
ment plea-that the girls had acted emotionally, and that they might have made
"mistakes" because they were not "experienced" with respect to handling such prob-
lems, Eisenberg concurred but reiterated his prior declaration that their status "at the
moment" was that they were unemployed; he went on to declare, substantially,
that:
I am not responsible for their inexperience in handling their emotions. We
cannot operate a business with people walking off the job at their discretion .. .
I am not going to [reward] people for bad judgment. You seldom remember
a losing general or corporal. You only remember the winner. Even then, a
person exercising good judgment doesn't always win.
Respondent's president repeated that he did not want this type of employee. When
asked if his "frame of mind" might change by the following morning, and whether
he would then reconsider "employing" the girls, Eisenberg declared that the chance
would be very remote. Cassidy and Bruce proclaimed their hope to convince Re-
spondent's president that, since the girls' "walkout" had been the product of their
"emotional" reaction to a situation, he might be persuaded to permit their resumption
of work, either that afternoon or the next day. Eisenberg concurred with Cassidy's
or Bruce's comment that the girls had acted emotionally, and declared that their
conduct had not been calculated to serve any party's "best" interest. Nevertheless,
he reiterated prior declarations that he did not want such persons in Respondent's
employ. Cassidy and Bruce then left; the girls were told that Respondent's president
had refused to permit their resumption of work.
D. Subsequent developments
Meanwhile, Respondent's building #4 supervisor-who had preceded Pacheco,
Hart, Cinquini, and Martel to building #2, purportedly because he thought they
might be trying to cause "some problems" for the Respondent-had returned to his
building #4 post. (While in building #2, he had sought that department's super-
visor without success.) His testimony with respect to subsequent developments
within his own department began with the following observation:
I immediately started thinking in terms of the motor line's being at a standstill,
and we were definitely-well, to use the term, hurting for production at that
time, and I knew that we had to get somebody in there to replace these girls
immediately to keep production up, because this is the starting point of the whole
operation, if you can not get motors built, you cannot get meters built. [Em-
phasis supplied.]
Powell-purportedly on his own initiative-concluded that the girls had quit.
He called Respondent's personnel department and told the "personnel assistant"
what had happened; he reported, further, that he was making out termination papers
for the girls and wanted replacements as soon as possible. Powell then prepared
"Employee Status Notices" for the five girls who had ceased work within his depart-
ment. Each, he declared, had "walked off job" at 8:45 a.m., approximately. Their
departures were designated as resignations, with rehire not recommended. (Notices
of similar tenor were subsequently prepared by the firm's building #2 production
foreman, for Gonzalez, Diaz, Portillo, and Baker.) Within the hour, Leadlady
Smith was requested to serve as Martel's temporary replacement; she took over
Martel's station-possibly only part-time-for the balance of the day. Cinquini
was replaced by a building #3 worker, Rose Schwerin; Pacheco was replaced by
another building #3 employee. So far as the record shows, Pacheco's replace-
ment-whose name Powell could not recall-reached building #4 about 9:30 a.m.,
approximately. No immediate replacements were secured for Hart or Herrera;
Leadlady Smith may have served at their stations part-time throughout the day.
Their positions, according to Powell, were filled by newly hired workers, though he
"thought" that one of the positions in question might not have been filled for as
much as a working week. Gonzalez, Diaz, Portillo, and Baker were replaced by
transferees from other departments. None of those transferred, however, were
designated permanent replacements.
By registered mail dispatched May 9, 1963-1 day before their regular payday-
Respondent sent the eight terminated workers with whom this case is concerned-
and presumably Martel likewise-checks covering their final pay period and vacation
pay.
