Davco, Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1968

172 N.L.R.B. 1791 (N.L.R.B. 1968)

DAVCO, INC.
Davco , Inc. and Teamsters Union Local #42, a/w
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Cases 1-CA-6127 and 1-RC-9740
September 3, 1968
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On June 5, 1968, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom, and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Decision and a supporting brief,
and the General Counsel filed a brief in support
of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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, the
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
We agree with the Trial Examiner that Respon-
dent violated Section 8(a)(1) of the Act by coer-
cively interrogating employees regarding their
union membership and activities, by threatening
discharge and other reprisals against employees for
supporting the Union, and by promising benefits to
them in return for rejecting the Union. We also
agree that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Ronald Scott and
Paul Ross, and that the challenges to their ballots,
should be overruled and the ballots be opened and
' We find, as stipulated by the parties, that the appropriate unit is All
production and maintenance employees employed by the Employer at its
facility at Peabody, Massachusetts, excluding office clerical employees,
professionals, guards, and supervisors as defined in the Act
An election eligibility list, containing the names and addresses of all the -
eligible voters, must be filed by the Employer with the Regional Director
for Region I within 7 days after the date of this Decision , Order, and
Direction of Second Election The Regional Director shall make the list
available to all parties to the election No extension of time to file this list
shall be granted by the Regional Director except in extraordinary circum-
stances Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed Excelsior
Underwear Inc., 156 NLRB 1236. However, in Wyman-Gordon v N L R.B.,
397 F 2d 394 (C A I ), the court, while indicating approval of the sub-
1791
counted . We further agree that the challenge to the
ballot of Edward Cabral should be sustained. We
do not , however , adopt the Trial- Examiner's
recommendation that the Regional Director, after
opening and counting the ballots of Scott and Ross,
certify the results of the election . In our view, the
Trial Examiner 's findings warrant the sustaining of
the Petitioner 's Objections ( a), (h), and ( i), the
setting aside of the election conducted on October
26, 1967, in Case 1-RC-9740, and the conducting
of a second election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Davco, Inc., Boston, Mas-
sachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, with the following
modifications:
Delete the last paragraph of the Recommended
Order and substitute the following:
"IT IS HEREBY DIRECTED that the Regional
Director for Region 1 shall, pursuant to the Rules
and Regulations of the Board, within 10 days from
the date of this direction, open and count the bal-
lots of Ronald Scott and Paul Ross, and there-
after prepare and cause to be served on the
parties a revised tally of ballots, including therein
the count of said ballots. In the event the revised
tally of ballots shows that the Petitioner has
received a majority of the valid ballots cast, the Re-
gional Director shall issue a Certification of
Representative.
"However, in the event the revised tally of ballots
shows that the Petitioner has not received a mojori-
ty of the ballots cast, the following shall be applica-
ble:
"IT IS HEREBY ORDERED that the election con-
ducted on October 26, 1967, in Case 1-RC-9740,
be, and it hereby is, set aside."
[Direction of Second Election'' 2 omitted from
publication.]
stance of the Board's Excelsior decision, held that the requirement of the
furnishing of an eligibility list is void because it was not adopted in con-
formity with the provisions of Section 4 of the Administrative Procedure
Act (5 U S C Sec 553) While noting our disagreement with Wyman-Gor-
don, we shall in deference to the First Circuit modify our procedures in
elections conducted within the territorial jurisdiction of that circuit where
an employer refuses to furnish the eligibility list In such cases, until the
propriety of the Board's procedure in adopting the Excelsior requirement
has been finally determined, we shall not issue a subpena for the produc-
tion of the list, nor shall we seek court enforcement of the requirement, and
upon the filing of timely objections on the ground an election was con-
ducted without the list, the objections will be held by the Regional Office
until such time as the propriety of the Board's procedure in adopting the
Excelsior rule has been finally resolved
172 NLRB No. 207
1792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION A. The Issues Defined
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner. These con-
solidated cases were heard before me at Boston,
Massachusetts, on February 13 through 21, 1968,
upon a complaint issued on December 29, 1967, in
Case 1-CA-6127, which was consolidated with ob-
jections to an election in Case 1-RC-9740 The
complaint was based on a charge filed on
November 2, 1967, by Teamsters Union Local #
42, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union. It alleged that Respon-
dent, Davco, Inc.,' had engaged in unfair labor
practices within the meaning of Section 8(a)(I )
and (3) of the Act. Respondent filed an answer
denying that it had engaged in any of the unfair
labor practices alleged. Subsequent to the hearing
counsel for the General Counsel and for the
Respondent filed excellent briefs, which have been
carefully considered.'
Upon the basis of the entire record in this case,
and from my observation of the demeanor of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation having
its principal office and place of business at
Peabody, Massachusetts, where it is engaged in the
manufacture, sale, and distribution of drop cloths
and picture frames. During the calendar year
preceding the issuance of the complaint, Respon-
dent, in the course and conduct of its business,
purchased and had shipped to it directly from
points outside the Commonwealth of Massachusetts
raw meterials valued in excess of $50,000, and dur-
ing the same period it sold and shipped from its
Peabody plant directly to points outside the Com-
monwealth goods and merchandise valued in excess
of $50,000. Respondent concedes and I find that it
is engaged in commerce within the meaning of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I
find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
' The caption of the complaint and other pleadings list Respondent's
name as Ruson Davco, Inc Respondent 's counsel explained at the hearing
that Respondent 's name had been changed on November I, 1967, to Dav-
co, Inc , and he moved that the record be corrected to reflect the name of
Respondent as it was then changed The motion was granted without op-
At a representation election held on October 26,
1967, 30 votes were cast for the Union, 30 against
it, and 3 votes were challenged. Two of the chal-
lenged votes were cast by Ronald Scott and Paul
Ross, both of whom are alleged in the complaint to
have been discriminatorily discharged on or before
the date of the election. The third challenged vote
was cast by Edward Cabral who was challenged by
the union observer as a supervisor. In order that the
results of the election may be determined, the Trial
Examiner in these consolidated cases must resolve
these challenges.
The principal issues presented, therefore, are
whether Respondent discriminatorily discharged
Scott and Ross in violation of Section 8(a)(3) and
(I) of the Act and whether Cabral is a supervisor
within the meaning of the Act. With respect to Ross
another question arises if it is found that he was not
discriminatorily discharged prior to the election.
That question is whether he had quit his job prior
to the election. If he was not discharged and had
not quit his job prior to that time, it follows that his
name was mistakenly stricken from the voting eligi-
bility list and the challenge to his ballot would have
to be rejected for that reason. A question would
also be presented as to whether Ross was dis-
criminatorily discharged subsequent to the election.
Also involved is the question whether Respondent,
during the preelection period, made certain coercive
statements to the employees and unlawfully inter-
rogated them, in violation of Section 8(a)(1) of the
Act. Difficult credibility issues are presented in
resolving practically all of these questions. Most
of the chief witnesses tended to shade their testi-
mony to support their particular theories of the case
and, though obviously telling the truth in some
respects, were not frank or truthful in other
respects.
B. Sequence of Events Culminating in Termination
of Ronald Scott
1. Scott's union organizational activities and
Respondent's interrogations, threats, and promises
Scott was employed by Respondent on July 17,
1967, to work part time in the Wood Working De-
partment on the night shift, from 4 p.m. to 11 p.m.
