R. & R. Screen Engraving, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1965

151 N.L.R.B. 1579 (N.L.R.B. 1965)

R. & R. SCREEN ENGRAVING, INC. 1579
However, under the circumstances of this case , I do not believe that it will effectuate
the policies of the Act to order Respondent either to withdraw and withhold recog-
nition from the Independent or to cease giving effect to the contract executed on
January 10 , 1964, unless , and until , the Independent shall be certified by the Board.
The Independent was certified by the Board in September 1962, after winning a valid
Board election . Supervisors were not officers of the Independent prior to its certifi-
cation ; and there is no allegation or contention that Respondent engaged in any
unlawful conduct prior to that time I have not found the Independent to be an
employer dominated or assisted labor organization ; nor has the General Counsel or
the complaint attacked the validity of the contract in any respect There is no
probative evidence that the Independent is no longer the freely chosen majority
representative of the employees concerned , or that there is any genuine movement to
designate the Charging Union as their collective-bargaining representative . 17 More-
over, the record does not establish that the supervisors involved were acting in other
than their individual capacities as members of the Independent , or that Respondent
instigated their participation . In such a context, I deem the aforestated cease-and-
desist order sufficient to remedy the unfair labor practices found.'8
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Independent and the Charging Union are each labor organizations within
the meaning of Section 2(5) of the Act.
3. By participating through its supervisors in such independent activities as holding
office and voting on the Independent 's matters by acquiescing in a supervisor's partic-
ipation in contract negotiations on behalf of the Independent and by having him
sign the contract on behalf of the Independent , and by directing and influencing a
former president to sign the contract as president of the Independent , in the manner
previously detailed, Respondent has interfered with the administration of the Inde-
pendent in violation of Section 8 (a) (2) and ( 1) of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices insofar as not
specifically found herein.
[Recommended Order omitted from publication.]
17The General Counsel admitted that the Union's letter of January 10, 1964 , claiming
majority representation , was not oftered as evidence of the truth of the statement con-
tained therein , nor could such a self-serving declaiation by itself be regarded as any
probative evidence in this regard
1s Ceilich Tanning Company, 128 NLRB 501, 502 , Employing Bricklayers ' Association
of Delaware Valley and Vicinity , 134 NLRB 1535, 1537 , Detroit Association of Plumbing
Contractors, 126 NLRI: 1381 , 1,984 ; Bottficld-Refractai ies Co , cat (it , 127 NLRB 188, 191.
R. & R. Screen Engraving , Inc. and New England Joint Board,
Retail , Wholesale & Department Store Union , AFL-CIO. Case
No. l-CA-4594. April 1.3, 196:5
DECISION AND ORDER
On January 8, 1965, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging m 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. The Trial Examiner also found that, the
151 NLRB No. 151.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had not engaged in certain other unfair labor practices
and recommended that those allegations of the complaint be dis-
missed. Thereafter, counsel for the Respondent and the General
Counsel each filed exceptions to the Trial Examiner's Decision, the
General Counsel filed a supporting brief, and the Respondent filed
an answering brief to that of the General Counsel.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations 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 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 exceptions and briefs, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the extent con-
sistent with this Decision and Order.
1. The complaint alleges that the Respondent violated Section
8 (a) (1) of the Act by its interrogation, threats, and promises re-
garding its employees' union sympathies and activities.
The record evidence shows that the Respondent employs approxi-
mately 20 employees at its Springfield, Massachusetts, plant, where
it is engaged in the manufacture and sale of silk screens and related
products. In early April 1964,1 Robert McGranaghan initiated an
organizing campaign for union representation among Respondent's
plant production employees. After a few weeks McGranaghan ap-
proached Vice President Joseph Casey of the New England Joint
Board, Retail, Wholesale & Department Store Union, AFL-CIO,2
and obtained union cards from hint. McGranaghan subsequently
conducted meetings, distributed union cards, and solicited employee
membership in the Union. On May 4 the Union filed a representa-
tion petition with the Board, a copy of which was served on the
Respondent the following clay. The Respondent immediately retali-
ated with an intensive antiunion campaign which, as more fully
discussed below, continued for a week and culminated on May 12
with the termination of McGranaghan. The discharge in turn trig-
gered a protest strike by nine union adherents 3 which was called
pursuant to a strike vote conducted by the Union. At the time of
the hearing herein the strike was still in progress.
i Unless otherwise specified , all dates refer to 1964
2 Hereinafter referred to as the Union.
3 The striking union adherents include employees Slater, Leniire , Jacobs, Perkins, Gear,
Bessette , Ringenach , Godek, and Kennedy.
R. & R. SCREEN ENGRAVING, INC. 1581
We find, in agreement with the Trial Examiner, that the Respond-
ent violated Section 8 (a) (1) of the Act by the following conduct : 4
Respondent's Treasurer Hryniewicz' inquiry on May 9 of employee
Perkins whether anyone had approached him to join the Union, and
whether Perkins desired to join the Union, while at the same time
characterizing union organizing efforts as "silly" and saying that it
"wouldn't get in."
Plant Manager Wachta's interrogation of employee Gear in his
office on May 6 or 7 at which time Wachter asked if Gear "knew
anything or who was starting the Union . . . if it was Bob [Mc-
Granaghan] who was starting the Union," and his further inquiry
of Gear as to how he would vote "if the Union did get in the shop,"
and whether Gear "would let [W'achta] know if [lie] heard anything
about the Union."
11rachta's stating to employee Godek a few days before May 12
that if Godek "ever signed a card [he] might lose his job if [he]
joined the Union," and Wachta's further inquiry of Godek whether
he heard anything "about the Union being formed in the shop,"
while indicating at the same time that he "had a good idea of who
was behind the Union."
\Tachta's questioning of employee Bessette within the week before
May 12 as to whether Bessette knew "anything about a union" at
which time 1Vachta threatened "to fire the one who is the head of it."
Wachta's stating to employee Lemire on May 8 that if Lemire
went for the Union, he "will regret it later."
Wachta's stating to striker Ringenach that "if [the strikers] stayed
out too long [they] would lose [their] jobs."
Treasurer Hryniewicz' stating to President Lewis on May 9 that
Hryniewicz was "going to put pressure on them for trying to bring
a union in here . . . to eliminate the votes," which statement was
overheard by employee Jacobs.
Respondent's withholding of a wage increase from employees
McGranaghan and Bessette in order to discourage union adherence.5
4In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's dis-
missal of the 8(a) (1) allegation with respect to employee Ringenach's credited testimony
that on May 'S or 9 Respondent's Treasurer Hryniewicz told him to "stay away from the
Union "
5 This finding is based on employee Kennedy's credited account of a conversation with
Plant Manager Wachta wherein Wachta mentioned having withheld the pay raises be-
cause of the Union. As it is clear that the wage increases were withheld for discriminatory
reasons, we find that by such conduct the Respondent also violated Section 8(a) (3) of
the Act. In this connection, we find merit in the General Counsel's exceptions to the
failure of the Trial Examiner to find that by such disclosure Wachta also violated Sec-
tion 8(a) (1) of the Act, and to his failure to provide a remedy for the denial of the pay
raises Accordingly, we shall hereinafter provide an appropriate remedy therefor.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wachta's inquiry on May 8 of employee Kennedy whether he
could count on Kennedy's vote and if Kennedy "could identify the
person behind the Union movement at the plant." 8
Contrary to the Trial Examiner, we also find that the Respondent
violated Section 8(a) (1) by Wachta's questioning on May 9 of em-
ployee Slater about the Union, and by his statements to Slater with
reference to the union activity in the plant. According to Slater,
Wachta asked :
. . . If the Union had approached me yet . . . . He told me Bob
McGranaghan is trying to get a Union in here . . . . He men-
tioned that the Union wouldn't be any good in a shop like that.
It is too small . . . . He mentioned that Bob McGranaghan was
a Union agitator paid by the Union to come into the shop and
organize the Union. He mentioned the names of all the employ-
ees that walked out of the strike except for Pat Kennedy ... .
He said that they could run the shop without us all ... .
He said that Bob [McGranaghan] wanted to be shop steward
and that that is not any reason. They couldn't get rid of him.
He said that they could put him on a hard job that he couldn't
do and when he makes three mistakes that would be good
enough reason to discharge him. [Emphasis supplied.]
The Trial Examiner refused to credit Slaters testimony, not on
the basis of the witness' demeanor but on what he viewed as an
inherent inconsistency in the testimony; i.e., the reference to a strike
that did not in fact occur until 3 days after the alleged conversation.
We believe that the Trial Examiner adopted much too literal an
approach to this testimony. In our view, Slater's reference to the
strike cannot reasonably be construed as inconsistent with his other
testimony and does not justify a finding that the conversation did
not occur, or that Slater's testimony is not worthy of belief.7
Slater, as the record shows, along with employees Lemire, Jacobs,
Perkins, Gear, Bessette, Ringenach, Godek, and Kennedy, struck on
°, We also find, contrary to the Trial Examiner and in agieement with the General
Counsel, that the Respondent further violated section 8(a) (1) by Wachta's statements to
Kennedy in the course of the May 8 conversation that (1) he [Wachta] had a pretty
good idea of who it was [and] if I find out out lie goes", (2) "some day the office is
going to be yours and that is what I am training you for" , (3) things were going to be
tougher " around here ," that there were "going to be changes" , and (4 ) if President
Lewis found out "who it was," Lewis would make it miserable for such person
In view of Respondent ' s expressed hostility to the Union, we find the entire conversation
to constitute a threat to visit economic reprisals on those connected with union organizing
activity and as a promise of benefit to Kennedy if lie cooperated with Respondent by in-
forming it of the union activity in the plant
' Where , as here, it is clear that the Trial Examiner ' s credibility finding is based on
a statement of record rather than on the demeanor of witnesses , the Board deems itself
equally competent to resolve questions of credibility. Poinsett Lumber and Manufactui-
ing Company, 147 NLRB 1197
R. & R. SCREEN ENGRAVING, INC. 1583
May 12 as the result of the Respondent's discharge of McGranaghan,
and he and the others were still on strike on August 10, the date of
the hearing before the Trial Examiner.
