U.S. Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 16, 1965

151 N.L.R.B. 709 (N.L.R.B. 1965)

U.S. MANUFACTURING COMPANY 709
of a unit 4 In this case, as shown above, there is a high degree of
functional integration and identity in terms and conditions of em-
ployment, resulting in a community of interest among all employees.
In these circumstances, including the integrated nature of the Em-
ployer's operations and the long history of bargaining for all
employees in a single unit, we find, contrary to the Regional
Director, that the historical unit including office clerical employees
is appropriate .5
Accordingly, the matter is hereby remanded to the Regional
Director for Region 17 for the purpose of conducting an election
in the appropriate unit, as modified herein, pursuant to his Direction
of Election, except that the eligibility period shall be the payroll
period immediately preceding the date below s
A See Standard Oil Company of California, 116 NLRB 1762. Cf. National Cash Regis-
ter Company , 95 NLRB 27, 29; General Electric Company (River Works), 107 NLRB 70,
72; Brotherhood of Locomotive Firemen and Engineers , 145 NLRB 1521, footnote 10.
5 See Standard Oil Company of California, supra.
6 As the unit found appropriate herein is broader than the unit sought by the Peti-
tioner, the direction of election is conditioned upon the Petitioner' s demonstrating , within
10 days from the date hereof , that it has an adequate showing of interest in the broader
unit found appropriate. In the event the Petitioner does not wish to participate in
an election in the unit found appropriate , we shall permit it to withdraw its petition
upon notice to the Regional Director within 5 days from the date of this Decision.
U.S. Manufacturing Company and Richard M . Miller
U.S. Manufacturing Company and William Bloom . Cases Nos.
13-CA-5993 and 13-CA-6125. March 16, 1965
DECISION AND ORDER
On September 22, 1964, Trial Examiner Phil W. Saunders issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, Respondent filed exceptions to the Decision and a
supporting brief, and the General Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three- member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
151 NLRB No. 75.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed.' The Board has considered the
Decision, the exceptions, the briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
modification :
Add the following as 2(b) of the Order and renumber subsequent
paragraphs accordingly :
"(b) Notify Richard M. Miller and William Bloom, if either is
presently serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Serv-
ice Act of 1948, as amended, after discharge from the Armed Forces."
' Respondent contends that it was prejudiced by the Trial Examiner ' s denial of its
motion to require the General Counsel to produce , pursuant to Section 102118 of the
Board ' s Rules and Regulations , a purported pretrial affidavit given by General Counsel's
witness, William Bloom, to a Board agent and by denial of its alternate motion to
strike Bloom ' s testimony
It is clear , however, that the "affidavit " requested was simply a statement made by
the Board agent on the occasion of a second interview with Bloom which occurred in
the piesence of Jacobson Respondent's president As Bloom did not sign or otherwise
approve or adopt this statement , we find , as did the Trial Examiner , that it was not
a statement "approved or adopted " by the witness which would require its production
under Section 102 118 of the Boards Rules or the principles enunciated in Jencks v.
United States, 353 U S . 657, or the "Jencks Act," 18 U S C , sec 3500 ; Canton Cotton
Mills. 148 NLRB 56. footnote 1, Louisiana Television Broadcasting Corporation, 142
NLRB 55, 64, footnote 27. Cf Campbell v. United States, 373 U S 487. Moreover,
we note that a complete sworn pretrial affidavit given by Bloom on the occasion of an-
other interview by a Board agent was furnished to the Respondent at the hearing.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The unfair labor practice charges on which the complaint herein is based were
filed on November 1, 1963, and January 13, 1964. The amended consolidated com-
plaint was issued on March 31, 1964, against U.S. Manufacturing Company, herein
called the Company or the Respondent , alleging violations of Section 8(a)(1) and
8(a)(3) of the National Labor Relations Act, as amended. The Company filed an
answer to the complaint denying the commission of any unfair labor practices. The
General Counsel and the Respondent were represented by counsel, and participated
fully in the hearing before Trial Examiner Phil W Saunders . Both parties also filed
briefs and the same have been carefully considered in arriving at my findings herein.
