Dayton T. Brown, Inc.

National Labor Relations Board - Board Decisions

Feb 17, 1961

130 N.L.R.B. 440 (N.L.R.B. 1961)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement, less his net earnings during said period (Crossett Lumber Company,
8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
As provided in the Woolworth case, I recommend further that Respondent Company
make available to the Board on request payroll and other records, in order to
facilitate the checking of the amount of backpay due.
As the contract was defective because of noncompliance with Section 9(f), (g),
and (h) which have been repealed, because Respondent Company did not know that
Local 600 was out of compliance when it entered into the September 4, 1959, con-
tract, and because the Respondents' conduct in the past does not suggest the danger
that other unfair labor practices will be committed in the future, I shall recommend
a narrow cease-and-desist order rather than a broad form order.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Industrial Rayon Corporation is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local 600, AFL-CIO, is a labor
organization within the meaning of the Act.
3. By entering into and giving effect to a union-shop contract at a time when
Respondent Local was not in compliance with Section 9(f), (g), and (h) of the Act,
Respondent Company and Respondent Local 600 have, at all times since September 4,
1959, engaged in unfair labor practices within the meaning of Section 8(a)(1) and
(3) and Section 8(b)(1)(A) and (2) of the Act.
4. By attempting to cause and causing the discharge of, and by discharging
Gregory J. Cudzilo, Sr., under an unlawful union-security contract, Respondent
Company and Respondent Local 600 have, at all times since October 23, 1959, en-
gaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) and
Section 8 (b) ( 1 )(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Dayton T. Brown , Inc. and Frank Tumminello . Case No. p2-CA-
6487. February 17, 1961
DECISION AND ORDER
On April 25, 1960, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices as alleged in the complaint and recommended that the com-
plaint be dismissed with respect to them. Thereafter, the General
Counsel and the Respondent filed exceptions and supporting briefs to
the findings in the Intermediate Report and to the recommended order.
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 Rodgers, Fanning, and Kimball].
130 NLRB No. 52.
DAYTON T. BROWN, INC. 441
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, as modified herein.
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, Dayton T. Brown,
Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees concerning their membership in or
activities on behalf of, the International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, UAW,
AFL-CIO, or any other labor organization, in a manner constituting
interference, restraint, or coercion in violation of Section 8(a) (1).
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Copiague, Long Island, New York, copies
of the notice attached hereto marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent 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 the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Second Region, in writing,
within 10 days from date of this Order, what steps the Respondent
has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it relates to the
discharge of Frank Tumminello, and to violations of Section 8(a) (1)
of the Act in other respects than as found herein, be, and it hereby is,
dismissed.
1 The Trial Examiner found no violation with respect to certain of the 8 ( a) (1) allega-
tions concerning the Respondent 's proposed pension plan and other benefits because they
were not conditioned on employee renunciation of the Union and did not contain threats
of reprisal or promise of benefit while adopting the Trial Examiner ' s findings, the
Board does not adopt the Trial Examiner 's rationale based on employee renunciation of
the Union ( Intermediate Report, section B )
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
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:
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, UAW, AFL-CIO, or any other labor organization, in
a manner constituting interference, restraint, or coercion in vio-
lation of Section 8 (a) (1).
All our employees are free to become, remain, or to refrain from
becoming or remaining members in International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
UAW, AFL-CIO, or any other labor organization.
DAYTON T. BROWN, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by Frank Tumminello , an individual , the General Coun-
sel of the National Labor Relations Board , by the Regional Director for the Second
Region , issued a complaint dated September 24, 1959, against Dayton T . Brown, Inc.,
herein called the Respondent , alleging that the Respondent had engaged in unfair
labor practices within the meaning of Section 8(a) (1) and ( 3) and Section 2(6) and
(7) of the National Labor Relations Act, as amended , herein called the Act.
The Respondent filed an answer dated September 29, 1959, in which it admitted
the jurisdictional allegations of the complaint , but denied the commission of any
unfair labor practices.
Pursuant to notice , a hearing was held at New York, New York , before the duly
designated Trial Examiner , from November 9 through 13, 1959. During his case
the General Counsel moved to amend the complaint . The motion was granted over
the Respondent 's objection . At the close of the whole case the Respondent moved
to dismiss the complaint upon the ground that the General Counsel had failed to
sustain the burden of proof. Ruling was reserved . The motion to dismiss is dis-
posed of as hereinafter indicated . The Respondent also moved to dismiss the com-
plaint upon the grounds that "the instant proceedings are defective under Section
102.19 of the Rules and the Administrative Procedure Act." Ruling was reserved.
