American Shuffleboard Co.

National Labor Relations Board - Board Decisions

Jan 12, 1951

92 N.L.R.B. 1272 (N.L.R.B. 1951)

In the Matter of PAUL CUSANO, GENERAL PARTNER, Louis CUSANO,
TERESA CUSANO, AND ARMAND CUSANO, LIMITED' PARTNERS, TRADING
AS AMERICAN SHUFFLEBOARD COMPANY, AMERICAN CABINET COM-
PANY AND AMERICAN CABINET AND BILLIARD COMPANY and MARINE
WAREHOUSEMEN OF NEW JERSEY, LOCAL 1478, INTERNATIONAL LONG-
SHOREMEN'S ASSOCIATION,-AFL
Cases Nos. 2-CA-634 and 2-CA-657.-Decided January 12,1951
DECISION AND ORDER
On September 29, 1950, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent 1 had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs, and the General Counsel filed a brief in support of
certain portions of the Intermediate Report.
The Board 2 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications.
1. We agree with the Trial Examiner that the complaint in this.
case is not barred by the proviso to Section 10 (b) of the Act.
The original charge, which was served on the Respondent within 6
months of Paladin's discharge, alleged that the Respondent violated
Section 8 (a) (1) only, by discharging Paladino only because of his
activities on behalf of the Union. The amended charge, the com-
plaint, and the amended complaint, which were all served on the
Respondent more than 6 months after Paladino's discharge, each al-
leged that the Respondent violated Section 8 (a) (1) and (3) by dis-
charging Paladino because of his activities on behalf of the Union,
' As in the Intermediate Report , the word "Respondent ," as used herein , means the
general and limited partners named in the caption, both individually and collectively.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Members Houston, Reynolds,
and Styles].
92 NLRB No. 187.
1272
AMERICAN SHUFFLEBOARD COMPANY 1273
and because he engaged in other concerted activities. The Respondent
asserts that the amended charge, the complaint, and the amended
complaint alleged a different factual and legal basis for liability for
Paladino's discharge than was alleged in the original charge. It con-
tends, accordingly, that as no timely charge alleged the specific unfair
labor practice that was alleged in the complaint and amended coln•-.
plaint, this proceeding is barred, as to Paladino's discharge, by the
6-month limitation of the proviso. However, as the original charge
was timely filed and served as to Paladino's discharge, it tolled the
statute of limitations with respect to that discharge,3 irrespective of
the theory upon which the case was ultimately tried. _ In any event,
the allegations of the amended complaint, that the Respondent vio-
lated Section 8 (a) (1) by discharging Paladino because of his ac-
tivities on behalf of the Union, which in itself would be sufficient to
support our findings below, are encompassed within the literal
language of the original charge. Accordingly, we find the Re-
spondent's contention to be without merit.
. 2. We also agree with the Trial Examiner that the Respondent's
threats, to discharge employees, contained in the speech and notice,
of January 24 and the letters of February 11 and .12, violated Sec-
tion 8 (a) (1). In the speech and notice of January 24, the Respond-
ent threatened to discharge any employees who might engage in a
threatened strike; in the letters of February 11 and 12, the Respondent
threatened to discharge employees then on strike. With respect to
the letters of February 11 and 12, the Respondent asserts that the,
strike then in progress was unprotected activity, because it was called
for the purpose of forcing the Respondent to recognize the Union
during the pendency of a representation proceeding, and in the face
of a prior Board certification of another union.4 The Respondent
contends, therefore, that the threats contained in those letters were
privileged. As found by the Trial Examiner, however, the strike was
called only to protest the postponement of the election, and not to
compel recognition of the Union; accordingly, it was protected.' The,
earlier strike threat, which prompted the Respondent's speech and -
notice of January 24, was caused by the Respondent's discharge of
two employees, and was therefore also protected." Accordingly, we
find without merit the Respondent's contention that its threats did
not violate Section 8 (a) (1). We also find without merit the con-
tention that its threats were protected free speech under Section 8 (c).
Stokely Foods, Inc., 91 NLRB 1267; Cathey Lumber Company, 86 NLRB 157.
4 Local 92, United Furniture Workers of America, CIO, was certified by the Board on
September 27, 1946, as the representative of the Respondent's production and maintenance
employees.
