Yale Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1965

150 N.L.R.B. 1102 (N.L.R.B. 1965)

1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union 's referral list before seeking and obtaining employment on the Bel-Air job,
and Hawksworth 's testimony that at the time of Johnson 's hiring by Avila there were
some 35 men on Respondent 's registration list is uncontested . Respondent therefore
could have lawfully required Johnson 's removal from the job and subjected him to
normal hiring -hall procedures . It could not lawfully make union affiliation a condi-
tion precedent to registration and referral . Since Johnson never at any time, before
or after his discharge from the Bel-Air project, sought to have his name placed on
the -Union 's registration list, the matter of whether he would have been refused
because of his nonunion affiliation was not put to the test. There is no evidence that
registration has been refused anyone because of union or nonunion affiliation. Since
the Union had lawful grounds for requiring Johnson 's removal from the Bel-Air job
and-a remedy that required his reinstatement to that job in violation of the lawful
hiring-hall clause of its contract would not be appropriate , even if Hawksworth mis-
stated the grounds for Johnson 's removal I can see little to be gained by a remedial
order appropriate to this case . In addition , I am by no means convinced that Johnson
should ' be credited ' over Hawksworth.
Normally, the wording of a charge initiating an unfair labor practice proceeding is
not considered germane to an issue of credibility , but here I think we have an excep-
tion to what is generally a salutory practice . Johnson charged that he was discrim-
inated against by not being allowed the 7 days on the job, according to the Union's
contract , before being forced "to join their corrupt and communist controlled union."
On cross-examination Johnson apologized for the use of the quoted language in his
charge, admitted that he had no support for such an accusation , and admitted that the'
language was not his but was supplied by one Ted Engle. "Well , I would like to
make an apology right now for that ," Johnson testified , "I was mad because they took
me off the job and I would formally like to apologize ." It appears to me that, despite
his apology , very little credence can be granted to a person who would , even in a
moment of anger, adopt and incorporate in a formal charge such vituperative lan-
guage which later , under oath , he is forced to admit is without justification , and while
Avila's testimony tends to support Johnson 's that Hawskworth made his lack of union
affiliation the basis of his discharge demand, it is not necessarily inconsistent with
Hawksworth's own testimony in the matter. Not being "squared up with the union,"
the words Avila attributed to Hawksworth, could be construed as meaning no more
than that Johnson had not registered on the Union 's out-of-work list and therefore
was ineligible for referral to the Bel-Air project , a union job. I can only conclude on
the credibility issue that while the matter is not free of doubt , there is no preponder-
ance in support of the General Counsel 's position . I shall recommend dismissal of
the complaint.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. P.D.C .A. and its employer members , including Klaas and Belvoir , constitute a
single employer within the meaning of Section 2 (2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in unfair labor practices alleged in the
Complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended that the complaint be dismissed in its entirety.
Yale Manufacturing Company, Inc. and United Brotherhood of
Carpenters & Joiners of America , AFL-CIO. Case No. 1-CA-
4475. January 18, 1965
DECISION AND ORDER
On October 5, 1964, Trial Examiner Stanley Gilbert issued his
Decision-in the above-entitled proceeding, finding that the Respond-
150 NLRB No. 100.
YALE MANUFACTURING COMPANY, INC. 1103
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and
take certain 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 brief in support thereof, and
the General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National ,Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case including the Trial Examiner's Decision,
the exceptions, and the briefs, and hereby adopts the Trial Exam-
iner's findings, conclusions, and recommendations
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 the Respondent, Yale
Manufacturing Company, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Rec-
ommended Order, with the following addition :
Add the following to the Trial Examiner's Recommended Order
and reletter the subsequent paragraphs thereof.
'" (d) Notify the above-mentioned employees if presently serving
in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces."
'On November 10, 1964, Respondent filed a motion to reopen the healing and on
November 24, 1964, Respondent filed an amendment to its motion The purpose of
Respondent ' s motion was to introduce into the record certain documentary evidence which
Respondent alleges was stipulated by the parties , but inadvertently was not included in
the record Counsel for the General Council , in his reply , states that no such stipulation
was entered into or received in the record . In view of the disagreement of counsel as to
whether the alleged stipulation was entered into, the absence of any statement in Respond-
ent's motion describing the circumstances under which the alleged stipulation was entered
into and made a part of the record, and the absence of any indication in the record that
such a stipulation had been proposed or otherwise discussed , and as the motion demon-
strates on its face that the evidence Respondent seeks to introduce was available at the
time of the hearing, we deny Respondent 's motion to reopen the hearing for purposes of
receiving the proffered evidence . The request for oral argument by Respondent is hereby
denied as , in our opinion, the entire record, including supporting briefs, adequately sets
forth the issues and positions of the parties.
775-692-65-vol. 150-71
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Based on the charge filed February 6, 1964, by United Brotherhood of Carpenters
& Joiners of America, AFL-CIO (hereinafter referred to as the Union), as amended
on February 25, 1964, the complaint herein was issued on March 19, 1964. Said com-
plaint, as amended during the course of the hearing,' alleges that the Respondent,
Yale Manufacturing Company, Inc. (hereinafter referred to as Respondent or Com-
pany), violated Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended. Respondent in its answer, as amended during the course of the hearing,2
denied that it committed the unfair labor practices alleged.
Pursuant to notice, a hearing was held on April 29 and 30, and May 1, 1964, in
Boston, Massachusetts, before Trial Examiner Stanley Gilbert. At the close of the
hearing oral argument was waived. Briefs were submitted by the General Counsel
and Respondent.3
Upon the entire record herein and my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
Respondent, a Massachusetts corporation with its principal office and plant in
Roxbury, Massachusetts, is engaged at said plant in the manufacture, sale, and dis-
tribution of chrome and wrought iron furniture, laminated fixtures, and related prod-
ucts. Respondent, in the course and conduct of its business, receives annually material
of a value in excess of $50,000 at its said plant from points outside Massachusetts, and
annually ships products of a value in excess of $50,000 from its said plant to points
outside Massachusetts.
Therefore, it is concluded that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is conceded by the Respondent , the Union is, and has been at all times material
herein , a labor organization within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The organizational activity
Between Christmas and the end of the year 1963, a group of employees, during
their lunch hour, complained to each other about certain of the terms and conditions
of their employment. Among the group were James Dunnell, Charles Garvin, David
Chandler, Herman Coleman, Joseph Denniston, and Richard Marshall. The group
decided it wanted a union in the plant and Dunnell and Garvin volunteered to con-
tact a union. When they reported that they were unsuccessful, Arthur Gear stated
that he knew a union steward in another shop and would try to enlist the aid of a
union through him. As a result of his efforts the Charging Party was contacted and
informed of the desire of a number of Respondent's employees to have a union repre-
1 The complaint was amended by the addition of the name of Eugene Biaggi to para-
graph 11(a) and by adding further allegations of unlawful conduct to paragraph 11(d).
