Tabulating Card Co., Inc.

National Labor Relations Board - Board Decisions

Mar 6, 1959

123 N.L.R.B. 62 (N.L.R.B. 1959)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign does not, in and of itself , interfere with the conduct of an election.'
In view of the foregoing , I conclude that this objection is without merit and
recommend that it be overruled by the Board.
Objection No. 2-Instructing Employees To Wear Union Buttons on the Job
If, in fact , the union business representative instructed the employees to wear
their union buttons on the job, this would be permissible under Section 8(c) of
the Act as would the actual wearing of such buttons by employees on the job .2
Accordingly , I find Objection No. 2 to be lacking in merit and recommend that
it be overruled by the Board.
Objection No. 3-Employees Told by the Business Representative of the Union That
They Would Belong and Work Under the Millmen's Rather Than the Petitioning
Union
Regardless of what employees may have been told, the question on the ballot was,
"Do you wish to be represented for purposes of collective bargaining by Carpenters
Local 426, United Brotherhood of Carpenters and Joiners of America, AFL-CIO,"
and any certification which may issue from this proceeding will be in the name
of the Petitioner as shown on the ballot. Having found no merit to this objection,
it is accordingly recommended that this objection be overruled by the Board.
Objections Nos. 4 and 5 are repetitive and raised no issues not dealt with under
Objections Nos. 1, 2, and 3, above.
Considering the objections in whole , or in part , the Acting Regional Director
finds them to be lacking in merit for the reasons given . Accordingly, it is recom-
mended that the Board issue a certification based on the tally of ballots served
upon the parties at the time of the election.
i Otis Elevator Company, 114 NLRB 1490. The Gruen Watch Company etc., 108 NLRB
610, 612; J. J. Newberry Company, 100 NLRB 84 , 86-87; A. R. F. Products , Inc., 118
NLRB 1456.
2 Section 8 (c) of the Act is as follows : "The expressing of any views , argument, or
opinion, or the dissemination thereof, whether in written , printed, graphic , or visual
form, shall not constitute or be evidence of an unfair labor practice under any of the
provisions of this Act , if such expression contains no threat of reprisal or force or
promise of benefit."
Tabulating Card Company, Incorporated and Hudson-Bergen
Counties, Printing Pressmen and Assistants Union , Local 183,
International Printing Pressmen and Assistants Union of
North America and Canada. Case No. 02-CA-82. March 6,
1959
DECISION AND ORDER
On August 27, 1958, Trial Examiner Reeves R. Hilton 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
copy of the Intermediate Report attached hereto. 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 Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
123 NLRB No. 13.
TABULATING CARD COMPANY, INCORPORATED 63
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report and the entire record in this case, including
the exceptions and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Upon the entire record and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent Tabulating Card
Company, Incorporated, North Bergen, New Jersey, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of
Hudson-Bergen Counties, Printing Pressmen and Assistants Union,
Local 183, International Printing Pressmen and Assistants Union
of North America and Canada, or in any other labor organization,
by discharging employees or in any other manner discriminating
against its employees in regard to their hire or tenure employment,
except as authorized in Section 8 (a) (3) of the Act.
(b) Interrogating its employees concerning their membership,
affiliation, or sympathy with the above-named or any other union
in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Hudson-Bergen Counties,
Printing Pressmen and Assistants Union of North America and
Canada, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from engaging in
such activities, except to the extent that such right might be affected
by an agreement requiring membership in a labor organization as
authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer James Adair, Louis Valentino, John Maio, and Charles
Gallagher immediate and full reinstatement to their former or
substantially equivalent positions and make each of them whole
for any loss of pay suffered as a result of the discrimination against
them, as provided in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and make available to the Board or its agents
upon request, for examination and copying, all payroll records,
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
social-security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amounts of
back pay due and the rights of employment under the terms of
this Order.
(c) Post at its plant in North Bergen, New Jersey, copies of
the notice attached to the Intermediate Report marked "Appen-
dix." I Copies of said notice, to be furnished by the Regional
Director for the Twenty-second Region, shall, after being duly
signed by the Respondent or its representatives, be posted by the
Respondent immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Twenty-second Region
in writing, within ,10 days from the date of this Order, as to
what steps the Respondent has taken to comply herewith.
1 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Hudson-Bergen Counties, Printing Pressmen and As-
sistants Union, Local 183, International Printing Pressmen and Assistants Union
of North America and Canada. herein called the Union, the General Counsel
of the National Labor Relations Board, through the Regional Director for the
Twenty-Second Region (Newark, New Jersey), issued a complaint, dated April
30, 1958, against Tabulating Card Company, Incorporated, herein called the
Respondent or the Company, alleging that it had engaged in and was engaging in
unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. The
Respondent in its answer admits certain allegations of the complaint but denies
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before the duly designated Trial Ex-
aminer at Newark, New Jersey, on June 23 and 24, 1958. The parties were
represented by counsel and were afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument, and to file briefs. Thereafter, on
August 5, 1958, counsel for the Respondent filed a brief, which I have considered
fully.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
On the basis of the pleadings I find that the Respondent, a New York corpora-
tion,) maintains its principal office in Princeton, New Jersey, and plants at North
Bergen and Camden, New Jersey, respectively, where it is engaged in the manu-
facture of tabulating cards. During the 12-month period prior to the issuance
I Without objection, I granted the General Counsel's motion to amend the complaint to
allege that the Respondent was incorporated under the laws of the State of New York
rather than the laws of the State of New Jersey.
TABULATING CARD COMPANY, INCORPORATED 65
of the complaint the Respondent manufactured and sold finished products valued
in excess of $1,000,000, of which more than $1,000,000, was shipped from its
plants to places outside the State of New Jersey. The Respondent admits, and
I find, that it is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
The complaint alleges that about October 26, 1957, the Company at its North
Bergen plant discharged James Adair, Louis Valentino, John Maio, and Charles
Gallagher, and refused to reinstate them, because of their membership in and/or
activities on behalf of the Union, and about October 25, it unlawfully questioned
its employees concerning their membership in and activities on behalf of the Union.
The Respondent denies these allegations and affirmatively asserts these employees
were discharged because of the installation of a new machine which resulted in the
elimination of four employees. The Respondent further asserts that in October
1957, there was not sufficient work to justify the retention of the existing number
of employees and as the volume of work increased new employees were hired.