Upon the entire record and from my observation and the demeanor of the wit-
nesses,' I make the following:
'The declaration that my findings are based on my observation of the witnesses is
intended to apply to the testimony of each and every witness , and my failure to com-
ment on the demeanor of a particular witness is not to be taken to mean that in evaluat-
ing his testimony I have not taken his demeanor into consideration Moreover, when
U.S. MANUFACTURING COMPANY 711
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein, a corporation duly orga-
nized under , and existing by virtue of, the laws of the State of Illinois. At all times
material herein , Respondent has operated its place of business in Chicago , Illinois,
where it was engaged in the fabrication of metal products During the past year,
Respondent rendered services valued in excess of $50,000 to firms which annually
produce and ship goods valued in excess of $50,000 directly to points outside the
State of Illinois.
The complaint alleges, the answer admits , and I find that the Respondent is engaged
in "commerce" and in operations "affecting commerce " as those terms are defined in
Section 2(6) and ( 7) respectively , of the National Labor Relations Act, as amended,
herein called the Act, and that it will effectuate the policies of the Act to assert juris-
diction over the Respondent.
II. THE LABOR ORGANIZATION INVOLVED
Metal Processors' Union Local No. 16, International Union of Doll and Toy
Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
The issues to be determined here are whether the Respondent discharged Richard
M. Miller because he engaged in protected , concerted activity in violation of Section
8(a)(3) of the Act, and whether or not Respondent discharged its supervisor, Wil-
liam Bloom, because he refused to engage in conduct proscribed by the Act in viola-
tion of Section 8 (a) (1) of the Act
Richard Miller was first employed by Respondent in March 1963 . He was hired
as a modelmaker at an hourly rate of $3. Prior to his termination on October 2,
1963,2 Miller received two wage increases and by October 2 was the highest paid
hourly employee at Respondent 's plant. The Company contends that Miller was
terminated because of excessive and repeated unauthorized absences.
This record shows that the Respondent's employees are represented by the Union
which has a collective -bargaining contract with the Company . On or about July 10,
some of the employees at Respondent 's plant became dissatisfied with the Union and
drew up a petition . This petition was drawn by Miller and Donald Bloom who both
signed it , and Bloom then took it to other employees for their signatures. After
obtaining such signatures the petition was sealed into an envelope and was then given
by Miller to the Respondent 's foreman , William Bloom 3 At this time Miller also
told Foreman Bloom that the employees did not want the Union to represent them,
and Miller then asked Bloom to take the envelope to the Respondent 's President
Jacobson and Vice President Bellis and to so inform them, but not to open the enve-
lope as Miller did not want Jacobson and Bellis to see the names of employees who
had signed the petition . This record further shows that Foreman Bloom then took
the envelope to the office and gave it to President Jacobson informing him that it
contained a petition signed by a majority of employees telling the Company not to
sign a contract with the Union on October 1. Neither Jacobson nor Bellis, who was
also present on this occasion, would take the envelope and asked Bloom to keep it.
Bellis, however , in their discussion , informed Bloom that the employees would lose
their insurance without the Union , and Jacobson asked what assurance he would
have that the employees would not change their minds There were also state-
ments made to Bloom on this occasion to the effect that if the Union went out the
"Teamsters" would attempt to organize the plant within 10 minutes . Jacobson then
terminated the discussion over the envelope and petition by informing Bloom that he
would contact his lawyer and give him an answer . Bloom then conveyed his discus-
sion with Jacobson and Bellis to Miller.
given logical reasons for rejecting the testimony of a particular witness, either in its
entirety or on a particular point , it should not be assumed that I rely exclusively on
such reasons , and that the demeanor of the witness has not been considered in evaluat-
ing his testimony. When I have indicated that I regard a particular witness as generally
untrustworthy , it is to be construed to mean that I reject his testimony as a whole,
unless I explicitly indicate that I accept his testimony on a particular point
2 All dates are 1963 unless specifically stated otherwise
3 Hereinafter all references to Bloom refer to the Respondent 's foreman , William Bloom.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime during the first or second week in August, Miller talked to Jacobson and
asked him what was being done about the letter or petition, and Jacobson replied
that he would contact his attorney.4 During the middle of September Miller asked
Bloom to return the letter and petition, and Bloom then did so.
