Precision Fabricators, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1952

101 N.L.R.B. 1537 (N.L.R.B. 1952)

PRECISION" FABRICATORS, INC.
V. THE REMEDY
1537
It having been found that Respondent has engaged in certain unfair labor
practices it will be recommended that Respondent cease and desist therefrom
and that it take certain affirmative action designated to effectuate the policies
of the Act.
It having been found that from August 16, 1951, and thereafter Respondent
refused to bargain collectively with the Union, it will be recommended that
Respondent, upon request, bargain collectively with said Union. Because of
the absence of evidence that Respondent has engaged in other unfair labor
practices and the absence of evidence that danger of other unfair labor practices
is to be -anticipated from Respondent's conduct, it will be recommended that
Respondent cease and desist from the commission of any other unfair labor
practices.
On the basis of the above findings of fact and upon the entire record in they
case, the undersigned makes the following :
CoNCLusIons of LAw
1. The Union is a labor organization within the meaning of Section 2 (5)
of the Act.
2. All production and maintenance employees employed at Respondent's
Memphis, Tennessee, plant, excluding all office and clerical employees, watch-
men-guards, and all supervisors as defined in the Act, constitute a unit ap-
propriate for the purpose of collective bargaining within the meaning of Section
9 (b) of the Act.
3. At all times since August 10, 1951, the Union has been and now is the
exclusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing at all times since August 16, 1951, to bargain
collectively with the Union as the exclusive representative of the employees in
the aforesaid unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent has not engaged in discrimination or in interference, restraint,
and coercion, in violation of Section 8 (a) (3) and (1) of the Act, as alleged
in the complaint.
[Recommendations omitted from publication in this volume.]
PRECISION FABRICATORS , INC. and INTERNATIONAL BROTHERHOOD OF
PAPER MAKERS , A. F. OF L: Case No. 3-CA-463. December 30,
1952
Decision and Order
On August 1, 1952, Trial Examiner David London 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 within the meaning of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
101 NLRB No. 241.
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent and the Union filed exceptions to the Interme-
diate Report and supporting briefs.
The Respondent's request for oral argument is denied inasmuch
as the record, including the briefs and the exceptions, adequately
present the issues and the positions of the parties.
The Board 1 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 In-
termediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.2
Order
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, as amended, the National Labor Relations Board hereby orders
that Respondent, Precision Fabricators, Inc., East Rochester, New
Yolk, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees as to their union affiliation and
activities or threatening them with reprisal because of their union
membership or activities.
(b) Discouraging membership in International Brotherhood of
Paper Makers, A. F. of L., or in any other manner discriminating in
regard to their hire or tenure of employment or any term or condition
of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Paper Makers of America, A. F. of L., or any other labor organ-
ization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to
refrain from any or all of such activities, except to the extent that
I Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Houston and Murdock].
I The Trial Examiner erroneously reported that Petti did not deny having said "I'm the
boss," and that in June-July 1950 the foremen were receiving about $1.70 or $1.75 per
hour Petti denied having made the statement attributed to him by the Respondent's
witnesses . The only evidence on the rates of foremen in 1950 , other than Bishop's earnings,
is Bishop 's testimony that he believed that another foreman was receiving $ 1.40 per hour,
but that he was not sure. Neither of these errors warrants a conclusion other than that
Petti was not a supervisor as defined in the Act when he was discharged. At best, the
statement attributed to Petti was a conclusory expression of opinion , not supported by-
the evidence as to his duties and his authority.
PRECISION FABRICATORS, INC. 1539
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.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Joseph Petti immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights or privileges.
(b) Make whole Joseph Petti in the manner set forth in the section
of the Intermediate Report entitled "The Remedy," for any loss of pay
he may have suffered as a result of the discrimination against him.
(c) Upon request make available to the Board or its agents, for
examination and copying, all payroll and other records necessary to
determine the amount of back pay due under the terms of this Order.
(d) Post in conspicuous places in its offices and place of business,
including all places where notices of employees are customarily posted,
copies of the notice attached to the Intermediate Report and marked
"Appendix." a Copies of said notice, to be furnished by the Regional
Director for the Third Region, shall, after being duly signed by
Respondent's representative, be posted by it immediately upon receipt
thereof, and maintained by it for at least sixty (60) consecutive days
thereafter. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Decision and Order, what
steps have been taken to comply herewith.
This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof, the words "A Decision and Order." In 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."
Intermediate Report
STATEMENT OF THE CABS
Upon a charge duly filed by International Brotherhood of Paper Makers,.
A. F. of L., herein called the Union, the General Counsel of the National Labor
Relations Board issued a complaint against Precision Fabricators, Inc., herein
called Respondent, alleging that Respondent had engaged and was engaging in
unfair labor practices within the meaning of Section 8 (a) (1) and (3) and'
Section 2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein
called the Act. Copies of the complaint and charge were duly served on all the
parties.