About August 21 Scott sought the aid of the Union
in organizing the plant. He signed a union card on
that date and within a few days obtained signed
cards from a majority of the other employees. He
then delivered the cards to the Union which on Au-
position
' The General Counsel also filed a motion to correct the transcript of the
hearing in a number of respects Respondent having filed no objections and
the motion appearing meritorious , it is hereby granted and the transcript
will be corrected accordingly
DAVCO, INC.
gust 28 wrote Respondent claiming to represent its
employees and requesting that everything remain in
status quo pending the negotiation of a contract.3
On or about the same date, August 27 or 28,
Scott had a conversation with his supervisor,
Record, who was in charge of the Wood Working
Department on the night shift, in which he in-
formed Record of his role in organizing the em-
ployees. There are sharp conflicts in the testimony
of Scott and Record as to how this conversation
was initiated and as to what was said by each. After
a careful study of the testimony of each, I am con-
vinced that what took place is substantially as fol-
lows. About 7 p.m. Scott was summoned by Record
to the factory office. Record asked him. "What's
this about a union?" Scott replied, "What union?"
whereupon Record said, "Look, we have been
friends ever since we started working here together.
You don't have to lie to me." Scott answered,
"Well, what's the use. You know." Record then
asked what Scott felt would be gained by bringing a
union into the plant and Scott stated that he
thought the Union would bring "better wages,
better working conditions, more benefits, job
security." Record replied, "Well, you know that
they can lay off the whole night shift. The people
can lose their jobs. Anybody connected with this
can lose their job here, and where would you be
then with your job security?" He added that "some
of the people, especially the Puerto Ricans, have
been known to get violent under circumstances like
this about their jobs." The conversation lasted
about 3 hours with many of these arguments or
ideas being repeated. At one point, Scott told
Record that Respondent should be receiving a
letter from the Labor Board or Union in a day or
two, if Respondent had not already received it. At
the conclusion of the interview Record stated that
he would have to report the matter to Plant
Manager DesRoches.'
Record left a note that night for Plant Manager
DesRoches, telling him that he had something im-
portant to report. He arrived at work early the next
day and told DesRoches about the information he
had received from Scott. DesRoches asked Record
to bring Scott to his office and Record did so.
On this occasion DesRoches kept Scott in his of-
fice for about 3 or 4 hours, according to the
credited testimony of Record and Scott. According
to the undenied and credited testimony of Scott,
DesRoches asked him why he wanted a union,
whether he had been employed by the Union to or-
' Respondent replied by letter dated September I that it doubted the
Union's majority status and therefore declined to enter into contract
negotiations The Union then filed a representation petition with the
Board 's Regional Office on September 5 and, pursuant to a stipulation for a
consent election , an election was held on October 26.
' The above findings are, for the most part, based upon Scott's testimony
I do not credit Record 's version that Scott stopped him as Record passed
his work station and volunteered that he was working for the Union and
that Record said nothing , or at most, "When did this happen," in response
to this information Record frequently fraternized with employees at the
plant and upon a number of occasions drank beer or had other refresh-
ments with Scott and other employees after work It would have been out
1793
ganize the Company, and what he expected to gain
personally from it. He told Scott why he felt a
union would not be a good thing for the Company.
He stated that Scott "had a promising future with
the Company," that it was a growing company and
that Scott could easily fit in; that it was not too late
for Scott to change his mind and be in good stand-
ing with the Company and that the Company
"wouldn't hold this against [him] in the future."
DesRoches told Scott to think about what he had
told Scott and at the same time warned Scott that
he would have to watch himself. He told Scott that
when he first heard about Scott's union activity he
had gotten in touch with Vice President Phillips
about it and "had been inclined to fire [Scott] on
the spot" but that Phillips had advised him not to
fire Scott then and "to wait to find out how strong
the Union was." He warned Scott that "they would
be watching for the first opportunity they could to
get rid of' him. He stated that he did not want to
cut out the nonscheduled smoking breaks, but that
if he heard that Scott was discussing the Union dur-
ing these times, "he would have to tighten up on
them." He asked if Scott would refrain from any
union conversations during that time and Scott as-
sured him that he would refrain.
Thereafter, on three or four occasions prior to
September 27 when DesRoches last worked at the
plant, DesRoches again summoned Scott to his of-
fice to talk to him about the Union. These conver-
sations were all during working hours and each
lasted between 1 and 4 hours. On one occasion, at
DesRoches' request, Scott checked in 15 minutes
early to attend the conference with DesRoches.5 On
this occasion, DesRoches asked Scott how many
people had signed cards and Scott refused to tell
him. DesRoches then asked if a majority were from
the day shift or from the night shift. Scott told him
the number was about equal on each shift. At
another of these conferences, DesRoches told Scott
that he knew of a few people who had signed cards
and offered to give Scott the name of one if Scott
would tell him the name of one. Scott declined this
offer. DesRoches said he knew the name of one,
that he had talked to a number of the employees
and none had admitted having signed a card.
DesRoches then told Scott the name of one em-
ployee who was very prounion and said Scott
should have her sign a card if he had not already
received one from her.DesRoches told Scott that by
continuing his union activities, he was ruining him-
self, pointing out that in the future, if Scott "used
of character for him to have failed to respond to an announcement by Scott
that he was organizing a union or to have failed to engage him in a conversa-
tion about it Even following the interview described above, Record and
Scott continued to socialize and discuss the Union Upon more than one
occasion , according to Record 's credited testimony , Scott suggested that
Record himself join the Union or at least listen to the union organizer
Record at one time indicated that he would keep an appointment made by
Scott for Record to meet with the union representative, but on the advice
of Plant Manager DesRoches , to whom Record reported Scott 's activities,
Record later advised Scott that he had decided not keep the appointment
5 The conference apparently occurred on August 30, the day on which
his timecard shows he punched in at 3 45 p in
1794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company as a reference, . . they would
blackball [him] for [his] union activities" and ad-
ding that even if Scott did not use Respondent as a
reference, Respondent could "keep tabs" on him
and when it discovered where Scott was employed,
they could notify his employer of his past union ac-
tivities.
DesRoches also interrogated other employees re-
garding their union membership or activities. Soon
after learning about union activities in the plant, he
called William Mills into the plant lunchroom and
asked him whether he had received a card or signed
one. He asked Mary Lampron or Paul Wallach a
similar question about this time. He summoned
Thomas Robinson to his office twice in one day to
inquire about the Union On the first occasion he
asked Robinson whether he had heard anything
about the Union. When Robinson replied that he
had, DesRoches asked if he had signed a card.
Robinson replied that it was none of his business.
DesRoches thereupon stated that he was going to
make it his business. However, he assured Robinson
that he would not be fired even if he had signed a
card. Robinson then left Des Roches' office but was
again summoned to the office about a half hour
later. DesRoches at that time informed Robinson
that he had "heard from a reliable source" that
Robinson had given someone a card to sign . Robin-
son denied the accusation and DesRoches repeated
it. After Robinson again denied the accusation
DesRoches said "all right" and Robinson left the of-
fice.'
There is also undenied and credited testimony
that about a week before the election, Supervisor
Record asked employee Noreen Ross whether she
had signed a union card and that earlier in late Sep-
tember or early October he had made a similar
inquiry of her husband, Paul Ross, and threatened
Ross with reprisals. According to Ross' undenied
and credited testimony, Record, upon learning that
he had signed a union card, told him that he would
lose his job if "the boss ... ever found out" about it
and later warned Ross that he would lose his job if
he voted for the Union and would be laid off even
"if the Union didn't get in."
It is clear from the facts summarized above that
Respondent, acting through Supervisor Record and
Plant Manager DesRoches, unlawfully inter-
rogated employees concerning their union member-
ship and activities, threatened discharge and other
reprisals to Scott and Ross for engaging in union
organizing activities, and promised Scott a bright
future with Respondent if he gave up such activi-
ties . This conduct was in violation of Section
8(a)(I) of the Act.
