Senco Manufacturing Corp.

National Labor Relations Board - Board Decisions

Apr 15, 1963

141 N.L.R.B. 1306 (N.L.R.B. 1963)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Senco Manufacturing Corp . and United Electrical , Radio &
Machine Workers of America (UE). Case No. 1-CA-3874.
_4p»ril 15, 1963
DECISION AND ORDER
On January 7, 1963, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the attached Inter-
mediate Report. Thereafter the General Counsel filed a brief in
support of the intermediate Report and the Respondent filed excep-
tions to the Intermediate Report together with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, 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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings,' conclusions, and recommenda-
tions 2 of the Trial Examiner.3
i We agree with the Trial Examiner, for the reasons set forth in the Intermediate Re-
port, that Respondent ' s failure and refusal to recall Baptiste was discriminatorily moti-
vated and thus violated Section ( 8) (a) (3) and (1) of the Act Reserve Supply Corpora-
tion of LI, Inc., 140 NLRB 330; cf. Fred Snow, Harold Snow and Tom Snow d/b/a
Snow & Sons, 134 NLRB 709, 711, enfd. 308 F. 2d 687 (CA. 9). The fact that many of
the available jobs may have been considered temporary is immaterial . It appears that
after Baptiste ' s layoff 14 temporary and 13 permanent employees were hired in jobs which
Baptiste could have performed and, thus, that Respondent could have utilized her services
virtually , if not actually , at all times , until a permanent opening occurred on the hori-
zontal shaping machine. Yet, rather than recall an experienced employee whom it de-
scribed as a good and fast worker, Respondent gambled on inexperienced personnel hired
"off the street ." Nor does Respondent 's failure to recall Maria Moitoso ( referred to in
the Intermediate Report as Mary Mataeoso and in other portions of the record by this
and other misspellings ) affect our conclusion . In addition to the reasons set forth by the
Trial Examiner , we note that it was not shown that Moitoso could have performed the
other available work But even if she could , Respondent' s need for employees was suffi-
ciently large and urgent to have provided work for both Moitoso and Baptiste . Further,
we agree with the Trial Examiner that Lopes' transfer to the horizontal shaping machine
on July 10 was temporary and was not for her benefit. We therefore conclude that, in
fact , this job was open at least on July 18, when Lopes was told she would be taken off
that job when Respondent got some new help. Even assuming that Moitoso had greater
seniority and was entitled to first recall to operate the horizonal shaping machine, Re-
spondent ' s failure to offer her work, for what we must assume were valid reasons, cannot
excuse its refusal to recall Baptiste for unlawful reasons. We believe it unreasonable to
apply a seniority policy so inflexibly as to require that a senior laid -off employee must
under all circumstances be returned to work, despite the existence of valid reasons for not
doing so, before the next senior employee can be offered reinstatement
Member Leedom , in agreeing that Respondent had knowledge of Baptiste 's union activity,
does not, however , rely on her solicitation of O'Connor while the latter was a rank -and-file
employee Member Leedom is further of the opinion that Halbach 's statements to Ferreira
and Lopes, which referred to the possible closing of the plant in the event of a strike, were
141 NLRB No. 118.
SENCO MANUFACTURING CORP. 1307
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the modifications noted below.'
no more than permissible predictions. Accordingly, he does not agree that such state-
ments violated Section 8(a) (1) and does not adopt the provisions of the Order relating
thereto
2 Member Leedom, for the reasons set forth in his dissenting opinion in Isis Plumbing
& Heating Co., 138 NLRB 716, would not require the payment of interest on the backpay
award provided for herein.
3 The Trial Examiner Inadvertently found that on June 27, 1962, Baptiste accepted the
job on the vertical shaping machine rather than the horizontal shaping machine. While
we correct this inadvertency, It in no way affects the Trial Examiner's ultimate findings
and conclusions or our concurrence therein.
4 The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature line at the bottom of the notice
NOTE -We will notify the above-named employee, If presently serving in the Armed
Forces of the United States, of her right to full reinstatement upon application in
accordance with the Selective Service Act, and the Universal Military Training and
Service Act of 1948, its amended , after discharge from the Armed Forces
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a chaige duly filed on July 19 , 1962 , the General Counsel of the National
Labor Relations Board for the Regional Director for the First Region ( Boston,
Massachusetts ), issued a complaint on August 31, 1962, against Senco Manufactur-
ing Corp , herein called the Respondent , alleging that it had engaged in certain un-
fair labor practices affecting commerce within the meaning of Section 8 ( a)(1) and
(3) of the National Labor Relations Act, as amended , 61 Stat 136 , herein called the
Act The Respondent 's answer denies the allegations of unlawful conduct alleged
in the complaint
Pursuant to notice , a hearing was held in Taunton , Massachusetts , on October
10, 11 , and 12, 1962 , before Trial Examiner John P . von Rohr. All parties were
represented by counsel and were afforded opportunity to adduce evidence, to ex-
amine and cross-examine witnesses , and to file briefs. Due to the late receipt of
the transcript , time for filing briefs was extended to December 10, 1962. Briefs
were filed by the General Counsel and the Respondent and they have been care-
fully considered.'