So far as the record shows, neither Schwerin nor Pacheco's replacement were told
their new assignments would be permanent. (Leadlady Smith's tenure as Martel's
-replacement was not definitively explored for the record; there is merely a sug-
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gestion that she may have served as a temporary replacement for Martel and several
others on May 8, specifically .) Schwerin actually functioned as Cinquini 's replace-
ment for approximately I month . Pacheco's replacement , likewise , served in that
capacity for no more than I month ; she was then replaced , in turn , by the position's
present occupant-name not given-characterized by Powell as merely a within-
plant transferee.
E. Conclusions
With matters in this posture, there can be no doubt that the eight purported
discriminatees with whom this case is concerned lost work because of their con-
certed participation in statutorily privileged conduct . Sunbeam Lighting Company,
Inc., 136 NLRB 1248, 1253-1257; Delsea Iron Works, Inc., 136 NLRB 453, 454,
460-462; cf. L & H Shirt Company, Inc., 84 NLRB 248, 249-251. Certainly, de-
termination that their spontaneous cessation of work reflected concerted action
cannot be seriously contested . ( Reference has previously been made to credible
testimony revelatory of their prior consensual commitment to provide mutual sup-
port , should any member of their "plant committee" suffer harassment or reprisal
from Respondent 's management . Spontaneous declarations, chargeable to Pacheo
and Cinquini , clearly reveal that these two girls, at least, decided to cease work be-
cause of their belief that President Eisenberg 's verbal "harassment" directed against
their fellow committee member would have to be countered by some demonstra-
tion of solidarity, bottomed upon their prior pledges of support. While the rest
of the designated "walkout" group may not have verbalized their motives, their
concurrence with the declared motives of Pacheco and Cinquini may be inferred
from their conduct.) Should any question be raised with respect to the record's
sufficiency to sustain a determination that each of the group 's eight girls ceased work
to "support" their fellow committee member because of some previous mutual
pledge, their spontaneous course of conduct , considered without reference to back-
ground motivation , would itself warrant characterization as concerted . With re-
spect to Pacheco , Cinquini , and Hart, such a determination would certainly be
justified merely because they reacted simultaneously when confronted with Presi-
dent Eisenberg 's verbal assault upon Martel. Though Herrera may not have reacted
to the situation with comparable promptitude , her desire to make common course
with her fellow workers was clearly demonstrated when she joined them before
Respondent's plant . Finally, with respect to Gonzalez , Diaz, Portillo, and Baker,
common sense would seem to compel a determination that their separate but parallel
decisions to join the Pacheco -Cinquini -Hart group-when Respondent 's president
directed that the building #4 workers leave the plant-reflected' their participa-
tion in concerted activity ; I so find.
Respondent contends, however, that the designated "walkout" group did not
strike; further , counsel for the Respondent suggests that their course of conduct-
whatever conceptual label it might merit-did not involve statutorily protected
activity.
These contentions must be rejected. True, no members of the designated "walk-
out" group participated in further conduct conventionally considered revelatory
of some prior determination to strike; they presented no specific demands for the
consideration of Respondent's management, nor did they set up picket lines. Con-
trary to Respondent 's presumption , however , such particularized conduct cannot
be deemed a prerequisite to Board determination that a cessation of work con-
stitutes statutorily protected activity. Sunbeam Lighting Company, Inc., supra;
Delsea Iron Works, Inc., supra. Clearly, we have here nothing more or less than
a spontaneous protest, directed against certain conduct by Respondent's president,
which the protestants believed violative of the statute. When motivated by such
a hel;"f. their coarse of conduct, clearly, reflects the existence of a labor dispute.
N.LR.B. V. Washington Aluminum Company, Inc., 370 US. 9, 16; N.L.R.B. v.
Mackay Radio & Telegraph Co., 304 U.S. 333, 334. Whether their belief was
justified, or rested upon misconceptions, need not be decided. As the Supreme
Court observed in the most recent case cited:
. .. it has long been settled that the reasonableness of workers' decisions to
engage in concerted activity is irrelevant to the determination of whether a
labor dispute exists or not.