5 Auto part Manufacturing Company, 78 NLRB 461.
6 Kallaher .and Mee, Inc., 87 NLRB 410.
929979-51-vol. 92-82
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. In adopting the Trial Examiner's findings that the Respondent
discharged Paladino in violation of the Act, we rely solely on the
following circumstances :
Paladino attended the February 2 conference at the Regional Office
of the Board as a representative of the Union and of the employees
at the Respondent's plant. At the conference Davidson, the Re-
spondent's attorney, stated that the Respondent's purchases and sales
during 1948 each exceeded $500,000. This information was embodied
in a consent-election agreement, which was executed by representatives
of the Respondent, the Union, and the Board, and a copy of which
was given to union representative Wagner.7 The following day
Paladino reported to the shop committee, but to no one else, what
had occurred at the Board conference, including Davidson's state-
ment concerning the volume of the Respondent's business in inter-
state commerce. Later that day, Cusano was told that Paladino had
been spreading a story that the Respondent had made $500,000 profit,
whereupon Cusano confronted Paladino, demanding to know if the
report was true. Although Paladino did not specifically deny that
he had made the alleged statement concerning the Respondent's profits,
he denied it in substance by several times repeating to Cusano what
he had told the shop committee, including Davidson's statement con-
cerning the volume of the Respondent's business in interstate com-
merce. The Respondent nevertheless discharged Paladino for the
alleged reason that he had deliberately and maliciously lied in stating
that the Respondent had made "fantastic earnings."
The facts thus establish that the Respondent discharged Paladino
because of his activities on behalf of the Union, in reporting to the
shop committee what had occurred at the Board conference. As this
is a form of concerted activity protected by the Act," we find that
the Respondent discharged Paladino in violation of the Act. More-
over, even assuming that Paladino had made a false (but not deliber-
ately or maliciously false) report to the shop committee that the
Respondent had made "fantastic earnings," and that the Respondent
had discharged him because he had made such a false report, such
7 Like the Trial Examiner , we find it unnecessary to determine whether Davidson
e'sacted a promise from those present , including Paladino , not to reveal the information
which he furnished concerning the volume of the Respondent's business in interstate com-
merce. Even assuming that Paladino agreed to keep such information confidential, the
Respondent waived any such commitment by agreeing to include the information in the
consent-election agreement , a public document , a copy of which was given to Wagner.
In any event , the Respondent 's reliance on Paladino 's alleged breach of confidence, as a
ground for his discharge , was clearly an afterthought ;- it was not advanced by the Respond-
ent at the time of Paladino's discharge , either by Cusano to Paladino , or in the notice
which was posted on the bulletin board. We find it unnecessary , accordingly, to decide
whether a breach of confidence , such as was allegedly involved herein, would constitute
sufficient grounds for discharge.
8 Stocker Manufacturing Company, 86 NLRB 666, enf . 185 F . 2d.451 (C.. A. 3).'
AMERICAN SHUFFLEBOARD COMPANY - .1275
a discharge would still have been unlawful. Employees do not forfeit
the protection of the Act if, in discussing matters of such vital common
concern as their employer's financial status, they give currency to
inaccurate information., Furthermore, since there is no evidence that
Paladino's report, even if inaccurate, was deliberately or maliciously
false, it is immaterial that the Respondent may have acted upon a good
faith belief that such was the case.'°
We further find that, under any view of the case, the Respondent,
by discharging Paladino because of his activities on behalf of the
Union, not only violated Section 8 (a) (3) of the Act, but also inter-
fered with the concerted activities of its employees, in violation of
Section 8 (a) (1).11 Whether the discharge be viewed as a violation
of Section 8 (a) (3) or of Section 8 (a) (1), we find that it will effec-
tuate the policies of the Act to order that Paladino be reinstated with
back pay.12
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Paul Cusano,
general partner, Louis Cusano, Teresa Cusano, and Armand Cusano,
limited partners, trading as American Shuffleboard Company, Ameri-
can Cabinet Company, and American Cabinet and Billiard Company,
its agents, successors, and assigns, shall:
1. ,Cease and desist from :
(a) Discouraging membership in Marine Warehousemen of New
Jersey, Local 1478, International Longshoremen's Association, AFL,
or in any other labor organization of its employees, by discriminating
in regard to their hire or tenure of employment, or any term or con-
dition of their employment, except to the extent permitted by the
proviso to Section 8 (a) (3) of the Act;
(b) Discharging or threatening to discharge any of its employees
for engaging in or threatening to engage in strikes or any other form
of protected concerted activity ;
(c) In any other manner interfering with, restraining, or coercing,
its employees in the exercise of-the right to.:self-organization, to form
labor organizations, to join or assist Marine Warehousemen of New
Westinghouse Electric Corporation, 77 NLRB 1058 , set aside on other grounds, 179 F.