At all times material the following individuals held the Company title appearing
opposite his name:
Clement V. Conole, president
Ernest S. Richard, vice president
William Speers, Jr., assistant to president
John Donovan, plant manager
The Company, according to Conole, was organized from "scratch," with new
employees and commenced manufacturing operations at the North Bergen plant
about February 1, 1957.2
B. Organizational activities; interrogation of employees by the plant manager
Gallagher testified he discussed organization with some of the employees around
the end of July, but no steps were taken toward organizing at that time. In the
latter part of September, Gallagher talked to Maio regarding unionization and,
after contacting a member of the Union, they met with Edward J. Post, business
agent and secretary-treasurer, at his office in Jersey City, the evening of October 22.
Post explained the benefits of the Union, instructed them how to organize the
plant and gave them union application books to be signed by the employees. On
October 23, Gallagher solicited about 10 employees regarding the Union, explained
the benefits of organization, but none of them signed the book. The next day
he again contacted some of the employees and succeeded in signing up Neal
Monetti. On this day Donovan, as he was relieving Gallagher, remarked, "You
know, Charlie, . after the union is in, you will have to make your rate."
Gallagher answered, "Okay," and left.
Maio testified substantially the same as Gallagher in respect to their discussion
on the subject of organization and their meeting with Post. During the evening
of October 23, Maio solicited two employees at their homes one of whom, Philly
Avella, signed the union book. On October 24, Maio contacted employees at the
plant and secured the signatures of five men, Valentino, Adair, Bobby Simone,
Bobby Orth, and another worker whose name he could not recall. Early the
next morning Donovan called Maio to his office and stated, "There has been a
lot of talk about a union . . . and I think you are the ringleader." Maio asked,
" . what makes you say that" and when Donovan replied one of his "stooges"
had ,told him, Maio remarked, "You better watch him." Donovan also inquired
if Maio had signed up for the Union and he answered he had not. When Donovan
repeated his inquiry, Maio asked why he kept asking if he had signed up and
Donovan stated he believed he was the ringleader. Donovan then asked if Adair
and Valentino had anything to do with the Union and Maio replied he did not
know anything. The meeting then ended. Later that morning Maio's duties
required him to see Donovan in his office and, again, Donovan accused him of
2 Unless otherwise stated, the events referred to herein occurred at the North Bergen
plant during 1957.
508889-GO-vol. 123-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being the ringleader . Donovan pointed out that Richard had given him a job
and Maio said he appreciated that and added he had performed good work at the
plant. Donovan stated he had no complaint about his work and told Maio to go
back to his machine , which he did . The same afternoon Maio requested Dono-
van's permission to leave because he was not feeling well . Donovan granted his
request and remarked he still believed he was the ringleader of the Union.
Adair stated that on October 24, he and Valentino signed the union book at
Maio's request . The following day Donovan approached Adair while working in
the warehouse and said , "Well, Jim, I guess you signed for the union ." Adair
answered , "I have been a union man all my life. Yes , I signed."
Valentino testified he signed the book on October 24 at Maio 's solicitation.
On October 25, Valentino was bringing rolls from his machine to the floor and
Donovan told him, "You can put them in the racks , now. You are not in the
union yet." Later , Valentino went to Donovan's office to get some material and
Donovan asked him if he had signed for the Union . Valentino said he had not
signed up.
Monetti was first employed by the Company in March and at the time of
the hearing was working as a press operator . On October 24, Gallagher asked
him to sign the union book , which he did .3 Monetti worked the next day and
that evening Donovan telephoned him at his home and asked if he had signed
any papers for the Union . Monetti at first denied he had signed up but then
admitted he had done so. Donovan then asked who had the union papers and
he replied , "I ain't saying." Monetti, after reading his statement given to a
Board agent , testified that Donovan told him he had a list of names of those who
had signed for the Union and that his name was on it. Monetti recalled he
informed Adair of his conversation with Donovan the following Saturday or
Monday.
Donovan testified that during June he heard rumors of union activity at the
plant, which he reported to Conole and Speers , and Speers remarked he would
find that anywhere , "Just go along with it. That is all you can do." Speers
commented he had been through it before. When asked if he had ever been
told by top management that it was no concern of theirs and they did not care
whether the employees wanted or did not want a union , Donovan answered the
subject had never been discussed with him . Donovan further testified there
were rumors of organization among the employees , apparently about October 25,
for on that date he heard that Gallagher, Maio, Adair , Vallentine, and a few
others had signed up for the Union.4 Donovan stated that as plant manager he
considered it his duty to report these activities to Conole and he may have
done so during their telephone conversation of October 25 concerning the dis-
charge of the four employees.
Company counsel propounded a series of questions to Donovan covering the
specific acts of interrogation and statements as testified by the foregoing indi-
viduals and he categorically denied having engaged in any such acts of interroga-
tion or having uttered any such statements , except that Adair told him, about
2 weeks prior to his discharge , that he had been a unionman all his life.
C. The discharges
On Saturday morning, October 26, a nonworking day, Donovan admitted that
he telephoned Gallagher, Maio , Adair, and Valentino and advised each of them
"they were being laid off for lack of work and other factors ." Donovan and
Conole agreed that Donovan would use the quoted language in effectuating the
discharges.
In brief, the discriminatees admitted Donovan informed them they were being
terminated for these reasons. Maio further testified that when Donovan stated
he was being laid off he asked the reason therefor and Donovan said, "you
know we are slow." Maio replied he did not know things were slow and, after
pointing out he had a family and did not believe Donovan, inquired , "What could
3 Although Monetti said he could not find the exact date it is clear from his testimony
that he signed up on October 24. Likewise , Gallagher testified he signed up on that date.
4 At first Donovan denied the heard that Valentino had signed up, but after reading his
sworn statement , which he gave to a Board agent, dated February 28, 1958, he admitted
that Valentino 's name was mentioned to him. In his statement , which was received in
evidence , Donovan related that prior to the layoffs he heard, in addition to the dis-
criminatees , that Orth , Mohr , Avella, Grogan , and one other employee had signed for the
Union and Sudman had not done so.
TABULATING CARD COMPANY, INCORPORATED 67
this be about ? Could it be about yesterday ?" Donovan replied , "Well, you
know" and the conversation ended with Donovan telling Maio he could come
down for his check.