Contrary to the Trial Examiner, it is clear from the record that a
conversation between Slater and Wachta occurred prior to the strike.
For one thing, although Wachta generally denied Slater's version
of the "May 9" conversation, he admitted holding a conversation
with Slater but could not pinpoint the time. On that occasion,
according to Wachta, Slater approached Wachta and said that he,
Slater, "had never had anything to do with a union," and asked
Wachta, "What [do you] think about unions ?" According to
Wachta he answered, ". . . from my experience the union in the
small shop does more damage than good." Thus, Wachta's own
version of the conversation tends to corroborate Slater's testimony.
And in view of Slater's alleged assertion that he had never had
anything to do with the Union and desired Wachta's opinion
thereon, it seems fairly obvious that such assertion would not have
been made at a time when the employees were already on strike.
There is no contention, nor evidence, that Wachta had any other
conversation with Slater.
As to the alleged anachronistic reference to the strike, in our
opinion, Slater's reference is readily explainable if one bears in mind
that the employees were still on strike when Slater testified. Slater,
in the course of his testimony about his conversation with Wachta,
was attempting to identify the employees named by Wachta as those
the Respondent "could run the shop without." Those employees
were on strike, and it was Slater's way of identifying the employees
named by Wachta by referring to them with the specific exception
of Kennedy as the employees on strike. The exception is significant.
For Kennedy, although a striker at the time Slater was testifying,
was not at the time of the conversation with Wachta regarded as a
supporter of the Union, and Wachta would not have included his
name among those the Respondent "could run the shop without,"
whereas it is clear that all other employees then on strike were those
who were supporting the Union. In our view Slater's testimony was
not necessarily so inconsistent as to make it incredible.
Apart from the alleged inconsistency as to time, there is nothing
in Slater's testimony which is unworthy of belief. Rather, Respond-
ent's well-known opposition to the Union, the credited testimony of
other witnesses attributing the same or similar remarks to Wachta,
and Wachta's discredited denials, render Slater's testimony credible.
Moreover , Wachta's concession that he did say that unions do "more
damage than good" corroborates Slater's testimony on that point and
also tends to establish Slater's credibility.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the record as a Whole, we credit Slater's testimony
and find that on May 9 Wacht,a made the statements attributed to
him by Slater. Since these statements were coercive, we find that
they violate Section S (a) (1) of the Act.
2. The complaint alleged that Respondent discharged Robert
McGranaghan on May 12, 1964, in violation of the Act. The Trial
Examiner found that McGranaghan was discharged for certain
alleged misconduct and that his discharge was not discriminatorily
motivated. We do not agree.
In the first place, the Trial Examiner found, and the Respondent
does not except to such finding, that Respondent had knowledge of
McGranaghan's union activities prior to his discharge. Also, as
heretofore noted, the credited testimony of employees Slater,8 Bes-
sette, Gear, and Kennedy clearly demonstrates that shortly before
May 12 the Respondent knew McGranaghan to be the union "agi-
tator," and that it intended to "fire the one who was the head of it."
It also establishes that Respondent believed that McGranaghan
wanted to be shop steward and expressed the opinion that that was
no reason "they couldn't get rid of him." Furthermore, the record
shows that the Respondent did not confine its antiunion campaign
to mere interrogation, promises of benefit, and threats of reprisals.
Rather, the Respondent forcefully expressed its antiunion sentiments
to the employees by communicating its willingness to withhold wage
increases from union adherents and its intention to "put pressure on
them for trying to bring a union in here ... to eliminate the votes"
and thus defeat the Union. In these circumstances we view Mc-
Granaghan's precipitate discharge on May 12 as part of Respond-
ent's plan to frustrate the Union's efforts to organize the employees.
The Trial Examiner credited Plant Manager Wachta's testimony
that McGranaghan telephoned about 9 :15 a.m. on May 11 to say that
he was then in a place called Auburn, as he had been delayed en
route while returning from a weekend at Cape Cod,9 but that he
would report late to work. According to Wachta, however, upon
McGranaghan's subsequent failure to appear or to telephone later
that day he decided to terminate McGranaghan's employment. We
reject the above explanation in view of Respondent's own admission
that McGranaghan's failure to report on May 11 alone would not,
in its view, justify his discharge. Nor can we accept Respondent's
8 Even if Slater 's testimony were not credited , there is still ample evidence in the record
to support a finding that Respondent was aware that McGranaghan was the prime mover
behind the Union in the plant, and that Respondent repeatedly indicated that it would
"fire the one who is the head of it."
e We note and hereby correct the inadvertent error in the Trial Examiner 's Decision
wherein be describes McGranaghan as saying that he was returning "to" Cape Cod
R. & R. SCREEN ENGRAVING, INC. 1585
further contention that the discharge was caused by an accumulation
of events which was, in effect, climaxed by the May 11 incident."'
It is to be noted that each of the other "events" to which the Re-
spondent adverts occurred prior to May 4, the date on which, as
found by the Trial Examiner, Supervisor Wachta personally com-
mended McGranaghan's work performance and informed him of
Respondent's decision to grant him a wage increase. In these cir-
cumstances it would be completely inconsistent to hold, as did the
Trial Examiner, that the Respondent proposed granting McGrana-
ghan a wage increase on May 4 and on the following week dis-
charged him because of one intervening absence and/or his other
unsatisfactory work or conduct which predated Respondent's deci-
sion to reward him with a wage increase. Rather, the Respondent's
swift institution of the above-described antiunion campaign imme-
diately following notification of the Union's representation petition
and its precipitate discharge of the known leading union adherent,
the immediate cause of which was admittedly insufficient, convinces
us that the Respondent seized upon McGranaghan's absence on
May 11 as a pretext to rid itself of the chief organizer and thereby
to stifle the Union's organizing efforts. 11
Accordingly, we find, from the foregoing and on the entire record
as a whole, that the Respondent discriminatorily discharged Mc-
Granaghan in violation of Section 8(a) (3) and (1) of the Act.
"The other causes which compose the "accumulation of events" Include (1) Respond-
ent's asserted general dissatisfaction with McGranaghan's work, attitude, and attendance
record, and (2) Respondent's objection to McGranaghan's loud and argumentative per-
sonality, as illustrated by three incidents i e , when he questioned an inspector's criticism
of his woik; exchanged "words" with the landlord's building superintendent; and par-
ticipated in a joke by attaching a piece of tape containing the word "scab" to a fellow
employee's back.
As to (1) above, the Respondent has neither adduced any evidence upon which to com-
pare McGranaghan's work and attendance records with those of its other employees nor
has Respondent shown that it informed McGianaghan regarding excessive absenteeism or
took any disciplinary measures to rectify such deficiencies Indeed, the Respondent's own
testimony establishes that McGranaghan "became satisfactory" in the finishing department
eventually, and its proposed grant of a wage increase on May 4 is inconsistent with
Respondent's claim of dissatisfaction with McGranaghan. Likewise, the three incidents
referred to in (2) indicated afterthought or, at least, exaggeration on the part of the
Respondent. Thus, as the Trial Examiner found, it is clear that any comments made
by McGranaghan in reference to Inspector Mosher's criticism in no way offended Mosher.
The Trial Examiner viewed McGranaghan's conduct during the incident with the building
superintendent as neither discourteous nor impolite and, in fact, the incident was not
relied upon by Wachta, according to Wachta's own testimony. Finally, the uncontradicted
evidence shows that McGranaghan affixed the tape on employee Jacobs with the latter's
knowledge and consent, and, aside from management's disapproval, there is nothing in the
record, other than Respondent's bald assertion, to show that the incident gave rise to any
hostilities between employees or that any other serious implications resulted therefrom.
'Ilia view of our findings herein, and the record evidence which shows that virtually
all of Respondent's hostility towards the Union was exhibited during the one week be-
tween the filing of the representation petition and McGranaghan's discharge, we can
hardly agree with the Trial Examiner 's conclusion that the Respondent 's union animus
is not proximately linked with the discharge of McGranaghan.
783-133-66-vol. 151-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, as we have found that McGranaghan's discharge was
unlawful, and as we agree with the Trial Examiner that the May 12
strike was solely to protest McGranaghan's discharge, it follows that
all of the approximately nine striking employees were unfair labor
practice strikers.
THE REMEDY
As we have found that the Respondent has engaged in certain
unfair labor practices, we shall order that it cease and desist there-
from and take certain affirmative action designed to effectuate the
purposes of the Act.
The Trial Examiner found that the Respondent discriminatorily
withheld wage increases from McGranaghan and Bessette because of
their union activities. Although he found such conduct in violation
of the Act, he failed to recommend any affirmative action. We think
that it is desirable in order to effectuate the purposes of the Act to
order the Respondent to make whole the named employees for any
loss of pay by reason of the unlawful withholding of the wage
increases. Accordingly, we shall provide that the Respondent grant
to Robert McGranaghan and Paul Bessette the wage increase effec-
tive as of the date it was discriminatorily withheld from them and
make them whole for any loss of earnings suffered by reason of the
discrimination against them.