2 The answer was amended to admit paragraphs 1 and 6 of the complaint.
3 By telegram received June 16, 1964, the Union moved that if Respondent's brief was
"not received by Trial Examiner when due on 6-15-64 . . . said brief be disregarded"
on the ground that the Union was prejudiced, thereby, "since Respondent's delay gave
Respondent time to study General Counsel's timely filed brief before filing its own." The
letter accompanying Respondent's brief was dated June 13, 1964. The envelope in which
it was enclosed was not preserved, so it is not known when it was posted. On its face
the brief was stamped as received by the Trial Examiners Division at 10: 30 a.m. on
June 16, 1964. However, since it is the practice for mail to be delivered to the Board
mailroom and then to be transmitted to the Trial Examiners Division, it cannot be deter-
mined whether Respondent's brief was received in the late mail on June 15, 1964, or
not until the morning of June 16. In view of these facts and in further view of the fact
that there is no evidence that the Union was prejudiced by the possibility that Respond-
ent might have had an opportunity to examine General Counsel's brief before mailing
its own brief, said motion is denied.
YALE MANUFACTURING COMPANY, INC. - 1105
sent them . On the morning of January 16, 1964, Union Representative James D.
Cohan appeared at the plant prior to the beginning of the workday and passed out
pamphlets and authorization cards to the employees as they entered the plant. It
appears that a considerable majority of employees signed union authorization cards
on that morning. Among those who signed cards were the four employees who it is
alleged were discriminatorily discharged or laid off: Dunnell , Garvin , Arthur Gear,
and Edward Gear (hereinafter the two Gears , who are brothers , will,be referred to
individually as A. Gear and E. Gear).
A. Gear credibly testified that during the coffee break he told his fellow employees
that "those who wanted to join the union to sign their cards " and that he volunteered
to mail the cards for them. He further testified that he collected approximately 15
signed cards 4 at the coffee break and at lunch , and during the lunch period went out
of the plant and mailed the cards . Also, according to his testimony , several of the
employees congratulated him on the celerity with which the Union responded to his
efforts to contact it and told him that they would name him shop steward . Gear's
above testimony was substantially corroborated by other of General Counsel's
witnesses.
B. Violations of Section 8(aXl)
Coleman testified that on the morning of January 16, 1964, Eugene Biaggi, Respond-
ent's foreman , approached him and asked "if I was going to sign a union card and
turn it in," and that he replied that he did not know . Biaggi testified , when ques-
tioned with regard to Coleman 's testimony , that he did not "recall making any such
,statements ." Chandler testified that : On the same morning, Biaggi approached him
and stated that he had seen the union representative pass out literature ; Biaggi asked
him whether he had a union card; he told him that he had ; he showed it to Biaggi;
Biaggi asked him whether or not he was going to sign the card ; and he answered that
he did not know. Biaggi in testifying as to the incident admitted that: He asked
to see "the pamphlet" that the union representative had - been passing out ; Chandler
showed it to him; Chandler volunteered the information to him that he was going to
send in the authorization card; and he replied , "Fine, Dave, just make sure you know
what you're doing." Based on the demeanor of the witnesses and the pattern of
-Biaggi's conduct and his antiunion animus demonstrated by the credited testimony
set forth hereinbelow , the testimony of Coleman and Chandler as to Biaggi's interro-
gation of them is credited . It is concluded that the interrogation of Coleman and
Chandler was violative of Section 8(a) (1) of the Act , particularly in the context of
other unlawful conduct on the part of Respondent set forth hereinbelow.
Dunnell testified that, on the morning of January 16, William Stone , Respondent's
general foreman , asked him "who had started the union ." Dunnell further testified
that, later that day, he asked Stone to meet him on the fourth floor, apparently so
they could talk in secrecy. Following is Dunnell's testimony as to their conversation
on the afternoon of January 16:
A. So I went to the fourth floor, and I asked him , I said, "You want to know
who started the Union9 ", and he said , "Yes", so I_said, "Arthur Gear", and he
said, "I don 't believe that of Arthur", and he said "Are you surer ", and I said,
"Yes", so he said , "Well, do you think it would do any good if we talked to the
boys or have they already made up their minds?", and I said, "Yes , we mailed the
cards in that afternoon at lunch time and everybody made up their minds." So
he said, "All right, go ahead down and keep your ears open ." That's all.
Stone, who was called as a witness for Respondent , was not questioned with respect
to the above testimony of Dunnell and , therefore , Dunnell 's testimony , being credible
and uncontradicted , is credited . It is concluded that Respondent , by Stone's inter-
rogation of Dunnell and by his request that Dunnell keep his "ears open" to his
fellow employees ' union activity , violated Section 8(a)(1) of the Act.
Toward the end of the workday on January 16 Respondent held a meeting of all its
employees , which meeting was also attended by Biaggi , Stone, and two officers of
Respondent , Gershon 5 and Benjamin Rosenthal . Employee Gerald Wynn testified
as follows with respect to what occurred at the meeting: -
Mr. [Benjamin ] Rosenthal opened up and said he had heard that some of the
guys signed these Union authorization cards and mailed them in and that we
should think very carefully what we were doing. He said that we had always
gotten fair treatment in the shop , and that it was growing and we were growing
with the shop, and he said there wasn 't a man at the table who could remember
* It appears that, at the time, Respondent had 19 production and maintenance employees
5 His given name also appears in the record as Gershom, Gershin, and Getti.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him laying anybody off. He said no matter how slow things were they always
found something for the men to do, and he said if that was right, what was the
matter. So I think it was David Chandler who said that he had been there seven
years, and for Christmas he got a turkey and a handshake, whereas he used to
get a Christmas bonus. And James Dunnell brought up the fact that he had
been there six years and only got one week's vacation: during that week the
Fourth of July falls, and he doesn't get paid for it. And also that Christmas
incident came up about giving the men the day before Christmas and not telling
them that they weren't getting paid for it.
And he [Stone] said that we should think very carefully about how we classi-
fied ourselves on these Union cards. He said, "Take, for instance, you, Ritchy,
you probably classified yourself as an upholsterer, is that right?" and Richard
said , "yes," and he asked Richard if he could upholster a chair or anything like
that.
Q. What is Richard's full name?
A. Richard Marshall, and Richard said, "No", and Bill Stone told him that if
he was going to have to pay Union wages he was going to get Union help that
could do that type of work, and Richard told him that they don't do that type
of work there, so, therefore, there was no reason to know it, and he told that if
the Union came in that a lot of men would ge fired or released or laid-off,
and a lot of men would take a cut in pay. I think it was Benjamin Rosenthal
who said, when he came there, that there wasn't a man in the shop-he said he
taught the men eevrything they knew, and that we weren't showing much appre-
ciation, and that the Company always treated us fair and stuff like that. And
then Gershin said something about the head of the Union-.I think his name is
Mr. Hutchinson-he was being tried or prosecuted for something in Court. I
don't remember what the charge was. And then he said if any of the men
wanted to retract their authorization they'd given the Union, either bring it in
or mail it in the next day and notify the Company and nobody would know the
difference.