2. The September 26, 1967, suspension of Scott
and three other employees
Scott and other night-shift employees were due
to report for work at 4 p.m. each day. It was their
habit, when arriving at the plant early, to con-
gregate in the coffeeroom until time to clock in for
work. On the afternoon of September 26 Scott and
three other employees-Mary Lampron, Juan
Negron, and Angel Negron-arrived at work about
a half hour early and sat in the coffeeroom. Super-
visor Record entered the room and requested them
to leave and not to come back until just a few
minutes before 4 p.m.' They had never before been
asked to leave although they had arrived as much
as a half hour early on other occasions. They then
went for a ride in Mary Lampron's car and, because
of a flat tire, arrived back at the plant a few
minutes late.'
Plant Manager DesRoches met them at the door
with their timecards in his hand. He asked them
where they had been. They replied that they had
been for a drive and had a flat tire. He stated that
he did not believe them and accused them of hav-
ing gone out for a drink-a charge which they de-
nied.' He told them that since they thought so little
of their jobs they could take the night off.
After being told to take the night off, the em-
ployees reported the matter to the union office.
Also DesRoches, having second thoughts about
what he had done, reported his action by telephone
to Vice President Phillips, whose headquarters were
in Chelsea, Massachusetts. Phillips, on the advice of
his counsel, had theretofore warned DesRoches
against doing anything to create an incident during
the union organizing campaign and the pendency of
the representation petition. After again seeking the
advice of his counsel, Phillips called Union
Representative O'Brien to apologize for
DesRoches' action and to assure O'Brien that the
four employees would be paid for the night they
were sent home. O'Brien replied that no one was
going to push his people around and expressed an
intention to go to the plant and maybe punch
DesRoches in the nose. To avoid trouble with the
Union, Phillips removed DesRoches as plant
manager and offered him production work in
another location. Phillips first, however, required
DesRoches to telephone each of the employees,
apologize to him, and inform him that he would be
paid for the night he was off from work. Each was
in fact paid.
The complaint does not allege that the 1-night
suspension constituted an unfair labor practice and
no such finding is made herein. The incident, how-
'The above findings regarding DesRoches are based upon the undenied
and credited testimony of Scott, Mills, and Robinson and upon certain ad-
missions of DesRoches himself
' Record denied that he told these employees to leave, but I am satisfied
from the testimony of Mary Lampron, a witness called by Respondent, of
Scott, and of Angel Negron that he did tell them
" About 2 minutes late according to Scott , Angel Negron , and Lampron.
15 minutes late according to Plant Manager DesRoches , and about 20
minutes late according to Record
' Scott had jokingly invited a day-shift employee to join them for a drink
after Record had requested them to leave the coffeeroom This employee
had informed Record and Record in turn had reported the remark to
DesRoches It was not uncommon for employees to have a beer on their
own time and employee Mills had even brought beer to Record and seen
him drink it at the plant Record testified that he knew of no rule against
employees having a drink on their own time
DAVCO, INC.
ever, is relevant as a part of the total picture involv-
ing Scott . It would be unrealistic to ignore the hu-
miliation suffered by Respondent in taking the
remedial action recommended by its counsel as a
factor in Respondent 's determination less than 3
weeks later to terminate Scott.
3. The announcement on October 5 and
cancellation on October 9 of a layoff of the night
shift
On Thursday, October 5, the day following a
meeting of Scott and Union Representative O'Brien
with Respondent 's representatives at the Board's
Regional Office in connection witha a stipulation
for certification upon consent election , Supervisor
Record informed each employee as he handed him
his paycheck that the night shift was being laid off
at the end of the next night 's work shift . He gave no
reason to Scott or to any of the other four em-
ployees who testified about the matter (Lampron,
Golin, Tarr, and Angel Nepron), as to why the
night shift was being laid off.'
Within a few minutes after being informed of the
proposed layoff, Scott notified Record that he was
going to punch out and go to the union hall. Record
said that "was okay with him" but that Scott should
notify Carmine Quartarone, who had succeeded
DesRoches as plant manager . Scott did so, then
punched out and left the plant at 4:37 p.m., to re-
port what had happened to the Union. He came
back to the plant entrance during the 6:30 p.m.
lunchbreak to return a car he had borrowed from
employee Mary Lampron but did not work further
that night . Either on this occasion or on the follow-
ing night, when Scott worked 4-1/2 hours, Scott
told Record "that he had been to the Union and
that the Union was waiting for a letter from a Judge
Sweeney so that they could put a picket line up
around the factory Monday morning."" Scott also
later told Mary Lampron and other employees that
the Union had informed him that there would be a
picket line established. This possibility was widely
discussed among the employees.
10 I do not credit Record's testimony that he told each employee that the
night shift was being temporarily laid off and that the employees would be
recalled when work picked up
" The above quotation is from the credited testimony of Record, I do not
credit Scott 's testimony so far as it is inconsistent According to Scott, he
talked to Union Business Agent Hunt on the night of October 5 and Hunt
said "that he would talk to the union attorneys to see if anything could be
done " and advised Scott to keep in touch with him over the weekend On
the following night , according to Scott , Record asked him what action, if
any, the Union was going to take and whether the plant would be picketed
Scott replied he did not know definitely but believed the Union would have
to get a court order to strike the plant
it The complaint did not allege that the layoff of the night shift was dis-
criminatorily motivated However, after the General Counsel had rested his
case and Respondent was in the course of putting on its own case, he
moved to amend the complaint to allege that the layoff was in violation of
Sec 8 ( a)(3) and ( I) of the Act A ruling on this motion was held in
abeyance at the time I recognize that the timing of the layoff in the
preelection period, with no prior warning as to its imminence , no explana-
tion as to its reason being given to the employees generally, and at a time
when they observed some of the day shift employees working overtime,
fully warranted a belief by the employees and the Union that the layoff may
1795
Upon being informed of the possibility of a
picket line around the plant because of the layoff of
the night shift, Record immediately informed Plant
Manager Quartarone by telephone. Quartarone in
turn telephoned Vice President Phillips, and Phil-
lips told him not to worry about it. On the following
Monday morning, October 9, Phillips telephoned
Quartarone from New York, where he was attend-
ing a trade show, and instructed Quartarone to can-
cel the layoff and call back the night shift. The
record does not reflect whether any of the night-
shift employees received word of the cancellation
in time to report for work on Monday, October 9.
Respondent's records show that 3 of the 15 night-
shift employees and Record himself worked on the
day shift that day and that none worked on the
night shift. They reported back, however, on
Tuesday night, October 10.12
4. The termination of Scott on October 13
On Wednesday, October 11, Quartarone
telephoned Phillips that it had been reported to him
that Scott was telling employees during smoking
breaks, "I told you they wouldn't go through with
the layoff." Quartarone characterized Scott's con-
duct as "more arrogant than ever" and as "rubbing
our noses in it."13 Phillips testified that at that point
he "felt like this was all we could possibly take
from this man."
Columbus Day, October 12, was normally a
holiday for the employees but Respondent an-
nounced on October 10 that the employees would
work on Columbus Day and have an extra day off
on the day following Thanksgiving. Scott told
Record that he had made personal plans for Oc-
tober 12 and asked if he could take that day off.
Record replied that he would inquire if it was all
right and let Scott know. After consulting with
Quartarone, he told Scott that he could take the
day off but would not be paid for it. Scott did take
October 12 off.
have been designed to frustrate organizing activities and affect the results
of the election. Nevertheless, these circumstances were known to the
General Counsel before he rested his case and no evidence of a different
nature than that adduced dunng the General Counsel's case was devel-
oped during the Respondent's case to warrant the proposed amendment.