Having found, contrary to the Trial Examiner, that the Respond-
ent unlawfully discharged Robert McGranaghan prior to the strike
on May 12, 1964, we shall, in accordance with established Board
policy,12 order the Respondent to offer him immediate and full rein-
statement to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
McGranaghan whole for any loss of pay suffered as a result of the
discrimination against him, by payment to him of a sum of money
equal to the amout he normally would have earned from the date
of discrimination to the date of an offer of reinstatement 13 Having
also found that the strike which commenced on May 12, 1964, was
caused by Respondent's unfair labor practices commencing on the
same day and hence was an unfair labor practice strike, we shall
order the Respondent, upon application, to offer to all its employees
who participated in the strike reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, dismissing, if necessary any employees
12Knickerbocker Plastic Co ., Inc., 132 NLRB 1209, 1212; Interior Enterprises, Inc,
125 NLRB 1289, 1290 . The record shows that McGranaghan engaged in picketing after
his discharge . While such conduct clearly does not affect his status as a discriminatee,
the record is incomplete as to what efforts he made to seek employment during the back-
pay period . Therefore the question of the amount of McGranaghan 's backpay is left to
the compliance stage of this proceeding Bon Hennings Logging Co , 132 NLRB 97, 99.
13 A. P. W. Products Co , Inc., 137 NLRB 25, 28-31.
R. & R. SCREEN ENGRAVING, INC. 1587
hired to replace them. We shall also order that, in the event of
Respondent's refusal, if any, to reinstate the unfair labor practice
strikers upon request, the Respondent make them whole by payment
to each of them of a sum of money equal to that which he would
normally have earned as wages during the period from 5 days after
the date on which he applies for reinstatement to the date of Re-
spondent's offer of reinstatement.14 All backpay will be computed
on a quarterly basis in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, and shall include the payment of interest
at the rate of 6 percent per annum to be computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Furthermore, as Respondent's discriminatory discharge of
McGranaghan and its entire course of conduct evince a studied
intent to thwart the rights of employees in freely selecting their
collective-bargaining representative, we shall issue a broad cease-
and-desist order.
ADDITIONAL CONCLUSIONS OF LAW 15
4. By discriminatorily withholding a wage increase from em-
ployees Robert McGranaghan and Paul Bessette, Respondent has
engaged in unfair labor practices within the meaning of Section
8(a) (3) and (1) of the Act.
5. By discriminatorily discharging Robert McGranaghan on May 12,
1964, because of his union activities, the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a) (3)
and (1) of the Act.
6. The strike which commenced on May 12, 1964, was caused by
the unfair labor practices of the Respondent.
7. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
Respondent, R. & R. Screen Engraving, Inc., Springfield, Massachu-
setts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in New England Joint Board,
Retail, Wholesale & Department Store Union, AFL-CIO, or in any
other labor organization of its employees, by discriminatorily dis-
14 See Central Oklahoma Milk Producers Association, 125 NLRB 419, enfd. 285 F. 2d
495 (C.A. 10).
15 The Trial Examiner's Conclusions of Law numbers 4 and 5 are hereby deleted.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging, terminating, or laying off any employee, or in any manner
discriminating against any employee in regard to hire, tenure, or
any other term or condition of employment.
(b) Coercively interrogating its employees concerning their and
other employees' union membership, activities, and sympathies.
(c) Threatening its employees with reprisals if New England
Joint Board, Retail, Wholesale, & Department Store Union, AFL-
CIO, or any other labor organization, succeeds in becoming their
exclusive collective-bargaining representative under the Act.
(d) Attempting to dissuade its employees from continuing any
lawful strike by threatening to discharge them.
(e) Withholding pay raises because of union activity.
(f) Offering inducements to discourage adherence to or activity
for the Union, or any other labor organization.
(g) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist said New England
Joint Board, or any other labor organization, 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, 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.
2. Take the following affirmative action designed to effectuate the
purposes of the Act :
(a) Offer Robert McGranaghan immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges, and make him whole
for any loss of earnings, including pay raises withheld, he may have
suffered by reason of the discrimination against him; and grant to
Paul Bessette the pay raise effective as of the date it was unlawfully
withheld. The backpay ordered herein shall be computed in accord-
ance with the other conditions set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Upon application, offer the striking employees immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privi-
leges in the manner set forth in the section of this Decision entitled
"The Remedy," dismissing, if necessary, any employees hired to re-
place them, and make each of them whole for any loss of pay suffered
as a result of its failure to reinstate him within 5 days after his uncon-
ditional application for reinstatement.
R. & R. SCREEN ENGRAVING, INC. 1589
(c) Notify Robert McGranaghan, and the striking employees, if
presently serving in the Armed Forces of the United States, of their
right to full reinstatement upon application 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.
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay
which may become due and the rights of employment under the
terms of this Order.
(e) Post at its plant at Springfield, Massachusetts, copies of the
attached notice marked "Appendix." IG Copies of said notice, to be
furnished by the Regional Director for Region 1, shall, after being
duly signed by the Respondent or its representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
16 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
IVE WILL offer Robert McGranaghan immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privi-
leges, and make him whole for any loss of earnings, including
pay raises withheld, he may have suffered by reason of our dis-
crimination against him; and we will grant to Paul Bessette the
pay raise effective as of the date it was unlawfully withheld.
WE WILL upon application offer the striking employees imme-
diate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and
other rights and privileges, dismissing, if necessary, any em-
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees hired to replace them, and we will make each of them
whole for any loss of pay suffered as a result of our failure to
reinstate him within 5 days of his unconditional application for
reinstatement.
IVE WILL NOT coercively interrogate our employees concerning
their or other employees ' union membership , activities , or sym-
pathies.
WE WILL NOT threaten our employees with reprisals if New
England Joint Board , Retail, Wholesale & Department Store
Union, AFL-CIO, or any other labor organization , succeeds in
becoming your exclusive bargaining representative under the
Act.
AVE WILL NOT attempt to dissuade our employees from con-
tinuing any lawful strike by threatening to discharge them.
W`TE WILL NOT withhold pay raises because of activity on behalf
of any labor organization.
IVE WILL NOT offer inducement to discourage adherence to or
activity for any labor organization.
I\TE 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 said
New England Joint Board, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as amended.
All our employees are free to become or remain, or to refrain from
becoming or remaining , members of the said New England Joint
Board, or any other labor organization , 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.
R. & R. SCREEN ENGRAVING, INC.,
Egap loye°.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
NOTE.-WVe shall notify Robert McGranaghan , and the striking
employees , if presently serving in the Armed Forces of the United
R. & R. SCREEN ENGRAVING, INC. 1591
States , of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Mili-
tary 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
(late of posting, and must not be altered, defaced , or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 24 School Street, Boston , Massachusetts , Telephone No. 523-
8100, if they have any question concerning this notice or compliance
with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case is before Trial Examiner James V. Constantine of the National Labor
Relations Board upon a complaint issued on June 25, 1964,1 by the General Counsel
of the Board , through the Regional Director for Region 1 (Boston , Massachusetts),
based upon a charge and amended charge filed by the Charging Party on May 13 and
14, respectively. Naming R. & R. Screen Engraving, Inc., as Respondent, the com-
plaint in substance alleges that said Respondent has violated Section 8 ( a) (1) and
(3), and that such conduct affects commerce within the meaning of Section 2(6) and
(7) of the National Labor Relations Act. Respondent's answer as amended at the
hearing admits some facts but puts in issue the commission of any unfair labor
practices.
Pursuant to due notice a hearing was held before me on August 10, 11 , and 20, at
Springfield, Massachusetts. All parties were represented at and participated in the
hearing, and were granted an opportunity to offer evidence , examine and cross-
examine witnesses , submit briefs , and present oral argument . Briefs have been
received from Respondent and the General Counsel.
Upon the entire record in this case , including the stipulations of the parties, and
from my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent , a Massachusetts corporation , is engaged at Springfield , Massachusetts,
in manufacturing , selling, and distributing silk screens and related products. Annually
it ships products valued in excess of $50,000 to points outside the Commonwealth
of Massachusetts . I find that Respondent is engaged in commerce within the con-
templation of Section 2(6) and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction over Respondent by this proceeding.
H. THE LABOR ORGANIZATION INVOLVED
New England Joint Board, Retail, Wholesale & Department Store Union, AFL-
CIO, herein called the Union , is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This case involves the alleged commission of unfair labor practices contravening
Section 8(a)(1) and (3) of the Act On May 4 the Union filed a petition under
Section 9 of the Act to represent all Respondent 's employees except office clericals,
guards, professionals, and supervisors as defined in the Act. See Case No. 1-RC-7891.
Copy, of it was received by Respondent on May 5. Respondent is accused of engaging
shortly thereafter in certain illegal acts which form the subject matter of the complaint.
'All events mentioned herein occurred in 1964 except where otherwise noted
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Alleged interference , restraint , and coercion
1. Interrogation
About May 11, Edward Hryniewicz , Respondent 's treasurer , whom I find to be a
supervisor under Section 2(11) of the Act, mentioned to employee Edna Mosher that
the Union had filed a petition for an election. In this same period Hryniewicz also
inquired of Plant Manager Walter Wachta ( whom I find to be a supervisor under
Section 2(11) of the Act), whether Wachta knew anything about union activity in
the plant. Wachta expressed ignorance thereof at the time.
Employee Warren Slater testified that on the Saturday before May 12, Plant
Manager Walter Wachta asked him if anyone from the Union had approached him.
According to Slater, when Slater replied in the negative Wachta mentioned that
"McGranaghan was trying to get a Union in here," and Wachta added that the Union
would not be any good in a shop as small as Respondent 's and that McGranaghan
was an "agitator " paid by the Union to organize the shop. Then, according to Slater,
Wachta "mentioned the names of all the employees that walked out on strike except
for Pat Kennedy." Since the strike admittedly did not occur until 3 days later, I am
constrained not to credit Slater as to any of the conversation of Saturday, May 9.
Hence it is not necessary to recount the remainder of it as testified to by Slater or to
set out Wachta 's denials thereof
About the Saturday before May 12, Treasurer Hryniewicz told employee George
Perkins that he had heard rumors "about somebody trying to put a Union in the
shop," that it was "silly ," and that "they wouldn't get in." Hryniewicz then asked
Perkins if anyone approached him or asked him if he wanted to join a union . Perkins
replied that he "hadn't heard anything about it."