The record shows that on September 30 Miller delivered some television sets for
Foreman Bloom to a local furniture store.5 In so doing Miller's truck broke down
and could not be moved from the store dock. On the next day, October 1, Miller
took off from work at the plant to get his truck out of the dock area. When Miller
went for his truck he discovered the transmission was jammed and he had to call a
tow truck to remove it, and it took until about 3 o'clock to make repairs.
On October 2-knowing that the contract had expired between the Company and
the Union-Miller came to the plant prior to working time and asked permission of
Foreman Bloom to take the letter and petition in question here to the Union's head-
quarters. Bloom refused, but then told Walter Collins, the union steward, to call
the business agent of the Union. For some reason the union business agent did not
see Miller when he was at the plant on the morning of October 2, so at noontime,
during the lunch period at the plant, Miller informed Bloom that he was taking the
letter and petition to union headquarters, and Bloom told Miller to go ahead. When
Miller arrived at headquarters he had to wait in order to see the business agent.
Miller asked what the status was in regard to the negotiations of a new contract but
was told that it was none of his business, and when Miller showed the petition, the
Union's business agent informed him that it was not worth the paper it was written
on. Miller did not return to the plant until about 1:40 that afternoon, and in the
interval Jacobson inquired of Bloom as to Miller's whereabouts, and Bloom told
Jacobson that he had gone to the union hall. Jacobson returned to the working area
of the shop in about 20 minutes and Bloom then stated to Jacobson that he was
getting discouraged with Miller because he was having to do his work, and Bloom
also asked Jacobson if he could give Miller the rest of the week off to get his busi-
ness straightened out, and to come in Monday and work a 40-hour week or he would
fire him. Jacobson then told Bloom that he had decided to fire Miller a half hour
ago as he was nothing but a "trouble maker for the union." To this statement
Bloom replied, "My God, Jacobson, you can't fire a man for that, it would be classed
as union activities." When Miller returned from the union headquarters he asked
Bloom where his timecard was, and Bloom then informed him that he was laid off.
Jacobson testified that he and Vice President Bellis had made a previous determi-
nation that Miller's employment was going to be terminated on the basis that the
plant was working overtime, and Miller was only "partially" available when needed.
Jacobson then related that he terminated Miller "mostly" on events starting with
September 30, that on October 1 Miller did not show up for work, and that on Octo-
ber 2 Miller walked out. Bellis testified that he discussed Miller's absences with
Bloom, and in so doing indicated something would have to be done about it.
Prior to the events starting on September 30, there is no question but that Miller
was absent from his job on several occasions . 6 In this period it should be noted,
however, that Miller suffered injuries in an automobile accident during April and
was then hospitalized for 2 weeks. During Miller's employment prior to Septem-
ber 30 , the only complaints supposedly came from Vice President Bellis who allegedly
spoke to Bloom about it.7 From the testimony of Foreman Bloom, however, the
absences by Miller were always excused. Bloom stated that Miller would always
call Bellis or himself, and further testified that prior to October 2 neither Bellis nor
Jacobson had ever said anything about it . It appears clear to me that even if Miller
had some occasional unexcused absences from work before September 30, they caused
no real concern to management , and by failure to either warn or reprimand Miller
himself about such practices , the Respondent finds itself in the position of condoning.
* Jacobson even admitted in his own testimony that Miller had asked him prior to
his termination what Jacobson was doing about the letter.
5 This was not in conjunction with any business or operations of the Respondent,
and Miller left his work at the plant about 2 30 p in.
"Respondent's Exhibit No 1.
7 Bellis also testified that Miller had attended the State fair without permission, and
that he had inquired of Bloom as to his whereabouts. Bellis also gave testimony that
he reprimanded Bloom for not getting work out, and that on this occasion Bloom in-
formed him that lie could not do the work himself without assistance from Miller who
was not present a good deal of the time.
U.S. MANUFACTURING COMPANY 713
As this record shows Foreman Bloom had the main responsibility for much of the
production as it pertained to employees, and, as aforestated, he admittedly never, on
any occasions, even mentioned to Miller his absences, and further assuming here the
same were called to Bloom's attention by Bellis.8 Prior absences before September 30
also become relatively unimportant in view of Jacobson's testimony and admis-
sion that he terminated Miller largely on events stemming from September 30.
On September 30 Miller left the plant at 2:30 in the afternoon to deliver some
television sets for Bloom, as aforestated, and Miller had Bloom's permission to do so.