Upon the entire record in this case , and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Senco Manufacturing Corp. is a Massachusetts corporation with its principal
plant and place of business located in East Taunton, Massachusetts, where it is
engaged in the manufacture, sale, and distribution of combs and related products.
The Respondent annually ships products manfactured by it valued in excess of
$50,000 from its East Taunton, Massachusetts plant, directly to points and places
located outside the State of Massachusetts.
The Respondent concedes, and I find, that it is and has been engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act
11 THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of Ameiica (UE), herein referred
to as the Union, is a labor organization within the meaning of Section 2(5) of
the Act.
' The following correction is hereby made of the transcript: "Ernest W iiallbach ' in
corrected to read, "Ernest W. Halbach "
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Background; interference, restraint, and coercion
Respondent Senco Manufacturing Corp., a manufacturer of combs, employs ap-
proximately 75 production employees. A relatively new company, it commenced
full scale operations in the early months of 1962, although a few employees were
hired in latter 1961. Ernest W. Halbach, vice president in charge of plant opera-
tions, has had practically lifelong experience in the manufacture of combs. An
immigrant to this country in his earlier years, Halbach was responsible for many
improvements and innovations of machinery which the Company now uses?
The Charging Union began an organizing campaign among Respondent's em-
ployees in about the middle of May 1962. It can be stated at the outset that Hal-
bach was opposed to the unionization of his employees by the United Electrical.
Radio and Machine Workers Union. This was inherent throughout his testimony
and can be regarded as an undisputed fact. Overt manifestation of this attitude is
reflected in the evidence, to which we now turn, pertaining to the allegations in the
complaint that the Respondent, principally through Halbach, engaged in various
violations of Section 8(a)(1) during the course of the Union's organizational
campaign.
Except for minor variances, there is little dispute between the testimony of em-
ployee witnesses and the testimony of Halbach concerning an incident which oc-
curred on July 18. During the earlier part of this day Halbach came into possession
of a notice announcing a union meeting to be held that evening. Shortly after the
evening shift reported to work, at about 6 p.m , Halbach took it upon himself to
ascertain whether any employees on this shift planned to attend Contrary to the
usual situation in these cases where the employer's purpose is to discourage attend-
ance at union organizational meetings, Halbach was insistent that at least one of
the employees on the night shift attend the meeting to represent this group. After
questioning several employees and ascertaining that they did not plan to attend this
meeting, he finally broached employee Augusta Arruda. Arruda, whose testimony
I here credit, said that when Halbach asked her to attend the meeting as representa-
tive of the night shift she responded that she was not interested and that she did not
want "to become involved in it." However, according to Arruda, Halbach persisted
to such an extent that she finally agreed to go even though she did not wish to do so.
Since she did not have her car at the plant, Halbach said he would drive her to the
downtown area where the meeting was to be held. This he did, dropping her off
at the "green" in the center of town.3 It is undisputed that before leaving her out
of the car Halbach told Arruda that he did not want to be told what occurred at the
meeting or who was present.
Arruda returned to the plant later that evening and ultimately was paid for the
time she spent at the meeting. It was Arruda's further testimony that on the next
day Halbach , sked her if she "made a good representative at the meeting" and that
he also asked whether any cards had been passed around I do not doubt but that
Halbach may have made a remark concerning her being a good representative, but
I do not credit her testimony, which Halbach emphatically denied, that he asked
her about the distribution of cards at this meeting 4
Concerning all of the foregoing, the complaint alleges that "Ei nest Halbach re-
quested employees to engage in surveillance of other employees' union activities and
to report such activities to Respondent." I shall dismiss this allegation insofar as
surveillance is alleged for I am convinced that Halbach's conduct in this matter
was not motivated by an intention to spy upon this meeting. I am pursuaded, as
Halbach's testimony reveals, that his real purpose in insisting that a night-shift em-
ployee attend this meeting was because he felt that observation of such meeting
would have the adverse effect of turning the employees against the Union. Halbach's
judgment in this respect may be open to question, but this is not material to the
2 Prior to his association with the Respondent, Halbach was an otiicer of the Bolta Com-
pany, a division of General Rubber and Tire, for 22 years Most of the equipment used
by the Respondent was purchased from the Bolta Company. It does not appear, however,
that any Bolta employees were brought into the Respondent's operations.