Post stated the four men came to his office on October 28 and reported they
had been discharged .• Post then called Donovan and complained the men had
been unlawfully discharged and requested their immediate reinstatement. Dono-
van said there was nothing he could do and suggested that he call Conole. Post
called Conole but was unable to reach him. The present charge was filed January
4, 1958.5
Donovan could not recall talking to Post around the above time.
1. Events preceding the discharges , the installation of new machinery
Donovan said that on October 25 the Company employed approximately 32
employees in all its operations which included shipping employees , slitter ma-
chine operators, pressmen or press operators , and office workers. Donovan further
stated that the operation of the slitter and the press required only ordinary
training and he considered these operations as unskilled jobs.
At the commencement of operations the Company had a Swift slitter machine
which , according to Adair , would cut a roll of paper about 26 inches wide by 36
inches thick into 8 smaller rolls to fit the presses and could operate at the rate
of about 400 feet per minute . Two men ran the slitter and it was operated on a
three-shift basis . Adair and Valentino , who were employed in February, were
the senior operators and worked the day shift ; Orth and Zarzynski were employed
on the second shift, and Maio and Sudman on the third shift. The third shift
was put on during June, when Maio was hired for that shift ( he was transferred
to day work in September ), and continued until about the first week in October
when it was eliminated by Donovan.
Conole related he was the whole Company for the first 4 months and in the
spring he became concerned with labor costs for the volume of work produced.
During this time Conole observed a different type slitting machine in operation,
known as a Kidder machine , which could be operated by one man and , in order
to cut down on labor costs , he instructed Speers to order one . Speers ordered
the machine about April and it was delivered at the plant around September 19.
The Kidder machine had roughly twice the capacity of the Swift slitter and was
capable to turning out 14 rolls of paper and operated at the rate of about 2,000
feet per minute.
During the summer Conole often discussed the subject of reduction -in-force with
Speers and instructed Speers to take up the matter with Richard and Donovan.
Conole also discussed the necessity of cutting the force with Donovan.
Speers said that commencing in June he frequently discussed reductions with
Conole and with Richard and Donovan . Speers stated that although the shipping
department was drastically overstaffed in June, he was unable to convince Richard
or Donovan to make any cuts at that time.
Richard said that during the months preceding delivery of the Kidder machine,
Conole, Speers , Donovan, and himself had frequent discussions with respect to
reducing the work force.
Donovan stated that at various times , beginning in June, Speers advised him
he had too many employees.
About September 6 the Company hired Raleigh C. Chandler , who had had
many years experience on the Kidder machine and presses , as its maintenance
man and to instruct employees in the operation of the Kidder slitter . Chandler
and Chapman , a representative of the Kidder manufacturer , installed the machine
and had it running in 3 or 4 days , or about September 23.
Richard said that after the installation of the Kidder machine he was under
considerable pressure to reduce the force by six or eight men. Likewise Speers
testified that reductions were discussed in this interval , he was talking in terms of
six or eight men, and about a week or 10 days prior to October 26, Donovan
agreed to lay off four employees , this number being acceptable to Speers . Speers
further instructed Donovan ( and perhaps Richard ) that in selecting the employees
to be laid off he should consider, (1) the job that the individual was doing
and (2 ) whether he was cooperating in all respects with management . Speers
did not discuss individual employees with Donovan.
5 On October 30 the Union filed a representation petition which resulted in a Board-
directed election being conducted, in a production and maintenance unit, on December 30.
The tally of ballots discloses that of approximately 30 eligible voters, 4 voted in favor of
the Union , 24 against , and 5 challenged ballots were cast.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donovan testified he received the foregoing instructions and selected the
employees to be laid off in accordance with those instructions. He further stated
that on October 25, he decided to lay off Gallagher, Maio, Adair, and Valentino
because, "We didn't have many orders and we had too many fellows around
there doing nothing." Donovan telephoned Conole about 4 o'clock that afternoon
to inform him of the layoff, giving him the names of individuals involved, and
Conole said it was up to him, he was in charge of the plant. The following day
Richard agreed with Donovan's action. Admittedly, Donovan did not advise
the four employees on October 25 that they were being laid off.
Conole testified the four men were discharged because the number of orders
fluctuated and when they dropped the Company cut back as quickly as possible.
He denied he had any knowledge of union activity at the plant when he talked
to Donovan on October 25 and said he first learned of such activity about
October 31 or November 1 when he received a letter from the Union requesting
a meeting. Conole admitted the discriminatees were replaced within 2 weeks
and that he told Richard and Donovan if they needed new workers they should
replace the dischargees with better qualified and more cooperative employees.
2. The evidence in respect to the discharges
Donovan asserted he discharged Gallagher because of absenteeism.
Gallagher was first employed about February 20 in the shipping department
and about April was transferred to the slitter machine. Later, around June
he became a pressman and was so employed at the time of his discharge. About
July or August, Gallagher was put on the night shift under Foreman Bucky
Kreutzer and in the latter part of August he was transferred back to the day
shift. Gallagher admitted that Richard and Donovan talked to him once about
absenteeism and that Donovan spoke to him on one occasion when he left his
work. Gallagher stated that he was sick one night when he reported for work
and when he could not find Kreutzer he told one of the pressmen he was sick
and going home. He also related that one day in September he worked until
noon when he went home and found his mother ill. He then telephoned
Donovan to state he would be late and Donovan told him to take his time.
Gallagher was not reprimanded for this incident and he made up the time lost
by working at night. Gallagher further testified that Donovan spoke to him on
one occasion about leaving his job without notifying anyone. When asked whether
he thus left work at a time when the slitter was broken and he had nothing to
do Gallagher answered, "There was nobody around I could tell." This incident
occurred while he was on the night shift and he denied he ever left the day
shift when the slitter was broken. Gallagher stated Kreutzer took him to
Richard and Donovan because he had been out 2 days and declared he did not
want Gallagher any more. Richard, according to Gallagher, said, "Charlie,
forget it, then. There's no hard feelings about the time you walked out."