2d 507 (C. A. 6). Cf. N. L. R. B. v. Atlantic Towing Company, 180 F. 2d 726 (C. A. 5),
in which the court held that falsely accusing an employer of an unfair labor practice was
unprotected activity.
10 Ohio Associated Telephone Company ,. 91 NLRB 932 , and cases cited in footnote 7
thereof.
L. cf H. Shirt Company, Inc., 84 NLRB 238, 251.
" J. A. Bentley Lumber company, 83 NLRB 803, enf . 180 F. 2d 641 (C. A. 5).
1276 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jersey, Local 1478, International Longshoremen's Association, AFL,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, 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 the Board finds will
effectuate the policies of the Act :
(a) Offer to Peter Pala.dino immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered as a result of his discharge, in
the manner set forth in that section of the Intermediate Report
entitled "The remedy" ;
(b) Post at its place of business in Union City, New Jersey, copies
of the notice attached hereto and marked Appendix A.13 Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent's representa-
tive, be posted by it immediately upon receipt thereof and be main-
tained by it for a period of at least sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees 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;,
(c) 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 rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from. the date of this Order, what steps it has
taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
'3 In the event that this Order is enforced by,a decree of a United States Court of Appeals,
there shall be inserted before the words ."A^Decision : and Order ," the words "A Decree
of the United States Court of Appeals Enforcing."
AMERICAN SHUFFLEBOARD COMPANY 1277
WE WILL NOT discourage membership in MARINE WAREHOUSE-
MEN OF NEW JERSEY, LOCAL 1478, INTERNATIONAL LONGSHORE-
MEN'S AssocIATION, AFL, or in any other labor organization, by
discriminatorily discharging employees or by discriminating in
any other manner in regard to their hire or tenure of employment.
or any term or condition of employment.
WE WILL NOT discharge or threaten to discharge any of our em-
ployees for engaging in or threatening to engage in strikes or any
other form of concerted activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor. organizations, to join or assist the above-
named union or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining 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 Sec-
tion 8 (a) (3) of the Act.
WE WILL offer Peter Paladino immediate and full reinstatement
to his former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges, and make him
whole for any loss of pay suffered as a result of his discharge.
All our employees are free to become, remain, or to refrain from be-
coming or remaining, members of the above-mentioned union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act.
PAUL CUSANO, GENERAL PARTNER; Louis
CUSANO, TERESA 'CUSANO, AND ARMAND
CUSANO, Ii DIITED PARTNERS, TRADING AS
AMERICAN SHUFFLEBOARD COMPANY,
AMERICAN CABINET COMPANY, AND
AMERICAN CABINET AND BILLIARD COM-
PANY,
Employer.
By -------------------------------------------
Dated----------------------•
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereon,
and must not be altered; defaced, or covered. by_ any other material.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Oscar Geltman, for the General Counsel.
De Fazio, Davidson, d De Fazio, by Mr. Samuel J. Davidson, of Hoboken, N. J.,
for the Respondent.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed, the General Counsel of the
National Labor Relations Board by the Regional Director for the Second Region
(New York, New York), duly issued a complaint and amended complaint against
Paul Cusano, general partner, Louis Cusano, Teresa Cusano and Armand Cu-
sano, limited partners, trading as American Shuffleboard Company, American
Cabinet Company, and as American Cabinet and Billiard Company, herein called
Respondent, alleging that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and (3) and.Section 2 (6) and (7) of the National Labor Relations Act,
61 Stat. 136, hereinafter called the Act.
With respect to unfair labor practices the complaint as amended alleged
in substance that Respondent discriminatorily discharged Peter Paladino on
or about February 3, 1949, and that Respondent by threats of reprisal induced
and persuaded employees not to strike. and to abandon strike- activity.