This motion to dismiss is hereby denied . The General Counsel moved to conform
the pleadings to the proof as to minor variances and not as to substance . The motion
was granted without objection . The Respondent filed a brief with the Trial Ex-
aminer after the conclusion of the hearing.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
DAYTON T. BROWN, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
443
The Respondent is a New York corporation, having its principal office and plant
at 'Copiague, Long Island, New York. It is engaged at said plant in the manufacture,
sale, and distribution of truck bodies and related products, and in the performance
of various laboratory tests relating to national defense.
During the year preceding the date of the complaint herein, the Respondent, in
the course and conduct of its business operations, caused to be manufactured, sold,
and distributed at and from said plant products valued at in excess of $50,000, which
it shipped directly to States of the United States other than the State of New York.
The complaint alleges, the Respondent's answer admits, and the Trial Examiner
finds that the Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, herein referred to as the Union , is a labor
organization which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The alleged discharge of Frank Tumminello
Tumminello was employed by the Respondent from October 12, 1957, until his
termination on March 16, 1959. He worked as a technician in the missile section.
There were four technicians in the missile section at the times mentioned herein. It
was supervised by Engineers Wallace McDonald and Halvorsen, McDonald's
assistant.'
Concerning his activity on behalf of the Union, Tumminello testified that about
the beginning of February 1959, he obtained union authorization cards and pam-
phlets from an officer of the Union; that he brought these cards and pamphlets to
the plant and placed them on his toolbox "in full view of everyone"; that McDonald
at times was in the area of his toolbox; that he placed some of the pamphlets in the
pocket of his "lab coat" where he "carried them in full view of everyone"; that he
distributed this union literature to employees "during coffee breaks and lunch
periods" and "before and after work"; that he continued distribution in this manner
until the day of his termination; that on a few occasions McDonald and some other
supervisors were present when he distributed pamphlets during coffee breaks; and
that on one such occasion Supervisor Edwards told the employees in his group to
"throw the trash [pamphlets] in the waste basket." On direct examination Turn-
minello testified further as follows:
Q. Did you have occasion at any time to make mass distributions of litera-
ture at the Dayton T. Brown gate or entrance?
A. Yes.
Q. When did these distributions take place?
A. During the time I was employed for them, the various representatives
of the union made mass distributions at the gate to make sure everybody got
it, if I missed up that day, because I could not get around the whole shop in
one day.
Q. Did you make any distributions yourself at the entrance of Dayton T.
Brown?
A. While I was employed by them?
Q. At any time.
A. Yes.
IL It was stipulated that all engineers are supervisory employees within the meaning of
the Act. The General Counsel contends that Charles Johler, a senior technician in the
missile section, also was a supervisory employee. There is considerable testimony on this
question I do not believe that the evidence is sufficient to establish that Johler was a
supervisory employee and so find. Like the other technicians, he was paid an hourly rate
and punched the timeclock. He transmitted orders from McDonald and Halvorsen and
might be classed as a group leader. As pointed out in the Respondent's brief, there would
be one supervisor for each rank-and-file employee if Johler should be found to be a super-
visory employee.
-444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. When were these distributions made by you?
A. After I was terminated from Dayton T. Brown.
Q. Do you remember the day or days you made these distributions?
TRIAL EXAMINER : He said after he was terminated.
Q. (By Mr. ROSENTHAL .) After March 16?
A. Yes.
During cross -examination , however, Tumminello testified that on two or three
occasions during February and March 1959, he distributed union literature to em-
ployees outside the entrances to the plant either before or after work. When
asked if he recalled "testifying yesterday that you did not distribute literature outside
the plant until March 16th ," Tumminello answered , "No, I don 't remember."
Tumminello had a conversation with Anderson Marshall Irving, "assistant head of
test," on March 11, 1959. Concerning this conversation , Tumminello testified as
follows:
He started his conversation by saying that he had overheard rumors and
people had told him that I didn't like the remark he made about outside in the
missile section marking up the floors . I asked him why he didn 't like it and
he says, "because there is different visitors we get in here and it doesn't look
good to have marked floors ," which were just painted at the time . I asked him
I don't believe it would be right to have the employees change their shoes
because it didn't have nothing to do with our work. He said that was the way
he felt and if I or anybody else didn't like it, they could leave any time.