Gallagher replied, "I know there's no hard feelings, because I didn't walk out, I
couldn't find nobody." Gallagher gave another version of this meeting in which
he said Richard asked what was the matter and he answered he could not work
with Kreutzer; that unless he was transferred to the day shift he was going to
quit. Richard said he did not want to lose him and that he would transfer
him to the day shift, which he did around the end of August. Gallagher
admitted he was absent from work 2 days during the week ending September 27
and he fixed the date of his meeting with Richard, Donovan, and Kreutzer as
subsequent to this absence, or around the latter part of September or early
October. Gallagher was also absent 2 days in the week ending September 14
when he was sick with the hives, and seemingly was off with permission of the
Company.
Donovan said Gallagher "was absent too often," but he failed to give approxi-
mate dates or the period of his absences, nor were any records produced showing
Gallagher's attendance at the plant. Donovan could not recall Gallagher's last
absence prior to his dismissal. However, after reading his statement, Donovan
conceded Gallagher worked 4 full weeks preceding his discharge. He further
admitted that at some unspecified time he told Gallagher if his attendance
improved he would be given a raise and that his attendance did improve and
he received the increase. In selecting Gallagher for dismissal Donovan did not
examine the attendance records of Gallagher or any other employees because
he knew these records and also knew that no other employee had been absent
TABULATING CARD COMPANY, INCORPORATED 69
as often as Gallagher.6 Donovan said that about July Gallagher walked off the
job on one occasion when he was working the day shift . He further stated that
Gallagher and Kreutzer had a dispute of some kind and Kreutzer requested
Donovan to discharge Gallagher for walking off the job without saying anything
to him. Donovan considered this act as grounds for discharge but he did not
dismiss him because Richards said to give Gallagher another chance and he agreed
to go along with Richard. Donovan admitted Gallagher was transferred to the
day shift as a result of this dispute. At first Donovan stated he did not
know when Gallagher went back on the day shift, that "when he walked off and
the trouble with Kreutzer-that goes back to March." Donovan concluded by
stating Gallagher was transferred to the day shift after or around July. Donovan,
after reading his statement , admitted two new pressmen , Barbenora and McHugh,
were hired on November 16 and 18, respectively.
Chandler testified that in the latter part of September Gallagher's machine
broke down around noon and that he completed repairs about 3:30 the same day.
Gallagher was not present throughout this time and when Chandler had finished
he asked Donovan where Gallagher was and Donovan said he had gone home
sick. Chandler said Gallagher was having difficulty running his machine which
indicated to him that he was not a qualified operator . Chandler did not know
whether Gallagher had had sufficient training in its operation and, apparently,
he was cool to Chandler 's offer to assist him. The Company , in Chandler's
opinion, also had other operators who were inefficient . Chandler did not at any
time discuss , or mention, Gallagher's qualifications as an operator with Richard
or Donovan.
Richard was not questioned concerning Gallagher 's discharge and Kreutzer did
not testify at the hearing.
Adair and Valentino were selected for discharge because, as stated by Donovan,
they were slow , did not listen to instructions on running the slitter from Richard
or Chandler , and there were complaints by Richard concerning their work.
Adair and Valentino were hired about February 11 and 7, respectively, as
slitter operators , the first operators to be employed , and worked continuously
on the day shift until they were discharged . Adair started at $1.50 per hour,
was increased to $1.75 in the latter part of May or early June, and in July
when a general raise was granted, went to $1.90 an hour . Valentino started
at $1.75 and was later increased to $1.90 per hour. Sometime after their employ-
ment four additional slitter operators were employed on other shifts.
After the installation of the Kidder machine Adair and Valentino were given
instructions by Chapman in the operation thereof since this machine was
substantially different from the old slitter. Chandler assisted Chapman in this
respect and Richard spoke to Adair and Valentino on occasions . When Chapman
left Adair and Valentino ran the machine according to their instructions from
Chapman, apparently without much assistance from Chandler who was busy
looking after six presses and the old slitter. Adair and Valentino were also
b In his sworn statement Donovan described Gallagher's work record as follows:
Week ending
Hours
worked by
hours worked by other em-
ployees (apparently all
Gallagher worked 40 hours, except
those indicated)
Aug. 16----------------------------------------------- 37 Peters and Lee, 371.
Aug. 23 ------------------------------------- 40 Possiel, 34.
Aug. 30----- -------------------------------
Sept . 6-----------------------------------------------
Vacation
40
Sept.14---------------------------------------------- 24 Muley,24.
Sept. 20------------------------------------------------- 4234
Pattoli (or Dattcli), 32.
Possiel, 34.
Sept. 27-------------------------------- ---- 24 Afluso, 2834.
Oct. 4 -------------------------------------------------- 40
Oct. 11 --------------------------- 40
Oct. 18----------------------------- ---- ---------- ------ 44
Oct. 25------------------------------------------------- 40
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directed by Richard to instruct the four slitters on the other shifts in the
operation of the new machine. This they did by having the men on the other
shifts report an hour earlier and Adair and Valentino remaining an extra hour
with them. Progress reports on these slitters were made Eby Adair and Valentino
to Richard and Donovan. During the experimental period of operations of the
Kidder machine, about 2 or 3 weeks, a large number of blades were broken
and paper rolls damaged. Adair said the paper damage was attributable to the
motor, which had to be replaced. Both Richard and Donovan complained about
broken blades. However, Adair stated the blades were broken on other shifts
and neither Richard nor Donovan complained of the manner in which they
were operating the slitter. Adair admitted that on one occasion he complained
to Donovan that he and Valentino did not need a watchdog, referring to
Chandler, to show them how to do the work. Adair explained that his remark
was prompted by the fact that the preceding day Chandler, after changing a blade,
was operating the machine and "run an end through the machine, causing it to,
vibrate more than it should," which was an improper operation of the machine.
Donovan made no mention of layoff to Adair or Valentino on October 25.
Valentino testified there were no complaints about his work or that he failed
to follow instructions in the operation of the machine. Valentino admitted he
and Adair may have damaged one or two blades but no complaints were made
by Richard, Donovan, or Chandler. In fact Valentino complained about blades
being broken by operators on the other shifts and stated that one morning when
they reported for their shift they found 14 damaged blades and were unable
to start work until Chandler replaced them. He further stated that the only
time any paper was damaged was in the early stages of operation when Chandler
was assisting in the operation of the machine. Valentino said that when the
Kidder machine was operating properly the Company did not require as many
operators and at some unstated date the operators on the third shift,, Maio, and
another man, were transferred to the-shipping department. No slitter operators
were laid off prior to October 26.