With respect to the unfair labor practices, the complaint alleged, in substance,
that Respondent discharged two of its employees, Joseph Petti on or about
August 22, 1951, and Rocco Albanese on or about August 31, 1951, for the reason
242305-53-98
1540 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
that they joined or assisted the Union or engaged in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection. The
complaint , as amended at the hearing, also alleged that from on or about June 1,
-1951,' Respondent has (1) interrogated its employees concerning their union
membership and activities; (2) threatened and warned its employees to refrain
from assisting , becoming members, or remaining members of , the Union; (3)
threatened its employees with discharge or other reprisals if they joined or
assisted the Union; (4) promised and granted benefits to employees if they
would not become members of the Union, or if they would withdraw from the
Union; (5) promised and granted benefits to its employees if they would form
a labor organization other than the Union; and (6) stated to its employees that
it would close its plant rather than bargain with the Union.
By its answer, Respondent denied the commission of any unfair labor, prac-
tices, specifically pleaded that Petit was a supervisory employee within the
meaning of the Act and that the Board therefore had "no jurisdiction" to deal
with his discharge. The answer also specifically pleaded that because the
charge which instituted this proceeding did not specifically allege the violations
of Section 8 (a) (1) of the Act which were pleaded in the complaint that the
Board was foreclosed, by Section 10 (b) of the Act,' from giving any considera-
tion to such charges.
Pursuant to notice, a hearing was held at Rochester, New York, on March
31-April 1, 1952, before the undersigned duly designated Trial Examiner. The
General Counsel, Respondent, and the Union were represented by counsel and
participated in the hearing. Respondent's motions, based on Section 10 (b)
of the Act, to dismiss the portions of the complaint alleging interference, re-
straint, and coercion because no such violative conduct was alleged in the
charge which initiated this proceeding were denied.' All parties were afforded
full opportunity to be heard, to examine, and to cross-examine witnesses, and
to introduce evidence pertinent to the issues. The General Counsel, Respondent,
and the Union, each filed briefs with the undersigned, all of which have been
duly considered.
On the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, maintains its principal office and place
of business at East Rochester, New York, where it is engaged in the manufacture,
sale, and distribution of plastic products and related products. In the course and
conduct of its business operations during the calendar year 1951, Respondent
purchased raw materials, supplies, and equipment valued in excess of $200,000,
approximately 75 percent of which was purchased from sources located outside
1 Unless otherwise specified , all reference to dates herein are to the year 1951.
2 "No complaint shall issue based upon any unfair labor practice occurring more than
six months prior to the filing [and servicel of the charge . . .
3 Section 10 (b) of the Act does not require charges to specify or particularize each
unfair labor practice to be litigated. It is sufficient that, as here, unfair labor practice
findings are based on conduct alleged in the complaint which occurred within the 6-month
period preceding the filing and serving of the initial charges . Pacific American Shipowners
Association , 98 NLRB 604; Cathey Lumber Co., 86 NLRB 157, enfd 185 F. 2d 1021
(C. A. 5), dismissed on other grounds 189 F. 2d 428 (C. A. 5) ; Globe Wireless , Ltd., 88
NLRB 1262 , enfd . 193 F. 2d 748 (C . A. 9) ; Stokely Foods, Inc , 91 NLRB 1267, entd.
193 F. 2d 736 (C. A. 5).
PRECISION FABRICATORS, INC. 1541
the State of New York and shipped directly to its East Rochester plant. During
the same period , Respondent sold and shipped finished plastic and related
products valued in excess of $500,000, of which approximately 50 percent was
sold and shipped to customers located outside the State of New York. Respond-
ent admits , and I find , that it is engaged in commerce within the meaning of the
Act.
H. THE ORGANIZATION INVOLVED
International Brotherhood of Paper Makers, A. F. of L., is a labor organization
within the meaning of Section 2 (5) of the Act, admitting persons employed by
Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The underlying facts
From the time of its incorporation in 1936, Respondent's employees have
never been represented by an affiliated labor organization. Early in June 1951,
Joseph Petti contacted E. S. Ferre, a representative of the Union, for the purpose
of enlisting his aid in enrolling Respondent's employees in that union and
securing its recognition by Respondent. Union membership and authorization
cards to facilitate that purpose were delivered to Petti, who with the assistance
of Rocco Albanese, circulated the cards among the approximately 40 persons then
employed by Respondent. By on or about June 12, Petti and Albanese secured
the signatures of 17-18 employees to these cards, several more than the 30 per-
cent of the total complement of workers whose signatures would be required,
according to Ferre's instructions, before a petition could be filed with the Board
seeking the Union's certification as bargaining representative of Respondent's
employees. On June 15, the Union filed such a petition with the Board seeking
certification as bargaining representative for Respondent's production and main-
tenance employees. On July 20, Respondent laid off 7 employees, including
Albanese, because of lack of work. On August 6, Respondent and the Union
signed a consent election agreement providing for an election on August 17,
at which election 19 votes were cast for the Union, and 19 against. On August
21, the Union's director at Utica, New York, mailed to the Board's Regional
Director at Buffalo, New York, its objections to Respondent's conduct affecting
the results of that election and requesting that the election be set aside and a
new election ordered. A copy of these objections was simultaneously served on
Respondent at Rochester, New York. At about 4: 25 p. in. of August 22,
Respondent discharged Petti. Albanese, who had been reemployed on August
16, was discharged on August 31. On September 25, the Regional Director
issued his Report in which he sustained the Union's objections afore-mentioned
and ordered a new election. Such new election was held on November 1 in
which 33 of 34 eligible voters participated. Thirteen voted for the Union, 15
against, and 5 ballots were challenged. After the challenged ballots were ruled
on, the Regional Director issued his certificate certifying that a majority of the
valid ballots had not been cast for the Union.