He then said that he had heard rumors that I was involved in union activities
and that he felt, on his behalf and plus the company, that there would be venge-
ful action taken against anybody involved in this.
I told him why he felt that way about a union and he said he felt due to the
fact that Brown was so small they could not bid for contracts if the union got
in and raised the wages and plus the fact that if the union did get in and a
slowdown came , personnel working for them at the time could not be reclassi-
fied in other sections and would have to be laid off.
* * * * * * *
Whenever we had a slowdown or lack of work in one department, we would
be borrowed or there would be loaned to us a man or two men from different
sections to help us in various other groups. He said that once'the union got in,
certain sections would have a classification . In other words , if you were a
missile man, you were a missile man and if you were armament , that is the
way it was. If the lack of work was in armament , you would have to be laid
off; you could not go in the missile section.
Irving admitted having a conversation with Tumminello about 1 or 2 weeks before
the latter's discharge . Irving testified that he initiated a talk with Tumminello
because he had heard that Tumminello "was extremely upset by a commonplace
comment I had made about people in the laboratory wearing shoes that would
mark up a freshly painted floor ." In this connection he was questioned and testified
as follows:
Q. Did you ever discuss the union with Mr. Tumminello?
A. Yes, I did.
Q. When was that?
A. That was at the same time.
Q. How did this discussion come up?
A. This discussion came up because Mr. Tumminello asked me at the con-
clusion of my comments on the shoe episode, he didn't ask me, he told me that
he thought I had come down to talk to him about the union.
Q. And what did you say?
A. I said that I hadn 't come to talk to him about the union , but as long as he
had brought it up would he be interested in hearing my views on the union.
Q. What did he say?
A. He didn't stop me, so 'I expressed my views on the union.
Q. And what did you say?
A. I pointed out to Mr. Tumminello that in a small outfit such as ours my
personal feeling was that the union would not be a desirable thing, and I
predicted that we might have to shut down operations if the union got in.
* * * * * * *
Q. (By Mr. LEWIS. ) Do you recall any further conversations with Mr.
Tumminello with regard to a union activity?
DAYTON T. BROWN, INC. 445
A. I asked Mr . Tumminello at that time if he had anything at all to say to
me about the union . He had nothing to say.
Q. Did you ever tell Mr. Tumminello that the company would take ven-
geance anainst anybody supporting the union?
A. I have never made any such statement.
Q. Have you ever used the words "vengeful action"?
A. No.
* * * * * * *
Q. What did you say exactly?
A. I told him that I thought in a small laboratory such a union would be a
bad thing for us.
Q. What else did you say?
A. That they would jeopardize our competitive position.
Q. Did you tell him that the plant might have to shut down as a result?
A. I told hun it was quite possible we might lose our testing business as a
result of this , and we would all be out of a job.
I credit Irving 's version of the above conversation . He impressed me favorably
as a witness . Tumminello was evasive and there are serious contradictions in his
testimony . Further, there are conflicts between his testimony and that of other
witnesses called by the General Counsel.2
I do not find that Irving 's statements , as found above , are violative of the Act.
From his remarks , taken as a whole, it is clear that he "predicted " that "we might
have to shut down operations if the union got in" or "we would all be out of a job"
because of economic considerations resulting from union organization ; and that he
was not making a threat of reprisal.
Tumminello was discharged on March 16, 1959. He testified that about 3:15 p.m.
that day he had a conversation with McDonald; and that "He [McDonald] said that
I was a known union organizer in the office upstairs and that my work had improved
and he would have liked to have put me in for a raise, but he would be sticking his
neck out. He asked me if I would stop my union activities and I said I thought I
had the right to continue the union activities and he said , 'If you would stop, I
would put you in for a raise, but it would be very foolish for me to put you in for a
raise if you are a known union organizer . It would make me look very silly.' . . .
I asked him what he thought of the union and he said that he thought the plant was
too small and that they could not bid for the contracts and in case of a slowdown
we could not be reclassified and would have to be laid off. . . . He says that the
previous day he had been called by Mr. McLean into the office and told I was sup-
posed to be fired and he asked if I could be given another chance and Mr. McLean
said yes."
McDonald admitted having a conversation with Tumminello during which a
recommended increase was mentioned ; but testified that he believed it was on March
13 about 3 p.m. during a coffee break and that several other employees were present.