Respondent's answer, as amended, in effect -admits the discharge of Paladino
and alleges that the discharge was for cause and further denies any unfair labor
practices. The answer further asserts that the amended charges herein set up
factual situations covering unfair labor practices different from those contained
in the original charges and that the 6-month period of limitations in Section
10 (b) of the Act is applicable. The undersigned finds this contention to be
without merit. -
Pursuant to notice, a hearing .was held at"New York, New York, on July 31
and August 1, 1950, before the undersigned Trial Examiner. The General Coun-
sel and Respondent were represented by counsel.' All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues. At the conclusion of the hearing
the parties waived oral argument. but, answered questions propounded by the
undersigned and elected to submit briefs. Briefs have been received and have
been considered. -
From the entire record and from his observation of witnesses, the undersigned
makes the following : - '
FINDINGS OF FACT'
I. THE BUSINESS OF RESPONDENT
Paul Cusano, as general partner, and Louis Cusano, Teresa Cusano, and Ar-
mand Cusano, as limited partners, are and have been since 1943 partners, pur-
suant to the Limited Partnership Act of New Jersey, doing business under the
name and style of American Shuffleboard Company, American Cabinet Com-
pany, and also American Cabinet and Billiard Company.
Respondent's principal office and place of business is located in Union City,
New Jersey, herein called the Union City plant, and until January 20, 1950,
'References herein to the General Counsel refer to his representative at the hearing.
IIn making the findings of fact in this and other sections of this Report, I have con-
sidered and weighed the entire evidence. It would unnecessarily burden the Report
to' describe in minute detail all evidence on disputed points. Such testimony or other
evidence as in conflict with the findings herein is not credited.
AMERICAN SHUFFLEBOARD COMPANY 1279
Respondent maintained a place of business in Union Township, New Jersey,
herein called the Union Township plant. Respondent engages in the manufac-
ture, sale, and. distribution of shuffleboards, cabinet work products, and related
products.
In, the course and conduct of its business operations Respondent causes to be
purchased, transferred, and delivered to its New Jersey plants lumber and other
material. A substantial quantity thereof is transported to said New Jersey
plants in interstate commerce from States of the United States other than
the State of New Jersey. Substantial quantities of products manufactured by
Respondent are transported from Respondent's places of business in interstate
commerce to States of the United States other than the State of New Jersey.
Respondent conceded that it is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
Marine Warehousemen of New Jersey, Local 1478, International Longshore-
men's Association, AFL, herein referred to as the Union, is a labor organization
within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The facts
In January 1949, a "slow down" took place at Respondent's Union City plant
which resulted in the discharge of 2 employees (Clem Silakowski and Manny
Peduto) on January 21, 1949. The night of these discharges a majority of em-
ployees of this plant met with Frank Wagner and Steve Wilson, business repre-
sentatives of the Union, and voted (by approximately 47 to 6) to strike unless,
Silakowski was reinstated. At this meeting the employees also elected a 5-m,an
shop committee .(Gus Quagliano, Edward McIntyre, James Milne, Fred Messow,
and Frank Costello). herein called the shop committee.
On January 24, Paul Cusano, the general partner and chief executive of the
Respondent, made a speech to the Union City plant employees in which he stated,
inter alia, he had heard there may be a "walkout" that he hoped the rumor was
misinformation "But in case it isn't, you may appreciate perhaps my pointing
out to you the new notice on the Bulletin Board which reads as follows :"
Notice, dated January 24, 1949. Any man leaving his job without reason
judged to be legitimate by the undersigned, or any man leaving his job
during the working day without good and sufficient reason, will be con-
sidered as having quit his job and will not be re-hired under any
circumstances.
According to state regulations, the Unemployment Compensation Au-
thorities of the State of New Jersey will be so notified.
Under the present unsettled circumstances, it is an order that the present
"Two Weeks Leave of Absence" rule for trial of other jobs be suspended.
until further notice. Signed : American Shuffleboard Company, by Paul
Cusano.
The notice referred to above was posted on Respondent's bulletin board and
each employee of the Union City plant was given a copy of Cusano's speech.
At a conference with Wagner and the shop committee, Cusano agreed to re-
instate Silakowski and Peduto and they were thereafter reinstated.
On January 25, 1949, the Union filed with the National Labor Relations Board,
Second Region, a petition for certification of representatives seeking a unit of
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production, maintenance, stock, and shipping employees of the Union City plant.
A conference with reference to the afore-mentioned petition was scheduled to
be held February 2, 1949, at the Second Regional Office of the National Labor
Relations Board, herein called the Board.