B. Interference, restraint , and coercion
On about June 12, after Petti and Albanese had secured 17-18 signed union
authorization cards, Charles W. Major, Respondent's president, summoned
them to his office and told them he had heard about their efforts "trying to
start a union." When Petti admitted such activities, Major countered with
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the remark that he was in a position to "close the doors down," or take Petti
off the mechanical work he was then performing and "put [him] pushing the
broom."
During the union organization campaign, Major asked employee Morris goner'
whether he had been asked to sign a union card and whether he had signed
it. A few days before the August election, Major told Sonar that if the
"Union would go in, he would close the place."
During June and August respectively, Major asked Maude Hainlen and Cbar-
lotte Potempa, both of whom were still employed by Respondent at the time
of the hearing, whether either "heard anything about the Union."
The foregoing findings are made on the credited testimony of the named em-
ployees. While Major denied , in general terms , that he interrogated or threat-
ened any of his employees, my observation of all the witnesses, together with
Major's undenied and pronounced hostility to the Union, have led me to the
credibility findings just announced. By the conduct afore-mentioned Respondent
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in section 7 of the Act and thereby engaged in unfair labor practices
proscribed by section 8 (a) (1) of the Act. Standard-Coosa-Thatcher Company,
85 NLRB 1358.
With respect to the allegations of the complaint charging other violations
of section 8 (a) (1) and the evidence offered in support thereof, I find either
(1) that the statements relied on, while indicating opposition to the Union,
contained no threat of reprisal or promise of benefit and were therefor protected
by Section 8 (c) of the Act,° or (2) are not sustained by a preponderance of
the evidence. Accordingly, it will be recommended that, except as heretofore
found, all other allegations of the complaint charging violation of section 8 (a)
(1) of the Act be dismissed.
C. Petti'8 discharge
Petti was first employed by Respondent in the latter part of 1946 and quit
its employment about 3 months later. He was rehired by Major early in 1947
as a pressfeeder in the steel rule die department . Petti first became active in
behalf of the Union early in June 1951, which activity was recognized by
Major and brought upon Petti the warning described in section III, B, supra.
On August 17, Pettl served as union observer at the election in which the Union
failed, by one vote, to achieve a majority in its favor. On the following Monday,
August 20, Bishop called Petti to his office, and told him to "forget all about
this Union stuff . . . [and to] go back down there to [his] job." On August 22,
at about 4: 25 p. m., the same day the Union served its demand for a new
election, Production Manager Bishop handed Petti his pay and told him that
he was all "through." Petti asked for the reason for his discharge and Bishop
replied : "You know Major." Petti had an interview with Major at the plant
on the following Friday, called the latter 's attention to his long service with
Respondent and asked why he was discharged . Major replied that it was because
he was "incompetent." When Petti asked whether it took Major "that long
to find out [he] was incompetent," the inquiry so irked Major that he orderedi
Petti from the office without further comment.
Respondent's defense on this phase of the case is twofold: (1) It alleges that
Petti , at the time of his discharge , was a supervisor within the meaning of
' Konar left Respondent 's employment prior to the hearing.
5 "The expressing of any views , argument , or opinion , or the dissemination thereof, .
shall nrt constitute or be evidence of an unfair labor practice under any of the provisions
of this Act, if such expression contains no threat of reprisal or force or promise of benefit"'
PRECISION FABRICATORS, INC. 1543
section 2 (11) of the Act and therefore not entitled to any relief under the
statute , and (2 ) that , in any event, Petti was discharged "for good and sufficient
cause."
Petti was first employed by Respondent in the latter part of 1946 as a buffer.
He worked at that job for approximately 1/ months and was then made an
operator of the square shears in which work he was engaged for about a month
and then left Respondent's employment. He was rehired by Major on March 4,
1947, for work in the steel rule die department at $1 an hour and continued in
that department until August 22, 1951 , when he was discharged . In the interim,
as Respondent's brief apparently admits, Petti "did every production job that
there was to be done in that department." During that entire period he re-
ceived his orders from Bishop ; from the time he was reemployed until June
or July 1950 from Bishop as foreman of the steel room ; from the latter period to
August 20, 1951, from Bishop as "comanager" of the plant ; thereafter from
Bishop as production manager of the entire plant.