See also N.L R.B. v. Solo Cup Company,, 237 F. 2d 521 526 (C.A. 8), enfg. 114
NLRB 121; Delsea Iron Works, Inc., supra, in this connection. Thus, questions
relative to the nature of Martel's termination-specifically, whether she was dis-
charged or resigned-may be dismissed as without relevance; likewise, questions re-
garding President Eisenberg's "real" motivation for the diatribe which he directed
against the designated "plant committee" member may be disregarded. Since the
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 1005
girls clearly "walked out" because of their belief that President Eisenberg's con-
duct reflected harassment of workers exercising statutorily guaranteed rights, they
were engaged in concerted activity for mutual aid or protection. (The Pacheco-
Cinquini-Hart walkout, which triggered the rest of the work cessations, took place
within President Eisenberg's presence, directly following his verbal conflict with
Martel; Respondent, therefore, can hardly claim lack of knowledge with respect
to the group's motivation.) Their failure to give specific notice, beforehand, that
their "walkout" represented a protest-likewise their failure to present formal
demands for some redress of their collective grievance-cannot be considered suf-
ficient to deprive them of-statutory protection. N.L.R.B. v. Washington Aluminum
Company, Inc., supra; Sunbeam Lighting Company, supra, at 1254; Delsea Iron
Works, Inc., supra, at 454, 460-462. I so find.
Respondent contends that the workers in question, eight in number, quit their
jobs; alternatively, counsel for the firm suggests that Pacheco did so-"since she
repeatedly so stated"-while Herrera should likewise be considered a voluntary quit
because of her subsequent concession that she walked out merely because she was
"so upset" that she lost her head. Considered with due regard for the record as
a whole, however, these coordinated contentions fail to persuade. Counsel, presuma-
bly, would rest upon testimony-received or proffered-that Pacheco, repeatedly,
used the word "quit" to describe her conduct, coupled with further testimony that
some building #2 worker-name not specified-told President Eisenberg "we"
quit, before she joined the group. Previously within this report, however, such
testimony has been rejected; with due regard for logical probability, in my opinion,
no warrant can be found for a determination that such declarations were made.
Should some contrary conclusion be deemed compelled or justified, nevertheless,
Respondent's contention would deserve no greater consideration. With respect to
the designated "walkout" group as a whole, nothing in the record can be cited to
support a conclusion that Pacheco or any other employee, functioned as the group's
spokesman. Further, as General Counsel's representative notes, persuasively, within
his brief:
Even assuming, arguendo, that Pacheco did say she quit, it is clear that [she]
would only be indicating she was leaving to make common cause with the
other women, to support Martel, and not quitting her job per se. It is rather
stretching the meaning of an employee's words that she was getting up and
walking out as a firm statement that the employee was permanently quitting
her job.
My conclusion that none of the participants in this spontaneous cessation of work
really intended to resign finds further support in their course of conduct. (Compare
Crescent Wharf and Warehouse Company, et al.; 104 NLRB 860, wherein the
workers concerned made their joint intention to resign clear by written notice.)
None of them gave formal notice; none of them punched out; none of them re-
quested their final checks at Respondent's personnel office; none of them went
home; none of them demurred when Cinquini, forthwith, sought help from union
representatives. Every member of the "walkout" group declared her desire to
resume work when Cassidy and Bruce raised the question; so far as the record
shows, every member of the group remained within the vicinity of Respondent's
plant, despite Cassidy's report that President Eisenberg had refused to permit their
resumption of work, throughout the working day. Whether or not they conducted
themselves like conventional strikers, determination would certainly seem to be
warranted that they did not conduct themselves like workers who had decided to
quit Cf Delsea Iron Works, Inc , supra, at 459-462.