On October 1 Miller had to remove his disabled car or truck from the furniture store
dock area, and again Foreman Bloom had given him permission .9 It appears to me
that the important aspect in all this testimony is that Bloom did give Miller his per-
mission to be absent in order to get his truck regardless of whether or not any specific
time element was specified. At noontime on October 2, Miller was also given per-
mission by Bloom to take the letter and petition to union headquarters. The lunch
hour at the plant is over at 12:30 and Miller did not return until about 1:40 that
afternoon. Bloom testified that he had expected Miller back within 5 minutes. The
only questionable period in this record, therefore, is the time between 12:30 and
1:40 p.m. on October 2, when possibly Miller was absent from his job without per-
mission or without calling in. However, during this hour and 10 minutes' absence
the Respondent knew that Miller had gone to union headquarters.
There is no question in my mind but that Miller's activities in opposing the Union
were the prime motivating factors in his discharge. In the final analysis here there
were never any complaints made to Miller about his absences prior to his discharge,
he received two wage raises, and he was the highest paid hourly employee in the
plant. Such facts do not show that the Company had any serious dissatisfaction
with Miller's work record. There is also reliable background evidence to the effect
that in the spring of 1963 Jacobson had let it be known that if the union steward
was discharged the Company would not have to be worried about the Union, and had
also stated to Bloom at this time that the contract between the Company and the
Union would be worked out prior to the official negotiation sessions, and Jacobson
further prophesied to Bloom what increase would be granted the employees. No
wonder Jacobson resisted and resented any attempts by Miller to dislodge his con-
nections and fraternizations with the Union. The Respondent makes an argument
that it had no knowledge as to the participation by Miller in his activities to oust the
Union's contract. This point need not be labored as Foreman Bloom had full and
detailed information as to Miller's activities, as aforestated, and his knowledge alone
would be sufficient. However, in August, Miller himself asked Jacobson what was
being done about the petition. If Jacobson had no knowledge up to this point the
inquiry by Miller certainly established the missing link. Moreover, just a few hours
before the discharge, Jacobson, when asking about Miller's whereabouts, was spe-
cifically told that he had gone to the union hall.
In addition to the above it is also pointed out that there was no question in Fore-
man Bloom's mind, as previously detailed herein, that Jacobson was firing Miller
for engaging in union activities and Bloom so informed Jacobson. Likewise, based
on my observation and demeanor of the witnesses, events, admissions, and for the
reasons given here, there is also no question in my mind but that Miller was discrim-
inatorily discharged, and I so find.
Foreman William Bloom started working for the Company in 1958, and was dis-
charged on December 24, 1963.10 The Respondent's position is that it was quite evi-
dent to the Company as far back as 1960 that Bloom would be limited as to his
"peak position" in the managerial end of the Company, and that through a period of
2 or 3 years there was mounting dissatisfaction with Bloom. The Company admits,
however, that Bloom had needed and recognized abilities as a layout sheet metal
fabricator and maintains that the factor postponed or delayed his termination.11
5It would seem also that if Bloom was discouraged by Miller not showing up for
work "quite frequently," he fully succeeded in keeping such feelings to himself.
'On this occasion Bloom ascertained that it would take Miller only a few hours to
get his truck. Bloom testified, however, that he gave Miller permission to get his
truck, and if it took all day to do so, then he gave him permission to be absent all day.
10 The specific paragraph of the complaint alleges that on or about December 24, 1963,
Respondent discharged William Bloom, because said employee advised Respondent not
to discharge its employees because they engaged in protected concerted activities.
3 'It appears that Bloom and Bellis did most of the hiring of new employees, and on
all occasions, prior to certain events herein, Bloom was always consulted in this respect.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bloom testified that on or about November 20 he was interviewed in the shop office
by an agent for the Board concerning the discharge of Miller. Bloom answered sev-
eral questions in this respect put to him by the Board agent and did so in the pres-
ence of Jacobson . When Bloom replied , during the interview , that Miller had been
laid off, Jacobson interrupted and stated that he had personally fired Miller . Jacob-
son also advised the Board agent that he could not put questions to Bloom in the
manner he was so doing. Bloom testified that after this interview there was a con-
siderable change in Jacobson 's attitude toward him in that Jacobson would no longer
talk to him, ignored him , and that he was no longer consulted in the hiring of new
employees . On December 24 Bloom was summarily discharged without being given
any reason for his termination , but was informed not to talk to employees and to
leave the shop as quickly as possible.