Though Respondent 's position is not entirely clear,' it is apparently its con-
tention that from the time of Bishop 's appointment as comanager in June or
July 1950, Petti assumed the status of a supervisor. According to Bishop's own
testimony, while he (Bishop) was foreman of the steel rule die department, he de-
voted most of his time to making "all the steel rule dies that were used in the
machines , did some of the setup work and some cutting , [and] did just about
-everything anyone else did in the department."' Petti testified that he devoted
practically all of his time to feeding both the steel presses and the papercutters
and getting the machines ready for cutting. When new employees were engaged
in the department, he, being the oldest in point of service, showed them how he
performed his work. However, he made no independent assignment or schedul-
ing of work. Instead, work schedules for the department were prepared two to
three times a week, and sometimes more frequently , by Bishop and transmitted
to Petti. According to Bishop's own testimony, Petti's orders came directly
from him and he "would tell him what [he ] wanted , what type of work [he]
wanted done."
Though Bishop testified that Petti assumed supervision of the department in
June or July 1950' when Bishop became comanager , Petti's "employment record
card" introduced by Respondent, and prepared by an office secretary in the
spring of 1951, notes that Petti was made a supervisor on January 6, 1951. And,
though Bishop as foreman in June -July 1950 was receiving $1.75 an hour, the
only other foremen, three in number, concerning whose compensation testimony
was offered, were receiving $1.70-$1.75. Petti in June-July 1950, when he al-
legedly was made foreman , was only earning $1.20 an hour'
Section 2 ( 11) of the Act defines a supervisor to be "any individual having
authority , in the interest of the employer, to hire , transfer, suspend, lay off,
recall, promote , discharge, assign, reward , or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively to recom-
In its brief Respondent admits "there was no particular day on which Petti suddenly
became supervisor of that department."
* At another point in his testimony , Bishop testified he spent "30 to 40 percent of his
time . . . actually operating the die cutting and printing presses . . . and most of [his]
extra time . . . In making dies or setting up rubber plates for new parts."
9In this connection it sh'uld be noted that though the consent election agreement signed
by Respondent on August 6, 1951 , stipulated that "supervisory employees as defined in
the Act" were to be excluded from the unit, the list of employees eligible to vote, submitted
and agreed to by Respondent , Included Petti.
His increases thereafter were as follows : August 11, 1950 , 5 cents ; September 23,
1950 , 10 cents ; January 6 , 1951, 10 cents ; April 28 , 1951 , 10 cents. Thus, at the time of
Petti 's discharge on August 22, 1951, he was only earning $1.55 per hour.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend such action, if in connection with the foregoing the exercise, of such author-
ity is not of a merely routine or clerical nature, but requires the use of in-
dependent judgment." Applying the definition to Petti's status as disclosed by
the record herein, I find him not to be a supervisor within the meaning of the
Act. Though there was some conclusory testimony by Bishop that Petti, as
foreman, had charge of the steel rule die department, the record is devoid of
probative evidence that plaintiff had the necessary authority to establish him as
a supervisor within the meaning of the Act. Determination of status under the
Act is based not on descriptive titles or conclusory testimony, but on "the actual
duties and functions of the persons alleged to be supervisors, taking into account
all relevant factors, including such matters as type of work done and respon-
sibility exercised." Silverwood's, 92 NLRB 1114, 1121; Whiten Machine Works,.
100 NLRB 279.
No claim was made that Petti had authority "to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward or discipline other employees ...,
or to adjust their grievances." Instead, on this phase of the issue, Respondent
limited itself to the contention that plaintiff had "authority to effectively recom-
mend discharge, of employees." In support of this contention, Respondent con-
tends that Petti recommended the discharge of employees Keller and Capriotti.
Petti categorically denied making any such recommendations. Bishop, the only
other witness who testified on the subject, when asked on cross-examination to
give the entire conversation concerning Petti's alleged recommendation to dis-
charge Keller, answered that inquiry as follows:
Q. Now, what did Petti tell you then at that time?
A. Why, he told me that it was ... that the man wasn't too cooperative
in the job that he was doing. He didn't seem to be able to keep up his end
of the production that he is just . . . that he couldn't keep him generally
busy without being right there to see that he was on the move every minute,
and he asked me what I could do about it and I told him at the time there
is only one thing that you can do.
Q. He told you in words or substance that he couldn't keep this man busy?
A. That is right.
Q. Did he tell you anything else?
A. Not in particular.
Q. Now I want you to search your memory and see if you can recall Mr-
Petti telling you anything else at that time.
A. Will you kindly straighten me out? Anything else about what?
Q. About the Keller situation?
A. No, I can't say that I remember anything else that might have been
attached to that situation.
I find that Petti made no recommendation to discharge Keller.
With respect to Capriotti, Bishop briefly testified that at a time, "which could
have been early in '50," though he "thought" it was later, Petti asked him to
discharge Capriotti because of her incompetence, a recommendation which was
rejected by Bishop. Petti denied making such a recommendation, which denial
I credit. This resolution is due, in part, to the agreement expressed by Petti
and Bishop that they both considered her "the best worker in the department."
No claim is made that Petti ever was told that he had authority to make
recommendations for the discharge of employees.10 On the entire record and
10 "The uncommunicated delegation of authority [to recommend the discharge of em-
ployees] does not provide a sufficient basis for concluding that they possess the authority,
effectively to recommend personnel action 11 Ceo Knight and Company, 93 NLRB 1193.