About a week before the strike of May 12, Supervisor Wally Wachta asked
employee Paul Bessette if he knew "anything about a Union?" When Bessette
answered in the negative , Wachta remarked , "Well if you hear anything about the
Union I am going to fire the one who is the head of it ." Bessette again professed
ignorance. I do not credit Wachta's denial.
On Wednesday or Thursday before May 12, Supervisor Wally Wachta asked his
brother, Stanley , to direct employee John Gear to call at the office when Gear punched
out at 5 p in. When Gear arrived at the office, Wally requested Gear to promise not
to reveal the contents of their talk to anyone and to mention that a "new welder" was
discussed if questioned by anyone about the subject of their talk . Then Wally asked
Gear if he knew anything about, or who was starting , the Union ; that "this guy" would
not be fired , but that Wally wanted to straighten him out before he got into trouble;
and asked if McGranaghan was starting the Union . Gear said "No." Then Wally
asked how Gear would vote "if the Union did get in the shop." When Gear said
"that depends ," Wally stated that "this place would be much better off for you as a
nonunion shop because you get a higher rate than the others ... [and] if you stick with
the Company" Gear would probably be promoted after being taught more about the
business. Finally Wally asked Gear to inform him if he heard anything about the
Union but that he would not think any less of him if he did not . During the course
of the talk Wally said he had once been president of a union and that he knew a union
could do no good in a small shop, and that Gear would have a much better advance-
ment with the Company without a union.
2. Threats of economic reprisals
On the Friday preceding May 12, Plant Manager Wachta spoke to employee Roy
Lemire at Lemire's machine . Wachta said that if Lemire went for the Union , Lemire
"will regret it later." Lemire made no response to this, and Wachta thereupon walked
away.
On the Thursday or Friday preceding May 12, Supervisor Hryniewicz asked
employee Roger Ringenach to work overtime. Ringenach replied that , because of a
conflicting doctor 's appointment , he could not comply with this request. As
Hryniewicz left he told Ringenach "to stay away from the Union."
About May 9, employee Foster Jacobs overheard a conversation between Super-
visors Lewis and Hryniewicz as they passed about 8 to 10 feet from his machine.
Hryniewicz said, "I'm going to put pressure on them for trying to bring a Union in
here ... to eliminate the votes ." Jacobs testified "eliminate the votes" to him meant
"firing the employees."
A few days before May 12, Supervisor Wally Wachta asked employee Joseph Godek
if Godek had heard anything "about the Union being formed in the shop." Godek
R. & R. SCREEN ENGRAVING, INC. 1593
did not reply. Continuing, Wachta told Godek that Godek might lose his job if he
joined the Union and that he, Wachta, had a good idea of who was behind the
Union. Godek replied "that is a chance I take."
3. Dissuading striking employees from continuing their strike
While striking employee Ringenach was picketing about May 13, Supervisor Wally
Wachta spoke to a group of pickets which included Ringenach. First he told the
pickets that they were foolish to go out on strike because they were not receiving pay
during this idleness, and warned them they would lose their jobs if they stayed out too
long. Then he added they could return to work any time they wanted and they would
be protected by Respondent it they did.
On the Friday following May 12, Supervisor Wally Wachta told picketing employee
Foster Jacobs, "You shouldn't follow guys around like Bob McGranaghan; he will
lead you astray .... The Union doesn't stand a chance."
About 3 or 4 days after May 12, President Lewis spoke to striking employee Godek
on the picketing line. Lewis said, "Joe, I didn't think you would be like that. I
thought you could use your head. They all look like a bunch of monkeys." Godek
did not reply.
While striking employee Perkins was picketing about May 14, Supervisor Walter
Wachta asked him why employees never went to the office with their problems;
assured Perkins that the office door was always open, and commented that it was
"silly to be hanging around with these hoodlums"; and ended by warning Perkins not
to let "these punks" lead him around. Wachta also said that until "this time" man-
agement had no knowledge of any union trying to get into the shop. Perkins replied
that management must have received notice of the Union's and McGranaghan's
activity "from Boston."
While striking employee Gear was picketing about May 14, Supervisor Wally
Wachta told Gear he was surprised to see Gear there and that the Union would not
do Gear any good because Gear was a welder and that "everybody gets the same rate
of pay with a Union in." Wachta also said to Gear "the same thing that [Wachta]
said to George" Perkins.
4. Denial of pay raises for discriminatory reasons
a. General Counsel's evidence
About the Friday before May 12, Supervisor Wally Wachta told employee Patrick
Kennedy that Wachta had heard a rumor that someone was trying to start a union
and asked Kennedy if he could identify that person. Kennedy replied he did not
know. Then Wachta, after criticizing unions and asserting he had been president of
one once, stated that he "had a pretty good idea of who it was [and] if I find out out he
goes." Continuing, Wachta added that employees McGranaghan and Bessette "were
supposed to get a raise last week" but Wachta held up the raises "because of the
Union." Explaining this, Wachta commented "why pay them a nickel or a dime now
and if the Union comes in I have to pay another nickel or dime." Continuing, Wachta
asked Kennedy if he could count on Kennedy "if it comes to a vote." Kennedy said,
"Yes." Then Wachta told Kennedy, "Some day the office is going to be yours and
that is what I am training you for." 2 Wachta also assured Kennedy that things
were going to be tougher "around here," that there were "going to be changes"; and
that, if President Lewis found out "who it was," Lewis would make it miserable for
such person.
The following Monday, Supervisor Walter Wachta told Kennedy that things were
going to get tough and would be changed, but that Kennedy should ignore any adverse
comments on his work as it was no reflection on him but only part of "pushing the
guys and see how much they can take."
Incidents recited in the preceding two paragraphs do not lend themselves to easy
classification. They have been narrated here for want of a seemingly more appro-
priate subtitle under which they may be inserted. I credit the General Counsel's ver-
sion thereof, which is that recounted above, and reject Respondent's evidence thereon
insofar as it is inconsistent therewith. These facts demonstrate an antiunion animus
on the part of Respondent which I have considered in evaluating the credibility of
witnesses. But I do not believe that, except for one instance mentioned in the mar-
'Before the advent of the Union Wachta had on occasions told Kennedy that Kennedy
had a future with the Company and discussed the possibility of Kennedy' s "being with
inanagenient "
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gin,3 any violation of the Act has been demonstrated thereby, and I so find. The
fact that Wachta promised Kennedy an office in the future is not, under the circum-
stances, a promise of benefit proscribed by the Act because it had previously been
made prior to the advent of the Union. And the fact that Wachta warned that things
were going to be changed, or would be tougher, is insufficient to establish that they
were inspired by illegal motives. In fact the changes may well have related to a
tightening of disciplinaiy rules which management had been lax in enforcing. And
the fact that Lewis would make it miserable for the man found out to be "who it
was" is too indefinite on which to predicate a finding of illegality.
B. The discharge of Robert McGranaghan
1. General Counsel's evidence
Supervisor Walter Wachta hired McGranaghan on February 17 as a trainee in
the finishing department at the rate of $1.50 an hour. At that time Wachta told
McGranaghan that he would serve a 30-day probationary period and, if at the end
thereof "you can produce, you have a job permanently." I do not credit Wachta
that he mentioned a probationary period of 90 days.
About the first part of April McGranaghan alone led the campaign for union rep-
resentation. However, it was not until the end of April that he contacted Vice Presi-
dent Joseph Casey of the Union. Casey gave McGranaghan union cards which the
latter distributed to Respondent 's employees . In addition , McGranaghan solicited
employees to join the Union, some with success, and held meetings for this purpose
at the plant and once at the union hall. At the union hall meeting McGranaghan
and George Perkins were elected shop stewards.
About 5 weeks after he was hired, McGranaghan was transferred by Supervisor
Walter Wachta to the screen -stretching department for the purpose of learning another
phase of the business as part of an indoctrination to make a career in the silk screen
industry. Three or four weeks later McGranaghan was transferred back to the finish-
ing department by Wachta because a heavy load of work had accumulated there.
Although the transfer to the finishing department was originally temporary to relieve
the pileup of work, it soon became permanent because McGranaghan was needed to
replace another employee who had quit . McGranaghan testified that at no time
while he was employed by Respondent did management prior to May 4 or 5 complain
about his conduct or his work.
On May 4 Plant Manager Wachta told McGranaghan, "It's about time I talk to the
front office for a raise for you." In this conversation Wachta praised McGranaghan's
work performance as excellent . About an hour later Wachta, accompanied by Presi-
dent Lewis , pointed at McGranaghan and stated , "That's Bob." About 20 minutes
after that Wachta told McGranaghan that ( 1) President Lewis would give McGran-
aghan a raise only if Lewis found McGranaghan busy and not standing around, and
( 2) Wachta replied to Lewis that McGranaghan was always busy and a go-getter.
Wachta also referred to McGranaghan as a lucky boy because he had been granted a
raise. However, McGranaghan never did receive the raise.
On the Thursday preceding May 12, Plant Manager Wachta informed McGran-
aghan that Wachta had heard a rumor that McGranaghan "was leading a brigade
for a union ." When McGranaghan replied that he did not know about it , Wachta
told him to forget about the Union if he liked working there . The next day President
Lewis and Treasurer Hryniewicz constantly supervised McGranaghan's work and
Hryniewicz complained about its quality.
About 4 weeks before May 12 the superintendent of the building (which is owned
by an independent landlord and leased to Respondent ) came to a room where the
employees were enjoying a coffee break and, while cursing in a very loud voice , pointed
his finger at McGranaghan . The superintendent , one Campaganani , who was
employed by the landlord , complained that nails had been removed from a nailed-
down window in the paint room , that the window had been opened , and that paint
which was sprayed during work was falling upon cars in the street below. Cam-
paganani wanted to know who had opened the windows. McGranaghan replied that
he was not deaf and demanded that he and the employees present be addressed in a
civil tongue.