3It is clear that Halbach did not take her to the address where the meeting was to be
held
4 While I do not accept all of Halbach's testimony, it Is specifically credited here. As
to the above finding, I have also given some consideration to the fact that Arruda's testi-
mony in this respeect is inconsistent with a written statement which she gave to Halbach
subsequent to the filing of the charges herein. Thus, in that statement Arruda stated,
"At no time [after the meeting] had he [Halbach] or have I touched upon 'the subject of
the union meeting that night."
SENCO MANUFACTURING CORP. 1309
issue at hand. However, whether viewed in the light of the employees' right to
engage in union activities or to refrain from engaging in union activities, I find that
Halbach's conduct in pressuring Arruda to attend the union meeting, his escorting
her and furnishing her with transportation to a place convenient to the meeting,
and his paying her for the time so spent, clearly intringed upon the rights guaranteed
employees under Section 7 of the Act. Accordingly, I find that by such conduct
Respondent violated Section 8(a) (1) of the Act .5
A representation election was scheduled to be held at Respondent's plant on Sep-
tember 5, 1962.6 Evidence was taken concerning two incidents which occurred sev-
eral days prior to the election but subsequent to the Respondent's posting of the Board
election notices. The first involved a conversation between Halbach and employee
Antonio Ferreira in a small maintenance office just off the production area. It ap-
pears that foreman Bachta was also present, although he did not speak. Halbach
testified that he spoke to Ferreira as follows: "Hugo, I just want to let you know one
thing. We are not against unions. We are not against the unions. We are not
against any respectable union at all, but we're against this Union because of its
communistic background. If the Union should come in we will have a strike, and if
we have a strike the . company for sure won't pay you, and don't ever tell me
we didn't let you know in advance that as a result of this you can imagine, of course,
that the operations will not continue in the plant." Halbach added that he also
told Ferreira that the Company wanted all the employees to vote in the election.
Ferreira, who is of Portuguese origin and who had some difficulty with English, testi-
fied that during this conversation Halbach also asked him if he had signed a union
card. Halbach flatly denied that he asked any such question of Ferreira and I am
convinced that he was telling the truth. His denial is therefore credited. However,
even accepting Halbach's testimony, as I do, I find that Halbach's talk to Ferreira
exceeded the bounds of free speech. Thus, to positively state that "if the union
comes in we will have a strike" followed by a statement that in such event the plant
would not continue operations is in the opinion of the Trial Examiner more than a
"prediction" or a "legal opinion." Considering this together with the private atmos-
phere in which the conversation occurred, not to mention the fact that employee
Ferreira was not native to the English language, I find that Halbach's remarks were
tantamount to an implied, if not a real threat of retaliation against employees if the
Union came in. Accordingly, I find that Respondent thereby violated Section
8 (a)( 1 ) of the Act.
A conversation of similar content occurred between Halbach and employee Claire
Lopes, this also prior to the scheduled election. Having previously urged Lopes to
attend a union meeting, Halbach on this occasion again broached the subject of the
Union. Lopes demurred, saying that she "didn't want to get mixed up in it." Hal-
bach, however, pressed the matter and told Lopes that the Union was "a bunch of
phonies and they're a communistic union and they just want you They tell you they
want you to go to the meetings, but actually they don't want you at these meetings.
But you can judge for yourself. Now, when you went to these meetings, how many
people were there?" Lopes responded by saying that six or seven employees had
attended, but at this point stated, "I prefer not really to go into it and keep talking
about it because it gets me nervous and puts me on the spot . I come here to
work and that's what I want to do." During this conversation, which was a lengthy
one, Halbach stated also that "if and when this Union could get in that the place
would probably close down and we'd be on strike," and that "I told my employees
not to come crying to me for pity because I would have not have pity for them then
because they asked for it." 'r
Halbach's statement that the "plant would probably close if the union came in"
and that he "would not have pity upon the employees because they asked for it" un-
questionably has coercive implications and is violative of Section 8(a) (1) of the Act.
Similarly violative under these circumstances was his questioning of Lopes as to the
number of employees who had attended the union meeting.