As appears above, Donovan selected Adair and Valentino for discharge because
they were slow, did not listen to instructions and there were complaints against
them on the part of Richard. Donovan said Richard complained about Adair and
Valentino over 10 times, the gist of his complaint being, "They wouldn't listen,
mostly, what he would say." Donovan could not give the approximate dates of
these complaints, nor fix the date of the last complaint before he discharged
Adair and Valentino, and while he talked to them, "not too much," he left the
matter to Richard. Donovan cited one instance when he was talking to Adair
and Valentino, he could not recall the topic of their conversation, and Adair
remarked, "get Chandler out of here. We don't need no watchdog." Donovan
admitted Adair and Valentino were the senior slitter operators and trained the
other operators, Orth, Zarzynski, Maio, and Sudman, in the operation of both
the old and the new slitters. Sometime in October the third shift was eliminated
and the operators on that shift were transferred to the shipping department.
Following the discharge of Adair and Valentino, Donovan transferred Orth and
Zarzynski to the day shift and Sudman and Pearson were put on the second
shift. Sudman had not operated the slitter machine from about October 1 to 28,
when he was then assigned to the second shift.
Richard said he had problems with Adair and Valentino regarding the operation
of the old slitter as far back as perhaps June or July. When the new slitter
was put in operation Adair and Valentino ignored his instructions, more or less,
damaged blades and did not seem to achieve the production capabilities of the
machine. Richard complained to Donovan along these lines about 10 times
and also asked Chandler why blades were being damaged. Chandler said it was
due to improper operation of the machine. Richard pointed out that on one
occasion when Adair and Valentino broke 15 blades his "general line of con-
versation" with them was to the effect that he would have to make changes if
they continued to break blades. On cross-examination Richard said the blades
were broken within 2 weeks after the machine was put into operation and when
asked if Chandler was supervising its operation at that time, Richard replied
both he and Chandler were present.
Chandler stated Adair and Valentino "resented" his instructions concerning
the operation of the machine, that "they didn't pay attention to what I told
them to do," and he reported their attitude to Richard on several occasions.
He further stated that one time Valentino "deliberately ... buggered" a complete
set of 15 blades, which caused Richard to comment, "Do you want to do it
TABULATING CARD COMPANY, INCORPORATED 71
like I ask or do I have to tell you to do it?" As a result the Company had to
order a set of blades from the manufacturer in New Hampshire . On cross-
examination Chandler testified he considered Adair and Valentino qualified to
instruct the slitters on the second shift in the operation of the Kidder machine
and they did so instruct the men. In order to do so, Adair and Valentino
remained at the plant an extra hour or the slitters reported an hour before the
start of their shift. He further stated that the 15 blades were broken around
September 25 or 30. Chandler denied they were having trouble with the
Kidder machine in its early operation , except for normal adjustments . At first
he denied there was anything wrong with the motor but later conceded the
motor was replaced after the foregoing incident . Chandler also complained
about the other operators damaging blades and admitted that when the machine
was first put into operation he damaged paper and broke four blades.
About 1 or 2 weeks after his discharge Valentino went to the plant and
requested Richard to reemploy him . Richard told him if he wanted to return
to work he would have to see Conole at Princeton and when Valentino said
he could not go there , Richard stated he would call Conole . The next day
Valentino telephoned Richard, who advised him Conole said there was no
work for him.
Richard testified substantially the same as Valentino . He stated that when
the plant commenced operations he did all the hiring but Donovan assumed that
duty when he became manager. While Richard had authority to hire if
necessary , he did not have the right to rehire Valentino. Richard did not take
up Valentino 's request with Donovan because he was not present "at the
moment," but discussed the subject with him later.
Donovan testified he would reemploy Valentino if it was agreeable with
Richard. He further stated he did not reemploy Valentino because he had
not asked him for a job and he was not certain whether Richard had ever dis-
cussed Valentino 's reemployment with him.
Donovan discharged Maio because he wanted to be a specialist , complained
about work assignments , although he performed the job, and was a "trouble-
maker." Donovan cited one instance , probably around October 23 when he
asked Maio to run the old slitter and Maio remarked he could not work in the
shipping department and also run the slitter . Donovan replied that it would
be impossible for him to perform both jobs at the same time . When asked if
Maio was discharged because there were too many men in the shipping depart-
ment, Donovan answered they were overstaffed in all places and Maio was
discharged for lack of orders and other factors . Donovan admitted, upon
refreshing his memory from his statement , that at least four new employees
were hired in the shipping department after Maio had been discharged.'
Maio testified he was hired about June 10 as a slitter operator on the midnight
shift, and worked that shift until around September when he was transferred to
day work, obviously in the shipping department . Apparently , Maio had some
words with Donovan on one or two occasions prior to his transfer but he was
not examined in any detail on this subject . Maio admitted that subsequent to
his being placed in the shipping department he had two discussions with Donovan
in this respect . About October 9 , Donovan told Maio to run the slitter and
he remarked Donovan had him unloading boxcars, operating the hi -lo lift
and now he wanted him to go on the slitter. Maio concluded by telling Donovan,
"you are knocking me out." However , he went on the machine and there were
no arguments when he was engaged in that operation . On the morning of
October 23 , Maio informed Donovan he did not feel well but Donovan asked
him to do a favor and unload two boxcars before noon, which he did. Clearly,
Maio was then assigned to operate the slitter for he stated that after unloading
the cars Donovan came to his machine and stated he had put him in for another
raise. In the course of his employment Maio received one wage increase about
the early part of September.
Donovan denied he recommended Maio for a raise at or about this time.
Maio experienced some difficulty in obtaining his unemployment compensation
(later he was paid in full) and about 2 weeks after his discharge he spoke to
Donovan at the plant . During the conversation Maio said he could not
understand why he had been discharged in view of his good work record and
Donovan, pointing to the names of Conole and Speers written on the wall,
' In his affidavit Donovan stated Miller was hired November 13; Allen on December 2;
Ziza, December 9, and Rossetelli on February 3, 1958.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated he was sorry. Maio also talked to Richard about his unemployment
compensation and in the course of this conversation mentioned his discharge,
to which Richard replied he would not have been discharged if he had been at
the plant.
Both Donovan and Richard denied making any such statements.