On February 1, Peter Paladino, a senior employee, was elected by the em-
ployees of the Union City plant to attend the scheduled conference concerning
the afore-mentioned petition. Cusano testified that he was advised on or before
February 2, that the men had had a meeting and had elected Peter Paladino to
represent them at the scheduled conference.
On February 2, the scheduled conference at the Second Regional Office of the
Board was held. The Union was represented by Paladino and Wagner, Re-
spondent by its attorney, Samuel J. Davidson, and the Board by Field Examiner
Julian J. Hoffman. As a result of this conference the parties executed an
agreement for consent election scheduling an election for February 11, 1949.
During the conference Davidson voiced objections to revealing figures con-
cerning Respondent's business but finally, as revealed by the agreement for
consent election, agreed to a statement in the agreement to the effect, that
Respondent's purchases and sales during 1948 each exceeded $500,000. There
is disputed evidence as to whether Davidson prior to revealing the above figures
obtained a commitment from those present that the figures would not be
divulged outside of the room. However, the undersigned is not resolving this
dispute since there is no evidence that such a commitment, if made, was
known by or had anything to do with Cusano's determination to discharge
Paladino and since, as hereinafter noted, even if such commitment was made
and violated, such does not constitute just cause for discharge.
On the morning of February 3, 1949, Paladino told the shop committee (the
committeemen elected on January 21 as noted above) what had occurred at the
February 2 conference including the fact that Davidson named a figure of
$500,000 as representing Respondent's business in interstate commerce in 1948.
The record does not establish that an inaccurate report was made.. Paladino's
denial that he told anyone other than the committeemen what had occurred is
credited by the undersigned. In any event, there was considerable. discussion
among the employees that morning (February 3, 1949) concerning.the $500,000
figures. The record reveals that committeemen and employees discussed these
figures during working hours but there is no evidence that Paladino engaged in
such discussions. Paladino's report to the committee was made before work
began and there is no evidence that he made any statements concerning this
matter to employees other than the committeemen. Late in the morning Cusano
,ryas informed by "several men, or mechanics" that there was confusion in the
"shop" and when Cusano asked "why" "they said words to the effect tliat Peter
Paladino had been telling everybody that he had learned at the NLRB meeting
the previous day, which he had attended as their representative, that the com-
pany had made over a half a million dollars of worth of profits for the year
1949" [sic]. Shortly after receiving this information and at noontime (lunch
time) Cusano observed from a window a crowd in the center of which were
Paladino and Wagner. Cusano then left his office and sought out Paladino.
Cusano demanded that Paladino tell him (Cusano) whether lie (Paladino) had
been telling the men that the Company had made over a half million dollars
profit for the year 1948. Paladino neither admitted 'nor denied making such
statement but told Cusano that he (Paladino) had been chosen by the men in
,,: athe.shop to represent themat the Board, -that. he, (Paladin,) had, atteaded„the
AMERICAN SHUFFLEBOARD COMPANY 1281
conference at the Board, that at the conference he (Paladino) had heard
Davidson respond to a request for figures concerning interstate commerce "well,
put down in excess of half a million dollars," and that he (Paladino) returned to
the shop the next day and notified the committeemen of the time and place
of the election "and I told them also about the interstate commerce report and
also the figure that Mr. Davidson gave Mr. Hoffman." Cusano became excited
and demanded several times a "yes or no" answer as to whether Paladino had
told the men that the Company had made over a half million dollars profit.
Paladino evaded a "yes or no" answer and there is conflicting evidence as to
whether he finally admitted that he had made such a statement. The under-
signed does not deem it necessary to resolve this conflict since, as hereinafter
noted, such an admission , if made, was an extracted one and under the circum-
stances not justification for Paladino's discharge.
During the afternoon of February.3, 1949, Cusano authorized Dyki, Respond-
ent's bookkeeper and paymaster, "to complete the payroll as far as Pete Pala-
dino was concerned and to give him a separation notice," stating "misconduct"
as the reason for separation. At the same time Cusano authorized Dyki to
prepare a notice reading as follows :
FFmRUARY 3, 1949.
B NOTICE B
As of tonight, I am discharging Peter Paladino because he deliberately
and maliciously lied to his fellow-workers when he told them that this com-.
piny made fantastic earnings this past year. He knew that this was untrue
and admitted.the fact when I questioned him before you.
He did this to create bad blood between you men and myself.
We have always lived harmoniously here and I intend that this relation-
ship shall continue. That relationship cannot continue with Paladino -in
the plant.