B. The discrimination against Adeline Baptiste
Adeline Baptiste was hired by the Respondent on December 12, 1962, and ranked
second in plant seniority among all Respondent's female employees. Until the last
3 days of her employment she worked as a packer in the packing department. As
s Southern Coach h Body Co, Inc, 135 NLRB 1240.
'The election was rescheduled to September 13 and later was postponed indefinitely
7 Halbach did not deny the above conversation, except that in response to his counsel's
question he made a general denial of ever having questioned Lopes about her union
activities. I credit the more detailed version given by Lopes as set forth above.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noted more fully below, Baptiste was transferred from packing to a job on the
horizontal shaping machine on June 28, 1962. She was laid off from this job on
July 5 and since has not been recalled to work. . The General Counsel alleges that
the Respondent violated Section 8 (a) (1) and (3) of the Act in both the layoff and
the failure or refusal to recall this employee back to work.
The record reflects that in the spring of 1962 Baptiste was initially responsible in
contacting the Union for organizational purposes and that she personally was the
most active employee in signing up other employees for union representation. Her
leadership in the Union became unquestionably manifest to the Respondent when
she sat next to the Union representative at counsel table during a Board representa-
tion hearing held on June 6. Halbach was present at this hearing 8
In about the middle of June, Patricia O'Connor, who worked with Baptiste in the
packing department, was promoted as supervisor of the packing and stamping de-
partment. This department was made up of all female employees It happened that
on June 26 O'Connor had occasion to correct Baptiste by pointing out that she was
using the wrong covers on certain material which she was then packing.9 Baptiste
responded by uttering a vulgarity to O'Connor.i9 The next morning Baptiste re-
ported to work and found some loose combs cluttering up her workbench According
to the credited testimony of O'Connor, Baptiste thereupon came up to her and said,
"What's this? What's this? Clean up this bench so I can go to work." O'Connor
said that she responded by telling Baptiste that she was her supervisor and that she
was "not to holler" at her. At this point, according to O'Connor, Baptiste challenged
her authority by asking her what her title was and if she had the authority to hire and
fire. O'Connor thereupon stated that she would see August Vanmuyden, the plant
manager.1i
The upshot of the above was that O'Connor that morning reported the incident
to Vanmuyden and also to Halbach. She did not, however, relate to them the vul-
garity which Baptiste had made against her on the preceding day. Upon being so
apprised, Halbach conferred with Vanmuyden and Ted Bachta, the latter supervisor
of department A, and a decision was made to transfer Baptiste out of O'Connor's
department.
According to Halbach, it was decided that Baptiste would be eligible for two
jobs, one on the horizontal shaping machine in department A, the other in leather
wheelmaking in department B. Vanmuyden testified that on the same day, June
27, he spoke to Baptiste and told her it would be necessary that she be transferred
to another department because she could not get along with her supervisor. At this
time, according to Vanmuyden, he offered her the choice of the two jobs mentioned
above.12 Baptiste accepted the job on the vertical shaping machine which paid
slightly more than wheelmaking.
Because Baptiste was upset over the matter she was permitted to go home for
the remainder of that day. She started work on her new job the next day, June 28,
under the supervision of Bachta. On the following day, which was a Friday, Bachta
requested Baptiste to take her vacation beginning on the following Monday, telling
her that many of the employees were out on vacation and there would not be suffi-
cient work in her department. Baptiste assented to Bachta's proposal, although
she originally was scheduled to take her vacation beginning the third week in July.13
8 Baptiste solicited and obtained the signature of Patricia O'Connor to a union authoriza-
tion card in about the middle of May Although O'Connor was a rank-and-file employee
at the time, she was made a supervisor prior to the alleged disciimination herein Re-
spondent is thus chargeable with further knowledge of Baptiste's union activities
9 The credited testimony of O'Connor.
11 Under cross-examination Baptiste at first denied using a vulgarity to O'Connor When
pressed, however, she finally conceded that "I guess I did say that " O'Connor's affirma-
tive testimony to this effect is credited and Baptiste's extreme reluctancy to be frank in
admitting something she may have thought to be adverse to her case is an adverse reflec-
tion upon her credibihrv However, the findings hereinafter made are independent of her
testimony.
li Baptiste conceded that she had words with O'Connor on this occasion and also con-
ceded that she was aware of O'Connor's supervisory status at the time On direct exami-
nation Baptiste largely skipped over the incident discussed above She did not rebut the
version of O'Connor which I have credited.
2 Baptiste testified that she could not recall having been offered the job of leather
wheelmaking I credit Vanmuyden's testimony that on this occasion he offered her the
choice of two jobs.