Concluding Findings
The General Counsel contends that the four employees were discharged by
reason of their membership in and activities on behalf of the Union and that
the Company unlawfully interrogated its employees concerning their union mem-
bership and activities. On the other hand the Company asserts that the employees
were discharged for economic reasons on a nondiscriminatory basis, denies the
allegation of unlawful interrogation and urges there is no evidence of any anti-
union feelings on the part of the Company.
The record discloses, and I find, that about June or July Gallagher and
some of the employees merely discussed unionization and that Donovan reported
rumors of organization to Conole and Speers, the latter telling him to go
along with it, that was all he could do. Later in September, Gallagher spoke
to Maio about unionization and on October 22, they met with Post who instructed
them on organizational methods and gave them union application books to be
signed by the employees. On October 23 and 24, Gallagher and Maio actively
solicited the employees at the plant to join the Union and succeeded in signing
up about seven workers. On October 24, Donovan remarked to Gallagher that
he would have to make his rating after the Union came into the plant. As
detailed above, Donovan, on October 25 repeatedly accused Maio of being the
ringleader of the union movement and inquired if he had signed up for the
Union. He further questioned Maio regarding the activities of Adair and
Valentino in the movement. The same day Donovan questioned Adair and
Valentino concerning their membership in the Union. That evening he telephoned
Monetti to inquire if he had joined and advised Monetti he had a list of those
who had signed up and that his name was on the list.
While Donovan conceded he had heard Gallagher, Maio, Adair, and Valentino,
and a few other employees, had signed up for the Union, he specifically denied
the interrogations and statements attributed to him by the above individuals and
Monetti. It is sufficient to state that I found the above witnesses for the General
Counsel to be reliable and their testimony convincing and consistent, and not
shaken on cross-examination. I therefore reject Donovan's seriatum denials and
find that he interrogated the employees and made statements in the manner and
under the circumstances described by them.
Since Donovan advised Conole and Speers of abortive organizational discussions
in June or July, and as he knew Gallagher, Maio, Adair, Valentino, and others
had become union members in October, it is reasonable to infer, and I so
find, that he informed Conole of their activities at that time. This is substantiated
by the fact that Donovan considered it his duty to advise Conole in matters of
this character and his testimony that he may have told him so in their conversation
regarding the discharges on October 25.
Following his telephone conversation with Conole and a meeting with Richard
on the morning of Saturday, October 26, in which they agreed to the discharge
of the four employees, Donovan telephoned Gallagher, Maio, Adair, and Valentino
at their homes and advised them they were being discharged.
From the foregoing evidence I have no difficulty in finding that the summary
discharge of these men simultaneously with their organizational efforts and
their interrogation by Donovan, which was clearly coercive under the circumstances,
was motivated by a desire on the part of the Company to eliminate the most
active proponents of the Union and to discourage the employees from becoming
members of the Union or participating in activities on its behalf. (N.L.R.B. v.
Homedale Tractor & Equipment Company, 211 F. 2d 309, 313 (C.A. 9), cert.
denied 348 U.S. 833; N.L.R.B. v. Norma Mining Corporation, et al., 206 F. 2d
38, 41 (C.A. 4); E. Anthony & Sons., Inc. v. N.L.R.B., 163 F. 2d 22, 26-27
(C.A.D.C.), cert. denied (332 U.S. 773). By thus discharging Gallagher, Maio,
Adair, and Valentino, the Company violated Section 8(a)(1) and (3) of the Act.
The Company's contention that business conditions prompted a reduction in
force and these four employees were selected on a nondiscriminatory basis is
not supported by the record. The testimony of company officials is to the
effect that as early as June frequent discussions were held with respect to
reducing the work force but no reductions were made until the discharges on
TABULATING CARD COMPANY, INCORPORATED 73
October 26. According to Speers the shipping department was greatly over-
staffed as far back as June but Richard and Donovan refused to reduce the
work force and it was not until a week or 10 days prior to October 26 that
Donovan agreed to any reductions. Even then Donovan did not go along with
Speers' position that six or eight men should be laid off but limited the number
to four, which was acceptable to Speers. Although Conole was concerned with
labor costs commencing in the spring, nevertheless reductions-in-force were not
effectuated until October. In contrast to the long delay involved before eventually
reducing the force, Conole in explaining the fast discharge and replacement of
the four men stated when business dropped off, "then we cut back as quickly as
possible."
The Company failed to produce any records, or summaries thereof, indicating
business conditions or the number of orders on hand for the period in question
and the only evidence on this point comes from Conole and Donovan who
simply stated the four men were discharged because of lack of orders and too
many employees on the payroll. While generally the nonproduction of material
evidence in a party's possession may raise an adverse inference,8 it is not
necessary to draw any such inference, for the affirmative evidence is too scant
and general to support a finding that poor business conditions necessitated a
reduction-in-force. But assuming the existence of economic grounds which would
have justified a layoff in October, I am convinced that in discharging the four
men the Company was motivated by illegal considerations rather than economic
reasons.
Speaking on this subject, the Court of Appeals for the Fourth Circuit in a
recent case, N.L.R.B. v. Jones Sausage Company, et at., 257 F. 2d 878, in sustain-
ing the Board's finding that the company had discriminatorily laid off certain
employees, stated:
Of course, if the lay-offs were for economic reasons, the employees may
not claim a preferred position by reason, of their interest in the union. Union
membership or activity does not insulate an employee against the hazards
of unemployment due to lack of work or any other reason related to the
legitimate management of business. [Cases cited.] On the other hand,
economic reasons may not be asserted to shield an employer against the
consequences of his discrimination against an employee who would not have
been laid off but for his union activities or membership. [Cases cited.]
The circumstances of each case must be weighed to determine what
motivations truly dominated the employer in laying off or discharging the
employee.
The reasons advanced by the Company for selecting Gallagher, Maio, Adair,
and Valentino for discharge are neither convincing nor persuasive. Equally
unconvincing is the contention that the decision to discharge four employees was
made 7 to 10 days before the actual date thereof, at which time there was no
organizational activity whatever at the plant. Company counsel points out the
delay was occasioned by the fact that it would require some time for Donovan
to make his selections on the basis of job performance and cooperativeness with
management. Oddly enough, although Donovan selected Gallagher for discharge
because of absenteeism, he admitted he did not examine any attendance records
for he knew Gallagher had been absent more than any other employee. Nor is
there any testimony that Donovan made use of any records in connection with the
other selections, or that he consulted with anyone except Conole and Richard.9
The Company, in my opinion, has offered no satisfactory explanation for the
above delay. In sharp contrast to its previous procrastination regarding layoffs'
-the Company acted swiftly when Gallagher, Maio, Adair, and Valentino com-
menced organizing and even required Richard to get "out of a sick bed" on the
morning of October 26 and come to the plant in order that the discharges might
be accomplished forthwith.