PAUL CUSANO.
The notice was posted on Respondent's bulletin board.
About 3: 45 p. m. February 3, 1949, Dyki handed Paladino the afore-mentioned
separation, notice.
Thereafter Cusano authorized Nicholas Melone, assistant to Cusano, to rehire
Paladino provided Paladino "in some equitable manner, that he retract the lie
that he had made, so as to square things up among the organization, consisting
of the men and the company and himself." Cusano discussed with Melone the
.possibility of having Paladino sign "some sort of statement in writing so that
it could be put on the bulletin board and the men would thereby come to know
what it was all about."
On February 4, 1949, Paladino telephoned Melone and inquired about getting
his job back. Paladino was told that he could have his job back if he signed
a suitable statement. Paladino suggested that Melone draft a proposed state-
ment for his (Paladino's) signature. On Monday, February 7, 1949, Paladino
went to Melone's office and was given a typewritten statement and some station-
ery and a pen. Paladino wrote out in longhand the typewritten statement and
when he finished copying the statement Melone suggested that Paladino have
it notorized. Paladino then left Melone's office with the -statement to -be' notar"
ized. Between 15 minutes and a half hour later Paladino telephoned Melone
and told him he (Paladino) had decided not to sign the statement. Paladino
did not sign the.statement and has not been reinstated. The statement which
Paladino was to sign reads as follows :
:1282 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
FEBBUABY 7, 1949.
This is to advise my co-workers that I did wrong and gave the incorrect
information to the men the day I was discharged.
I am returning to work because I am willing to admit in writing that my
statement was not in truth.
Also I want to make it clear that the Union had nothing to do with my
being rehired.
The above are true facts made in the interest of fair play and not just to
get my job back.
Signed, --------------------
On March 16, 1949, Cusano in response to a telephone inquiry about Paladino
stated "his work was excellent, he took care of his job well." There is no evi-
-dence that anything other than a satisfactory recommendation was made by
Cusano.
On February 9, 1949, Field Examiner Hoffman addressed a telegram to Re-
.spondent and to the Union stating, "Please be advised election scheduled for
February 11, 1949, indefinitely postponed' by order Regional Director, NLRB."
,Respondent posted a copy of this telegram on its bulletin board. The following
morning (February 10, 1949) a strike occurred in which a majority of the em-
ployees (43 of the 55 employees) of the Union City plant participated. The
:strike continued until on or about March 10, 1949. The General Counsel stated
.at the hearing that "there is no contention that the strike was caused by unfair
labor practices on the part of the Employer." Cusano testified that he inquired
among the men who reported to work "as to what was the real reason for the
work stoppage or strike" and was told "that the men were out on strike because
'they thought that I had caused the election to be postponed indefinitely."
On February 10, 11, and 12, 1949, letters on Respondent's stationary and over'
the signature of Paul Cusano were sent to all employees of the Union City plant.
-Copies of these letters are attached hereto marked Appendix A, B, and C. The
letter of February 10 states there is no legal strike and advises the employees
to'return to work. The letter of February 11 advises the employees that op-
erations at the plant will be resumed at 8 a. in. Tuesday, February 15, 1949, and
that "any man who fails to return to work at the above time is to consider him-
self automatically discharged." The letter of February 12, 1949, relates that
the Respondent had nothing to do with the postponement of the election ; that the
strike is a "wildcat" strike called without notice and that no discrimination will
occur should the Union win the election ; and that "any advice which you may
have received to the effect that you cannot be discharged for not coming into
work on Tuesday morning is all wrong."
In May 1949 a hearing was held in connection with 2-RC-1038 and 2-RG-1117
and on July 7, 1949, the Board issued a Decision and Direction of Election hold-
ing that the appropriate unit for the employees of the Respondent was two-
plant in scope-employees of the Union City and the Union Township plants.`
B. Contentions of the parties
The General Counsel contends that by General Manager Cusano' s speech of
January 24, 1949 (copies of which later were distributed to the employees)
8 It was stipulated "that the election which was to have been held on February 11, 1949,
,was ,called off because of the question as to whether the Union'City plant, which ; under the
.agreement for consent election , was alone to have voted , as to whether that plant was in
fact, by itself, an appropriate bargaining unit."