18 Respondent permitted employees to submit slips indicating their preference for vaca-
tion time Vacation schedules were worked out from these slips, the employees being
accommodated as much as feasibly possible
SENCO MANUFACTURING CORP. 1311
Mary Mataeoso, the only other employee who worked on horizontal shaping, was
told to take her vacation at the same time.
On July 5, while these employees were on vacation, Respondent sent identical tele-
grams to Baptiste and Mataeoso, signed by Vanmuyden, which simply stated. "Do
not report for work until further notice " Neither Baptiste nor Mataeoso has been
recalled.
Certain conclusionary findings are in order at this point. Starting with Baptiste's
transfer out of the packing department, it is apparent that Respondent was justified
in making this move in view of Baptiste's attitude and conduct toward her supervisor,
Patricia O'Connor. Moreover, I find that the evidence is insufficient to sustain the
General Counsel' s allegation that Baptiste's layoff on July 5 was of a discriminatory
nature. Thus, Halbach testified, and there is no evidence to the contrary, that
there was insufficient work to keep Baptiste and Mataeoso busy on the horizontal
shaping machines at this particular time. Halbach accounted for this lack of work
by pointing to the fact that the employees who performed operations on the combs
before they were ready for the horizontal machines were on vacation. I accept his
testimony that at least to this temporary extent the flow of work in Baptiste's depart-
ment had ceased and that the layoff of Baptiste and Mataeoso was justified at this
time.14 The General Counsel argues, however, that at the time Baptiste was trans-
ferred to horizontal shaping the Respondent had all the facts and reasonably should
have foreseen that within 2 days there would be insufficient work to keep these
machines busy. Accordingly, continues the General Counsel, by transferring Baptiste
to this department, Respondent in effect deliberately planned the opportunity to rid
itself of Baptiste. This argument, however, ignores the fact, as found above, the
Respondent had good grounds for transferring Baptiste out of O'Connor's jurisdic-
tion. Further, it will be recalled that Baptiste was offered two jobs and it was her
decision to select the one of horizontal shaping. In addition, one might assume that
if the Respondent intended to discriminate against Baptiste at this time, it would have
had better cause to do so immediately upon the occasion of Baptiste's insubordina-
ion against O'Connor.
In view of the foregoing, and to sum up this portion of the case, I find the General
Counsel has not established that Baptiste's layoff on July 5 was in violation of
Section 8(a)(1) and (3) of the Act. Accordingly, it is found that this allegation
of the complaint has not been sustained.
While I have found the evidence insufficient to establish discrimination as to
Baptiste's layoff, I reach a contrary conclusion with respect to the allegation that
discrimination occurred when Respondent refused to recall her to its employ. I
reach this conclusion by reason of the patently unbelievable reasons assigned by
the Respondent for its failure to recall this employee, particularly when viewed against
the background of its hostility to the organizational efforts of the Charging Union and
its knowledge that Baptiste was largely or primarily responsible for these organiza-
tional activities
Looking first at the situation with respect to the horizontal shaping machines
subsequent to the layoff on July 6, the evidence establishes that at least one of the
machines began operating on a permanent basis again on July 16. This job was
filled by employee Claire Lopes. Lopes was the oldest girl in Respondent's employ
in terms of plant semority. She had worked on various jobs, including the work of
"breaking" combs, inspecting, cutting, vertical shaping and, finally, horizontal shaping.
Lopes returned from her vacation on July 16 and started work on the vertical shaping
machine, which was the job she held at this time. Lopes testified that Foreman
Bachta came up to her that morning and advised that she was being put on the
horizontal shaping machine because it would be a "better job" for her. According
to Lopes, whose testimony is credited, Bachta at this time also mentioned that Baptiste
was off the job but that she would be called back "as soon as production picked up "
Therefore, Lopes testified, "I just took it for granted that it was just for awhile that he
was going to put me on that [horizontal shaping]."
14 The Respondent operates a day shift and a night shift At the time of the layoff
there were two horizontal machines on the day shift, these being operated by Mataeoso
and Baptiste. Two such machines also were in operation on the night shift. This latter
operation continued at the time of the July 5 layoff Halbach testified that the day shift
was laid off rather than the night shift because the two employees on the latter shift,
Theresa Amoral and Elaine Cloutier, had as the Respondent's records show, greater de-
partmental seniority . Since these employees had in fact worked longer on the horizontal
shaping machines than either Baptiste or Mataeoso, I find that Respondent was not un-
warranted in laying off the day shift employees rather than the night shift.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Halbach testified that Lopes was transferred to horizontal shaping because she
had complained to him several times that the job of vertical shaping was too difficult
and that she was having trouble with her hands.