When questioned by the Trial Examiner about what was said about men being laid
off or taking a cut in pay, Wynn testified that "he said if he had to pay Union wages,
he wanted good help, Union help." Wynn's testimony was substantially corroborated
by A. Gear and Garvin.° Respondent did not elicit testimony from any of its wit-
nesses with respect to his meeting. Therefore, the above testimony of Wynn, being
credible, substantiated and uncontradicted, is credited.
It is concluded that Wynn's testimony demonstrates Respondent's union animus.
It is further concluded therefrom that Respondent during the course of the meeting
violated Section 8(a)(1) of the Act by Stone's interrogation of Richard Marshall as
to how he classified himself on the union authorization card , by threat of loss of
job if Respondent had to pay union wages or of a cut in pay if the Union came in
(in contrast to the policy before the advent of the Union not to lay off "no matter
how slow things were") and by soliciting employees to retract their authorization of
the Union to represent them. Although Wynn testified on cross-examination that the
Rosenthals did make a statement during the meeting that "it was up to the men
whether they wanted it [the Union] or didn't want it," the statement that it was the
prerogative of employees to make such a decision cannot be considered such reassur-
ance to the employees as to have nullified the effect of the above unlawful conduct of
Respondent.
A. Gear, E. Gear, Chandler, and Biaggi testified with respect to a statement made
by Biaggi following the above-mentioned meeting. The testimony of the two Gears
and Chandler was substantially the same, that Biaggi said to the two Gears that, if
the Union comes in, they will be the first to go because of their lack of experience.
Biaggi testified that he recalled making a statement in the locker room to the two
Gears, Chandler, and a fourth employee, Coleman, but that his statement was directed
to the four of them as a group and it was as follows: "that I thought because of the
Union's rules individuals possibly could lose their jobs because they weren't qualified."
The above testimony of the two Gears and Chandler is credited (that he singled out
the two Gears in making the statement and as to the contents of the statement), not
only because of the demeanor of the witnesses on the stand but also because it is
6In order to avoid cumulative testimony, it was stipulated at the hearing that, if Garvin
were to testify as to the meeting, his testimony would be substantially the same as that
of previous witnesses (A Gear and Wynn) with respect thereto. Dunnell subsequently
testified about his complaint with respect to vacations
YALE MANUFACTURING COMPANY, INC. 1107
consistent with the fact that the two Gears, as employees of the, shortest duration,7
were apparently the most inexperienced in the plant. As a matter of fact, this was
one of the principal reasons advanced by the Respondent for selecting the two Gears
for layoff approximately 2 weeks later. It is concluded that Respondent violated
Section 8(a)(1) of the Act by Stone's statement which constituted a threat of loss
of job in the event the employees selected the Union as their representative.
A. Gear testified that at the time he was hired on December 14, 1963, he was told
by Biaggi that he would receive a 10-cent raise in 2 or 3 weeks and that on January 17,
1964, when he asked Biaggi about the raise, Biaggi told him that he would let him
know later on in the day; that later on that afternoon Biaggi came to him and said,
"Due to the Union activity in the plant all raises are cancelled" until further notice.
Denniston testified on rebuttal that he heard Gear asking for a raise and that Biaggi
said to him, "They'll be no further raises till this business with the Union has been
cleared up." He could not, however, remember the exact date or time. Biaggi testi-
fied that A. Gear did ask him for a raise which he refused, but he denied that his
refusal was predicated on union activity in the plant. He testified that he told Gear
it was because he was not pleased with Gear's work and because he absented himself
from the shop without prior leave. He further testified that his refusal was on Janu-
ary 15,8 the day before the Union's representative, Cohan, passed out literature in
front of the plant. E. Gear testified that he, too, asked Biaggi for a raise on Janu-
ary 17, having been told when hired that he could expect a raise after a short term
of employment, and that Biaggi replied "all raises was cancelled because of the Union
being in the picture." Biaggi testified that he did not recall E.- Gear asking him for a
raise. In view of the fact that the Gears appeared to be more convincing witnesses
than did Biaggi, the testimony of both Gears is credited. It does not appear that the
raises were refused because Respondent was fearful of violating the Act by granting
them but in reprisal for the union activity Biaggi did not, either according to his
testimony or that of the Gears, indicate to the Gears or on the stand that the refusal
was predicated upon a fear that granting raises might be construed as a violation of
the Act. Therefore, it is concluded that Respondent violated Section 8 (a)( I) of the
Act by telling employees that they would not be granted raises because of the union
activity of its employees in an attempt to dissuade said employees from engaging in
such activity.
Employee Cornelius Brown testified to a conversation he had with Stone in the
latter part of January in which Stone indicated by an obscene metaphor that reprisal
would be taken against Brown if the Union came in. Stone testified to a somewhat
different obscene version of the remark he made. Dunnell testified to the latter part
of Stone's statement which he overhead which corroborates Brown's testimony. It
does not appear necessary to set forth the exact words of their testimony for the
purposes of resolving this issue. To paraphrase Brown's testimony which is credited,
Stone said to him that if the Union came in (Stone) would take drastically unpleasant
action against Brown and that he (Stone) was the type of person who could do it.
It is concluded that by his statement Stone threatened Brown with economic reprisal
if the Union came into the plant and that the threat was violative of Section 8(a) (1)
of the Act.
It-appears that employee Joseph Denniston and Biaggi were members of a car pool.
Both testified as to a conversation they had in the latter part of January 1964 while
on their way home in the car. Denniston testified:
A. Yes. One night going home there was Joe Hojlo, myself and Gene Biaggi
and Hascall Maude. As soon as Joe Hojlo got out of the car Biaggi says to me,
"What way are you going as far as the Union is concerned?" So, I answered
him by saying "Well, I'm just one of the guys, so I go along with them." And
then he said to me, "Do you mean to tell me that you put yourself in the same
class as those guys?" I says, "Why not; you guys are salaried, you get hospital-
ization pay," I said, "Why shouldn't I go along with them?" So Biaggi said, "I
thought you thought more about yourself than that," and Hascall Maude chipped
in with the same expression. Also Biaggi says to me "Hasn't Yale Manufactur-
ing Company been good to you since you worked here?" I says, "Well, I can't,
complaint," [sic] but he said "Those guys think that the Union is going to get
7 A. Gear had been employed only about a month and E. Gear about 2 days. The other
two, Coleman and Chandler, were employees of long standing
8 He first testified on direct examination that it was "approximately" that date, and
later that he was positive that it was January 15. When asked why he was positive, he
gave an unconvincing explanation.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them all kinds of things , and take my word for it , Yale Manufacturing Company
does not have to give them anything , and there 'll never be a Union in Yale Man-
"ufacturing Company because I won 't allow it."
my advice and keep your nose clean."