The newly raised issue was not fully litigated . A full litigation of it would
undoubtedly have prolonged the hearing substantially and probably
resulted in an adjournment of the hearing, thereby delaying a decision on
the important issues already being litigated. In such circumstances, I
have concluded that it would best effectuate the policies of the Act to
deny the motion and it is hereby denied.
"Scott denied saying to anyone, "I told you they wouldn't go through
with the layoff " Quartarone himself, while not denying that he made such
a report to Phillips', did not specifically testify that he had heard about
Scott's making such a remark Quartarone testified "I told him [Phillips]
really, I don't have any control over it, because people are carried away
with this union deal, and we can do nothing about it " He further testified
that when Phillips specifically inquired about how Scott was behaving, he,
Quartarone, replied that "As usual, he is getting worse and worse, espe-
cially now, because we hired everybody back." Regardless of whether
Scott in fact made the remark about which Phillips testified, I am satisfied
that Quartarone reported to him that Scott had done so
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday , October 13 , Phillips telephoned in-
structions to Quartarone that when Scott reported
for work on the night shift he should be discharged
and that two reasons should be given him, poor
production and absenteeism . Phillips testified that
although Quartarone 's report as to Scott 's conduct
following Respondent 's cancellation of the night-
shift layoff triggered his decision to discharge Scott,
the reasons were as stated to Quartarone-Scott's
decreased production and absenteeism, about
which he had received continuous complaints since
Scott announced he was organizing for the Union.
There is a conflict in the testimony as to whether
Quartarone discharged Scott outright when he re-
ported for work on the night of October 13, as
testified to by Respondent 's witnesses , or whether
he merely laid Scott off until the date of the elec-
tion, as Scott testified . I am convinced from a pre-
ponderance of the evidence ( Quartarone's
testimony , corroborated in significant respects by
that of Assistant Plant Manager Perry , Supervisor
O'Brien , and Supervisor Record , who were present
at the interview ) that Quartarone intended to and
did discharge Scott on October 13. 14
I turn now to whether Scott 's termination was in
fact for poor production and excessive absenteeism,
the reasons given him on October 13, and reas-
serted at the hearing , or because of his union and
other protected , concerted activities , as alleged in
the complaint.
Respondent concedes that from the time Scott
was hired on July 17, 1967, until the time it learned
in late August 1967 about his union activities, his
services were highly satisfactory . Bob Record, his
immediate supervisor , was sufficiently pleased with
his work that he talked about making Scott a work-
ing foreman . He started assigning Scott various
types of work and from time to time he put Scott in
charge of unloading freight cars , with three or four
employees under his direction . Record talked to
Plant Manager DesRcches about " how good his
work was at that time ." Although Scott had been
hired as a part -time employee , working only from 4
to 11 p.m ., DesRoches soon offered him full-time
employment , working 4 to 12:30 p.m. Scott ex-
pressed an interest in the full-time employment but
due to transportation or other problems, he had not
commenced working full time prior to his termina-
tion.
According to Respondent 's witnesses , almost in-
nediately after Respondent learned of Scott 's union
" 1 have also considered the testimony of Mary Lampron that prior to
October 13 Scott had told her that Respondent "didn 't dare fire him
because of the Umon" and that Scott later told her that Respondent had
"fired" him "because of the Union ." It is possible that something was said
during the interview of October 13 which gave Scott the impression that he
would be permitted to return to work after the representation issue was set-
tled Supervisor O'Brien had heard rumors in the plant prior to the election
that Scott would be returning to work on the day shift as a union steward
In any event , after voting a challenged ballot at the election on October 26,
Scott looked for his timecard, found it missing from the rack , and learned
then , if he had not already known it , that his employment had been ter-
minated
activities , his production as well as that of other
employees began to decline and he was absent
more frequently than before ." Record , who was his
immediate supervisor and in the best position to ob-
serve his performance , testified that after Scott in-
formed him of his union organizing activities, "it
seemed to me that his production started to drop
down "; " he smoked a little more than usual in the
smoking booth "; " he just seemed to pay less atten-
tion to what he was doing , and he wandered around
more"; and " it seemed to me from my observation
that other people started to take more ... smoke
breaks , and that they would go to the coffee room
for a drink of water or they 'd go to the men's room
or the ladies' room much more frequently than they
had before. 1116
DesRoches and Quartarone , both of whom
worked primarily on the day shift but spent some
time on the night shift , similarly testified about
Scott 's work performance and his bad influence on
the work of other employees and both complained
from time to time to Vice President Phillips, who
was stationed at the nearby town of Chelsea. Phil-
lips did not personally observe the work or conduct
of Scott or any of the other employees on his visits
to the plant , but he testified that based on reports
first from DesRoches , then from Quartarone, he
had decided on October 5 to lay off the night shift
because, due to Scott 's example and his influence
on the other employees , production was "so bad
and so low."
Respondent also called two employees , Golin and
Tarr , to support the testimony of its management
representatives that Scott appeared to take a lot of
smoke breaks and did not appear to be working as
much as they thought he should . Golin , who most
of the time worked in the Wood Working Depart-
ment , where Scott was employed , testified that she
"thought he walked around a lot" but did not know
whether his work required him to do so and that he
did this both before and after the union activities
started. She also "thought " that he took a lot of
smoke breaks and that he went to the coffeeroom
frequently, but she was unable to say that he went
there more frequently after than before the union
activities started . She testified , moreover , that the
employees generally appeared to be putting a full 8
hours of work both before and after the start of
union activities and she noticed no sloughing off of
work. She testified , however, that during the
preelection period supervisors would come around
" Respondent normally kept production records but did not produce any
to substantiate its contention with respect to the decline in production
because , according to Plant Manager Quartarone , Record , and employee
Thenault , the cardboard box in which the records from July through mid-
October were kept and the records themselves became wet when a steam-
pipe above them broke , and the box containing the records was put in the
rubbish container and hauled away
'" In addition to the regular lunchbreak the employees were permitted a
10-minute coffeebreak when the coffee wagon came around twice on each
shift and were , in addition , permitted a smoking break about once an hour
Smoking booths were provided for this purpose
DAVCO, INC. 1797
and tell them they needed more production but that
she and the other employees "didn't know why they
weren't pleased with it because we figured we were
doing all we could." Tarr, the other employee
called by Respondent to support the testimony of
its management representatives, worked in the
Wood Working Department when her own depart-
ment , the Plastics Department, was not operating.
She testified that she saw Scott walking around in
the Wood Working Department a lot but conceded
that she did not know what his duties were and that
he could have been proceeding from one job to
another. She further testified that she and other
employees in the Plastics Department as well as the
Wood Working Department worked as hard before
as after the Union started and she believed that
they produced as much as they could.
The General Counsel's witnesses-Scott, Ross,
Robinson, Conroy, Angel Negron, and Wallach-
on the other hand, gave testimony indicating that
there was no difference in the production of work
habits of Scott and other employees before and
after the advent of the Union. The testimony of
some of these witnesses appears more reliable than
that of others. No useful purpose, however, would
be served in attempting here to set forth in detail or
analyze their accounts.
I am convinced upon a careful study of all the
evidence that the testimony of Phillips and other
management representatives regarding a decline in
production after the advent of the union activities is
greatly exaggerated and that neither Scott's produc-
tion record nor that of other employees was a sub-
stantial factor in Respondent's decision to ter-
minate Scott. Nor was his attendance record a sub-
stantial factor. No evidence was adduced to show
that his attendance record was worse than that of
most other employees. To be sure, his attendance
record was not as good toward the latter part of his
employment as it had been toward the beginning of
his employment. On several occasions he had been
out sick; he had asked for and received permission
to be off on Columbus Day; and on other occa-
sions, he had checked out to report to the union of-
fices, such as when Respondent announced the
layoff of the night shift. But if, as Respondent con-
tends, it was producing largely for inventory during
this period and could have done without the night
shift altogether, Scott's absences should not have
been of great concern to Respondent. Moreover, as
already noted, Supervisor Record kept him away
from his work for about 3 hours on or about August
25 to question him and argue with him about the
Union and General Manager DesRoches on several
occasions thereafter detained him in the office for
periods of from 1 to 4 hours at a time during work-
ing hours to discuss the Union with him. Loss of
production did not deter Respondent' s manage-
ment from engaging in these attempts to forestall
the success of the Union.