PRECISION FABRICATORS, INC. 1545
from my observation of the witnesses, I find that Petti had no such authority,
and'made no attempt to exercise it.
The only other factor upon which Respondent relies to establish Petti's super-
visory status is his alleged authority to "responsibly direct" other employees.
Under Section 2 (11) of the Act, however, such authority may be relied on only
If its exercise "is not of a merely routine or clerical nature, but requires the
use of independent judgment." The record abundantly establishes the fact
that Petti spent at least 80 percent of his time actually operating machines.
The remainder of his time was devoted to preparation of "make-ready" and
setting up presses. While the evidence discloses that in the performance of
his work Petti, being the most experienced employee in the department, un-
doubtedly offered assistance to other and especially to new employees, that fact
does not clothe him with supervisory status. Direction of the work in the de-
partment was in the hands of Bishop who, according to his own testimony,
regularly, from one to three times a week, gave Petti "a production list and
orders . . . telling him what to do." On the entire record I am convinced
and find that though Petti may have assigned work to other employees, whatever
authority he exercised was of a routine nature pursuant to Biship's direction
and that he was not a supervisor within the meaning of the Act" International
Harvester Company, 82 NLRB 191, 193 (group leaders) ; Fuller Automobile
Company, 88 NLRB 1452 (group leaders) ; Forest Oil Corporation, 98 NLRB
No. 192.
We turn now to a consideration of the reasons for Petti's discharge. Here.
It was incumbent upon the General Counsel to establish by a preponderance of
the evidence (1) that Respondent had knowledge of Petti's activities, and (2)
that it terminated his services because of such activities.
Insofar as the record discloses, Petti was the Union's most active protagonist.
It was Petti who enlisted the aid of the Union's official representative in the
organizational drive. It was Petti who, with the assistance of Albanese, early
in June, secured the signatures of 17-18 employees to union membership and
authorization cards, and it was Petti who acted as official observer for the Union
at the August 17 election. Nor can there be any question but that Respondent
had knowledge of the part Petti played in these activities. Indeed, it was on
or about June 12, the same period when Petti and Albanese concluded their
task of securing the signed union cards afore-mentioned, that Major, according
to Bishop's testimony, called Petti and Albanese to his office, asked them if
they were trying to organize a union, and after receiving information from
them that their activities were in behalf of "the Paper Makers Union," ad-
monished them not to solicit membership during working hours. On the entire
record I find that Respondent had knowledge of Petti's activity in behalf of
the Union.
A different problem is presented in determining whether or not an illegal
discriminatory motive prompted Petti's discharge. Here, as distinguished from
other problems posed under the Act, there are no established rules to control
decision. Each case must rest on its own facts. Nevertheless, experience in the
administration of the Act has provided us with valuable criteria as aids in the
task of determining motive. Among the guide posts are the following : Does the
employer have a union animus? Has he, in violation of the Act, sought to deter-
mine the identity of his employees who are members of the Union? Has he
"Respondent places great reliance on an undeuied statement attributed to Petti that
he was "boss" of the department. In light of the findings just made with reference to
the work performed by Petti and the lack of authority bestowed upon him, I am not
persuaded that this isolated statement should lead to a contrary conclusion.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought to intimidate his employees in their efforts to organize ? Are the facts
and circumstances surrounding the discharge such as to cast doubt on the
truthfulness of the reasons now assigned by him for the discharge ? Turning
to the record for an answer to these questions , I can only conclude that they
convict Respondent of the discriminatory motive alleged in the complaint.
The findings heretofore made ( III, B , supra ) establish Respondent 's hostility
to the Union , Major 's interrogation of its employees concerning their union
membership , and his threat to close its plant if the Union was successful in
its organizational drive . There remains for consideration only an analysis
of the facts and circumstances surrounding Petti 's discharge . And, in weighing
such facts and circumstances, I have been mindful of the unfettered right of
an employer , absent an illegal discriminatory motive, to discharge his employees
for or indeed without cause.
Petti was discharged at 4: 25 p. m. on August 22, the same day that Respondent
received a copy of the Union 's letter to the Board charging that Respondent,
and specifically Major, had been guilty "of improper and illegal electioneering"
at the election held 5 days earlier, and demanding a new election . Without
penetrating Major 's inner thoughts , there is , of course, no absolute and certain
way of determining what hostility toward Petti this communication engendered
in Major's mind. Major did know, however, of Petti's activity in behalf of the
Union and, because the challenged election was held in Respondent 's "front
office" only 5 days earlier, there can be no question that Major, or other officials
of the Company, were aware of the fact that Petti acted as observer of that
election.
When Petti was discharged by Bishop on August 22, the termination was made
effective without prior warning or notice. It was undisputed that when Petti
asked why he was being discharged, the only answer Bishop gave was : "Well,
you know Mr. Major." Major testified that Petti's services were terminated
"for inefficiency and attempting slow-downs." What are the facts with refer-
ence to both these defenses.