About May 4 Inspector Edna Mosher rejected one of the screens McGranaghan
had worked on and told him she felt she could not approve it. McGranaghan there-
3 Wachta's inquiring of Kennedy whether Wachta could count on Kennedy's vote is
coercive and I so find. Hence I further find that it constitutes unlawful interrogation
under Section 8(a) (1) of the Act.
R. & R. SCREEN ENGRAVING, INC. 1595
upon spoke to Plant Manager Wachta about it and asked him, "What is she getting
so excited about?" Wachta replied that McGranaghan should not pay any attention
to Mosher and that Mosher would be dangerous if she had a brain in her head.
Wachta looked at the screen and ordered it to be washed out and recoated.
About 5 or 6 weeks before May 12, McGranaghan played a "practical joke" on
employee Foster Jacobs by pasting on Jacobs' back a piece of adhesive tape with the
words "assistant chief scab" inscribed on it. When questioned by supervisor Hrynie-
wicz about this incident McGranaghan admitted that he did it. Hryniewicz repri-
manded McGranaghan by reminding him, "I don't think this is a joke," but
Supervisor Wachta "had quite a laugh over it."
On March 17, a Tuesday, McGranaghan attended his uncle's funeral in New
Hampshire. On Monday, the 16th, he called the "girl in the office," "explained the
situation," and told her he would be in on Wednesday. On Wednesday morning,
the 18th, he called the office to "relate a message" that, "because of personal reasons
and the death and so forth" he would not report for work until Thursday morning.
In a conversation with McGranaghan on Thursday, Wachta stated to McGranaghan
that Monday's and Wednesday's messages had been communicated to him.
During the lunch hour on another occasion McGranaghan asked Supervisor
Wachta for, and obtained, permission to take off the afternoon to "go over an
interrogatory."
On the Friday preceding May 12 Supervisors Lewis and Hryniewicz complained
that the border on screens finished by McGranaghan were not wide enough, that
screens were improperly patched (McGranaghan testified that he had been taught to
do this by his foreman, that the border was wide enough and that the patches were
proper). However, McGranaghan did testify that complaints had been made by
customers that some screens had not been properly taped.
About 8.10 a.m. on May 12 Plant Manager Wachta asked McGranaghan, "What's
the story ?" McGranaghan replied that if it pertained to the day before he had called
Wachta about it. Wachta then retorted, "That does it," that he was not running a
nursery or kindergarten, and discharged McGranaghan. The day before McGran-
aghan had been returning to Springfield from Cape Cod as a passenger in a car
driven by another and had expected to return in time to report at the 8 a.m. starting
hour. However, the car broke down on the way and about 9:10 a.m. McGranaghan
called Wachta from Charlton or Sturbridge, Massachusetts , to explain the situation
and that "possibly I could get in" that day. Wachta thanked him for calling.
Actually McGranaghan was "not able to get into work that day."
On the morning of May 12, about 10 a.m ., Union Vice President Casey telephoned
Supervisor Hryniewicz that one of Casey's boys had been fired and suggested that
this boy be put back to work. Hryniewicz replied that the man was discharged and
would remain discharged. Casey thereupon stated that Hryniewicz would have a
strike on his hands if the discharged employee, McGranaghan , were not reinstated.
Plant Manager Wachta informed Treasurer Hryniewicz, his superior, that McGran-
aghan was discharged for "failure to show up for work when he said he would; his
general attitude"; and that McGranaghan had failed to come to work at any time
during the day on May 11 although he had called in to report that he would be in
late. Wachta also told Hrymewicz that McGranaghan was loud and argumentative,
and also resented being shown how to do work or having his work checked , so that
McGranaghan was transferred to another department. Hryniewicz testified that he
also received complaints that McGranaghan gave the building superintendent some
trouble.
At the time of McGranaghan's discharge there were no company rules published
or posted regarding absences from work . However, an employee having excessive
absenteeism without cause is "informed" thereof, according to Hryniewicz.
2. Respondent 's evidence
Plant Foreman Walter Wachta hired McGranaghan on February 17 as a trainee.
At first, McGranaghan was used as a "utility" because he did not have a "definite" job.
His first definite job was in the stretching department. About 3 weeks later he was
assigned to the finishing department because he performed unsatisfactorily in the
stretching department and because Stanley Wachta, the group leader in the stretching
department, was so dissatisfied with McGranaghan's work and attitude that Stanley
threatened to quit. This was about 7 weeks before the strike on May 12. While in
the finishing department McGranaghan was a "slow starter" but became satisfactory
after awhile. Nevertheless he "seemed the nonchalant type" and "gave the impression
that he felt each job was below him."
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 weeks before the strike of May 12 Inspector Mosher rejected a screen
which McGranaghan and employee Slater were working on because it was improperly
coated. When Mosher said she was going to report it to Supervisor Walter Wachta,
McGranaghan "seemed to get into a huff," asked Mosher not to "squeal," and told
Mosher it was not necessary to see Wachta because "we'll take care of it." But
Mosher did show this defective work to Supervisor Wachta. Nevertheless Mosher
did not regard McGranaghan's words as offensive. Wachta then brought the screen
to McGranaghan and Slater and directed them to redo it. At the same time Wachta
instructed them that it was Mosher's responsibility to accept or reject work without
review by those whose work was inspected by her, and they were not to question her
authority in this area.
On the Foster Jacobs tape incident, Respondent's evidence substantially coincides
with that of the General Counsel except that, according to Supervisor Wally Wachta,
no one told Supervisor Hryniewicz that it was a joke until Hryniewicz inquired about
it, that no one told management that the tape was placed on the back of Jacobs with
Jacobs' knowledge, and that Jacobs told Hryniewicz that Jacobs did not know
anything about it.
As to the absence of McGranaghan in connection with his uncle's funeral, McGran-
aghan called into the office to say that he would report for work on Wednesday.
Supervisor Wally Wachta testified that, although McGranaghan did not call him
for this leave, the fact that McGranaghan called the office instead "was acceptable
and under the circumstances he was expected to come in Wednesday." However,
since McGranaghan did not come in to work until Thursday, he was asked to explain.
When McGranaghan replied that "some additional business came up," Supervisor
Walter Wachta asked him why he did not call about it. McGranaghan justified the
failure to call by saying he "wasn't near enough to a phone." Thereupon Wachta
reminded McGranaghan that the Company had a policy of requiring employees to
t'lephone personally or send messages by another for excused absences and that
-',cGranaghan should not again remain away from work without complying with
this procedure.
On one occasion McGranaghan telephoned in at about 8:20 a.m., asking to be
excused because he had a "big head" resulting from "a rough night " The next day
Supervisor Walter Wachta told McGranaghan that "those kind of excuses are not
acceptable" and that McGranaghan "was never to repeat it again." McGranaghan
denied that he said he had a big head.
On another occasion McGranaghan, while dressed in street clothes, informed
Supervisor Walter Wachta he had to go to Worcester and requested permission to
leave. It was granted with the comment, "If I said you couldn't go, you probably
would go because you are already dressed in your clothes."
On numerous occasions Supervisor Walter Wachta warned McGranaghan that he
was finishing off screens in a manner which did not meet specifications in regard to
border pinholes, taping, and bordering. Wachta thought that this resulted from
McGranaghan's loss of interest in his work because "he felt the work was below him."
About 9:15 a.m. on May 11, Plant Manager Walter Wachta received a call from
McGranaghan who said that he was returning to Cape Cod, that he then was in
Auburn, and that he would report late to work. Wachta replied that he would see
McGranaghan when the latter came in. But McGranaghan neither showed up nor
again called on that day. The next day, about 8:10 a.m., Wachta asked McGran-
aghan "what the story was," because McGranaghan had not reported for work the
day before as promised. McGranaghan replied that, because of "the condition of
the car," he did not get back until 4 p.m. When Wachta asked why McGranaghan
did not call at 4, the latter replied it wasn't necessary. Thereupon Wachta stated
he was not running a day school or nursery, that he had to plan production schedules,
and that he was fed up with McGranaghan. Wachta then exclaimed, "That does it,"
and discharged him and asked him if Wachta or the Company was then or ever had
been unfair to him McGranaghan said, "No."
Wachta claims he first learned of union activity at the plant on May 6, when Treas-
urer Hryniewicz informed him that a copy of the Union's representation petition had
been received, but that Wachta never knew until after McGranaghan's discharge that
McGranaghan was a union member or "a leader of the Union." Hryniewicz con-
veyed this information to Wachta following a call from Union Vice President Casey
on May 12.
Although it was normal to expect some defective work in the finishing department,
damage to the screens "seemed to have become constant" about 3 weeks prior to
May 12, and complaints from customers became numerous.
R. & R. SCREEN ENGRAVING, INC. 1597
Supervisor Walter Wachta "does not remember" promising to obtain a raise for
McGranaghan, but remembers McGranaghan a couple times asking for a raise and
replying to him that he, Wachta, would think about it; and denies saying to McGran-
aghan that he heard a rumor that McGranaghan was leading the brigade for union
representation. Wachta denies ever asking employee Slater if the Union had ever
approached McGranaghan prior to commencing its drive to organize the plant, and
admits that, in response to a question by employee Slater, told Slater that unions,
although all right, were very good in "some places and did more damage than good
in other places" such as small shops, and denies telling Slater that Respondent would
not stand for the Union and would not have one. Further Wachta "absolutely [does]
not" recall telling employee Lemire that if Lemire went for the Union Lemire would
regret it later.
Supervisor Walter Wachta denies telling employee Ringenach that it was foolish
to go on strike, that Ringenach was welcome to come back, and that Ringenach would
be protected by Respondent if he returned. Rather, Wachta testified that pickets
Ringenach and Godek tried to stop a truckdriver from entering the plant as Wachta
spoke to him and that, when Wachta called the pickets "wild cats," Ringenach resorted
to profanity. However, Wachta does admit that he told employee Jacobs not to
follow "a guy like Bob McGranaghan" because McGranaghan would lead him astray,
but denies telling Jacobs that the Union would not stand a chance, or that he, Wachta,
was promoting McGranaghan into the backroom because McGranaghan was a good
worker. Wachta also denies asking employee Godek if he heard anything about the
Union or telling Godek he would lose his job if he signed a union card.