Despite Scott's previous highly satisfactory em-
ployment record with Respondent, Plant Manager
DesRoches had wanted to fire Scott immediately
upon learning that he was engaging in union activi-
ties but had been deterred by Phillips who, on his
counsel's advice, told DesRoches and later Quar-
tarone, to try to keep Scott at his work station but
to avoid any incident which might cause trouble
with the Union. Later, on his counsel's advice, Phil-
lips had swallowed his pride, apologized to the
Union, and ordered payment to Scott and three
other employees for the night they were laid off by
DesRoches under circumstances which must have
caused the employee to believe that they were
being discriminatorily treated because of Scott's
union leadership. The ensuing militant reaction of
Union Representative O'Brien, following Scott's re-
port to him about the night's suspension, which
caused Phillips to remove DesRoches as plant
manager in order to avoid trouble with the Union,
was undoubtedly a further vexing experience for
Phillips. Phillips, I am sure, was further humiliated
when, after ordering a layoff of the night shift, he
felt compelled to cancel the order so as to avoid the
picket line around his plant which Scott had told
employees the Union was contemplating. The
crowning indignity, however, and the one which
caused him to act, without consulting his counsel
and inconsistently with prior advice of counsel, was
the report he received from Quartarone that Scott
was telling employees "I told you they wouldn't go
through with the layoff." I have not the slightest
doubt that these events in which Scott figured so
prominently in causing Respondent embararass-
ment were the real reasons for Scott's termination
and that the assigned reasons, poor production and
absenteeism, were mere pretexts.
Scott, of course, was engaging in protected union
and concerted activity when he reported these
events to the Union, made the remarks about the
possibility of a picket line, and gloated to fellow
employees that he had predicted that Respondent
would not "go through with the layoff" (assuming,
contrary to the evidence, that he made the latter
statement). In none of such conduct was Scott
acting disrespectfully to any management represen-
tative and Respondent does not contend that he
was purposely attempting to goad them into taking
retaliatory action against him.t' Scott's statements
were, for the most part, made to fellow employees,
some of whom reported them to Record who in
turn reported them to Quartarone who then re-
ported to Phillips. The discharge of Scott for engag-
ing in these activities was clearly in violation of
Section 8(a)(3) and (1) of the Act.
C. Vice President Phillips' Preelection Statements
About a Shop Union
Phillips made three preelection speeches to the
assembled plant employees-one on October 16,
'T DesRoches described Scott 's attitude as good and Quartarone testified
that he was " polite" even when being discharged
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one on October 23, and the last one on October 25,
the day before the election. At the conclusion of his
speech on October 23, he told the employees that
this would probably be his last speech and asked
that they all vote in the election. Soon thereafter,
however, as the result of an interview with em-
ployee William Mills, he changed his mind and
again assembled the employees for another speech
on the day before the election.
Following the October 23 speech, Mills
requested and was granted an interview with Phil-
lips in the latter's office. The conference lasted
from about 3 p.m. to 6:30 p.m. Quartarone was
present throughout that time and Assistant Plant
Manager Perry was present except for the first half
hour.
Mills told Phillips that some of the employees
had asked him to be their spokesman and to ask
Phillips some questions. Two topics were discussed,
broken promises and the possibility of having a
shop union." In regard to a shop union, Mills told
Phillips that some of the employees wanted to know
more about a shop union and he asked Phillips
whether, if the Union lost the election, it would be
agreeable with Phillips for the employees to have a
company union or a shop union. Phillips replied
"that the idea had some merit and did make some
sense" but he did not know the legal ramifications
involved and would have to discuss them with his
attorneys. Mills asked what kind of benefits the em-
ployees could get from such an organization and
specifically about additional holidays, better pay,
and a fairer pay scale for men and women doing the
same work. Phillips replied that he could make no
promises then and that those matters would have to
be discussed at a later date. Mills asked what kind
of protection the employees would have under a
shop union setup if the shop union and manage-
ment could not come to an agreement on any par-
ticular issue, pointing out that an outside union
could strike to try to enforce its demands. Phillips
responded that he thought he and the shop union
could solve just about any problems which might
come up but that if they could not agree they could
have a middleman or outside arbitrator whose deci-
sion would be binding on both parties. He also
stated that he would hire a girl or use his own
secretary to do the paperwork for the shop union
and for a credit union if the employees had one. At
one point, Mills asked how the employees could
know that Phillips would do the things being talked
about and Phillips replied that being the vice pres-
sident of Respondent he had the authority to do
these things. He stated, however, that he was not
familiar with the law on such matters and that there
might be a 12-month ban after the election on
another union's coming in.
Toward the end of the interview, Mills asked if
Phillips could hold another meeting with employees
and explain to them the things which the two of
them had just discussed. He stated that the em-
ployees knew nothing about how a shop union
could operate and he thought they should hear
about it from Phillips the way Phillips had ex-
plained it to him. Phillips agreed to hold such a
meeting and asked Mills if he thought it would help
if Mills asked questions at the meeting in the same
way he had asked them in their private meeting.
Mills agreed with the suggestion but warned Phillips
that he was "strictly for the Union" and would
"foul him up" if Phillips "left himself open." At the
conclusion of the interview, Phillips asked how
Mills himself felt about a shop union and how he
thought the other employees would feel about it.
Mills stated that the idea sounded good to him and
volunteered to try to ascertain how others felt.'9
On the following day, Phillips approached Mills
while he was in a smoking booth and asked Mills if
he had been in touch with any of the employees
about how they felt about the shop union. Mills
replied that he had talked to some, that some liked
the idea but that most did not. He stated that he
would talk to the rest of the employees. Phillips
then asked if Mills thought it would be wise to have
the meeting they had talked about the night before
and Mills said that it was up to Phillips.20
Phillips called the proposed meeting on the next
day, October 25. He reiterated much that had been
said in his previous speeches, telling the employees,
among other things, that it would cost them
between $50 and $200 to join the Union, urging all
to vote , stating that he hoped they would vote for
"the Company" but assuring them that the ballot
would be secret, that no one would know how they
voted, and that no action would be taken against
them no matter how they voted. He then asked
whether anyone had any questions and, as had been
previously arranged, Mills started asking questions
'" Mills and Phillips differed in their recollections as to which subject was
discussed first and for purposes of this case it does not matter As an illus-
tration of employees ' dissatisfaction over broken promises , Mills launched
into a lengthy account of how DesRoches , in order to induce Mills to give
up another job and return to work for Respondent , had promised that he
would be a foreman and not have to move stock and paint as he had done
during his previous employment , and of how this promise had not been
kept , since for some time before the election Mills had been having to do
mostly physical work and had practically no duties of the kind promised
him Phillips replied that he knew nothing of such promises and that Mills
and one other person , Leo Temo, were working supervisors and not the
"hire and fire" kind , listing Perry , Cabral, Quartarone , O,Bnen, and
Record as the only ones in the latter category At one point during the
hearing in this case , Respondent 's counsel contended that Mills was a
supervisor within the meaning of the Act but in his brief he now departs
from that position I am satisfied on the basis of all the evidence that al-
though , dunng the preelection period, Mills was more than a mere stock-
boy (the position he held at the time of the hearing ), he was not a super-
visor within the meaning of the Act. In any event , Phillips' conduct
described in this subsection would be no less reprehensible under the
statute even if Mills had been a supervisor within the meaning of the
statute
'" The above findings are based upon the composite and in many respects
corroborative testimony of Mills and Phillips Neither Perry nor Quar-
taronc, though present, were questioned about the interview
'" The findings in the above paragraph are based upon the credited
testimony of Mills. Phillips, while testifying that he did not "recall" this
conversation , did not specifically deny having it.