Petti was steadily employed by Respondent for approximately 5 years. During
that period he received four wage increases , the last less than 4 months before
his discharge. Bishop testified that when he promoted Petti to his alleged status
as a supervisor he did so because of the latter 's "know-how ... and general
ability." Only 2 days before Petti was discharged, Bishop talked to Petti and
Albanese with reference to the election just held, told them to let "bygones be
bygones . . . and that [be] then knew or felt that they could do a job and that
they could keep their end up." Major testified in general terms that he was
dissatisfied with Petti's services because of his "carelessness," but admitted that
he never discussed the subject with him. When asked to specify in what way
Petti had been careless, he was able to point only to one incident involving
spoilage of "quite a substantial amount of . . . fabric." Significantly, however,
this incident was not discovered until after Petti was discharged. On the entire
record I find that Petti was not discharged because of his "inefficiency."
Respondent also contends that Petti was guilty of, and discharged for,
"attempting slowdowns." In support of this defense, Evelyn Vogel, a press
operator employed by Respondent since 1944, and still employed there at the
time of the hearing, testified that on more than 4 or 5 occasions Petti asked
her "to slow down or not complete a full day's production." She testified
that the first of these requests was made 3-4 months prior to the August 17
election and the last "possibly a week" before that election. When asked on
direct examination by Respondent 's counsel to specify the times when she
PRECISION FABRICATORS , INC . 1547
brought any of these conversations to Bishop's attention , she testified that
the first occasion was 2 or 3 weeks before the first election and again, in
company with Hazel Gray and Doris Davis, on the morning Petti was discharged.
On cross-examination , however, she testified "the only time [she] reported
to Mr. Bishop was ... the morning of the day that [Petti] was discharged"
when the afore-mentioned group merely told Bishop that there was nothing for
them to do, "nothing set up for [them] to run." During the morning of the
same day , Major called Vogel and Davis to his office and secured their signatures
to affidavits , prepared by him, alleging that Petti had told Vogel not to
"turn out as much work as she was doing" and Davis to "slow down and not
turn out so much work."
Doris Davis, employed by Respondent since June 1947 and still in its employ
at the time of the hearing, testified that Petti on several occasions, commencing
3-4 months before the August election, told her not to work so fast and to
slow down . On the last two occasions, however, according to her own testi-
mony, there was no mention of a slowdown but merely a failure by Petti
to have the presses ready, or material available, so that she could proceed
with the operation of her machine. The last two incidents she immediately
reported to Bishop, but she specifically denied that she "reported any of these
conversations about slowdowns" to Bishop until "either the day before, late
in the afternoon, or the morning of Mr. Petti's discharge," when she, Vogel,
and Hazel Gray 12 went to Bishop's office.
Bishop testified that he didn't "know whether it was the day before, or
two or three days before August 22, that an unidentified girl came to him
and spoke to him about the fact that she was asked [by Petti] why she was
working so hard [when] she wasn't on piece work." According to Bishop's
own testimony, however, he "ignored [the matter] more or less and didn't feel
that there was anything [that he] could or should do about it." It wasn't
until Davis and Gray came to him with similar reports on the morning of August
22 that he decided " to do something about it . . . and went to Mr. Major with
the story." Both Bishop and Major admitted that they never discussed the
slowdown accusation with Petti.
Petti, recalled in rebuttal, was asked whether he had ever told Vogel or Davis
to slow down in their production . He answered as follows : "Well, I can't really
deny that I didn't tell her to slow down, but I didn't mean it in the way,
she tried to bring out here in court. The way I meant for her to slow down
is I would be working on a press and she'd come up to me and say, `Joe, I've
got to have some more work.' I tell her, `Just take it easy. Just as soon
as I get around to it I will be there.' Not that I meant for her to go upstairs
and go to sleep or down to the ladies' room or something. I meant take it
easy. I'll be right there the first opportunity I get, because I've got a lot
of different jobs to do. I have got to set up, I have got to cut the stock, I
have got to make sure the presses are running." He made the same explanation
for his conversation with Davis. I was favorably impressed by Petti' s demeanor
and sincerity as he gave all his testimony, and particularly his explanation
of the slowdown accusation which I hereby credit. Testimony offered by
Respondent's own witnesses lends credence to Petti's explanation. Thus, Bishop
admitted that complaints concerning Petti 's alleged conduct as late as 2-3 days
before August 22 were of such an inconsequential nature that he "ignored them
and felt that there was nothing he should do about it." Certainly if Davis
13 Hazel Gray was not called as a witness.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or Vogel had reported Petti's directions for a deliberate slowdown, Bishop
would have to reacted differently to these complaints.
The tinting of the discharge is also a significant factor. It will be recalled
that August 22 was the day that Respondent received notice that the Union
had challenged the results of the election held 5 days earlier. If that challenge
had not been interposed and sustained, Respondent could successfully have staved
off any further election by its employees for at least a year.13 What else happened
on August 22 which prompted the visit of Vogel and Davis on Bishop and Major
that morning? Vogel testified that what was reported that morning was merely
that there was nothing for them to do; apparently nothing was said by her
about a deliberate slowdown 14 Davis testified that though she several times
complained to Bishop that she had no work on her machine, a condition that
she attributed to Petti, she never told Bishop about Petti's alleged directions to
slow down her work until either the afternoon of August 21 or the morning of
August 22. Though she admitted that her last conversation with Petti on this
subject could have occurred on the morning of the election, August 17, she delayed
reporting the incident until 4-5 days later. When asked why she waited over the
intervening week end to report such alleged slowdown, her answer was "You
finally stand so much and you get-everything builds up inside of you and you get
disgusted."