Biaggi testified that Denniston "volunteered the information that he was going to go
to a union meeting, and I asked him how his position was and he told me that he
was going to go with the majority, and I stated that he was being foolish." Biaggi
denied that he stated to Denniston that he would never let a union in the plant or
that he told Denniston to keep his nose clean. Denniston's demeanor was more con-
vincing than that of Biaggi. Furthermore his testimony as to what was said by
Biaggi is consistent with the pattern of Biaggi's conduct demonstrated by other cred-
ited testimony. Consequently Denniston's testimony is credited. It is concluded
that in the course of the conversation Biaggi unlawfully interrogated Denniston with
respect to his union sentiment and threatened him with economic reprisal because of
his adherence to the •Union in violation of Section 8 (a) (1) of the Act.,
General Counsel contends that a further violation of Section 8(a)(1) of the Act
was demonstrated by the testimony of Stone. Stone testified that he told Cornelius
Brown that he had heard a rumor about the head of the Union being in "jail; that he
asked Brown if he knew anything about it; and that Brown told him that he had
brought it up at one of the previous union meetings, but his question was not answered.
According to the General Counsel this constituted unlawful interrogation. While
obviously Stone did interrogate Brown, it was not with respect to the protected activ=
ities of Brown or of his fellow employees. It was only through inadvertence that
Stone elicited from Brown the fact that he had attended a union meeting. Therefore,
it is concluded that the above interrogation was not unlawful within the meaning of
Section 8 (a) (1) of the Act.
C. Layoff of the Gear brothers
About an hour before the end of the workday on Monday, February 3, 1964, Biaggi
notified A. Gear and E. Gear that they were being laid off because of lack of work,
and they were given their paychecks. A. Gear had entered the employ, of the,
Respondent on December 14, 1963, and E. Gear was employed on January 14, 1964.,
According to the testimony of Gershon Rosenthal, he began to watch sales orders
about the middle of January 1964, and toward the end of the month he noticed that
the.orders were beginning to "drop off." On the Thursday or Friday prior to Monday,
February 3, 1964, he informed Biaggi and Stone that two employees would have to be
laid off because of lack of orders, but did not direct which employees they were to be.
According to Biaggi's testimony, he discussed the matter with Stone on that Thurs-
day or Friday and they decided that the layoff was to be in Biaggi's department.
Biaggi further testified that he made his final decision to select the Gear brothers
(both of whom were in his department) on February 3, 1964, and discussed it with
Stone. Biaggi further testified that he did not know how the Gear brothers felt about
the Union. Also, according to Biaggi 's testimony, the two were selected because they
were the most recent employees and he was not satisfied with their work. It appears
that the Respondent did not have a seniority policy with respect to layoffs. Biaggi
testified that he was dissatisfied with A. Gear because "he was continually burning
bands 9 every day," on the average of "about'10 to 15 pieces per day," and because
of his absences without leave. Biaggi further testified that he spoke to A. Gear about
burning bands on "approximately two or three occasions."
' Further Biaggi testified that he questioned Gear with respect to his two absences
without leave and he was satisfied with the explanation for one of the absences ("some-
thing to the effect that his wife was going to have a baby"), but could not recall what
Gear's explanation was with respect to the second occasion. With respect to his dis-
satisfaction with the work performance of E. Gear, it appears from Biaggi's testimony
that it was mainly because he was slow.
As has been indicated above, A. Gear was instrumental in contacting the 'Union,
collected the signed authorization cards from 15 of the employees, and mailed them
in. Although Biaggi testified that he did not know what Gear's attitude was toward
the Union, Stone admitted that he knew "A. Gear was going along with the Union,"
A. Yes, he also said to me going home, "You're buying a" new house, keep
6 Banding is accomplished by a machine which "includes gluing the edge of the wood
and taking a piece of formica and placing it on top of the area," and then by ' applying
heat which "cooks the glue and in that way it adheres the formica to the edge."
YALE MANUFACTURING COMPANY, INC. ^ 1109
that he had seen him on several occasions talking to Cohan, the Union 's representa-
tive. Furthermore , Dunnell testified , without contradiction , that, on the afternoon
of January 16, 1964, in response to a question by Stone as to who started the Union,
he informed Stone that it was Arthur Gear, and, when Stone expressed disbelief, he
told Stone that he was "sure ." Therefore , Biaggi's testimony that he .was not aware
of A. Gear 's attitude toward the Union is discredited , inasmuch as it appears reason-
able to infer that Stone communicated this information to other members of manage-
ment including Biaggi.
Respondent introduced sales figures to show that there was a drop in orders in'
January and February. It appears from Gershon Rosenthal 's testimony that the
months of January and February were normally slack months. According to the
uncontradicted testimony of Wynn , Benjamin Rosenthal reminded the employees on
January 16, 1964, the day that the union organizational efforts became obvious, that
prior thereto Respondent never laid off employees "no matter how slow things
were." 10
,Biaggi's testimony is confused as to the practice usually followed by Respondent
with respect to layoffs. On cross-examination , he testified that the instructions7 he
received to lay two men off on the Thursday or Friday before February 3 was "the
first time". he had "ever heard from the office to lay people off" and that previously
he laid people off on his "own decision ." On redirect , he testified that it was the
practice for the "office " to make the decision whether to make a layoff. Then, on
re-cross, he testified that it was his "sole decision " as to how many people to hire.
It is concluded from Biaggi 's testimony that Respondent departed from its usual
practice ,' not only by ' laying off people during the normal slack season , but also by
top management directing that the layoff be made.
Denniston , whose sincerity on the witness stand was impressive , testified that he
worked closely with A. Gear, that it was necessary to come to him, Denniston, for
replacement of bands if they were burned, and that there was only one occasion when
that was necessary . This corroborated A. Gear's testimony that he burned only one
band . Furthermore, Denniston testified that Biaggi told him, shortly after E. Gear
was-employed , that he was pleased with the way the Gear brothers were shaping up.
Biaggi admitted on the stand that he would have given them a longer trial period,
'if he had not been directed to lay off two men. This admission might well be con-
sistent with his testimony that E. Gear was "slow," after only 2 weeks of employment,
but would not appear to be consistent with his testimony that A . Gear continually
burned 10 to 15 bands a day over 11/2 months of employment . Further, it would
appear that such inept performance would have evoked more from Biaggi than only
speaking to A. Gear about it on "approximately two or three occasions ," as Biaggi
testified . Therefore , Biaggi's testimony that A. Gear burned on an average of 10 to
15 bands a day is discredited . This finding of the invalidity of one of the reasons
advanced for selecting A. Gear for layoff fortifies the finding hereinbelow of the
pretextual nature of the economic reason for top management 's direction that two
men be laid off.