In considering Respondent's explanation for Lopes' transfer to horizontal shaping,
we pause to mention the fact that Respondent's seniority policy, according to
Halbach, was governed by departmental seniority. Since vertical and horizontal
shaping are both within department A, under Bachta's supervision, it cannot be said,
at least, that the reactivated horizontal shaping job was filled on July 16 by an
employee outside of department A. But the circumstances surrounding Lopes'
transfer, particularly as they bear upon Respondent's true motives, are not as simple
as this In the first place. while Lopes conceded that vertical shaping caused some
difficulty to her hands,15 it does not appear that she complained about this problem
in any immediate proximity to the time of her transfer on July 16. In this connection
it is significant to note that Lopes began her vacation on June 28, this being the same
day when Baptiste started work on the horizontal shaping machine. If Respondent
was so desirous of accommodating Lopes, certainly it had ample opportunity to do so
prior to the latter date. Moreover, Lopes' testimony indicates that the job of hori-
zontal shaping in fact caused considerably more difficulty to her hands than did
vertical shaping. Thus, she testified without contradiction, "So I worked Monday,
Tuesday, and Wednesday [her first three days on horizontal shaping], and that's
when my hands got so bad that I couldn't do anything I couldn't even hold a comb,
so I didn't come in on Thursday and Friday " Lopes testified that when she com-
plained to Bachta about the difficulty she was having on this job, Bachta told her,
"See if you can stick it out for awhile, because I'm expecting to get some new
help, and when I do, I will take you off the job " Under all of the circumstances,
including the situation with respect to new hires which is discussed below, I am
persuaded that Respondent was motivated in transferring Lopes to Baptiste's job
with the knowledge that it could thereby eliminate Baptiste, the most active union ad-
herent, from its employ.is
Twenty-seven (27) female employees were hired by the Respondent since the
layoff of Baptiste on July 5, 1962. This number includes 14 temporary employees
who worked in varying periods from I day to 6 weeks 17 The majority of the 13
permanent employees were hired for the job of cutting. This work involves the
operation of semiautomatic cutting machines and each girl is responsible for 8 to 12
machines Halbach described this operation as follows: "She puts the comb in one
machine, starts the machine, walks to the next, starts the machine, and, as we call
it, it is a round robin By the time she comes back the first comb is finished, and
she continues and keeps those machines going " While Halbach stressed that a certain
amount of skill is needed to become a first rate cutter, the fact is that the new
employees hired in this position were hired "off the street" with no experience in
this work whatsoever. Whatever training was needed was received while on the job 18
As to Respondent's reason for not employing Baptiste on the cutting job, Halbach
testified as follows: "Because past experience from many years had shown that you
need a certain type of girl with stamina because of being on their feet all day, and
top efficiency cannot be obtained by girls unless they have a qualification to hold out
on such a job, not every girl can We didn't consider Baptiste the type of girl who
would, or could, hold down the job " With due regard to Halbach's experience in
this field, I find it impossible to accept his explanation to the latter effect Although
Baptiste was not asked to give her age, Halbach reasonably described her as being
in her early thirties. From my observation of her as a witness. she gave every appear-
ance as being a physically robust and healthy individual Other than Halbach's
conclusionary testimony, there is absolutely no evidence to indicate that Baptiste
lacked whatever "stamina" this job required. To the contrary, she was described by
Halbach as being "a good worker and a fast worker " Furthermore, it should be
borne in mind that Baptiste was one of the first girls in Respondent's employ, ranking
second only to Claire Lopes in plant seniority 19 That Respondent gave some weight
to plant seniority is manifest from Halbach's testimony in which he specifically
15 Lopes also had trouble with her hands while engaged in the job of cutting, which was
the position she occupied prior to vertical shaping
16I recognize that Mataeoso also was not recalled to the position in question My com-
ment in this regard is noted later in this report
17 Most of these jobs were held by high school girls Although temporary in duration,
they consisted of full 8 -hour days.