Jacobson testified that at the times of the interviews he had never heard Bloom
make any adverse statement about the Company, nor during the interviews had
Bloom made any statements which would have caused Jacobson to be angry with
him The Company produced testimony through both Jacobson and Bellis to the
effect that as far back as 1960 it was evident to the Company that Bloom 's supervisory
ability was limited and as a result it was decided to hire someone as liaison between
Bellis and Bloom . 12 There was testimony also that the events at a meeting in July
further contributed to the decision to relieve Bloom of his position . It appears from
the testimony on this subject that in a conversation with Bloom, Bellis was given
reason to believe that a serious problem among employees existed in the shop, and
as a result a meeting with the employees was held. At the meeting Bellis related to
the employees production problems which affected the profit picture of the Company.
When the question of profit and excess scrap was raised , Bloom suggested that the
first thing to do was to give everyone a raise, then introduce a piecework system, and
for the Company to also look seriously into the establishment of a profit -sharing sys-
tem. Bloom further stated that he felt the employees would be more susceptible to
giving the Company a full day's work if these changes were made . The meeting
broke up when Bellis, Jacobson , and Bloom got in a rather heated argument over
these various subject matters . Jacobson testified that within a half hour after this
July meeting he and Bellis decided that Bloom's usefulness as a member of manage-
ment had run out, and that the only reason Bloom was not terminated that day was
because of the pressure of orders to be taken care of. There is also testimony that
thereafter Bellis was assigned increased responsibilities in the shop even though this
required him to give up certain work in the office. This record shows that on or
about November 20 the Respondent contacted an employment agency, and at least
one candidate for Bloom's position was subsequently interviewed.
The theory of the General Counsel, as stated in his brief , is as follows:
Bloom, contrary to the testimony of Jacobson and Bellis, was a good and
valued employee for approximately five years as indicated by the fact that on
two occasions he was retained in place of another man , but became the object
of Respondent 's hostility when he refused to corroborate Jacobson 's testimony
to the National Labor Relations Board concerning Miller's discharge. There-
after and on December 24, 1963, the day before Christmas , Bloom was sum-
marily discharged without benefit of explanation and with the employer's admo-
nition not to talk to the other employees in the shop . General Counsel submits
that Bloom was discharged in violation of Section 8(a)(1) of the Act for the
express purpose of interfering with, restraining and coercing other of Respond-
ent's employees in union or other protected and concerted activity. The
employee petition asking Respondent not to contract with the present bargaining
agent, in which Bloom and Miller played a significant role, was the motivating
cause for the discharge.
First of all this record shows that up until July the relationship between all three
of these individuals in management involved herein was of a sufficient character to
at least sustain the continued employment of Bloom. There is no question but that
Jacobson and Bellis had contemplated for some time a liaison supervisor between
Bellis and Bloom. However , when Beroski was so hired it was subsequently deter-
mined to let Beroski go and retain the services of Bloom. Whatever reasons Jacob-
son and Bellis had for this decision , it shows that Bloom was playing a vital part in
12 The Company then contacted employment agencies and George Beroski was in fact
hired in the latter part of 1962 to a position above Bloom . On February 6, 1963,
Beroski was fired and Bloom was retained on the basis that he was considered to be
more essential to the shop. But according to the testimony of Jacobson and Bellis, a
mutual decision was then reached between them that Bloom would have to be replaced.
U.S. MANUFACTURING COMPANY 715
the Respondent 's production and that his retention was mandatory . Certainly at this
junction the Company was not overly dissatisfied with Bloom . The next important
event, according to Jacobson and Bellis, was the meeting with employees in July
wherein Bloom made certain remarks which he thought would encourage produc-
tion, as aforestated . It is the testimony that within a half hour after this meeting it
was again decided that the services of Bloom were no longer required It is pointed
out, however , that while a decision may have been made then to discharge Bloom,
there elapsed approximately 6 months before the actual discharge . Had the state-
ments made by Bloom in the July meeting troubled Jacobson and Bellis to the extent
indicated by their testimony , I doubt very much if they would have waited 6 months
to discharge him, and especially so when they had mutually and specifically contem-
plated getting their "house in order" and hiring another man ever since February
1963. It appears to me that in light of such a prolonged delay between the final
decision in July and the execution on December 24, the events within this particular
period become the controlling factors. On this basis let me quickly set forth those
events.