In view of the foregoing analysis of the testimony with respect to the layoff of
A. Gear and E . Gear, of A. Gear's activity on behalf of the Union which was known
to Respondent, of the antiunion animus of Respondent and of its above-described
unlawful conduct in violation of Section 8(a) (1) of the Act, it is concluded that the
layoff of A. Gear was discriminatorily motivated and that the economic reason there-
for advanced by Respondent was pretextual . It is further concluded that E. Gear
was discriminatorily laid off, not only because he was A. Gear's brother and likely
to have the same attitude toward the Union , but to lend credence to the reasons
advanced for laying off A. Gear. The Gear brothers were the last two persons hired
before the layoff, A. Gear approximately 11/2 months prior to thereto and E. Gear
approximately 2 weeks prior thereto.
According to Respondent's witnesses , Respondent did not have a policy of recalling
employees on layoff. Therefore , the so-called layoff of the Gear'brothers was tanta-
mount to discharge , inasmuch as Respondent apparently had no intention of recalling
them ., Consequently , it is concluded that Arthur Gear and Edward Gear were dis-
charged in violation of Section 8(a) (3) and ( 1) of the Act.
10 Although the record indicates that one or more employees may have been previously
"laid off," there is no showing what the reasons were therefor . The record does not
indicate whether or not there had' been "layoffs" In previous slack periods . The record
does indicate that the term "`layoff" was , in effect, synonymous with discharge according
to Respondent 's employment practices, since Respondent 's witnesses testified that it did
not follow the practice of recalling employees who had been "laid off." ' '
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The discharge of Dunnell and Garvin
James Dunnell and Charles Garvin were discharged by Stone toward the end of
the workday on Wednesday, February 19, 1964. Following is a summary of the
testimony bearing on the termination of their employment.
According to Stone, from his "observation and the completed order slips," he,
during the week prior to February 19, formed the opinion that "production was
slower," and on Friday, February 14, he timed the stitching operation of Brown and
the upholstering of Garvin and Dunnell. Brown, who came up behind him and
spotted the stopwatch, informed Garvin and Dunnell of what Stone was doing. They
made a joke of it and Garvin and Dunnell continued their work while Stone timed
them for "perhaps 20 minutes." Stone testified that at no time did it take either of
them longer than 3 minutes to complete a seat. Dunnell testified that he and Garvin
were racing each other and not working at a "normal" pace. (Stone's testimony does
not indicate the length of time it took them to complete a seat before they learned
he was timing them, or if he had had the opportunity to make such a check.) Stone
testified in a vague and unconvincing manner that he also timed Cornelius Brown on
stitching covers. His testimony with respect thereto was, "I don't remember. I think
he could have stitched a cover-I timed him." However, he did remember to the
very second the time required by Dunnell and Garvin. When asked if he checked
any other operations, he testified that he thought he checked Richard Marshall. To
continue with Stone's testimony, he did not find any evidence of a slowdown on
February 14, except the production figures disclosed by the "orders." When asked
by the Trial Examiner what the production figures were for the weeks around Feb-
ruary 14, Stone replied that he did not "keep them as such."
The following Monday, February 17, Stone did not bring in a stopwatch for further
time checks. However, he testified that he observed "that there were constant trips
to the men's room, getting drinks of water and by checking my slips at the end of
the day, I was not getting the right production." This was both on Monday and
Tuesday. On Tuesday, February 18, Dunnell, who had been talking with Brown,
was warned about doing so by Stone. Apparently as a consequence of this warning,
Dunnell told Garvin on February 18, according to Dunnell's testimony, "When you
come in here tomorrow morning just do your work and don't talk." It appears that
during the morning of February 19 Stone checked on Dunnell and Garvin twice and
found that the two of them were completing 18 seats an hour, or an average of 9'
seats each. Stone on each of these occasions said to them "for 15 years I get 15 seats
an hour and I'm not settling for 9." Stone testified that he also said to them he
would "accept a minimum of 12 seats an hour." There is no dispute in the testimony
that they explained to Stone that they were working with material that was more
difficult to attach than other material. Dunnell testified that after the second warn-
ing, he said to Garvin, "Don't do any more than we're doing now. He's just trying
to pressure us on account of the Union. You know how this material is." Stone
testified that at exactly 2:22 p.m. Dunnell and Garvin started working on an order
and at exactly 3:22 p.m. he checked and discovered they had only turned out 18 seats
between them; that he then said, "Apparently you have no intention of giving me the
production I should be getting"; and that he told them to get their hats and coats and
wait for him in his office. Dunnell testified as follows to what occurred at the time:
so Bill come over about 3:15, and I said to him, "Hey Stoney, are we
going home or what's the story?" There was a snow storm. He said, "I'm going
down the office to check; I'll be right back." So he came and he came around
to the other way, and he said, "Is that all I get for an hour's work". I said, "Bill
that's all you know we can do with this stuff", he said, "Well, I'm not standing
for any slow down in here", so he says, "You're all done", and I told him it
wasn't a slow down, and I says, "What do you mean we're fired", and he said,
"Yes, you're fired."
Respondent contends that Dunnell and Garvin were discharged because they
engaged in a slowdown, while the General Counsel contends that their discharge was
discriminatorily motivated.
Stone testified that, about 2 hours before he discharged Dunnell and Garvin, he
overheard a conversation between two employees, Bob Davis and Gerald Wynn, as
they passed the door of his office. According to Stone, Davis said to Wynn, "They
know about the slowdown" to which Wynn responded with an obscene phrase clearly
indicating his lack of concern. Immediately following the discharge of Dunnell and
Garvin nine other employees walked out of the plant after learning of the discharge.
The subject of their strike action is discussed hereinbelow.
YALE MANUFACTURING COMPANY, INC.
As has been disclosed hereinabove, Dunnell, on January 16, 1964, the day the union
campaign started, acted as an informer and gave Stone the information he was seek-
ing as , to who started the Union (Arthur Gear) and told Stone that the employees
had mailed in their authorization cards to the Union. Also according to the uncon-
tradicted testimony of Dunnell the next day, on January 17, Dunnell again asked'
Stone to meet him in the privacy of the fourth floor. He testified that he told Stone
"that he wasn't going to tell him anything more, I already told him too much already,
and that I was with the guys that trust me, and that I am with the union 100 percent."
Dunnell further testified without contradiction to another conversation he had with
Stone on February 5, as follows: -
So I asked him, I said, "You told us at the meeting that this Union' wouldn't
bother this place", so I said, "Why are you fighting it so much?", and he said,
"How would you like me to come to East Boston and tell you how to run your
home?", and I said, "This is entirely different; this is a job and that's my home",
and he said, "No, it's not".