With matters in their present posture, therefore, there can be no doubt that these
workers were terminated, not through their own conduct but because of Respondent's
decision. During cross-examination, President Eisenberg conceded that-subse-
quent to his building #2 departure he requested Respondent's personnel depart-
ment to provide him with a list of those who had ceased work. Thereby, his "per-
sonnel assistant" was, realistically, put on notice that these workers should be
considered terminated, whether or not Eisenberg so stated. (When confronted with
a prior statement, which bore his initials, Eisenberg conceded, further, that he "could
have" told his secretary to notify Respondent's personnel department that the work-
ers designated were terminated, and that their checks should be prepared. While such
a grudging half-admission may not, itself, warrant a factual conclusion, certainly it
buttresses the determination set forth above, which I have reached upon the total
record.) Though Respondent's departmental production foremen most directly
concerned, Powell and Melzer, may have considered the concerted decision of the
girls to cease work tantamount to resignation, their parallel conclusions in this
regard-which may well have been inspired-cannot be treated as determinative.
I
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Respondent dispatched final paychecks with accumulated vacation pay, through
registered mail, directed personally to members of the designated "walkout" group,
such conduct reflected the firm 's tacit concession that their terminations were not
voluntary. (Respondent routinely pays plant workers on Friday; supervisors regu-
larly distribute their paychecks personally . Voluntary quits-as the record shows-
normally come to the firm's personnel office to pick up their checks. Respondent,
however, did not choose to wait , so that management could see whether any mem-
bers of the group in question would report to claim their checks on payday; the checks
were dispatched one day early.) Significantly, none of the girls returned to Respond-
ent's plant to collect a final check on payday, despite the fact that registered mail
delivery, for some of them , was delayed beyond that day; their forbearance , in this
respect, caps and confirms my determination that they did not wish to see their em-
ployment terminated , and that Respondent , really, discharged them.
Since Respondent may properly be charged with notice of the Union's representa-
tional claims received before the May 8 contretemps-because of the union rep-
resentatives ' May 3 visit, coupled with their subsequent leaflet distribution-manage-
ment's decision to terminate the designated "walkout" group clearly merits character-
ization as discrimination reasonably calculated to discourage both membership
in the organization and activity in its behalf . Should such a conclusion not be
considered justified , however , determination would still be warranted that termina-
tion of the group reasonably tended to restrain and coerce Respondent 's workers in
the exercise of their right to engage in concerted activity for mutual aid and protec-
tion . I so find.
Further: Reliable , probative and substantive evidence has been received which
would fully warrant a factual determination that Respondent rejected a request-
properly presented in the group 's behalf-that they be permitted to resume work.
Cf. Sunbeam Lighting Company, Inc., supra , at 1256-1257. With the record in its
present posture , there can be no doubt that Cassidy and Bruce , authorized spokesmen
for the group, asked Respondent 's president to permit their return to work, without
conditions , before they were permanently replaced . Respondent contends that no
competent evidence of a request for reinstatement by any of the alleged discriminatees
has been produced . Counsel for the firm , however, concedes that, shortly after the
girls ceased work, Cassidy and Bruce did present Respondent 's president with a re-
quest for reinstatement of the designated "walkout" group . He suggests , merely,
that:
There was no evidence offered that the Union represented a majority of the
employees in the bargaining unit . . Further , there was no evidence that any
of the alleged discriminatees authorized the Union to act in their behalf. Ac-
cordingly , the Union was not acting as the employees' agent in requesting rein-
statement and no valid reason for reinstatement was made.
These contentions must be rejected . Cassidy and Bruce, clearly , became qualified
representatives of the discriminatees when they were given verbal authority to present
Respondent 's president with a request for their reinstatement . Eisenberg , true, may
not have "known" that such authority was, really, conferred , since the relevant con-
versation did not take place in his presence . A third party's lack of personal knowl-
edge with respect to a professed agent 's authority , however , cannot destroy the proba-
tive value of positive testimony , given by purported principals , that proclaimed
representatives were, really, their spokemen . Contrary to counsel 's present conten-
tion-presumably calculated to provide some colorable justification for the position
which Respondent 's president took during his May 8 conference with the union rep-
resentatives-the right of the representatives to speak for the discriminatees could
not be disregarded merely because they presumptively could not, then , claim recogni.