DAVCO, INC.
about the possibility of a shop union in the event
that the Union lost the election, and a few other
employees also asked questions about it. Phillips
told the employees that he thought he had the in-
terest of the employees at heart more than an out-
side union could have; that the idea of a shop union
had merit and made sense to him; that under a shop
union they "could" get just as many if not more
benefits than the outside union could get them-
such as a credit union, medical and dental benefits,
a cleaner coffeeroom, and better working condi-
tions ; but he reminded the employees, whenever
mentioning a possible benefit, that under the law he
could make them no promises. He stated that he
was not aware of all the legal "entanglements" that
might be involved in establishing a shop union and
that an outside attorney would have to be called in
to get it started. In response to a question about
how soon after the Union was defeated in the elec-
tion a shop union could be started, Phillips replied
that "immediately" or "tomorrow" would not be
too soon "to get the ball rolling." He told them that
he would furnish an office girl to do the paperwork
for the shop union. He also told them that they
could elect a grievance committee and that if the
Company and committee could not agree on the
settlement of a grievance, they could get an arbitra-
tor to settle the matter.21
The General Counsel contends that Phillips, both
in his interview with Mills and in his October 25
speech to the employees, unlawfully interfered with
employees' organizational rights. I am reluctant to
base any unfair labor practice finding upon any of
Phillips' statements to Mills during the interview on
October 23, for these statements were made at an
unsolicited interview and were provoked by the
questions asked by Mills, with no opportunity by
Phillips to reflect upon the answers he should give
or seek the advice of his counsel on the subject
about which his views were sought.
Phillips' conduct subsequent to the meeting,
however, stands on a different footing. Two days
had elapsed between the interview and the speech
to his assembled employees, during which period
Phillips had time to consult his counsel and to
reflect upon the significance of the strategy he and
Mills had planned. He deliberately decided to hold
the meeting even after consulting with Mills on Oc-
tober 24 and learning from him that a majority of
the employees Mills had talked to were opposed to
the idea of a shop union. The purport of Phillips'
speech, including his answers to the questions
propounded by Mills and other employees at the
meeting, was a proposal that the employees reject
an expensive outside union at the polls and im-
mediately thereafter set up a shop union which
could get them as many, if not more, benefits than
the outside union could. Respondent's expression
of a willingness to contribute the services of a
" The findings with respect to Phillip's October 25 speech are based
upon the credited and mutually corroborative testimony of Phillips , Robin-
1799
secretary or office girl to do the shop union's
paperwork and to arrange for arbitration of
grievances which it and the shop union could not
settle were benefits which it had not proposed to
offer to the outside union. Phillips' statements dur-
ing the course of his speech that the law did not
permit him to promise the employees anything
prior to the election plainly constituted mere lipser-
vice to the law and cannot reasonably be construed
as having the effect of nullifying in the employees'
minds his other statement pointing out the benefits
he was willing to grant them if they rejected an out-
side union and accepted a shop union. I find that
Respondent, by proposing to the employees that
immediately after defeating the Union at the polls,
they could "start the ball rolling" toward setting up
a shop union which could get them as many, if not
more, benefits than the outside union, by promising
the employees that Respondent would contribute to
services of an office employee to do the paperwork
for such a shop union, and by assuring them that
Respondent would agree to arbitration machinery
to settle disputes which management and the shop
union could not settle, has interfered with organiza-
tional rights of its employees in violation of Section
8(a)(1) of the Act.
D. Alleged Discriminatory Termination of Paul
Ross; Resolution of His Challenged Ballot
Ross was hired by Respondent on September 5,
1967, and worked in the Wood Working Depart-
ment under Supervisor Bob Record. He was absent
from work for a period of 9 working days between
October 13 and 26, when he appeared at the polls
to vote, because of illness-a bad cold, sinus trou-
ble, and fever. Just prior to the election his name
was stricken from the voting eligibility list and his
ballot was therefore challenged by a Board agent
when he appeared to vote.
The General Counsel contends that he was dis-
criminatorily terminated on that date because of his
union membership and activities, but that even if he
had not been discriminatorily terminated his name
was mistakenly stricken from the voting list, and
that his challenged ballot should be counted.
Respondent denies any discrimination against him
or that he was ever discharged at all. Its position is
that since he had not shown up for work between
October 13 and 26, it assumed he must have quit
and therefore removed his name from the eligibility
list.
Reference has already been made to Ross' unde-
nied and credited testimony about being warned by
Record that he would lose his job if "the boss" ever
found out about Ross' union membership and
Record's warning to him as late as October 2 that
he would lose his job if he voted for the Union.
Record, moreover, referred to him as the shop
son, and Mills
1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steward after the election. During the period before
he became ill, Ross and Record had maintained a
friendly relationship. Record had even visited Ross
and his wife in their apartment occasionally.
Record used to drive him home when they both got
off from work at 12:30. Mrs. Ross, who also
worked for Respondent but only until 11 p.m.,
would sometimes wait for Record to take her home
when she missed a ride home at I1 p.m. both be-
fore and after Ross became ill.22 The Rosses had in-
troduced Record to one of their friends, Presutte,
with whom Record went duck hunting on the morn-
ing of October 26 and Record had left and later
picked up the Presutte baby at the Rosses' apart-
ment that morning.
As Respondent states in its brief, the only basic
factual conflict which relates to Ross is whether he
notified Respondent that he was ill and unable to
work. Both Ross and his wife testified that one or
the other of them called the plant every day when
Ross was absent and informed Record that Ross
was ill or that he would not be in to work that
night, except on one occasion when they forgot and
that on that occasion Record called Ross and asked
why he had not called in. According to Mrs. Ross,
on two of the occasions when she called to report
that Ross would be absent someone other than
Record answered the telephone and she left a
message to be given to Record . Employee Mills
testified that twice during the period of Ross'
absence he answered the telephone when the caller
asked for Record. On one of those occasions
Record was too busy to take the message and the
caller asked Mills to inform Record that Ross
would not be in. Mills delivered the message. On
the other occasion Record came to the telephone
and after hanging up, remarked, "Oh brother,
nobody is coming in tonight ," explaining that Mrs.
Ross had just reported that Ross would not be in.