First of all it is noted that in this period there were no further disturbances by
Bloom, so to speak , in the actual production within the shop, and Bloom made no
further statements or remarks to the employees at any meeting . As far as we know
Bloom's services , work performances , and functions within this period were satis-
factory and within his general and ostensible authority . Next it is noted that in
July Bloom delivered the petition and letter from Miller to Jacobson and Bellis stat-
ing to them that it contained names of employees asking the Company not to sign
another contract with the Union. The next relevant event is on October 2, when
Jacobson informed Bloom that he was going to discharge Miller as he was a trouble-
maker for the Union. To this Bloom informed Jacobson that he could not fire
Miller for union activities . On November 20 Bloom was interviewed as to Miller's
discharge and his statements on this occasion to the Board agent were interrupted by
Jacobson in at least two respects , as previously indicated herein . 13 Regardless of
whatever statements Bloom may or may not have made at the times of his two
interviews in November and early December , it is obvious from this record that
Jacobson was most unhappy with Bloom when he told him on October 2 that he
could not fire Miller for union activities , and it is also apparent that Jacobson was
likewise very much disappointed when Bloom was answering the questions pertain-
ing to Miller 's discharge put to him by the Board agent during the November inter-
view. Had it been otherwise , I doubt very much if Jacobson would have interjected
his own remarks , as aforestated , and I also doubt very much if the Company would
have contacted an employment agency on or about this date. In rapid summation
the Respondent had no grounds based on work performances or statements to
employees to discharge Bloom during the period from mid-July to December 24,
but in this period Bloom was constantly entwined with union activities and inquiries.
Just from the process of elimination , then, we are left with union motivations as at
least the prime factor in causing Bloom 's discharge . The events and circumstances
add up in favor of the General Counsel 's case, and as far as I can ascertain the
Respondent 's various defenses subtract nothing therefrom . It appears clear to me,
under the situation here and as stated by the General Counsel, that only union moti-
vation could cause the hostility and anger of the Employer to discharge an individual
on the day before Christmas , and especially a valued supervisor with admitted recog-
nized abilities who had served many years, and to do so without even being given any
reason for his discharge and without any specific warning of any kind. Union moti-
vation is also evident from the fact that on December 24 Jacobson received a letter
from the Board and without opening the letter to see what it was about, remarked
to Bellis that Bloom could now be discharged.
It is well settled that the discharge of a supervisor for refusing to engage in the
unfair labor practice violates Section 8 ( a)(1) of the Act , as the net effect thereof is
to cause employees reasonably to fear that the employer would take similar action
against them . Thus, the discharge of Foreman Bloom for refusing to participate in
the discriminatory discharge of employee Miller constituted an invasion of the self-
organizational rights of rank-and-file employees because it demonstrated graphically
to such employees the extreme measures to which the Company would resort in order
is The Respondent requested from the General Counsel the affidavit of Bloom for pur-
poses of cross-examination on the first and second time he was interviewed by the Board
agent The General Counsel refused to produce such affidavits on the basis that Bloom
did not sign them or were they in any way adopted by Bloom. Now , and at the hearing,
I sustain the General Counsel ' s position.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to thwart them in their desires to oppose or assist labor organizations.14 Applying
the above principle, and in view of the events and circumstances set forth herein,
and upon my observation and demeanor of the witnesses, I find that by discharging
Bloom, the Respondent abridged Section 7 rights of employees, and thereby violated
Section 8 (a)( I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
which I find necessary to effectuate the policies of the Act.
Having found that the Respondent discharged Richard Miller on October 2, 1963,
in violation of Section 8(a)(3) and (1) of the Act, and William Bloom on Decem-
ber 24, 1963 , in violation of Section 8(a)(1) of said Act, I shall recommend
that the Respondent offer each of these individuals immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice to his seniority
and other rights and privileges , and make them whole for any loss of pay they may
have suffered by reason of their discharge , as found above, by payment to them of a
sum of money equal to the amount of wages they would have earned between the
dates of their dismissal and the date of a proper offer of reinstatement , and that the
said loss of pay be computed in accordance with the formula and method prescribed
by the Board in F . W. Woolworth Company, 90 NLRB 289, to which shall be added
interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumb-
ing & Heating Co., 138 NLRB 716.