tion pursuant to the statute , as representatives of an employee majority, within some
unit appropriate for the purposes of a collective bargain . Houston and North Texas
Motor Freight, 88 NLRB 1462 , cited by Respondent's counsel to support his conten-
tion , holds precisely contrary, id., p. 1465 , footnote 10. Further , well-established
decisional doctrine confirms the right of strikers-not represented by a certified
bargaining agent-to seek reinstatement through a labor organization designated
as their spokesman for the purpose . Brown and Root , Inc., doing business as a joint
adventure under the name of Ozark Dam Constructors, 99 NLRB 1031 , 1042 (see
discussion of the status of the Flippin strikers). Such authorization need not be
formal.
With matters in their present posture , therefore , President Eisenberg's refusal to
consider the request of the discriminatees for permission to resume wok, presented
through their properly authorized union representatives , constitutes further ground for
a determination that these eight girls were subjected to discrimination calculated to
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 1007
discourage union membership or activity , or-alternatively-that the workers in
question, together with others, were, thereby, interfered with, restrained, and coerced
in the exercise of their right to engage in concerted activity for mutual aid or
protection. Cf. Ampruf Paint Company, Inc., 132 NLRB 87, 88, footnote 1; The
Texas Company, 93 NLRB 1358, 1365; E. A. Holcombe and Q. N. Holcombe, d/bla
Holcombe Armature, 140 NLRB 618. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section Ell, above, since they occurred in
connection with the business operations described in section 1, above, have a
close , intimate, and substantial relation to trade, traffic, and commerce among the
several States , and, absent correction , would tend to lead , and in this instance have led,
to labor disputes burdening and obstructing comerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent engaged and continues to engage in cer-
tain unfair labor practices, it will be recommended that the Board issue an order
requiring that it cease and desist therefrom and take certain affirmative action , includ-
ing the posting of appropriate notices , designed to effectuate the policies of the Act,
as amended.
Specifically, Respondent has been found liable for statutorily proscribed inter-
ference, restraint, and coercion, or discrimination with respect to the hire, job tenure,
and terms of employment of eight desiginated employees , through its termination of
their employment and subsequent refusal to reinstate them, upon request, in order
to discourage membership in a labor organization . Thereby, these workers and
Respondent's employees , generally , were interfered with, restrained , and coerced in
their exercise of rights statutorily guaranteed . To effectuate the statutory objectives,
therefore , my recommendation will be that the Board order Respondent to offer the
designated employees immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other rights
and privileges . See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch , 65 NLRB 827 , for a definition of the phrase "former or sub-
stantially equivalent position" used in this decision.
Further, recommendation will be made that Respondent be ordered to make the
designated workers whole for any loss of pay , or other incidents of the employ-
ment relationship, which they may have suffered by reason of the discrimination
practiced against them. Respondent's obligation in this respect should include an
Obligation to pay interest on any backpay due these workers at the rate of 6 percent,
computable in the manner which the Board has recently approved . Isis Plumbing
& Heating Co., 138 NLRB 716. It will be recommended, therefore, that the
Board order these employees made whole by the payment to each of them of a
sum of money equal to the amount which each normally would have earned as
wages in Respondent's employ between the date when they were discharged and
refused reinstatement and the date of any proper reinstatement offer which Re-
spondent may make hereafter , pursuant to my recommendations elsewhere in this
decision , less their net earnings during the period indicated , together with interest
thereon . Crossett Lumber Company , 8 NLRB 440, 497-498 ; Republic Steel Corpo-
ration v . N.L.R.B., 311 U.S. 7, if. Pay losses suffered by these workers should be
computed on a quarterly basis , pursuant to the formula which the Board now
utilizes . F. W. Woolworth Company, 90 NLRB 289, 291-294; N.L.R.B. v. Seven-Up
Bottling Company of Miami , Inc. 344 U.S. 344 if. The interest payable thereon
should be computed at the rate of 6 percent per year on the amount found due
for each calendar quarter under the Woolworth formula, beginning with the end
of such calendar quarter and continuing until payment of such amount is properly
made.