Record denied that he was ever notified by either
Ross or his wife that Ross was sick. He testified that
except for the election day morning when he left
and picked up the Presutte baby at the Rosses'
apartment , he did not see or hear from Ross
between October 12, the last day he worked, and
the day of the election. Rcord explained that he
made no inquiry about Ross because the quantity
and quality of Ross' production was so bad that he
*' According to both Ross and his wife, on the occasions while Ross was
ill when Mrs Ross waited until 12 30 for a ride home , she would call her
husband and Record would also speak to him and ask how he was feeling
" According to Ross, on October 25 , the night before the election,
Record telephoned him, asked how he was feeling and whether he was
going to try to come to the plant the next day for the election, and told him
the hours of the election Ross stated that he would try to make it Again,
according to Ross, on the morning of the election day, when Record
dropped by his apartment , Record reminded him of the time of the election
and told him to try to make it Record denied that he had reminded Ross of
the time of the election, explaining that he thought Ross already knew
about it I credit Record in this respect , for it does not appear logical that
Record , who was opposed the Union , would be urging Ross, who he had
reason to believe was for the Union , to vote
24 Every Friday Hilliard makes up a timecard for each employee for the
did not care whether Ross returned. This explana
tion, however, does not seem consistent with the
fact that about 2 weeks before the hearing in thi,
case Respondent offered Ross reemployment at the
same work he was doing prior to his spell of illness
I am satisfied, upon the entire record, that re-
gardless of whether the Rosses called Record as
frequently as they testified, Record was informed
of the reason for Ross'absence.23
After voting under challenge, Ross told Record
what had happened and asked if he had been ter-
minated. Record replied that to the best of his
knowledge Ross had not. Record then turned to Su-
pervisor O'Brien and asked if he knew anything
about Ross being terminated. O'Brien replied that
he did not know either. Ross checked to see if his
timecard was in the rack and found it there. He
then went home. On the following Monday, Oc-
tober 30, he telephoned Record and asked if he had
really been fired. Record replied that as far as he
knew, Ross had been fired. Ross did not return to
the plant, but a day or two later, through his Union,
filed a charge with the Board , alleging that he had
been discriminatorily discharged. This charge was
served on Respondent on November 3, 1967.
The mystery surrounding Ross' termination was
never fully explained. Marilyn Hilliard, who handles
Respondent's personnel records, credibly testified
that on election day, Thursday, October 26, she
was asked by Vice President Phillips or Respon-
dent's counsel, Schneider, to bring the voting eligi-
bility list which she had previously prepared up to
date so as to reflect those employees working for
Respondent on that date. She then looked over the
previous week's timecards and asked Supervisor 0'-
Brien or Plant Manager Quartarone to check the
timecards in the rack to ascertain which people had
not worked that week. She made a list of those em-
ployees whose timecards showed that they had not
been in either during the current or previous week
and who in her judgment were no longer working
for Respondent. She showed this list to Phillips and
Schneider, explaining as to each of the approxi-
mately six employees on the list whatever informa-
tion she had had about him. Hilliard did not know
Ross and did not remember asking anyone to check
on Ross or receiving any specific information in re-
gard to him.24 There is no notation or record in her
files to show that he quit or was terminated.
following week , which is picked up by the foreman of each department on
the following Monday morning and placed in the rack . The timecard is not
returned to her until Monday morning, a week later Accordingly, when
asked by Phillips or Schneider to make up a current list of the employees,
she would have had in her possession the blank , unmarked, timecard of
Ross for the week ending October 20 but would not have known, except by
inquiring of Quartarone . O'Brien , or some other management representa-
tive, whether Ross had clocked in on any day of the week of the election
When a foreman returns a timecard to her, he sometimes , but not always,
marks on it the reason why the card shows no clock marks If a timecard
which shows no clock mark or other notation on it is returned to her, she
does not keep it She keeps it in Respondent 's files only if some such mark-
ing appears on it Since she did not keep any timecard for Ross after the
week ending October 14 , she assumed that no such marking appeared on
his timecards for the following 2 weeks
DAVCO, INC.
Phillips testified that with respect to Ross, "we
claim he wasn't let go. He stated that on the morn-
ing of the election day, he received a list of about
six names, with the last dates they worked, from
Hilliard; and that he did not know Ross but that he
assumes he checked the list with Quartarone or Su-
pervisor Perry about Ross as well as the other em-
ployees on the list and concluded that Ross must
have quit his employment since neither Quartarone
nor Perry had heard from him.25 Phillips further
testified that subsequent to the election, he
questioned Record about Ross and that Record re-
ported that Ross had not contacted him while ab-
sent.
Quartarone testified that no one had asked him
about Ross' employment status prior to the elec-
tion; that Record had never told him that Ross had
been out for almost 2 weeks before the election
without calling in; and that he did not know
whether or not Ross' card was in the rack on the
day of the election.
A search for the truth from the maze of
testimony regarding Ross has been a difficult task.
One fact appears clear: Ross had not in fact quit his
employment prior to the election and had not in-
formed anyone of any intention to quit. The fact
that Ross' timecard was still in the rack, when he
checked the situation after being informed at the
polling place that his ballot was being challenged
because he had been terminated, indicates that no
management representative prior to October 26
had taken any steps to remove him from the payroll
or declare his status as terminated. A view of the
evidence in the light most favorable to Respondent
would require a conclusion that the removal of his
name from the voting eligibility list on October 26
was merely the result of a mistaken assumption on
the part of Hilliard and top management represen-
tatives with whom she consulted that Ross had quit
his employment. Aview of the evidence, in the light
most favorable to the General Counsel's case,
would warrant a conclusion that Supervisor Record
had informed top management representatives of
Ross' union membership and activities, or that they
otherwise learned of them prior to the removal of
his name from the eligibility list, that Respondent
was motivated by such knowledge in striking his
name from the list, and that his absence from the
plant during the preceding 9 working days was as-
serted at the hearing as a pretext for claiming that
he had quit his employment. An adoption of the
latter view, however, would, as explained below,
add nothing to the remedial order which would be
required even if Respondent had acted in good
faith in striking his name from the eligibility list.
I shall assume, as Respondent asserts, that in
striking Ross' name from the eligibility list, it be-
2' Perry, though called as a witness, was not asked about Ross
26 Since, however, as Ross' wife testified, Ross would have been unable
to return to work because of his illness for about a week after the election,
the remedy would be the same even if the discriminatory termination were
1801
lieved that he must have quit his job This conclu-
sion requires a finding that the challenge to Ross'
ballot must be overruled and that the ballot must be
counted since, as already pointed out, he had not in
fact quit his employment. This finding, however,
does not dispose of the question whether Ross was
thereafter discriminatorily discharged or denied
employment-. Supervisor Record, who had failed to
report the reason for Ross' absences to Plant
Manager Quartarone, as was his duty, was apprised
of the challenge to Ross' ballot on the same day it
happened and took no step to have the error cor-
rected. On the following Monday when Ross
telephoned him to inquire whether he had really
been fired, Record merely replied that as far as he
knew Ross had been fired. Within about a week
after Ross' ballot had been challenged, an unfair
labor practice charge alleging that Ross had been
discriminatorily terminated on October 26 was filed
with the Board and served on Respondent, thereby,
in effect, informing Respondent not only that Ross
had not quit his'employment but also that he was a
union supporter. Even then Respondent took no
steps to correct its error. But for the fact that
Respondent's top management then knew, as
Record already knew, of Ross' support of the
Union and of the fact that a counting of his chal-
lenged ballot might result in a victory for the
Union, it would seem that the normal and expected
response to the charge would have been an attempt
to correct the error and assure Ross that he could
return to work. I find that in failing to take these
steps Respondent in effect discriminatorily
discharged him after his ballot was challenged. This
discrimination took place on October 26 when
Record, who himself had authority to terminate
employees and whose failure to report Ross' illness
to higher management resulted in the challenge,
failed to have the error corrected.26
E. The Status of Edward Cabral
At the representation election, the Union chal-
lenged the ballot of Cabral, contending that he was
a supervisor within the meaning of the Act. His du-
ties and authority are now described.
Cabral was hired by Respondent in March 1966
as a setup man in the Plastics Department on the
first shift under Supervisor Perry. During the latter
part of May 1967, he became the "maintenance
foreman." About 2 weeks later Respondent started
a night shift for the Plastics Department and Perry
transferred Cabral to the position of maintenance
foreman over the night shift of that department.