1s It took Lopes about 3 weeks to learn the job of cutting. Without belaboring Halbach's
testimony on the subject I have no doubt but that proficiency increased with experience
10 Hallbach's testimony
SENCO MANUFACTURING CORP. 1313
referred to Lopes' top plant seniority as accounting, at least in part, for her taking
Baptiste's place on the horizontal shaping machines. But as to Baptiste, it is indeed
more than suspicious that Respondent completely ignored her seniority standing at
the plant, while at the same time taking the gamble of hiring new girls "off the
street." In view of all these factors, I am convinced and I find that Respondent's
hiring of new and inexperienced girls for the cutting jobs rather than to offer such
position to Baptiste to be clear indication of discriminatory motivation 20
Another example of a new and inexperienced girl who was hired subsequent to
Baptiste's layoff is Mary Cabral.21 On direct examination Halbach testified that
Cabral was hired on a "temporary basis for kind of an emergency situation" but
specifically for the job of vertical shaping. More illuminating is his testimony on
cross-examination. Thus, after conceding that he knew nothing about Cabral's
background prior to her employment, his testimony is as follows:
Q. What job was this Mary Cabral put on?
A I believe it was a combination of breaking and shaping.
Q. Now, this breaking job, is that the job you referred to as taking from one
to two days to break in on?
A. The breaking job can be handled within a short notice, a day or two.
Q. Is that a job which Mrs. Baptiste could have picked up in a day or two?
A. I suppose so.
Although Halbach later testified that the breaking job "eventually" would go to
a male employee, suffice it to note that this job was performed by female employees
and there is no evidence that this practice was changed as of the time of the hearing.
Moreover, Cabral is still in Respondent's employ.
Another new employee to be hired after Baptiste's layoff was Louise Rose. Classi-
fied as a jag shaper, she was hired on August 20 to operate a particular type of shap-
ing machine. From the record, it is apparent that she had no previous experience
for this job. Halbach's only explanation for not offering the job to Baptiste was
that the work was "fairly dangerous" and that eventually this job would be assigned
to a male employee. As in the case of Cabral, Rose is still in Respondent's employ.
Halbach's explanation as aforesaid is most unconvincing. It is, therefore rejected.
To recapitulate, it is apparent that not only did numerous jobs become available
subsequent to the layoff of Baptiste, but it is an established fact that Respondent filled
each of these openings with new employees who had no previous experience in the
respective jobs for which they were hired 22 In the face of these extensive new hires
it is indeed hard to reconcile Baptiste's continued status as a laid-off employee.23
As we have seen, Respondent's explanations for failing to recall this employee,
one of the first to be hired when it commenced operations and one who admittedly
was a "good worker" and a "fast worker," simply do not stand up under scrutiny.
On the other hand, Reespondent was strongly opposed to the organization of its em-
ployees by the Charging Union and it was acutely aware that Baptiste was one of the
Union's leading proponents. I am convinced from the entire record and I find that
Respondent's true motivation in failing and refusing to recall Baptiste to its employ
was because she engaged in union activities and supported the Union. Accordingly,
I find that the Respondent thereby engaged in an unfair labor practice within the
meaning of Section 8(a) (1) and (3) of the Act. The fact that employee Mataeoso
also was not recalled to work does not militate against a finding that Baptiste was
discriminated against Thus, I note that Mataeoso had very little seniority, having
worked for the Respondent for only about 1 month (May 22 to June 28) prior to
her layoff But whatever the situation with respect to Mataeoso, I do not regard it
as determinative of the issue concerning Baptiste.24
20 See Reserve Supply Co? poration of L I., Inc, 140 NLRB 330
Cabral was hired on September 25, 1962, and remains in Respondent's employ
22 This is except for the transfer of Lopes to vertical shaping.
23 There is no history as to any effected recall policy at Respondent's plant, there being
no evidence as to other employees having been laid off in the past. However, the layoff
telegram to Baptiste clearly indicated that she would be recalled "upon further notice "
In any event, Respondent does not contend that her layoff was a permanent one or that
she would be required to file a new application if she wished to return to work.
211 have also considered the fact, which is in Respondent's favor, that it did not dis-
charge Baptiste at the time of the O'Connor incident. However, I am persuaded that this
factor is insufficient to overcome the prima facie case which the General Counsel has
established in support of the violation herein found. As is not infrequent in cases of this
natuoe, it is apparent that the Respondent here took a second look at the situation when
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above occurring in connec-
tion with the operations of Respondent as described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and, such of them as have been found to constitute unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and 8(a)(3) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act
It will be recommended that Respondent offer employee Adeline Baptiste im-
mediate and full reinstatement to her former or substantially equivalent position,
without prejudice to her seniority and other rights and privileges, and make her
whole for any loss of earnings she may have suffered by reason of the discrimina-
tion against her, by payment to her of a sum of money equal to that which she
would have earned as wages from the date of the discrimination against her to the
date of offer of reinstatement, and in a manner consistent with Board policy set
forth in F. W. Woolworth Co., 90 NLRB 289, with interest as provided in Isis Plumb-
ing & Heating Co., 138 NLRB 716. The date of the discrimination against Baptiste,
which is the date on which she normally would have been recalled to work, shall
be determined at the compliance stage of this proceeding 25 It will also be recom-
mended that Respondent preserve and make available to the Board, upon request,
payroll and other records to facilitate the computation of backpay.