While the testimony of Gallagher and Donovan on the subject of attendance
BN.L.R.B. v. Divion Coil Company, Inc., 201 F. 2d 484, 486 (C.A. 2) ; N.L.R.B. v.
Wallick and Schwalm Company, 198 F. 2d 477, 483 (C.A. 3) ; Shovel Supply Company,
118 NLRB 235, 243, enfd., N.L.R.B. v. L. C. Ferguson and Von Seggern, d/b/a Shovel
Supply Company, 257 F. 2d 88 (C.A. 5).
1 In his brief counsel suggests Richard probably selected Adair and Valentino for dis-
charge. On cross-examination Richard was asked if he selected these individuals for dis-
charge and he answered, "I did not. He [Donovan] told me who he was going to lay off
and I agreed it was O.K. I did not select them personally."
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is rather fragmentary , I find that Donovan spoke to Gallagher one or two times
regarding his attendance during the course of his employment , that his attendance
improved and he received a wage increase . Since the Company did not produce
any records on this point there is no way of accurately comparing Gallagher's
attendance with that of other employees . Gallagher admitted he was sick at home
2 days in the week ending September 14 and missed 2 days in the week ending
September 27. Gallagher also conceded that Donovan spoke to him on one
occasion about leaving work without permission , but he denied the slitter was
broken at the time. Donovan testified this incident occurred in July. It is
undisputed that Gallagher and Kreutzer had some difficulty about Gallagher
leaving his shift without permission or being absent 2 days which resulted in his
being called before Richard and Donovan. Although Kreutzer wanted Gallagher
discharged , and Donovan concurred , Richard refused to fire him . Admittedly,
Donovan transferred Gallagher from Kreutzer 's shift to day work. Gallagher
finally fixed the date of his meeting with Richard and Donovan as the latter
part of September or early October . Donovan did not specify any date but
stated Gallagher walked off Kreutzer 's shift in March and that he was trans-
ferred to the day shift around July. Manifestly , the Company attached no
importance to these incidents , irrespective of when they occurred or when the
meeting was held, for Richard neither warned, disciplined , nor discharged
Gallagher for such acts . From the foregoing the only conclusion to be reached
is that Gallagher missed 2 days work, without excuse, in the period August 9 to
October 25 . This evidence is wholly insufficient to support a charge that he was
discharged for excessive absenteeism , and I so find.
Adair and Valentino were dismissed by Donovan because Richard complained
frequently about their refusing to follow his instructions . Richard said that as
far back as June or July, Adair and Valentino failed to follow his instructions
in operating the old slitter and when the new slitter was put into operation
they followed the same course which prompted him to complain to Donovan
about 10 times . Richard further testified he and Chandler were present when
Adair and Valentino broke a complete set of 15 blades , within the first 2 weeks'
operation of the new slitter , and he told them changes would have to be made
if they continued to break blades . Chandler accused Valentino of deliberately
breaking the blades and that Richard in effect told them to follow instructions.
Adair and Valentino admitted blades were broken in the early stages of operation
and Chandler agreed all operators , including himself, were involved in breakages.
The Company does not argue that Adair and Valentino deliberately damaged
the blades and the above instance is the only specific one cited against Adair
and Valentino . Richards ' mild remark to Adair and Valentino , and nothing
more, plainly indicates he attributed the breakage to their inexperience in
operating the new slitter rather than their qualifications as operators . That Adair
and Valentino were qualified operators is strengthened by the conceded fact that
they instructed other operators in the running of the machine.10
At one time Adair remarked to Donovan he did not need a "watchdog" over
him, referring to Chandler , which the Company argues was an "unwarranted
attack" upon Chandler. I attach no significance to this remark and neither did
Donovan for he never even answered Adair.
There is no question that the new slitter had a far greater capacity than the
old machine and could be operated by one man. It is also clear that the
operators required training in its operation and, as appears above, the Company
experienced some difficulty with the slitter , plus the fact that the motor had to be
replaced. The evidence discloses that the Company operated the slitter on a
three-shift basis, two men per shift , until sometime in October when it cut off
the third shift and transferred the two men to the shipping department. When
Adair and Valentino were discharged the Company immediately transferred the
second shift operators to the day shift and assigned two men to the second shift.
Thus, the discharge of Adair and Valentino did not result in the reduction of
the number of employees insofar as the slitter operation was concerned. It is
undisputed that Adair and Valentino were the senior operators in point of service,
had received wage increases , acted as instructors and had never been disciplined
or reprimanded. Again , they worked their shift on October 25 without any
mention by Richard or Donovan that they were scheduled to be discharged the
10 N.L.R . B. v. Pyne Molding Corporation , 226 F . 2d 818, 821 (C.A. 2 ) ; N.L.R.B. v. San
Diego Gas & Electric Co ., 205 F. 2d 471, 475 (C.A. 9).
TABULATING CARD COMPANY, INCORPORATED 75
next day because of business conditions . Under these circumstances I find
Adair and Valentino were discriminatorily dismissed . The discriminatory character
of. the discharges is further substantiated by the treatment accorded Valentino
when he applied to Richard for reemployment . Although Richard normally
had authority to hire , he testified he had no authority to rehire Valentino and
had to clear with Conole . Accordingly , he telephoned Conole regarding Valen-
tino's application and Conole refused to reemploy him . Donovan testified he
would reemploy Valentino , if agreeable to Richard , and Richard expressed no
opposition to the reemployment of Valentino.
I find that Adair and Valentino were not discharged for the reasons asserted by
the Company but because of their union membership and activity.
Donovan selected Maio for discharge because he complained about work
assignments and was a troublemaker . It is not claimed Maio failed to perform
his work in a satisfactory manner. Donovan related only one instance to
support his charge that Maio was a complainer and that occurred in October
when he asked Maio to leave the shipping department to run the old slitter
and Maio remarked , "I can't be out here in shipping and go in there, too."