4 Union Township plant destroyed by fire January 20, 1950.
AMERICAN SHUFFLEBOARD COMPANY -1283
An which he threatened to discharge employees if they engaged in a strike, by
'Cusano's bulletin board notice to the employees, the same day, to the same effect,
and by Cusano's letters to all Union City plant employees, sent February 10,
11, and 12, 1949, in which he told the employees their strike was illegal and
threatened to discharge them if they failed to abandon it, the Respondent inter-
fered with, restrained, and coerced employees in the exercise of their right to
-self-organization, to assist labor organizations, and to engage in concerted activ-
ity, in violation of Section 8 (a) (1).
Respondent contends that the strike activity was unprotected even though
-concerted and that such conduct by the employees justified Respondent's course
of action, that Respondent's conduct was merely a maneuver to induce the
:strikers to abandon the strike and the statements made were noncoercive and
;protected as an exercise of free speech.
Absent any showing that the means employed were other than peaceful or
that the objectives sought were, as have been held for reasons of clear public
policy to be improper , the undersigned finds no authority to regard the con-
certed activity involved herein unprotected ( see The Hoover Company, 90
NLRB 1614).
It seems evident that Respondent's announcements were part of a tactical
maneuver to induce the strikers to abandon the strike and return to work. While
Respondent 's tactical maneuver did not constitute a discharge , its advice that
strikers would be "considered as having quit" and "will not be rehired under
.any circumstances" and to striking employees that "any man who fails to
return to work at the above time is to consider himself automatically discharged"
and that information to the effect that "you cannot be discharged for not coming
into work on Tuesday is all wrong" was coercive in effect and violative of 8 (a)
(1) of the Act (see Hopp Brothers Company, Inc., 90 NLRB 1513). However,
it appears to the undersigned and he finds that the statements contained in the
letter of February 10, 1949, are not coercive and not violative of the Act.
In its answer Respondent states:
That Peter Paladino who was employed at its Union City plant was dis-
charged on February 3, 1949, for violating and disclosing information im-
parted to him and others on a confidential basis. Respondent further
answering this paragraph alleges that Peter Paladino- spread false and
malicious rumors, knowing the same to be false , concerning the Respondent
and its business activities ; which information was relied upon by the
persons to whom the same was imparted and accepted as true because
Peter Paladino was placed in a position of trust by his employer.
In its , brief Respondent contends that it discharged Paladin because of
information and belief that he was spreading false and fantastic rumors as to
its earnings.
As indicated above, the record does not support Respondent 's contention that
Paladino spread false and malicious rumors.. On the contrary , it establishes that
Paladino as an elected representative of the employees attended a conference
on their behalf and thereafter reported to the shop committee what had
occurred at the conference and there is no evidence that his report to the
committeemen was not accurate . Further, there is no evidence that Paladino
made statements concerning the, occurrences at.the conference to anyone other
than the comm_ itteemen.
Concerning Respondent 's."good faith" it appears that Cusano after hearing
that there was "confusion" in the plant allegedly caused by statements by
1284 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paladino , accosted Paladino and interrogated him as to whether he had made
the alleged statements and Paladino replied by relating in detail his activities
and statements with respect to the figures $500,000. Cusano , not being satisfied
with this answer, in an excitedand ` demainding manner, sought to extract from
Paladino a definite commitment as to whether he (Paladino ) had told employees
that Respondent had made half a million dollars profit . It is common knowledge
that verbal information several times removed from its original source may
become distorted and inaccurate and may cause considerable discussion among
those removed from the source but that is hardly grounds for holding the original
recipient of such information responsible for the resulting situation unless there
is evidence that he knowingly and willingly participated in bringing about such
situation . As indicated elsewhere herein there is no evidence that Paladino
knowingly and willingly participated in any improper conduct. Rather the record
reflects that Paladino, as expected , relayed the occurrences of the meeting at
the Board office to the committeemen , that the committeemen in turn passed
this information to the individual employees , and then the employees discussed
the matter among themselves . It is apparent to the undersigned that these
facts were known by Cusafio or should ' have been anticipated and could have
been readily ascertained and any "misstatements" or "confusion" easily
rectified via the bulletin board. Nevertheless Cusano made no efforts to find
out the cause of any "misstatements" or "confusion" that may have been
prevalent other than his interrogation of Paladino . Thus he did not even inter-
rogate the "men and mechanics" who allegedly told him ( Cusano ) that Paladino
was spreading reports to ascertain the source of their information and no
other employee was questioned concerning this matter. Under these circum-
stances and in the light of the entire record, it appears to the undersigned that
Respondent was more interested in ridding. itself of the then outstanding union
adherent ( Paladino ) than in correcting any "misstatements " or "confusion" and
that Respondent capitalized upon -- a situation to endeavor to extract from
Paladino a statement ( regardless of whether it was "yes" or "no" since either
answer could be turned to Cusano 's purpose ) which might give apparent color
to a claim that Paladino 's discharge was for cause rather than because of his
union activity.