In view of the nature of the unfair labor practices herein found, it is further
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Electrical, Radio & Machine Workers of America (UE), is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Adeline
Baptiste, thereby discouraging membership in the Union, the Respondent has en-
gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, Respondent has engaged in,
and is engaging in, unfair labor practices within the meaning of Section 8(a)(1)
of the Act
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, I recommend that Senco Manufacturing Corp.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union activities.
(b) Inducing its employees to attend union meetings or furnishing transportation
therefor.
(c) Stating that its plant will or might close if the employees selected union
representation.
the opportunity arose. Whatever the Respondent's motivation on June 27, I am convinced,
as I have found, the Respondent' s failure to take Baptiste back In its employ was based
upon discriminatory considerations.
21 Provided, however, that Respondent shall not be required to recall Baptiste to any
position under the supervision of Patricia O'Connor. Further, job openings under O'Connor
shall not be considered in determining the date of discrimination.
SENCO MANUFACTURING CORP. 1315
(d) Discouraging membership in United Electrical, Radio & Machine Workers
of America (UE), or in any other labor organization of its employees, by re-
fusing to reinstate employees or by discriminating in any other manner in re-
gard to hire or tenure of employment, or any term or condition thereof.
(e) In any manner interfering with, restraining, or coercing employees in the
exercise of the right to self-organization, to form, join or assist the above-named
or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action which the Trial Examiner finds will ef-
fectuate the policies of the Act:
(a) Offer to Adeline Baptiste immediate, full and unconditional reinstatement
to her previous, or substantially equivalent position without prejudice to her seniority
or other rights and privileges, and make her whole for any loss of earnings she
may have suffered as a result of the discrimination against her, in the manner
set forth herein in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
inspection and copying, all payroll records, social security records, timecards, per-
sonnel records and reports, and all other records necessary or appropiate in com-
puting the amount of backpay due as herein provided.
(c) Post at its plant in East Taunton, Massachusetts, copies of the attached
notice marked "Appendix A." 26 Copies of said notice to be furnished by the
Regional Director for the First Region of the Board (Boston, Massachusetts),
shall after being signed by an authorized representative of Respondent, be posted
by it immediately upon receipt thereof and be maintained by it for a period of
60 consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the aforesaid Regional Director, in writing, within 20 days from
the date of this Intermediate Report and Recommended Order what steps Respondent
has taken to comply herewith.27
29 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "A Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order "
2z If this Recommended Order is adopted by the Board, this provision shall be modified
to read* "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify you that:
WE WILL NOT interrogate our employees concerning their union activities.
WE WILL NOT state that our plant will or might close if our employees select
union representation.
WE WILL NOT induce our employees to attend union meetings nor will we
furnish them with transportation thereto.
WE WILL NOT discourage membership in United Electrical Radio & Ma-
chine Workers of America (UE), or in any other labor organization of our
employees, by failing to reinstate employees, or by discriminating in any other
manner in regard to hire or tenure of employment, or any term or condition
thereof.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form, join, or assist
the above-named labor organization, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Adeline Baptiste immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her seniority
or other rights and privileges and make her whole for any loss of pay suffered
as a result of the discrimination against her.
All our employees are free to become or remain , or refrain from becoming or
remaining , members of the above-named or any other labor organization.
SENCO MANUFACTURING CORP.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing and must not be altered , defaced, or covered by any other material.
Employees may communicate with the Board 's Regional Office, Boston Five
Cents Savings Bank Building , 24 School Street , Boston 8 , Massachusetts , Telephone
No. Lafayette 3-8100 , if they have any questions concerning this notice or com-
pliance with its provisions.
Atkinson Dredging Company and International Union of Oper-
ating Engineers , Local Union 25, Marine Division , AFL-CIO.
Case No. 5-CA-2254. April 15, 1963
DECISION AND ORDER
On February 8, 1963, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above -entitled proceeding , finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report . Thereafter , the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to a three-
member panel [ Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings macle 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 Inter-
mediate Report , the Respondent 's exceptions and brief, and the entire
record in this case, and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in the present case was issued against the Respondent , Atkinson
Dredging Company, on the basis of charges filed by International Union of Operat-
141 NLRB No. 117.