Apparently it is the General Counsel's contention that Dunnell was fired in retalia-
tion for forsaking the role of informer and because of his acknowledged adherence
to the Union, and that-Garvin was fired because Dunnell could not be discharged for.
the reason relied upon by Respondent without also discharging Garvin.11
It is concluded that the record supports the General Counsel's contentions.
Although Stone claimed that he had a "feeling" that there was a slowdown in progress
in the plant, it does not appear that he attempted to pinpoint what employees were
engaged in it, except Dunnell and Garvin. On February 14, he made an abortive
attempt to time them secretly with a stopwatch. His testimony is vague and uncon-
vincing with respect to attempts to check on any other employees that day. On Feb-
ruary 19, he checked on the production of Dunnell and Garvin on three occasions, but
apparently did not check on the production of any other employee. This failure
to check on other employees becomes even more significant in light of Stone's testi-
mony that about 2 hours prior to his third check on Dunnell and Garvin, he over-
heard-a conversation between Davis and Wynn which should have made him believe
that Davis and Wynn were engaging in a slowdown. However, he apparently made
no attempt to question Davis or Wynn or check on their production. This testimony,
with respect to the conversation of Davis and Wynn being uncontradicted is assumed
to be true. This assumption casts doubt on the motivation for the discharg'e' of
Dunnell and Garvin. Stone offered no explanation of why he checked Dunnell and
Garvin on four occasions to see if they were engaging in a slowdown and neglected
to check other employees, particularly Davis and Wynn. In view of his concentra-
tion upon Dunnell and Garvin, it is concluded that Respondent was seeking a basis
for discharging Dunnell which it could successfully contend was nondiscriminatory.
Furthermore, the evidence relied upon by Respondent to prove that Dunnell and
Garvin were engaged in a slowdown is not convincing. Respondent attempted to
show that production of 18 seats an hour by them that morning constituted a delib-
erate slowdown. On the other hand , Dunnell and Garvin testified that they were
working a normal pace , but that the type of material they were working with at the
time curtailed their production. To offset this Respondent points to the time, it took
each of them to complete a seat when Stone checked them with a stopwatch on
February 14. It is concluded that Dunnell and Garvin were aware that they were
being timed and, therefore, were not working at a normal pace. Although it would
appear from Garvin's testimony that he was not aware of the fact that he was being
timed, the testimony of Stone and Dunnell indicates that he must have been. The
only explanation for Garvin's testimony is that Garvin must have thought that Stone
had timed him prior to the discovery of the stopwatch. It does not appear that the
clocking of Dunnell and Garvin on February 14 or the test on April 28 can be con-
sidered as criteria of what their production should have been at a normal pace, since
on both occasions the production, being under pressure, demonstrated the maximum
rate, not the normal rate. Dunnell testified that he and Garvin were racing each other
on February 14, and that on April 28 he was aware of the fact that Rosenthal and
counsel for Respondent were timing the operation and, therefore, he did not work
at the "regular speed ." There apparently are no production records available from
which it can be determined what the production had been in the past when Dunnell
n The evidence relied upon by Respondent as the reason for the discharge disclosed,
according to Respondent, that both men engaged in a slowdown. Since it consisted of
the total number of seats the two of them completed, Respondent had no way of knowing
or proving whether one completed more seats than the other.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Garvin were indisputably working at a normal pace. According to'Stone's'testi-
mony 12 seats would'have been acceptable. On the other hand, Dunnell and Garvin
testified that they were working with material that was difficult to handle which
slowed down their production. The record is clear that they explained about the
material to Stone on the morning when he complained about their rate of production.
Respondent relies on a signed statement which Dunnell gave to Respondent after he
was reinstated in which he said "that both he and Garvin can do at least 15 seats
per hour." Dunnell testified that after he was reinstated he-had discussions with
Rosenthal and Stone and gave them several statements including the one with respect
to the slowdown from which the above quotation was taken. When asked to explain
about the statement, Dunnell testified:
A. Well, I could get out 15 seats an hour but that's not steady; I cannot do
that for eight hours a day; sometimes we get ten to 13 or 14, even 16, but it all
depends on the material and things like that. You can't do it for eight hours
steady, and I've never done it for eight hours steady. -
Dunnell testified that at a normal pace we usually did "about 12 an hour," but-this
apparently was with material other than that which they claimed was difficult to
handle. When questioned by the Trial Examiner whether or not he and Garvin were
working at a slower pace during the period prior to their discharge than they had
been working during the prior 2 years, witness responded, "No, we just worked as we
always did. There was no slowdown." 12 '
As proof of a slowdown Respondent further relies upon Richard Marshall's testi-
mony to the effect that Dunnell kept him waiting for parts during the period of 2
weeks prior to February 19 which slowed down his production, and that when -he
asked Dunnell for an explanation on several occasions, Dunnell responded, `-`They
were kind of nervous and when the Union comes in things will change." Marshall
was one of those in the original group which decided to contact a union, and'-his
fellow employees must have assumed he was an adherent of the Union, for at' the
meeting called by Respondent on January 16, it was revealed that he had signed an
authorization card. (Marshall was one of nine employees who went on strike on
February 19 after the discharge of Dunnell and Garvin. However, he abandoned
the strike, and his application for reinstatement was accepted during the week ending
March 13, 1964.) It is reasonable to infer that, if Dunnell, Garvin, and other
adherents of the Union were engaging in a slowdown, as contended by. Respondent,
Dunnell would have assumed or enlisted Marshall's participation, instead of giving
him the excuse of being "nervous." Therefore, it is concluded that Marshall's testi-
mony indicates, at the most, a disruption of morale pending recognition of the Union,
rather than a deliberate slowdown.
During the course of his direct examination, Dunnell testified that, after Stone had
complained on the morning of February 19 about the number of seats he and Garvin
were producing, he told Garvin, "Don't do any more than we're doing now. He's
just trying to pressure us on account of the Union." Respondent relies upon this as
indicative of the existence of a slowdown. It appears just as reasonable, if not more
so, to interpret his statement to Garvin as a refusal to be "pressured" into a speedup
above the normal rate, instead of as an insistence that they maintain a speed below
the normal rate. Although Dunnell had testified that 12 seats an hour was their
normal rate, it appears that their claim of having difficulty with the material with
which they were working on February 19 would reasonably account for the 3-seat-
an-hour difference. Therefore, it is concluded that Dunnell and Garvin were not
deliberately engaged in a slowdown, as contended by Respondent. -
12 Although Dunnell admitted that he was threatened by one of the strikers a7. few
days before the hearing, it appears that the threat was with regard to his having' abandoned
the strike and that it did not affect his testimony Dunnell's statement on the stand was
convincing that his testimony given during the hearing was true, and that any prior
inconsistent statements were not true. Furthermore, he testified credibly as to why he
gave a statement (about a slowdown) to Respondent as follows: '
Because when I was in there [after being reinstated] I had talked-with him
[apparently one of the Rosenthals] all the time. He brought up a slow-down,
and I didn 't know nothing about a slow-down, but I figured this is what they wanted
about a slow-up, in fact, we started to take it down about a slow-up ; I had no plans
about a slow-up. So when they did that we went over it with Bill's [Stone's]
testimony , and that's the way it came out. I did it because I figured they wouldn't
ask me about a slow-up anymore.