The night shift ran from June through the end of
August. Perry, though working on the day shift and
in overall charge of the Plastics Department, would
found to have occurred on November 3 when Respondent received the
charge and failed to correct its mistaken report regarding Ross' employ-
ment status
354-126 O-LT - 73 - pt. 2 - 42
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave instructions for Cabral with respect to some
of the night-shift work and Cabral would from time
to time telephone Perry or leave a note for him
about anything which might go wrong. Cabral was
away from work because of a recurring back injury
when the night shift for the Plastics Department
was discontinued about the end of August, and he
returned about mid-September as maintenance
foreman on the day shift. After Perry was made a
comanager of the plant, along with Quartarone, on
September 26 when Plant Manager Des Roches left,
Perry spent almost all his time in the Mounting Sec-
tion of the Wood Working Department and left
Cabral in charge of the Plastics Department.27
As maintenance foreman it was Cabral's respon-
sibility, among other things, to set up and maintain
the machines, to check items being run in order to
make sure that the right material was being used on
each item, to check production, to train new em-
ployees, and in general "to keep an eye on the de-
partment at all times" to see that the work was
being done right.
He had between five and seven employees work-
ing under him. When on the night shift he kept
daily notes on them as to "how the person was
working, whether he was improving, slow, late,"
etc. He left these notes in the factory office at the
end of the shift for Perry to see the next morning.
He granted employees permission to leave early
and initialed their timecards when they were late.
Unlike the employees under him, Cabral did not
punch in or out at lunchtime. Cabral also assigned
work to the employees, reproached them when
their production was down, and on occasions
loaned one of his employees to Supervisor Record.
Cabral's rate of pay was 10 cents an hour more
than that of Record, whose supervisory status is
conceded. On October 23 when discussing with em-
ployee Mills the kind of bosses Respondent had,
Vice President Phillips named Cabral as one of the
"hire and fire foremen." Supervisor Perry told em-
ployee Robinson , when assigning him to the Plastics
Department on the night shift, that Cabral was in
charge of Plastics and would be his boss and that
Robinson should do what Cabral told him to do.
Thereafter, Cabral told Robinson, on an occasion
when the two of them had a dispute about the work
Robinson was doing, that he would fire Robinson if
Robinson did not follow his instructions. Upon
another occasion Cabral actually did discharge em-
ployee Wojtowicz when the latter spent more time
in the coffeeroom than Cabral thought was war-
ranted.28
Upon the basis of all the evidence, I find that
Cabral, on and prior to the date of the election, had
authority, in the interest of his employer, respon-
" In January 1968 when the night shift in the Plastics Department was
resumed, Cabral was again put in charge and this time was promised an in-
crease in pay and an opporunity to go on a salaried basis and was specifi-
cally told that he had the authority to fire employees Respondent concedes
that he is now a supervisor within the meaning of the Act, but this does not
dispose of the issue as to whether he was such a supervisor at the time of
sibly to direct the work of employees under him, to
assign them work, to discipline them, and to
discharge them. He was accordingly a supervisor
within the meaning of the Act and the challenge to
his ballot must be sustained.
CONCLUSIONS OF LAW
1. By coercively interrogating employees regard-
ing their union membership and activities, by
threatening discharge and other reprisals against
employees for supporting the Union, and by
promising benefits to them in return for rejecting
the Union, Respondent has engaged in unfair labor
practices in violation of Section 8(a)(I) of the Act.
2. By discharging Ronald Scott because he en-
gaged in protected union and other concerted ac-
tivities, Respondent discriminated against him to
discourage membership in the Union, in violation
of Section 8(a)(3) and (1) of the Act.
3. By discharging Paul Ross in order to defeat the
Union at the polls, Respondent discriminated
against him to discourage union membership, in
violation of Section 8(a)(3) and (I) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
5. Edward Cabral was a supervisor within the
meaning of Section 2(1 1) of the Act on the date of
the October 26 representation election and the
challenge to his ballot must be sustained.
6. Ronald Scott and Paul Ross were employees
of Respondent within the meaning of Section 2(3)
of the Act on the date of the October 26 represen-
tation election and the challenges to their ballots
must be overruled.
THE REMEDY
It having been found that Respondent has en-
gaged in unfair labor practices in violation of Sec-
tion 8(a)(1) and (3) of the Act, my Recommended
Order will require that Respondent cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The record shows that by letter dated January
29, 1968, just prior to the hearing in this case,
Respondent offered Ross employment at the same
job he formerly held and at the same rate of pay
and that Ross accepted the offer and agreed to
return to work on February 15, the day following
his testimony in this case . Respondent made clear
at the hearing, however, that while offering him
employment, it was not offering him reinstatement.
Accordingly, my Recommended Order will require
that Respondent offer him as well as Ronald Scott
the election
r" The above findings are based upon those parts of the testimony of
Cabral, Perry, Robinson, Mills, Scott , W41towic7, and Lampron which I
credit Robinson , in particular , impressed me as a forthright and reliable
witness
DAVCO, INC.
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
each whole for any loss of pay suffered by reason of
the discrimination against him. Such backpay shall
be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and shall include interest at
the rate of 6 percent per annum as provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
The Recommended Order will also provide that
the representation case, 1-RC-9740, be remanded
to the Regional Director with directions to count
the challanged ballots of Ronald Scott and Paul
Ross and certify the results of the election con-
ducted on October 26, 1967.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclu-
sions of law and upon the entire record in this case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby or-
dered that Respondent, Davco, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees re-
garding their union memberships, activities, or sym-
pathies.
(b) Discharging or threatening discharge or
other reprisals against employees for joining or sup-
porting Teamsters Union Local #42, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization.
(c) Promising any employee a better future with
Respondent in return for his renunciation of the
Union.
(d) Promising benefits to employees, through a
shop union, to induce them to vote against another
type of union in any pending election.
(e) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights guaranteed them under Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to reinstate Ronald Scott and Paul
Ross to their former of substantially equivalent
positions, without prejujice to their seniority or
other rights and privileges, and make each whole in
the manner described in the portion of the Trial Ex-
aminer 's Decision entitled "The Remedy" for any
loss of earnings suffered by reason of the dis-
crimination against him.
(b) Notify Ronald Scott and Paul Ross, if either
is presently serving in the Armed Forces of the
United States, of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
1803
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its plant in Peabody, Massachusetts,
copies of the attached notice marked "Appen-
dix."28 Copies of said notice, on forms provided by
the Regional Director for Region 1, after being duly
signed by Respondent's authorized representative,,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.30
IT IS FURTHER ORDERED that Case 1-RC-9740 be
remanded to the Regional Director for Region 1 of
the Board with directions that the challenged bal-
lots of Ronald Scott and Paul Ross be opened and
counted and that he certify the results of the
representation election conducted on October 26,
1967.
29 In the event that 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 In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap.
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
'19 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to Recommended Order of a Trial Ex-
aminer 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:
WE WILL offer reinstatement to Ronald Scott
and Paul Ross to their former or substantially
equivalent positions, without loss of seniority
or other rights and privileges, and pay each of
them for any loss of pay suffered because of his
termination.
WE WILL NOT unlawfully question any of you
concerning your union membership or sym-
pathies.
1804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or threaten to
discharge you or otherwise punish you for join-
ing or supporting Teamsters Union Local #42,
a/w International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America , or any other union.
WE WILL NOT promise any employee a better
future with our Company if he stops supporting
the union.
WE WILL NOT promise you any benefits
through a shop union to induce you to vote
against another type of union in any pending
election.
WE WILL NOT in any other way interfere with
your right to choose a union to represent you
in any grievance and bargain with us about
your wages , rates of pay, hours of work, and
other conditions of employment.
DAVCO, INC.
(Employer)
Dated By
(Representative ) (Title)
Note : We will notify the above -named em-
ployees 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, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office , 20th Floor, John F . Kennedy Federal Build-
ing, Cambridge & New Sudbury Streets , Boston,
Massachusetts 02203 , Telephone 223-3300.