To assure expeditious compliance with these recommendations in regard to
backpay it will be recommended finally that Respondent preserve and make avail-
able to the Board and its agents upon request all pertinent records.
Respondent's course of conduct-considered in context-discloses an attitude of
opposition to the purposes of the statute with respect to the protection of em ployee
rights in general . Discriminatory discharges , particularly, constitute a type of
proscribed conduct which "goes to the very heart of the Act" and necessarily suggest
Respondent 's purpose, generally , to limit workers' rights. N.L.R.B. v. Entwistle
Mfg. Co. 120 F. 2d 532 (C.A. 4). Respondent's course of conduct , therefore, rea-
sonably reflects its purpose to defeat employees' self-organization , and may justi-
744-670- - -vol. 146-65
1008 - DECISIONS OF .NATIONAL .LABOR. RELATIONS BOARD
fiably be characterized as closely related to other unfair labor practices statutorily
proscribed . A danger with respect to the commission of such unfair labor practices
in the future may be anticipated, therefore, from Respondent's past conduct. The
preventive purpose of the statute will be frustrated unless the remedial action recom-
mended in this case, and any order which may prove to be necessary, can be made
co-extensive with the threat. In order, therefore, to make the interdependent guaran-
tees of Section 7 effective, prevent any recurrence of the unfair labor practices
found, minimize industrial strife which burdens and obstructs commerce, and thus
effectuate the policies of the statute, it will be recommended that Respondent cease
and desist from infringement in any other manner upon rights guaranteed by the
aforesaid statutory provision.
In the light of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Phaostron Instrument and Electronic Company is an employer within the mean-
ing of Section 2(2) of the Act, engaged in commerce and business activities which
affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended.
2. Communications Workers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act, as amended, which admits employees of
Phaostron Instrument and Electronic Company to membership.
3. By Respondent's discriminatory discharge and refusal to reinstate Armida
(Baker) Cuellar, Celia Cinquini, Lupe Diaz, Elvira Gonzalez, Mary Hart, Dora
Herrera, Lala Pacheco, and Grace Portillo, and its consequent interference with,
restraint, and coercion of these employees, together with others, in the exercise of
rights statutorily guaranteed, the firm did engage and continues to engage in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2 (6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and upon the entire record
in the case, it is recommended that the Board, pursuant to Section 10(c) of the
National Labor Relations Act, as amended, order that the Respondent, Phaostron
Instrument and Electronic Company , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouragement of membership in Communications Workers of America,
AFL-CIO, or any other labor organization, by discharging or refusing to reinstate
employees, or by discriminating in any other manner with respect to their hire
or tenure of employment, or any term or condition of their employment, except as
authorized under Section 8(a) (3) of the Act, as amended.
(b) Interference with, restraint, or coercion of employees, in any other manner,
in the exercise of their right to self-organization, to form labor organizations, to
join or assist Communications Workers of America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own free choice,
and to. engage in other concerted activity for mutual aid or protection, or to refrain
from ny 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, authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act, as amended:
(a) Offer the employees named below immediate and full reinstatement to their
former or susbtantially equivalent positions, without prejudice to their seniority and
other rights and privileges, and make them whole in the manner set forth in the
section of this Trial Examiner's Decision entitled "The Remedy":
Armida (Baker) Cuellar Mary Hart
Celia Cinquini Dora Herrera
Lupe Diaz Lala Pacheco
Elvira Gonzalez Grace Portillo
(b) Preserve and, upon request, make available to the Board or 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 appropriate
to permit an analysis of the backpay amount due the employees designated, together
with their reinstatement rights, as set forth in the section of this Trial Examiner's
Decision entitled "The Remedy."
PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY 1009
(c) Post at'its place of business in South Pasadena, California, where the unfair
labor practices were committed, copies of the attached notice marked "Appendix." 1
Copies of said notice, to be furnished by the Regional Director of the Twenty-first
Region, shall, after being duly signed by a representative of the Respondent, be
posted immediately upon receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
these notices are not altered, defaced, or covered by any other material.
(d) File with the Regional Director of the Twenty-first- Region, as the agent of
the Board, within 20 days from the date of service of this Trial Examiner's Decision,
a written statement setting forth the manner and form in which it has complied with
these recommendations.2
i In the event of Board adoption of this Recommended Order, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice In the further event of enforcement of the Board's Order by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
2 In the event of Board adoption of this Recommended Order, this provision should be
modified to read: "Notify said Regional Director, in writing, within 10 days from the date
of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Communications Workers of Amer-
ica, AFL-CIO, or any other labor organization , by discharging or refusing to
reinstate employees, or by discriminating against them in any other manner, in
regard to their hire and tenure of employment or any term or condition of their
employment , except as authorized in Section 8(a) (3) of the Act, as amended.
WE WILL NOT interfere with , restrain, or coerce our employees , in any other
manner, in the exercise of their right to self-organization , to form labor organi-
zations, to join or assist Communications Workers of America , AFL-CIO, or
any other labor organization , to bargain collectively through representatives of
their own free choice , and to engage in other concerted activities for the pur-
pose 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 the workers designated below immediate and full reinstatement
to their former or substantially equivalent positions , without prejudice to their
seniority and Other rights and privileges , and make them whole for any loss of
pay, or other incidents of the employment relationship , which they may have
suffered by reason of the discrimination practiced against them:
Armida ( Baker ) Cuellar Mary Hart
Celia Cinquini Dora Herrera
Lupe Diaz Lala Pacheco
Elvira Gonzalez Grace Portillo
All of our employees are free to become , remain , or refrain from becoming or
remaining members of any labor organization , except as that right may be affected by
an agreement requiring membership in a labor organization as a condition of em-
ployment, authorized in Section 8(a)(3) of the Act, as amended . We will not
discriminate in regard to hire or tenure of employment , or any term or condition of
employment , against any employees because of membership in or activity on behalf
of any labor organization.
PRAOSTRON INSTRUMENT AND ELECTRONIC COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles, California, Telephone No.
688-5204 , if they have any question concerning this notice or compliance with its
provisions.
Fotochrome , Inc. and Blueprint, Photostat & Photo Employees
Union Local 249, International Jewelry Workers' Union, AFL-
CIO and Local 422, International Production Service and Sales
Employees Union , Party in Interest. Cases Nos. 2-CA-8671,
2-CA-8776, 2-CA-8795, and 2-CA-8869. April 2-5,19641
DECISION AND ORDER
On May 8, 1963, Trial Examiner John F. Funke issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, but nevertheless recommending dismissal of the complaint's
allegations relating thereto because of the isolated character of the un-
fair labor practices so found, as set forth in the attached Intermediate
Report. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondent filed a brief in support of the Inter-
mediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in these cases, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, but only to the extent con-
sistent with our Decision herein.'
' We do not subscribe to the Trial Examiner's comments concerning the prevalence of
perjury in Board hearings generally , or in the present one specifically . It must be re-
membered that two witnesses may give different accounts of the same factual situation
without committing perjury, because differences may reasonably be expected when truth-
ful witnesses give their versions of events in which they are emotionally involved. In any
event we believe that the Trial Examiner was correct in crediting testimony in this case,
and therefore we affirm his credibility findings.
We disavow any comments by the Trial Examiner concerning conditions at Board hear-
ings. If the Trial Examiner believed that the Board should have taken some action in this
matter, he was free to proceed through normal administrative channels at the appropriate
time.
146 NLRB No. 120.