YALE MANUFACTURING COMPANY, INC . 1113
It is concluded that Dunnell and Garvin were discriminatorily discharged in viola-
tion of Section 8 (a) (3) and (1) of the Act.13
E. The unfair labor practice strike
On February 4, 1964 , the day after the Gear brothers were "laid off," 13 employees
met after work with Cohan , the Union 's representative . Wynn credibly testified, as
follows, as to what occurred at the meeting:-
Well, the two Gear brothers had gotten Laid-off the previous day.
and we ' discussed the fact that less than three weeks before they had told
us that no one ever got laid -off there, and we figured that it couldn 't have been
because there wasn 't enough work, because after they left, Gene Biaggi , the fore-
man, started doing Eddy 's job, spray painting , and Richard Marshall came from
upstairs-he's the upholsterer-and they had him doing Arthur Gear's job. And
after thinking about that , and we had all but been threatened at the meeting in
a way, so we decided if any more of the men had gotten fired or laid-off we
figured we'd all walk out.
On February 19, 1964, shortly after Dunnell and Garvin were fired , nine of the
employees walked off the job. Wynn credibly testified about their action as follows:
About 3 : 30, quarter of four, in the afternoon Cornelius Brown came downstairs
and told the men-
. He told us James Dunnell and Charles Garvin had been fired , so we all
went to our lockers and started getting dressed to go home , and Gene Biaggi
came walking in, and he said , "Where are you fellows going?" and we said,
"Home". He said , "Why?", and we said, "Well, you fired four of the men
already, so we're all walking out", and he didn 't say anything, and we left. And
from there we went back to Murphy's Cafe about 5:15 that night, and we had
another meeting.
At- this meeting of the employees , they decided to start picketing the next day, which
they did. Picket signs were first carried on February 24, 1964 . The picket signs
read: "Yale Mfg., Unfair Firing, AFL-CIO, Local 3127." (Wynn testified that Local
3127 is a local of the Union and the authorization card received in evidence indicates
that Local 3127 is a local of the Union .) The strike and picketing continued and
was apparently still in progress at the time of the hearing in the instant case.
It was stipulated that the following employees were the nine who left work and
went on strike on February 19, 1964, after the discharge of Dunnell and Garvin:
Gerald Wynn , Richard Marshall, Lonnie Lankford , Joseph Hojlo, Joseph Denniston,
Robert Davis , Herman Coleman, David Chandler, and Cornelius Brown. It was
also stipulated that with the exception of Marshall , who was reinstated during the
week ending March 13, 1964, and Lankford , who was reinstated during the week end-
ing April 6 , 1964 , none of the above -named employees has made a request for rein-
statement or notified Respondent that he has abandoned the strike . 14 It was further
stipulated that, up until the date of the hearing , the Union has not notified the
Respondent that the strike has been terminated.
It is concluded that the above-named employees went on strike on February 19,
1964 , because of the Respondent 's discharges of Dunnell , Garvin, and the Gear
brothers . Respondent has not advanced a contention that the discharges were not a
motivation for the strike . It is further concluded that , since the four discharges have
been found to be violative of Section 8(a) (3) and ( 1) of the Act, it is appropriate
to characterize the strike as an unfair labor practice strike.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
13 Even assuming that there had been a slowdown , it appears , from Respondent's con-
centration upon Dunnell and Garvin in looking for evidence of a slowdown , that It was
being sought by Respondent to cover up its basic motivation for their discharge
14 It further appears that only Dunnell , of the four employees who were found to have
been discriminatorily discharged , applied for reinstatement As has been previously in-
dicated, Dunnell was' reinstated during the week ending March 13, 1964.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that Arthur Gear and Edward Gear, on February 3, 1964,
and Charles Garvin, on February 19, 1964, were discriminated against with respect
to their hire and tenure of employment by reason of their discharge on said dates,15
it will be recommended that the Respondent be ordered to offer them full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority and their other rights and privileges. It will be further recommended that
Respondent make them whole for any loss of earnings they may have suffered because
of the discrimination against them, by payment of a sum• equal to the amount they
normally would have earned as wages from the respective dates of their discharge to
the date of offer of reinstatement, together with interest thereon as provided below.
The loss of earnings should be computed in accordance with the formula and method
prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and the inter-
est, payable in accordance with Isis Plumbing & Heating Co., 138 NLRB 716, should
-be computed at the rate of 6 percent per annum on the amount due in each instance
for each calendar quarter (under the Woolworth formula) beginning with the end
of the first calendar quarter and continuing with each succeeding calendar quarter
until payment of such amount is properly made.
It having been found that James Dunnell was discriminated against with respect to
his hire and tenure of employment by reason of his discharge on February 19, 1964,
and that he was subsequently reinstated, it will be recommended that the Respondent
make him whole for any loss of earnings he may have suffered because of the discrim-
ination against him by payment of a sum equal to the amount he normally would
have earned from February 19, 1964, to the date he was reinstated. His loss of earn-
ings should be computed according to the formula and method described above.
It having been found that the strike which began on February 19, 1964, is an
unfair labor practice strike, it will be recommended that the Respondent, upon uncon-
ditional application, offer the employees who went on said strike and were not there-
after reinstated, reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, dismissing, if neces-
sary, those employees hired to replace them.16 It will be further recommended that
Respondent make each of said employees whole for any loss of earnings he may
suffer in the event Respondent refuses to reinstate him within 5 days after he uncondi-
tionally applies for reinstatement. Said loss of earnings, if any, should be computed
in accordance with the formula and method described above. It will be further
recommended that Respondent place on a preferential hiring list those strikers, if any,
for whom no jobs are available, with priority determined by such system of seniority
or other nondiscriminatory practice as heretofore has been applied in the conduct of
the Respondent's business, and thereafter, in accordance with such list, they be offered
reinstatement as positions become available, before other persons are hired for such
work.
Inasmuch as the unfair labor practices committed by the Respondent are of a
character striking at the root of employees' rights safeguarded by the Act, it will be
further recommended that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed its employees in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by the following conduct:
(a) Unlawfully interrogating employees with respect to their protected activities
and the protected activities of their fellow employees.
(b) Interfering with the protected activities of its employees by requesting that
one of them engage in surveillance of his fellow employees' protected activities and
inform Respondent thereof.