Supervisor Walter Wachta claims he decided to fire McGranaghan at 5 p.m. on
May 11 for an "accumulation of events," recited above, the "last straw" of which was
McGranaghan's failure to work on May 11, after he telephoned that he would work
on that day. However, Wachta testified that he would not have discharged McGran-
aghan for the failure to report on May 11, if it were "isolated," or that he would have
discharged McGranaghan for any single incident included in the "accumulation of
events" mentioned above.
Supervisor Walter Wachta denied that he laughed at the Foster Jacobs tape inci-
dent or that he, Wachta, saw any humor in it.
C. Other evidence by Respondent
Shortly after May 5 Supervisor Hrymewicz began receiving a "raft of complaints"
from customers about the quality of Respondent's work. As a result he personally
pointed out defects to the particular employees involved whenever screens were
returned as inferior. The defective workmanship related to binding of crates, banding
and taping of screens, and painting and finishing edges of screens.
As to the conversation between Hryniewicz and Lewis which employee Jacobs
overheard. Hryniewicz testified that he was discussing with Lewis a new machine
for stretching silk which had been giving them problems. During the conversation
the words "bolts," "union," and "pressure" were used in that "we found out we could
apply more pressure [to the stretching machines] by eliminating some parts that had
bolts." By eliminating the bolts in the clamping devices a greater pressure could be
applied, and thus "get a much better job." This is in effect an improvement discov-
ered by Lewis after considerable experimenting in the few days preceding this con-
versation during which Hryniewicz passed on this information to Lewis. At the time,
however, the machine had been sent to an outside machine shop to eliminate these
bolts and to have cams substituted therefor. This is so because Respondent designs
and manufactures or causes to be manufactured its own equipment. Hryniewicz
also testified that the "unions" he mentioned in the above conversation with Lewis
were unions or couplings used to connect pipes on the new stretching machine's
airline.
Lewis admits that he told striking employee Gilday that the pickets looked like a
pack of monkeys, but this was because they were "stripped to the waist on many occa-
sions" and "displayed themselves" in antics reminiscent of monkey actions.
Stanley Wachta testified that on August 14, McGranaghan, while picketing, said
to him, "Stan, you better start looking for a new job. When I get back up there, I'll
have you fired." McGranaghan denies this, claiming he did no more than utter a
greeting. Wachta further testified that on August 17 McGranaghan warned him
that "I'll fix you. I'll blackball you in every union shop there is." McGranaghan
denies speaking to Wachta on August 17. The foregoing evidence probably was
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduced to affect McGranaghan's credibility, for it does not directly bear on any
issues in the case. I am of the opinion, and find, that McGranaghan did not make
these statements because I do not believe it likely that he would consciously engage
in conduct , during the short period the hearing was in recess, which could be used
to prejudice his case when the hearing was resumed. Trial of this case was held on
August 10, 11, and 20. Accordingly, I do not credit Wachta's testimony upon this
branch of the case.
D. The strike of May 12
Around 10 a.m. on May 12 McGranaghan talked to Vice President Casey of the
Union. As a result of the conversation Casey telephoned Treasurer Hryniewicz
inquiring as to the reason for McGranaghan's discharge. Hryniewicz replied that
it was caused by McGranaghan's failure to report for work the previous day. Casey
then insisted that "this was not the proper procedure inasmuch as McGranaghan
was the leader of the union organization activity in the plant," that it would be
"triggered as an unfair labor practice ," and that McGranaghan should be reinstated.
Hryniewicz answered that McGranaghan would not be taken back, that McGranaghan
was not discharged for union activity,4 and that Casey should discuss the matter
further with Pearl Wallace, Respondent's counsel.
At lunch time on May 12 Casey discussed McGranaghan's discharge with Respond-
ent's employees , branding it as an unfair labor practice . As a result the employees
voted not to return to work unless McGranaghan was rehired. About 1 p.m. Casey
conveyed this news to Hryniewicz and again asked that McGranaghan be taken back.
Casey also stated that a strike would follow a refusal. Hryniewicz again referred
Casey to Pearl Wallace. The strike ensued at 1:15 p.m.
Employee Slater testified that he struck ( 1) "because of threatening our jobs" so
that employees were not sure who would be fired next, and (2) "the way they are
running around complaining about all the work, and stuff like that." Upon being
prompted by a leading question , Slater added that he struck because of McGran-
aghan's discharge . On the other hand , employee Lemire testified that he struck
because McGranaghan was "let go ... nothing else but them going here and there."
[Emphasis supplied.] And employee Ringenach testified that "the basis for this
decision to go on strike [was] Bob McGranaghan being fired ," and that he struck
for that purpose. Employee Jacobs testified that the employees voted to strike
because of "unfairness in the Bob McGranaghan case and the pressure on the job,"
and that he struck therefor. Striking employee Perkins testified that the strike vote
was caused "actually through Bob McGranaghan 's discharge."
E. Concluding findings as to alleged violations of Section 8(a)(1)
1. Interrogation
No violation of the Act occurs merely by asking an employee if he joined a union
or to inquire as to what benefits he would derive from union membership. Willard
Bronze Company, 148 NLRB 1686. Nor does an employer transgress the Act
by asserting his position and imparting his attitude towards a union to his employees.
Aluminum Extrusions, Inc., 148 NLRB 1662. But when an employer's inquiries
are intended to elicit information about union activity, or they convey threats of
reprisal or offers of benefits, they become coercive and, accordingly, contravene the
Act. Orkin Exterminating Company of South Florida, Inc., 136 NLRB 399; Johnnie's
Poultry Co., 146 NLRB 770.
Measured by the foregoing principles , I am of the opinion , and find , that the fol-
lowing inquiries are coercive and, therefore , contravene Section 8(a)(1) of the
Act:
(a) The inquiry of Treasurer Hryniewicz of employee Perkins in May whether
anyone approached Perkins to join, and whether Perkins desired to join, the Union.
This is coercive because it was communicated in a setting which mentioned rumors of
a union seeking to get in, that it was "silly," and that it "wouldn 't get in ." Although
Hryniewicz denied these statements , I credit Perkins because of (1) my observation
II do not credit Casey that Hryniewicz stated that union activity was probably one
of the reasons for McGranaghan ' s discharge , but I do credit the denial of Hrynlewicz.
"It is an unusual case in which the Board is confronted with an admission or direct and
uncontradicted evidence of discrimination upon the part of the employer " Goldblatt
Bros , Inc., 135 NLRB 153, 156.
R. & R. SCREEN ENGRAVING, INC. 1599
of the witnesses, (2) my appraisal of their demeanor on the stand, and (3) the prob-
ability that Hryniewicz would conform to a pattern, which I find, of ascertaining and
discouraging the entry of a labor organization into the plant .5
(b) The inquiry of Supervisor Wachta of employee Gear whether Gear knew any-
thing about or who was starting the Union, whether McGranaghan was starting the
Union, how Gear would vote, and whether Gear would report any union activity to
Wachta. Wachta has denied the statements attributed to him in this conversation,
other than his reference to his being a former union president and that a small plant
would be better off without a union.6 I am unable to accept his testimony on this
aspect of the case and, instead, credit Gear. I do so because of (1) my observation
of the witnesses, (2) my assessment of their demeanor on the stand, and (3) the
probability that Wachta would conform to a pattern, which I find, of obtaining
information concerning, and discouraging, the organization of the plant by a union.
(c) A few days before May 12 Supervisor Wachta asked employee Godek if Godek
heard anything about the Union being formed in the shop. I do not credit Wachta's
contrary testimony for the reasons expressed in connection with employee Gear's
testimony, supra. This inquiry is coercive because it seeks to ascertain information
concerning union activity.
(d) The questioning of employee Bessette by Supervisor Wally Wachta about a
week before May 12 as to whether Bessette knew anything about a union. This is
coercive because it is accompanied by a threat "to fire the one who is the head of
it." I do not credit Wachta's contrary testimony.
(e) The questioning of employee Kennedy about May 8 by Supervisor Wachta if
Kennedy could identify the person behind the union movement at the plant.
2. Threats of economic reprisals
(a) As narrated above, Supervisor Wachta told employee Gear that "this place
would be better off for you as a nonunion shop" and that a union could do no good
in a small shop. It is my opinion, and I find, that these remarks are not unlawful
because they are expressions of opinion protected both by the United States Constitu-
tion and Section 8(a) of the Act. Moreover, they contain no threat of reprisal or
promise of benefit. At most they connote or imply that the shop in general and Gear
in particular can do better without a union, but they do not infer that unionization of
the plant will necessarily defeat the advancement of Gear or the economic improve-
ment of other employees.
(b) Plant Manager Wachta's statement to employee Lemire on the Friday preced-
ing May 12 that if Lemire went for the Union Lemire would regret it later. I do not
credit Wachta's denial thereof for the reasons mentioned in connection with the
crediting of employee Gear's testimony above. This statement by Wachta is coercive
because it carries the reasonable inference that being prounion will cause Lemire to
suffer reprisals forbidden by the Act.
(c) On Thursday or Friday preceding May 12 Treasurer Hryniewicz told employee
Ringenach to stay away from the Union. I am of the opinion, and find, that this
statement is innocuous under the Act for it contains no threat of reprisal or promise
of benefit. Hence I find no unfair labor practice in this incident.