.If such a statement was obtained it was not free and voluntary or the type
usually relied upon in ordinary business affairs and would not under the cir-
cumstances herein serve to conceal Respondent 's real reason for discharging
Paladino. Under the circumstances the undersigned finds without merit any
contention that Paladino was discharged because Respondent believed, on the
basis of reliable information , that he was disloyal and not worthy of confidence.
Assuming argueiulo that Paladino made the statements attributed to him,
there is no evidence that they were made with intent to falsify or maliciously
to injure Respondent , they were not of a defamatory and insulting character
and not manifestly destructive of discipline , and such statements , if made, were
made in the course of activities protected by Section 7 of the Act . In such a
situation it is necessary to weigh the conflicts between Respondent 's interest in
a "truthful representation of the facts " and the employees ' interest in engaging
in concerted activities free from' employer interference . Under the circum-
stances in this case , the employees" interest must prevail . ( See- N. L. R. B. v.
Peter Cailler Kohler Swiss Chocolates Company, 130 F. 2d 503 ( C. A. 2) ; N..L.
R. B. v. Illinois Tool Works , 153 F. 2d 811 ( C. A. 7), enfg. 61 NLRB 1129; and
Maryland Drydock Co . v. N. L. R . B., 183 F. 2d 538 ( C. A. 4).)
AMERICAN SHUFFLEBOARD COMPANY 1285
Regarding Respondent's contention that Paladino was. discharged for disclosing
confidential information, it appears that Paladino was an official representative
of the employees at the conference in the Second Regional Office of the Board and
repeated what occurred at that conference in response to questions by other
employees (the five committeemen) as to what.had occurred at that conference.
The proceedings in the Second Regional Office of the Board were part of an official
Board investigation affecting employees' representation and the action of their
representative in reporting to them was a part of his and their organizational
activities. The Act's guarantees include the employees' "right fully and freely to
discuss and be informed concerning their choice [of a bargaining representative]
privately or in public assembly." Consequently even if the repeating of David-
son's statements was one of the reasons for the discharge, the Company violated
the Act when it interfered with this right and discharged Paladino for exercising
it. ObviQusly, an exaction of a promise to keep confidential such organizational
activities would also interfere with this right and would not justify discharge for
a breach thereof (see Stocker 31anfactwring Company, 86 NLRB 666).
C. Ultimate findings and conclusions
In view of the foregoing and .upon a consideration of the entire record, the
undersigned finds and concludes :
1. Marine Warehousemen of New Jersey, Local 1478, International Longshore-
men's Association, AFL, is a labor organization within the meaning of Section
2 (5) of the Act.
2. That Respondent unlawfully. infringed upon the statutory rights of its
employees by oral statements and by written noticfs and letters thereby violating
Section 8 (a) (1) of the Act.
3. That Respondent violated Section 8 (a) (1) and (3) of the Act by discrim-
inating in regard to the hire and tenure of employment of Peter Paladino thereby
discouraging free exercise of the rights guaranteed in Section 7 of the Act and
discouraging membership and activity in the afore-mentioned Union.
4. That the aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices it will be
recommended that Respondent cease and desist therefrom and take certain affirIn-
ative action designed to effectuate the policies of the Act.
It will be recommended that Respondent offer to Peter Paladino immediate and
full reinstatement to his former or substantially equivalent position,5 without
prejudice to his seniority or other rights and privileges and that Respondent make
whole Peter Paladino for any loss of pay lie may have suffered by reason of the
discrimination against him.` Consistent with the policy of the Board the loss of
pay shall be computed for the period from Respondent's discriminatory action to
the (late of a proper offer of reinstatement and shall be computed in accordance
with the customary formula of the Board (F. 1V. Woolworth Company, 90 NLRB
289).
[Recommended Order omitted from publication in this volume.]
5
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
VLRB 827.
Crossett Lumber Company, 8 NLRB 440, and Republic Steel Corporation v. N. L. R. B.,
311 t:. S:.7.