15 Although the term "laid off" was used both in the complaint and In the testimony
describing the action taken by the Respondent with respect to the Gear brothers, It was
found hereinabove that the so-called layoff constituted a discharge
16 This recommendation is not to be construed as requiring reinstatement of any striker
not lawfully entitled thereto. The Trial Examiner, In the course of the hearing, ruled
that he would not receive any evidence with regard to picket line misconduct, but that
any claim by Respondent that a striker who applies for reinstatement Is not lawfully
entitled thereto should be deferred to the compliance stage of this proceeding or to a sub
sequent hearing, If required. Western Wirebound Boa Co., 145 NLRB 1539.
YALE MANUFACTURING COMPANY, INC. 1115
(c) Threatening its employees with economic reprisals should they adhere to the
Union or authorize the Union to act as their collective -bargaining representative.
(d) Interfering with the protected activities of its employees by soliciting them to
retract their authorization of the Union to represent them.
2. Respondent violated Section 8(a) (3) and ( 1) of the Act by its discriminatory
discharge of Arthur Gear and Edward Gear on February 3, 1964, and of James Dun-,
nell and Charles Garvin on February 19, 1964.
RECOMMENDED ORDER
Based upon the above findings of fact, conclusions of law , and the entire record in
the case , and pursuant to Section 10(c) of the National 'Labor Relations Act, as
amended , it is recommended that the Respondent , Yale Manufacturing Company, Inc.,'
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining , and coercing its employees in the exercise of their
rights guaranteed under Section 7 of the National Labor Relations Act, as amended,
by unlawfully interrogating them with respect to their exercise of said rights„ by
requesting an employee to engage in surveillance of his fellow employees' protected,
activities and inform it thereof , by threatening its employees with economic reprisals
should they adhere to the Union or authorize the Union to act as their collective-
bargaining representative , and by soliciting them to retract their authorization of the
Union to act as their collective-bargaining representative.
(b) Discouraging membership in the United Brotherhood of Carpenters & Joiners
of America , AFL-CIO, or any other labor organization of its employees , by discrim-
inating in regard to the hire and tenure of employment or any term or condition of
employment.
'(c) In any other manner interfering with , restraining , or coercing its employees in
the exercise of the right to self-organization , to join , form , or assist labor organiza-
tions, including the above -named labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities , except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which it is deemed will effectuate the
policies of the Act:
(a) Offer to Arthur Gear, Edward Gear , and Charles Garvin immediate and full
reinstatement to their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges , and make them whole for any loss
of earnings they may have suffered as a result of the discrimination against them, as
provided in the section of this Decision entitled "The Remedy."
(b) Make James Dunnell whole for any loss of earnings he may have suffered as
a result of the discrimination against him , as provided in the section of this Decision
entitled "The Remedy."
(c) Upon unconditional application, offer to the employees who went on strike
on February 19, 1964, and have not since been reinstated , immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , dismissing , if necessary, those employees
hired to replace them , or place them on a preferential hiring list in the manner set
forth in the section of this Decision entitled "The Remedy ," and, in the event that the
Respondent unlawfully refuses to reinstate them, make them whole for any loss of
earnings they may suffer by reason thereof, in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) 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 all other records necessary to determine the amount of
backpay due under the terms of this Recommended Order.
(e) Post at its plant in Roxbury , Massachusetts , copies of the attached notice
marked "Appendix." 17 Copies of such notice, to be furnished by the Regional
17 If this Recommended Order is 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 If the Board 's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals , Enforcing an Order" for the words "a Decision
and Order".
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 1, shall, after being signed by an authorized representative of
the Respondent, be posted immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(f) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps the Respondent has taken to comply herewith.18
18 If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 1, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
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 unlawfully interrogate our employees with respect to the exercise
of their rights protected under Section 7 of the National Labor.Relations Act, as
amended.
WE WILL NOT request any employee to engage in surveillance of his fellow,,
employees' protected activities and inform us thereof.
WE WILL NOT threaten our employees with economic reprisals should they
adhere to the United Brotherhood of Carpenters & Joiners of America, AFL-CIO,
or authorize said Union to act as their collective-bargaining representative.
WE WILL NOT solicit our employees to retract their authorization of said Union
to act as their collective-bargaining representative.
WE WILL NOT discourage membership in said Union or in any other labor
organization of our employees by discriminating in regard to their hire.or tenure
of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to join, form, or assist
labor organizations, including the above-named labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except to,.the-
extent that such right may be affected by an agreement requiring membership-in '
a labor organization as a condition of employment as authorized in Section,
8(a) (3) of the Act.
WE WILL offer to Arthur Gear, Edward Gear, and Charles Garvin immediate
and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, and make them
whole for any loss of earnings they may have suffered as a result of the discrim-
ination against them, as provided in the section of the Trial Examiner's Decision
entitled "The Remedy."
WE WILL make James Dunnell whole for any loss of earnings he may have
suffered as a result of the discrimination against him, as provided in the section
of the Trial Examiner's Decision entitled "The Remedy."
WE WILL, upon unconditional application, offer to the employees who went
on strike on February 19, 1964, and have not since been reinstated, immediate
and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, dismissing, if
necessary, those employees hired to replace them, or place them on a preferen-
tial hiring list in the manner set forth in the section of the Trial Examiner's Deci-
sion entitled "The Remedy," and, in the event that we unlawfully refuse to rein-
state them, make them whole for any loss of earnings they may suffer by reason
thereof, in the manner set forth in the section of the Trial Examiner's Decision
entitled "The Remedy."
All our employees are free to become or to remain members of United Brother-
hood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization,
ALMEIDA BUS LINES , INC . 1117
or to refrain therefrom except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
YALE MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above -mentioned employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, 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, Boston
Five Cents Savings Bank Building, 24 School Street , Boston , Massachusetts , 02108,
Telephone No. 523-8100 , if they have any questions concerning this notice or compli-
ance with its provisions.
Almeida Bus Lines , Inc. and Antone O. Pontes and Gilbert
Jesus . Case No. 1-CA-4634(1-2). January 18, 1965
DECISION AND ORDER
On November 12, 1964, Trial Examiner Thomas A. Ricci issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent filed cross-
exceptions and a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and cross-exceptions, the briefs,
and the entire record in this case, and hereby adopts the findings,
conclusions , and recommendation of the Trial Examiner.'
[The Board dismissed the complaint.]
1 In adopting the Trial Examiner 's conclusions and recommendation , we do not adopt
so much of his Decision as may appear to suggest that , in establishing whether conduct
within 6 months of the filing of the charge is illegally motivated , Section 10 ( b) of the
Act forecloses giving controlling weight to evidence of motivation arising from facts
occurring outside the 6-month period.
150 NLRB No. 112.