(d) A few days before May 12 Supervisor Wally Wachta told employee Godek
that Godek might lose his job if he joined the Union and that Wachta had a good idea
of who was behind the Union. I am unable to accept Wachta's denial thereof for
the reasons mentioned above in evaluating employee Gear's testimony. This state-
ment is coercive because couched therein is the assurance that joining the Union
entailed loss of a job. It is of no consequence that this assurance is textually modified
by the word "might" for I construe, and find, "might" to be more than an opinion but
rather that it constitutes a definite prediction of what will ensue upon joining the
Union.
(e) About May 9 employee Jacobs overheard Treasurer Hryniewicz tell President
Lewis, "I'm going to put pressure on them for trying to bring a Union in here ... to
eliminate the votes." I do not credit the conflicting testimony of these two supervisors
on this issue. This is so because of (1) the demeanor of the witnesses on the stand and
my reaction to their demeanor, (2) the admission by Respondent's witnesses that the
5 Hryniewicz mentioned to employee Mosher that the Union had filed a petition for an
election. This does not offend the Act He also asked Supervisor Wachta if Wachta
knew anything about union activity in the plant Since Wachta is a supervisor, this
inquiry is not proscribed by the Act
6 This reference to another union and the comment that a small plant does not need a
union are not forbidden by the Act, and I so find See Section 8(c).
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
word "union" was used (although explained as relating to a coupling, which explana-
tion I do not accept), (3) the unlikelihood of talking in detail on the floor of the shop
about the design of a new machine which was not even in the plant, and (4) the
probability that Hryniewicz desired to apprise Lewis (who had just returned to the
plant after an absence of several days and who had just been told of the Union's RC
petition) of the steps taken to combat unionization of the shop, since Hryniewicz was,
and I so find, anxious to defeat such unionization.
3. Dissuading striking employees from continuing their strike
Preliminarily it is worthy to observe that it is not an unfair labor practice for an
employer to express an opinion against unions or to make known a dislike for union
activity. Conroe Creosoting Company, 149 NLRB 1174. Otherwise Section
8(c) of the Act would be devitalized. Union Carbide Corp. v. N.L.R.B., 310 F. 2d
844, 845 (C.A. 6). Cf. N.L.R.B. v. Audio Industries, Inc., 313 F. 2d 858 (C.A. 7).
Nevertheless the Board has held that expressions of hostility towards labor organiza-
tions may be used in assessing the totality of an employer's conduct. But cf. N.L.R B.
v. Beaver Valley Canning Company, 332 F. 2d 429, 432 (C.A. 8). I have been
guided by the foregoing principles in making findings of fact in this subsection.
(a)' About May 13 Supervisor Wally Wachta mentioned to picketing employee
Ringenach that Ringenach was foolish to be on strike for it meant going without pay.
This is a statement shielded by Section 8(c) of the Act, and I so find. But Wachta
also told Ringenach that the pickets would lose their jobs if they stayed out too long,
and that they would be welcomed back and protected by the Company. This latter
statement is coercive because it comprises a threat of discharge for picketing. Regard-
less of whether the strikers were engaged in an economic or an unfair labor practice
strike the Act protects them against a discharge for striking. This is far different
from replacing an economic striker. Hence the threat to discharge a striker solely for
striking or picketing is coercive and transcends the Act. I do not credit Wachta's con-
trary evidence for the reasons set forth above. I recognize that an employer may
with impunity restate a lawful proposition (Schick, Incorporated, 118 NLRB 1160,
1162-1163), and that it is lawful permanently to replace economic strikers. (N.L.R.B.
v. Mackay Radio & Telegraph Co, 304 U.S. 333, 345-346.) Nevertheless, it is patent
that employees may not be discharged for engaging in an economic strike. N.L.R.B.
v. Mackay Radio, supra, at 346. I construe Wachta's statement as a threat to dis-
charge and not a prediction that permanent replacements will be hired to displace the
strikers, and I find
(b) On the Friday following May 12 Supervisor Wally Wachta told employee
Jacobs not to follow "guys like" McGranahgan for "he will lead you astray" and
"the Union doesn't stand a chance." I find that neither statement is coercive. See
Section 8(c) of the Act. American International Aluminum Corp., 149 NLRB
1205, is distinguishable.
(c) About 3 or 4 days after May 12 President Lewis told picketing employee
Godek that Lewis thought that Godek could use his head, that Lewis did not think
that Godek would be "like that," and that the picketers looked like a "bunch of
monkeys." None of these remarks contains any threat of reprisal or promise of
benefit, and I so find. Accordingly, I further find that these statements are sanctioned
by Section 8(c) and do not violate Section 8(a) (1) of the Act.
(d) About May 14 Supervisor Wally Wachta spoke to picketing employee Perkins,
as narrated above, during which Wachta stated the office door was always open,
that it was silly to hang around with "these hoodlums," and that Perkins should not
be led around by "these punks." There is nothing in this conversation which unlaw-
fully encourages or instigates employees to abandon their strike and to return to work.
Further, I find nothing coercive in these statements, but, rather, treat them as expres-
sions of free speech falling within the area protected by Section 8(c) of the Act.
Nevertheless, it is desirable to point out that to brand strikers and union representa-
tives as "punks" and "hoodlums" is censurable conduct which I do not condone or
endorse. Such language is not conducive to amicable labor relations. I do not
credit Wachta's denials for the reasons set forth above.
About May 14 Supervisor Wally Wachta told picketing employee Gear (1) the
same thing Wachta told employee Perkins in the preceding paragraph, (2) that
Wachta was surprised to see Gear on the picket line, and (3) that the Union could
not benefit Gear because Gear, as a welder, would receive the same wages as other
employees "with a Union in." As to (1), I have found that the statement to Perkins is
unobjectionable under the Act. Hence no violation of the Act is disclosed by its
repetition to Gear. As to (2), no element of reprisal or promise of benefit lurks in
R. & R. SCREEN ENGRAVING, INC. 1601
Wachta's surprise, so that no violation of the Act can be discerned therein. As to
(3), no violation of the Act is shown because Wachta is merely expressing an opinion
that the Union will bargain for uniform wages as to each classification of employees.
Nothing in this remark suggests that Respondent would deny merit increases or
otherwise withhold benefits negotiated by the Union. Accordingly, I find no violation
of the Act in any of the remarks of Wachta to Perkins.
4. Denial of pay raises for discriminatory reasons
The General Counsel's evidence regarding this aspect of the case is recited above.
I accept it and, to the extent that Respondent's evidence is inconsistent with it, I do
not credit the same. Hence I find that employees McGranaghan and Bessette were
denied raises because of the advent of the Union. I further find that such conduct
violates Section 8 (a) (1) of the Act. This conclusion is not weakened by the further
fact, which I find, that Wachta explained that he was holding up the raise because the
Union would get it anyway if it "came in." The vice of the statement lies in its
coercive effect in discouraging adherence to the Union, for a delay in granting raises
just before an election impedes and interferes with a Union's organizing effort when
such action is governed by antiunion motives. Cf. Bata Shoe Company, Inc., 116
NLRB 1239, 1241; United Screw & Bolt Corporation, 91 NLRB 916, 919; Great
Atlantic and Pacific Company, 101 NLRB 1118, 1121.
F. Concluding findings as to the discharge of Robert McGranaghan
In ascertaining whether an employee has been discharged for union activity, a few
applicable landmarks may be here mentioned. They have been set out in the next
paragraph. I have been guided by these governing principles in determining whether
McGranaghan was discharged for cause or for discriminatory reasons banned by
Section 8 (a) (3) of the Act.
Patently the burden of proving a violation of the Act rests upon the General
Counsel. Rubin Bros. Footwear, Inc., 99 NLRB 610, 611. And in sustaining his
burden of proof the General Counsel must do more than convince the trier of facts
that the defenses asserted have not been established. This is so because rejection of
a defense, without more, does not amount to affirmative evidence of the claim alleged
as a cause of action. Guinan v. Famous Players Corp., 167 N.E. 235, 243 (Mass.);
N.L.R B. v. Audio Industries, Inc., 313 F. 2d 858, 863 (C.A. 7); N.L.R.B. v. Murray
Ohio Manufacturing Co., 326 F. 2d 509, 513 (C.A. 6). Further, it is almost axio-
matic that being a union member or sympathizer neither insulates an employee against
discharge for cause under Section 10(c) of the Act nor guarantees retention of
employment. N.L.R.B v. Birmingham Publishing Company, 265 F. 2d 2, 8-9 (C.A.
5). On the other hand, "the mere existence of valid grounds for a discharge [for
cause] is no defense to a charge that the discharge was unlawful...." N.L.R B. v.
Symons Manufacturing Co., 328 F. 2d 835, 837 (C.A. 7). Finally, although it is not
unlawful to dislike unions or to say so (N.L.R.B. v. Threads, Inc., 308 F. 2d 1 (C.A.
4), 51 LRRM 2074, 2080-2081), expressions of hostility to unions may be considered
along with other evidence in determining whether the reason given for terminating an
employee is the true reason or whether it is a pretext to cloak a discharge for union
activity or membership.
A critical analysis of the entire record convinces me, and I find, that McGranaghan
was discharged for cause and not because he was a union member or engaged in union
activity; i.e., he was discharged on May 12 for failing to fulfill his promise to report
to work on May It. This ultimate conclusion is based upon the whole record and
the following factors which I make as subsidiary findings:
(a) Supervisor Wachta testified that McGranaghan was discharged for failing to
report for work on May 11 as promised in his call from Auburn on May It. I credit
Wachta on this aspect of the case, and, to the extent that the General Counsel's evi-
dence is not consonant therewith, I do not credit such evidence. It follows, and I find,
that McGranaghan was discharged for cause. N.L.R B. v. Prince Macaroni Manu-
facturing Co., 329 F. 2d 803, 809 (C.A. 1). It is of no consequence that Respondent
would not have fired McGranaghan solely for this dereliction of duty, or that not a
single one of the other faults of McGranaghan, discussed below, in itself was thought
by Wachta to be sufficient to warrant a discharge, for I credit Wachta that the May 11
incident climaxed an accumulation of offenses by McGranaghan. Even if I were
7 "Iris union activity did not confer immunity from discipline." Metals Engineering Cor-
poration, 148 NLRB 88, 90.