Concerning the conversation McDonald testified:
I told him that I had submitted him for a wage increase . I don 't know if I
told him how much it was for or not. I know the conversation did eventually
dead to a discussion about unions, but there was nothing unusual about that,
because every conversation at that time during coffee break eventually turned
into unions.
At that particular time that was the topic of conversation . During the con-
versation I told either him or someone else in that group around the desk that
there were three things in any opinion that anyone could do about this union
activity . They could talk against it, talk for it or just be neutral.
McDonald denied knowledge of any union activities on Tumminello 's part before his
discharge . He also denied the statements attributed to him by Tumminello.
2 Tumminello testified that before he was discharged employee Henry Garcia helped him
to distribute union literature within the plant . This was denied by Garcia . Further,
Garcia, who it appears was one of the instigators of the Union ' s campaign to organize
the employees, testified that he did not see Tumminello distribute union literature before
his discharge, either inside or outside of the plant Employee William Siele testified that
"once or twice" he saw Tumminello distribute union literature "around the lab . . . dur-
ing coffee breaks and lunch hours, " but that he never did see him do this outside of the
plant's gate before his discharge . Employee Joseph Daley testified that he saw Tumminello
distribute union literature after his discharge but not before.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From his demeanor as a witness , McDonald impressed me as a reliable and
credible witness. After a review of the record I find no reason for changing my
original opinion. Tumminello heretofore has been found to be an unreliable witness.
Accordingly, I credit McDonald's version of the above conversation.
Tumminello was discharged by Ernest Tealey, Respondent's "head of test" at the
time. Tealey told him that the reason for the discharge was that "the missile pro-
grams which we had anticipated had not materialized. We had decided to reduce
the work force and I had made the decision that he would be the first man that I
would have to take off the payroll from that particular group."
Concerning Tumminello's discharge, Tealey testified, in substance, that in the
reduction in force he had a choice between employee Glass and Tumminello; that the
"technical ability" of these two employees was "equal"; that he chose Tumminello
because he was "inclined to be hot headed"; that he did not know that Tumminello
was engaged in any union activity; that he discussed the reduction in force with
William McLean, vice president of Respondent, and Irving Chiring during the latter
part of February and the first week of March; nand that during the morning of March
16 he told McDonald that he had decided "to lay Mr. Tumminello off." 3
Irving testified that before Tumminello's discharge he saw pamphlets "distributed
at the gate" by three different unions, two of which were "a carpenters' union" and
the Union involved herein; that he did not know of any union activity by Tumminello
before his discharge; that "in the beginning of 1959" he had discussions with Tealey,
McLean, and McDonald about the "work load" in the missile section ; that "when
it developed that the work load was not sufficient to carry the people we had in the
group, the question was brought up as to who should be let go"; that "probably within
a week" before March 16 he recommended to Tealey that Tumminello be selected for
discharge; and that his recommendation was based "on the fact that I had serious
doubts as to whether he was the type of technician that we wanted to keep in the
laboratory. . . My investigations into this man indicated that he tended to be hot
headed, and I had seen evidences of this personally." 4
As of the date of the hearing herein, Tumminello had not been recalled to work
by the Respondent. Tumminello filed the charge in the case on March 17, 1959.
Under date of March 31, 1959, a letter from the Respondent to the Board states in
part as follows:
As stated in our telephone conversations, Mr. Tuminello was separated from
this firm in line with the general reduction in force which has become necessary
because of lack of work in his particular section at this time.
Since the beginning of the year, there have been two engineers who have
been separated from this firm and they have not been replaced. In addition,
we have had 13 technician separations during the first three months of the year
with 4 of these separations in the missile section where Mr. Tuminello was
employed. In that time we have only replaced one person in the missile section
leaving a net reduction of 3 employees in that unit. It is anticipated, at this
time, that the work load in this section will pick up toward the end of May. At
that time we shall be happy to offer re-employment to Mr. Tuminello.
In answer to your query as to whether or not we have laid off anyone after
Mr. Tuminello's separation, we wish to advise that we have not been forced
to do so as yet. However, we feel there is a possibility that we may have to
temporarily layoff one or two more people before the end of May when we
expect the work load to pick up.
By letter dated May 28, 1959, the Regional Director advised Tumminello, "As a
result of the investigation, it appears that, because there is insufficient evidence of
any violation of the Act, further proceedings are not warranted at this time. I am,
therefore, refusing to issue complaint in this matter." A copy of this letter was sent
to the Respondent.