It is also significant that neither Bishop nor Major asked Petti whether he
had in fact directed other employees to engage in a deliberate slowdown. It is
not unreasonable to assume that normally an employer would give an employee
of almost 5 years service, and who had less than 4 months earlier been rewarded
with an increase in wages, an opportunity to explain such a serious accusation 1a
Indeed, as will hereafter appear, when Albanese was accused of conduct of a
much less serious nature, Major himself called that employee to his office and
confronted him with the accusation, because Major "felt that [he] should have
both sides of the story." No explanation was offered for Major's discrimination
against Petti in this respect. In fact, Major testified that he instructed "Mr.
Bishop not to give Petti any reason for his discharge."
On the entire record I find that Petti did not tell any of Respondent's employees
to deliberately slow down their work for the purpose of delaying production.
Instead, I find that the incidents in question were seized upon by Major as a
subterfuge to cover the resentment he held against Petti for his union activities.
By discharging Petti under these circumstances, Respondent violated Section
8 (a) (3) of the Act and interfered with, coerced, and restrained its employees
in the exercise of rights guaranteed by the Act in violation of Section 8 (a) (1)
thereof.18
13 Section 9 (c) (3) of the Act provides that "no election shall be directed in any
bargaining unit . . . within which, in the preceding 12-month period, a valid election
shall have been held."
14 And in this connection it should be recalled that on July 20 Respondent had laid off
seven employees because cf lack of work. The record does not establish when any of
these seven employees were recalled except Albanese, who was not recalled until August
16. The payroll record of August 3, which Respondent submitted as a list of employees
eligible to vote at the August 16 election, still showed six "employees temporarily laid off."
15 "That the Respondent was not c-ncerned with deciding the case on the merits is
evident from the fact that [Major] did not interview [Petti] before deciding to discharge
him because he thought be could make out a prima facie case against [Petti] and that
was all that the Respondent wanted." Montgomery Ward and Co ., Incorporated, 90 NLRB
1244, 1312.
16 Underwood Machinery Company, 74 NLRB 641, 646, upon which Respondent relies is
not apropos. In that case, the Board reversed the Trial Examiner's finding that the
Respondent had discriminatorily laid off an employee upon the honest, though mistaken,
belief that he had engaged in a slowdown . There, however, as the Board points out and as
PRECISION FABRICATORS, INC . 1549
D. The discharge of Albanese
Rocco Albanese was first employed by Respondent in the fall of 1947, quit in
the spring of 1948 and returned in the fall of the latter year. He was discharged
on August 31, 1951. As heretofore related, in June 1951, Albanese secured seven
or eight signatures to union membership and authorization cards. Albanese,
together with Petti, were questioned by Major about their union activities, and
he was present, on about June 12, when Major made the threats to Petti described
An section III, B, supra. He was one of seven emlrfoyees caught in the economic
layoff of July 20 but was rehired on August 16,- -the day before the election.
Albanese was called to Bishop's office on July 20 at which time the latter
asked him to let "bygones be bygones [and to] settle down and go to work."
According to Albanese, Major "burst" into the office and addressing himself to
Albanese, said : "You, first chance I get I am going to fire you." Albanese
allegedly asked whether that was a threat to which Major replied : "No, it
isn't a threat, you get back to work." Both Major and Bishop denied that any
such threat to discharge Albanese was made but Bishop admitted that Major
had "come bursting in the door, . . . he might have been angry ; . . . [Bishop]
felt that from the tone of [Major's] voice."
At about 3 p. in. of August 31, Gladys Gray, the payroll clerk, brought Albanese
his paycheck due on that day. Albanese asked if she could secure a list of the
names and addresses of Respondent's employees. She went to Major and asked
whether she should comply with the request and was told not to do so. Shortly
thereafter, Major approached Albanese and asked him whether he had asked
Gray for such a list that "morning." Albanese denied that he-had made such a
request, because, according to his testimony, the request had been made that
afternoon and not that morning. Major ordered him to the office where Mrs.
Gray repeated to Major Albanese's request for the desired information and
Albanese repeated the denial. In the course of the conversation, Albanese
accused Gray of uttering "a God damn lie." Major immediately discharged
Albanese.
To prove the necessary discrimination, the General Counsel, and the Union
in its brief, rely heavily on Major's alleged threat of August 20 to discharge
Albanese at "the first chance." On the entire record I am convinced and find
that Major made no such threat. It will be recalled that Albanese had been
recalled to work only 4 days earlier, on August 16, after having been laid off
since July 20.14 On August 16, Respondent had already been apprised of the
active part played by Albanese in the organizational drive. If it was Respond-
ent's desire to rid itself of Albanese because of his union activities, it could have
more easily availed itself of such an opportunity by not recalling him on August
16. Having so recalled him there appears to have been no reason for making
the threat imputed to Major on the second workday thereafter.