783-133-66-vol. 151-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to disagree that this accumulation of infractions justified a discharge , I would still be
required to find that McGranaghan was terminated for cause . For "whatever .. .
we might think of the wisdom or the `business judgment' of discharging an employee
... [who has] proven himself satisfactory , nonetheless we must respect the right of a
company to make just such a decision ." N.L R.B. v. United Paicel Service , Inc., 317
F. 2d 912, 914 ( C.A. 1). See Thurston Motor Lines , Inc., 149 NLRB 1368. Nor
is it fatal to Respondent 's case that McGranaghan was discharged after his 30-day
probationary period ( I do not credit Respondent 's evidence that this period was 90
days ) expired. Fulfillment of conditions attached to probation is not a guarantee
against discharge for cause.
In this connection I find, contrary to the contention of Respondent , that Respondent
had knowledge of McGranaghan 's union activity prior to the time of his discharge.
This finding is based not only upon evidence of the General Counsel, which I credit
in this respect , but also upon the small-plant rule. Since Respondent employs 20 or
21 persons in the production and maintenance unit, I am of the opinion , and find, that
the small-plant rule is operative on the record before me. Under this rule it is reason-
able to infer company knowledge of union activity in a small plant. Angwell Curtain
Company, Inc. v. N.L.R .B., 192 F. 2d 899 , 903 (C.A. 7 ). In my opinion N.L.R.B. v.
Falls City Creamery Company, 207 F. 2d 820 ( C.A. 8), does not announce a different
principle of law.
(b) In finding that McGranaghan 's discharge culminated an accumulation of
breaches of plant discipline , I do not rely upon the window incident involving the
superintendent of the building . Not only did Plant Manager Wachta testify that this
occurrence did not enter into his decision to terminate McGranaghan , but I find that
McGranaghan did nothing worthy of being reprimanded by his employer . Not only
does the record fail to show that McGranaghan was in any way connected with the
unnailing of the windows , but I also credit McGranaghan that he was not discourteous
or impolite to the building superintendent.
(c) In appraising the other shortcomings which Plant Manager Wachta mentioned
he relied on in dismissing McGranaghan , I have not sought to determine whether
McGranaghan did or did not actually engage in misconduct where the evidence is in
dispute. (For example , no dispute exists that McGranaghan affixed the "scab" tape
on employee Jacobs and that Supervisor Hryniewicz disapproved of this. ) For the
question is not whether Respondent was warranted in discharging McGranaghan
therefor-an issue more properly to be resolved by an arbitrator-but, rather , whether
Respondent believed that McGranaghan engaged in the acts attributed to him and
whether such belief led to his discharge . N.L.R.B. v. Prince Macaroni Manufacturing
Co., 329 F. 2d 803, 809 (C.A. 1). No contrary result is compelled by N.L.R.B. v.
Burnup and Sims, Inc., 379 U S. 21.
Actually, McGranaghan testified that nearly all these incidents did occur, but
sought to justify or explain them. In this respect the case is stronger for Respondent
than the Prince Marcaroni case, supra , where much of the alleged conduct was in
dispute. Since the acts did occur, Respondent was justified in discharging McGrana-
ghan therefor , even though one might question the wisdom of firing an employee
whose alleged shortcomings may be thought to be insubstantial. N.L R.B. v. United
Parcel Service , Inc., 317 F. 2d 912, 914 (C.A. 1). It follows that such acts need not
be enumerated here since they are set out elsewhere above, and that I need not
examine the evidence to determine the question of whether McGranaghan's explana-
tions of his conduct are meritorious . But I do find that Respondent reasonably
believed that McGranaghan engaged in the incidents described above and that his
discharge was prompted by such reasonable belief, as mentioned above.
(d) Vigorously stressing unusual faultfinding by management in the 2 or 3 weeks
preceding May 12, the General Counsel strenuously contends that such conduct points
to employer hostility contemporaneous with the advent of the Union and seeks to
trace this hostility to the discharge of McGranaghan . But I find that the increased
faultfinding resulted from a "raft of complaints" from customers and not from a
desire to discourage employees from becoming interested in or harassing those adher-
ing to the Union . I further find that the occurrence of this augmented supervision of
work contemporaneously with McGranaghan 's union activity was merely a temporal
correspondence and that the credible evidence fails to disclose a conscious timing to
have it coincide with the union movement . Hence I find no causal connection
between this enlarged supervision or faultfinding and the discharge of McGranaghan.
It follows that McGranaghan 's discharge did not violate Section 8(a)(3) or (1),
and I so find. In this connection I have not disregarded the union animus of Respond-
ent but I find that such animus is not casually related to the discharge of McGrana-
ghan . Cf. Majestic Weaving Co., Inc., 147 NLRB 859. In other words, it is not
enough to show that an employer opposes unions ; it must additionally be shown that
such dislike is proximately linked with the unfair labor practice sought to be proved.
R. & R. SCREEN ENGRAVING, INC. 1603
N.L R.B. v. The Citizen-News Company, 134 F. 2d 970, 974 (C.A. 9); Lasko Metal
Products, Inc., 148 NLRB 976. "An employer's conduct is not unlawful, how-
ever, merely because it results in the termination of the employment of a union
member." Pioneer Photo Engraving, Inc., 142 NLRB 1099, 1101.
G. Concluding findings as to the strike of May 12
The General Counsel contends that the strike of May 12 is an unfair labor prac-
tice strike. He has the burden of proving this On the other hand, Respondent con-
tends that this strike embodies a jurisdictional dispute between the Charging Party
and the Textile Workers Union, so that the strike has not been inspired by any
action of Respondent . The burden of proving this is on Respondent.
Initially, I find that the strike is not pursuant to a jurisdictional dispute. While there
is evidence in the record that an officer of the Textile Workers joined the picket line at
times and that the Textile Workers made a demand on Respondent regarding vaca-
tions, there is also credible evidence from both Casey of the Charging Party and
Sullivan of the Textile Workers Union that no conflict exists over jurisdiction. More-
over, I expressly find that Sullivan joined the picket line to further the Charging
Party's strike , and that only the Charging Party on and since May 12 has been on
strike.
Further, I find that the strike of May 12 was begotten solely by the discharge of
McGranaghan and not by any other alleged grievances. While it is true that some
employees testified that they struck for additional reasons, as outlined elsewhere
above, it is equally true that: (1) The vote taken on May 12 by the employees was
solely to protest the discharge of McGranaghan ; (2) some employees testified that
only such discharge prompted them to strike; (3) those who testified that additional
reasons led them to strike were vague and indefinite as to those reasons; and (4) Casey
mentioned only the discharge of McGranaghan when he threatened Hryniewicz with
a strike on May 12.
It remains to decide whether the strike to remonstrate the discharge of McGrana-
ghan is an unfair labor practice strike. Since I have already found that McGranaghan
was not illegally terminated , it follows, and I find, that the strike is not an unfair labor
practice strike . I further find that it is an economic strike and that striking employees
may not be discharged or threatened with discharge for striking or picketing to pro-
test the dismissal of McGranaghan.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices, as 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
It having been found that Respondent has engaged in certain unfair labor practices
prohibited by Section 8 (a)( I) of the Act, it will be recommended that it cease and
desist therefrom and that it take specific affirmative action, as set forth below, designed
to effectuate the policies of the Act. While such violations do not go to the "heart
of the Act," as in N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4), they
nevertheless are not sporadic or isolated. In addition, I find that it may reasonably
be anticipated that such conduct is likely to recur. Accordingly, I find that an order
restraining similar conduct in the future is warranted on the record before me.
Upon the basis of the foregoing findings of fact and of the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. New England Joint Board, Retail, Wholesale & Department Store Union, AFL-
CIO, is a labor organization within the meaning of Sections 2(5) and 8(a) of the Act.
2. Respondent is an employer engaged in commerce as defined in Section 2(6) and
(7) of the Act.
3. By (a ) coercively interrogating its employees concerning their and other employ-
ees' union membership , activities, and sympathies , (b) threatening its employees with
reprisals if New England Joint Board , Retail Wholesale & Department Store Union,
AFL-CIO, or any other labor organization , succeeds in becoming their exclusive
collective -bargaining representative under the Act, (c) attempting to dissuade its
employees from continuing their strike , (d) withholding pay raises because of union
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity , and (e ) offering inducements to discourage adherence to or activity for the
Union, Respondent has engaged in unfair labor practices within the contemplation
of Section 8 (a) (1) of the Act.
4. Said unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not committed any other unfair labor practices alleged in the
complaint.
[Recommended Order omitted from publication.]
Shopper's Fair 1 (Superior Sales, Inc.) and Retail Clerks Union,
Local 483, AFL-CIO, affiliated with Retail Clerks Interna-
tional Association , AFL-CIO . Case No. 17-CA-4470. April 13,
1965
DECISION AND ORDER
On January 28, 1965, Trial Examiner Stanley Gilbert issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended dismissal as to them. Thereafter, Respondent filed excep-
tions to the Decision, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and brief, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
s As corrected at the hearing.
2 In the absence of exceptions thereto , we adopt pro forma the Trial Examiner's
recommended dismissal of certain of the allegations of unfair labor practices under
Section 8 (a) (1) of the Act.
In adopting the Trial Examiner 's finding that Respondent violated Section 8 ( a) (5) of
the Act, we find it unnecessary to, and therefore do not, decide whether we would con-
clude as he did, that even without the Section 8(a) (1) and ( 3) violations , Respondent
violated Section 8(a)(5) of the Act. Rather , we find only that, in the totality of cir-
cumstances in this case, including the background of our finding of Section 8(a)(1)
and (3 ) violations , Respondent has violated Section 8 ( a)(5) of the Act.
151 NLRB No. 155.