I shall also recommend that the Respondent preserve and make available to the
Board or its agents, upon request, for examination and copying , all payroll records,
social security payment records , timecards , personnel records and reports, and all
other records and reports necessary to analyze the amount of backpay due and the
right to reinstatement under the terms of this Recommended Order. In order to
make effective the interdependent guarantees of Section 7 of the Act, I shall recom-
mend that the Respondent cease and desist from in any manner infringing upon the
rights guaranteed in that section . N.L.R.B. v. Express Publishing Co., 312 U.S. 426;
N.L.R B. v. Entwistle Manufacturing Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. 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 within the meaning of the Act.
3. By discriminatorily discharging Richard Miller, as found above , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By discharging William Bloom, as found above, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. 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 conclusions of law and upon the entire record in the case,
and pursuant to Section 10(c) of the National Labor Relations Act, as amended,
it is recommended that Respondent , U.S. Manufacturing Company, its officers,
agents, successors , and assigns , shall:
14 General Engmeering, Inc., et al., 131 NLRB 648.
U.S. MANUFACTURING COMPANY 717
1. Cease and desist from:
(a) Encouraging or discouraging membership of any of their employees in Metal
Processors' Union Local No. 16, International Union of Doll and Toy Workers,
AFL-CIO, or any other labor organization, by discharging, or in any other manner
discriminating against, any employee in regard to his hire, tenure, or any term or
condition of employment, except as authorized by Section 8(a)(3) of the Act.
(b) Discharging or in any other manner disciplining any supervisor because he
has failed or refused to discharge any employee, so as to interfere with, restrain, or
coerce any employee in the exercise of such rights.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to Richard Miller and William Bloom immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their sen-
iority or other rights and privileges and make each of them whole in accordance with
the provisions set forth in "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its Chicago, Illinois, plant copies of the attached notice marked
"Appendix." 15 Copies of said notice, to be furnished by the Regional Director for
Region 13, shall, after being duly signed by a representative of the 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 to
insure that such notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith.1s
Min the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event 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."
161n the event that this Recommended Order be 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
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage or discourage membership by any of our employees
in Metal Processors' Union Local No. 16, International Union of Doll and
Toy Workers, AFL-CIO, or any other labor organization, by discharging or in
any other manner discriminating against any employee in regard to his hire,
tenure of employment, or any term or condition of employment, except as
authorized by Section 8(a) (3) of the Act.
WE WILL NOT discharge or in any other manner discipline any supervisor
because he has failed or refused to discharge any employee so as to interfere
with, restrain, or coerce any employee in the exercise of such rights.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the Union or any other labor organization, to bargain
collectively through representative of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining, or other mutual aid or
protection, or to refrain from any or all of such activities
WE WILL offer to Richard Miller and William Bloom immediate and full
reinstatement to their former or substantially equivalent positions without preju-
dice to seniority and other rights and privileges, and make them whole for any
loss of pay suffered as a result of the discrimination against them.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of any 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.
We will not discriminate in regard to hire or tenure of employment against any
employee because of membership in, or activity on behalf of, any labor organization.
U.S. MANUFACTURING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees, if presently serving in the
Armed Forces of the United States, of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois, Telephone No. 828-7572, if they have any question concerning this notice or
compliance with its provisions.
Allied Chemical Corporation ( National Aniline Division) and
District 50, United Mine Workers of America , Local 13942.
Case No. 5-CA-2563. March 16, 1965
DECISION AND ORDER.
On August 7, 1964, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and
brief, and the entire record 1 in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
only to the extent consistent with the findings, conclusions, and order
set forth below.
The parties are in substantial agreement concerning most of the
factual circumstances in the instant case. Since it commenced opera-
tions at its Bermuda Hundred, Virginia, plant in 1955, Respondent
has recognized and bargained with District 50 as the bargaining
representative of its approximately 2,200 production and mainte-
nance employees, including those in the maintenance or repair de-
1 The Respondent's request for oral argument is hereby denied, as the record, includ-
ing the exceptions and brief, adequately presents the issues and positions of the parties.
151 NLRB No. 76.