I credit the testimony of Major and Gladys Gray that Albanese used the pro-
fane language heretofore described. Albanese's denial of the accusation was
not convincing." On the entire record I am convinced and find that the General
distinguished from here, no clear finding was entered that the employees' " union mem-
bership and activity was the motivating factor" in his discharge . Here it is expressly
found that Petti's union activity teas the motivating factor and that Major did not act
upon an honest belief that Petti had urged a deliberate slowdown.
14 The record does not show how many, if any, other employees laid off on July 20 were
.ever recalled.
18 Albanese sought to support his denial by the following testimony : "I have three small
children at home, and I cannot aff ,rd to go using bad language . My wife even gets on my
meek for saying the word `ain't' around the house."
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel has not sustained the burden of proving that Albanese was discharged for
the reasons alleged in the complaint. Instead, I find that Major discharged
Albanese in a burst of anger because the latter had lied to him and used profane
language to Mrs. Gray . Accordingly it will be recommended that the allegations
of the complaint alleging that Respondent discharged Albanese in violation of
Section 8 (a) (3) of the Act be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent , set forth in section III, above , occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade , traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and
tenure of employment of Joseph Petti, I will recommend that, in order to effectu-
ate the purposes and policies of the Act, Respondent offer him immediate and
full reinstatement to his former or to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges . It will also be recom-
mended that Respondent make Petti whole for any loss of pay he may have
suffered by reason of Respondent 's discrimination against him , by payment to
him of a sum of money equal to the amount he would normally have earned as
wages from the date of his discharge, to the date of Respondent's offer of rein-
statement , less his net earnings during that period ." Loss of pay shall be com-
puted on the basis of each separate calendar quarter or portion thereof during
the period from the Respondent's discriminatory action to the date of a proper
offer of reinstatement. The quarterly periods, herein called quarters, shall
begin with the first day of January, April, July, and October. Loss of pay shall
be determined by deducting from the sum equal to that which Petti would nor-
mally have earned for each such quarter or portion thereof, his net earnings,
if any, in other employment during that period. Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other quarter."
It will also be recommended that Respondent , upon reasonable request, make
available to the Board and its agents all payroll and other records pertinent to
an analysis of the amounts due as hack pay.
Since Respondent has restrained , coerced , and interfered with its employees in
the exercise of their rights under the Act, and has also committed an act of
discrimination with regard to the hire and tenure of employment of one of its
employees-the latter a form of unfair labor practice which has been held to
"go to the heart of the Act," I am convinced that there is a danger of a repetition
by Respondent of unfair labor practices directed against its employees in the
event that they should again seek to exercise their rights under the Act. In
order therefore, to make effective the interdependent guarantees of Section 7 of
the Act, to prevent a recurrence of unfair labor practices, and thereby minimize
industrial strife which burdens and obstructs commerce, and thus to effectuate
the policies of the Act, I will recommend that Respondent cease and desist from
" Crossett Lumber Company , 8 NLRB 44^ 497-8.
" F. W. Woolworth Company , 90 NLRB 289.
PRECISION FABRICATORS, INC. 1551
In any manner infringing upon the rights guaranteed employees in Section 7
of the Act."
Upon the basis of the above findings of fact and upon the entire record in the
case , I make the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Paper Makers , A. F. of L., is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of Joseph
Petti, Respondent has engaged and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL BROTHERHOOD Or
PAPER MAKERS , A. F. OF L., or in any other labor organization of our em-
ployees, by discharging any of our employees or discriminating in any other
manner in regard to their hire or tenure of employment or any term or con-
dition of their employment.
WE WILL NOT interrogate our employees in respect to their affiliation or
activities concerning the above named union or any other labor organization.
WE WILL NOT threaten our employees with reprisal because of their mem-
bership and activities in the above-named union or in any other labor
organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist the above-named union or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes 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.
WE WILL offer to Joseph Petti immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of the discrimination.
"May Department Stores V . N. L. R. B., 326 U. S. 376, affirming as modified 145 F. 2d
66 (C. A 8 ), enforcing 53 NLRB 1366.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain , or to refrain from becoming
or remaining , members in good standing of the above-named union 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 National Labor Relations
Act.
PRECISION FABRICATORS, INC.,
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.
UNITED BISCUIT COMPANY OF AMERICA, UNION BISCUIT DIVISION and
LOCAL UNION No. 611, AFFILIATED WITH INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, A. F. L. Case No. 14-CA-668. December 30, 1952
Decision and Order
On July 8, 1952, Trial Examiner Herman Marx issued his Inter-
mediate Report 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 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 In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.2
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, United Biscuit
Company of America, Union Biscuit Division, St. Louis, Missouri, its
officers, agents , successors , and assigns , shall :
I Pursuant to the provisions of Sectl -n 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and
Members Murdock and Peterson].
7 As no exception has been filed to the Trial Examiner ' s finding that the Respondent did
not threaten employees to close its plant in reprisal for union activity , we shall adopt
this finding.
101 NLRB No. 239.