Counsel contends this remark constituted insolence towards Donovan . I disagree.
In view of Donovan's repeated questioning of Maio regarding the Union and his
accusing him of being the ringleader , as found above , I have no difficulty in
finding Maio was discriminatorily discharged.
By discharging Gallagher, Adair , Valentino , and Maio as found above, the
Company violated Section 8 ( a)(3) and ( 1) of the Act.
But assuming arguendo that the Company had justifiable cause to discharge the
discriminatees for economic reasons, it is apparent , and I find, that this was
not the motivation for its action . The mere existence of a valid reason,
moreover , is no defense to a discharge which, as here , was motivated by anti-
union considerations."
Counsel, in his brief, stresses the "pro-union pro-labor history" of the
Company. This statement seems to be bottomed principally on the fact that at
one time Conole held a responsible position with the New York State Labor
Department and was a member of a Federal , State and municipal employees'
union. Continuing , he states that Richard had been a member of a sister local
of the Union and that Speers , although he had no particular labor background,
was not antiunion for in June, when Donovan reported rumors of organization
he told him to do nothing about it. Likewise , Donovan had no particular union
background and his "wholly impartial attitude" towards organization is demon-
strated by his permitting Monetti and Orth to remain as employees although
he knew they had signed up for the Union. Actually the record is barren of
any on union background for no attempt was made to even organize the
employees prior to October 23 and that effort resulted in the present proceedings.
In answer to the favorable union background argument it is sufficient to say
that counsel completely overlooks Conole's refusal to reemploy Valentino, as
found above , which action , in my opinion , negates the idea that he was pro-
union as far as his own employees were concerned . Of course ; the fact that
Donovan did not fire Monetti and Orth, or other union employees , does not
preclude a finding that he discriminatorily discharged Gallagher, Adair, Valentino,
and Maio.
I have considered , but find it unnecessary to discuss , other arguments urged by
counsel, such as Conole's preelection speech , which was made after the, dis-
charges and is not challenged as being coercive , and the failure of the dis-
criminatees to state they were discharged for their union membership or activity
in their application for unemployment benefits.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade , traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
11N.L.R . B. v. Solo Cup Company, 237 F. 2d 521, 525 (C.A. 8 ) ; N.L.R.B. v. Jamestown
Sterling Corp., 211 F. 2d 725 , 726 (C .A. 2) ; Angwell Curtain Company , Inc. v . N.L.R.B.,
192 F . 2d 899 , 902 (C.A. 7) ; N.L.R.B. v. Montgomery Ward S Co ., 192 F. 2d 160 , 162-163
( C.A. 8) ; The Plastic Molding Company, Inc ., 110 NLRB 2137, 2138.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in interrogation of employees
concerning the Union and has interfered with, restrained , and coerced its
employees in derogation of their rights secured by Section 7 of the Act , I shall
recommend that it cease and desist therefrom.
Having found that the Respondent on October 26, 1957 , discriminatorily dis-
charged James Adair, Louis Valentino , John Maio , and Charles Gallagher and
has since failed to reinstate them, I shall recommend that the Respondent be
ordered to offer them immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority and other
rights and privileges , and make them whole for any loss each may have
suffered because of the discrimination against him by payment of a sum of
money equal to the amount he normally would have earned as wages from the
date of the discrimination to the date of the offer of reinstatement , less his net
earnings during said period , with back pay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth , 90 NLRB 289. The
Respondent shall upon request make available to the Board or its agents payroll
and other records to facilitate the checking the amount of back pay.
In view of the nature of the unfair labor practices committed , the commission
of similar and other unfair labor practices reasonably may be anticipated. I
shall therefore recommend that the Respondent be ordered to cease and desist
from in any manner infringing upon rights guaranteed to its employees by
Section 7 of the Act.
Upon the basis of the foregoing of fact, and upon the entire record in the
case, I make 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. The Union is a labor organization as defined in Section 2(5) of the Act.
3. By discriminatorily discharging James Adair , Louis Valentino , John Maio, and
Charles Gallagher the Respondent has engaged in and is engaging 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 the rights guaranteed in Section 7 of the Act , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against any employee
for the purpose of discouraging membership in Hudson -Bergen Counties,
Printing Pressmen and Assistants Union, Local 183 , International Printing
Pressmen and Assistants Union of North America and Canada, or any other
labor organization.
WE WILL NOT interrogate our employees concerning their membership,
affiliation , or sympathy with the above or any other union.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form, join,
or assist any labor organization , to bargain collectively through representa-
tives of their own choosing and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection and
to refrain from any or all of such activities except to the extent that such
NORTHERN CHEMICAL INDUSTRIES, INC. 77
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act.
WE WILL offer to James Adair , Louis Valentino , John Maio , and Charles
Gallagher immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and
privileges previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination against them.
All of our employees are free to become, remain , or to refrain from becoming
or remaining , members in good standing in the above -named Union or any
other labor organization , except to the extent that this right may be affected by
an agreement in conformity with Section 8(a)(3) of the Act.
TABULATING CARD COMPANY , INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered Eby any other material.
Northern Chemical Industries , Inc., The Summers Fertilizer
Company, Inc. and Local 650, International Chemical Workers
Union, AFL-CIO, Petitioner. Case No. 1-RC-5031. March 6,
1959
DECISION CLARIFYING CERTIFICATION OF
REPRESENTATIVES
On June 13, 1958, following a Board-directed election," the
Regional Director for the First Region certified the Petitioner as
bargaining representative of employees in the appropriate unit.
Thereafter, on September 22, 1958, the Petitioner filed a motion
for clarification of the bargaining unit with respect to certain job
classifications. On November 17, 1958, the Board remanded the
proceeding to the Regional Director for the purpose of conducting
a hearing on the issues raised in the Petitioner's motion.
On December 18 and 19, 1958, in accordance with the above order,
a hearing was held before Thomas E. McDonald, hearing officer.
The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers herein to a
three-member panel [Members Rodgers, Bean, and Fanning].
Upon the basis of the evidence adduced at the hearing and on
the entire record in this case, the Board finds :
The Employer, contrary to the Petitioner, contends that the indi-
viduals in the following nine classifications are supervisors and
are excluded from the unit.
i Unpublished.
123 NLRB No. 4.