Employees Richard Forbes and John DeVeau were hired as technicians by the
Respondent for the missile section or Tune 18 and 23, 1959, respectively. Forbes
filed an application for employment with the Respondent on March 13, 1959. He
testified without contradiction that he was interviewed at the time by McDonald,
'McDonald testified that "late in the afternoon, somewhere around 4 o 'clock" on
March 16 he was told by Tealey that Tummineilo was to be discharged He also testified
that the "work load was low" in the missile section at the time
4 It is undisputed that at some time before December 1958, Tumminello was suspended
for 2 days as punishment for getting into an argument with a Mr Eugene , apparently a
supervisory employee at the time.
DAYTON T. BROWN, INC. 447
McLean, and Johler; 5 that McDonald did not state "that there definitely was [an
opening in the missile section], but he said he was interested and he might be able
to use me"; and that McLean stated "that he would contact me if he could use me"
and that "the union was trying to organize the plant." DeVeau filed an application
for employment and was hired on June 11, 1959.
Richard Anzalone, Respondent's assistant personnel manager, testified, in sub-
stance, that the Respondent had no policy on recalling laid-off employees; that the
Respondent did not maintain "seniority or recall lists"; that laid-off employees had
no recall rights; that when filling jobs "we might give [laid-off employees] the same
consideration that we would give to outside people-new employees"; that during
October 1958 in the truck department about 14 employees were laid off; that sub-
sequently about 23 men were hired for the same work classifications, only 4 of whom
were employees who had been laid off in October; and that he first knew of
Tumminello's union activity about 1 or 2 weeks after his discharge.
The Respondent contends that it did not have knowledge of Tumminello's union
activity before his discharge. According to Tumminello, he distributed union
literature in and outside of the plant and was otherwise active on behalf of the
Union from about the end of January 1959, until his discharge. He testified to the
effect that he engaged in this activity openly and that supervisory employees at times
were present. However, Tumminello has been found to be an unreliable witness.
The General Counsel called only one witness who gave testimony in support of
Tumminello. Siele testified that he saw Tumminello distribute union literature
"once or twice" in the plant during "coffee breaks and lunch hours." He did not
testify that any supervisory employees were present at the time.
There is no claim by the Respondent that Tuner inello had been remiss in his
duties as an employee. The fact that during his employment he had received wage
increases and that McDonald had recommended him for another increase before
his discharge shows that he was a satisfactory employee insofar as his ability to
perform the work was concerned. The Respondent contends that it was necessary
to reduce the work force in the missile section for economic reasons and that
Tumminello was selected for discharge for the reason that he was considered to be
the least desirable employee. When questioned as to why employee Glass 6 was
not chosen for layoff instead of Tummmello, Tealey testified that Glass "had two
years of college to back him up."
It also is undisputed that the employees in the missile section performed overtime
work before and after March 16, 1959. Tumminello testified that he was scheduled
to perform such work on the day of his discharge. The General Counsel apparently
contends that there was no general reduction in the work force in the missile section,
the contrary being claimed by the Respondent, in view of such overtime work. In
this connection Tealey testified to the effect that the contracts with the United States
from which the Respondent receives its workload is the open end type of contract
with work released by the Navy from time to time; and that the testing work involved
will vary and at times will require overtime work in spite of the fact that the work
force is at a level commensurate with the expected volume of work from the contracts
held at the time.
I find that the General Counsel failed to sustain the burden of proving that the
Respondent discharged Tumminello in violation of the Act. This conclusion is based
on the finding that there is no evidence of knowledge on the part of the Respondent
of Tumminello's union sympathies and activity, since for reasons stated above I am
unable to credit Tummmello's testimony concerning such activity. Further, I can
find no substantial reasons for discrediting the above testimony of Tealey, McDonald,
and Irving. Their testimony establishes the economic necessity for a reduction in
the work force. The only evidence to rebut this is the testimony of DeVeau and
Forbes to the effect that they performed overtime work and that at times employees
from other departments were called into the missile section to help out. I do not
believe that this evidence is sufficient in view of the fact that no employee was hired
to replace Tumminello until the middle of June, and that the testimony of DeVeau
and Forbes relates to conditions as they were more than 3 months after Tumminello's
discharge. Also, there is no evidence to indicate that more overtime work was per-
formed immediately after the discharge than before.
The evidence shows that the Respondent knew of Tumminello's union activity after
his discharge. The questions remains as to whether or not the Respondent failed and
refused to reemploy him because of such activity, as alleged in the complaint.
It has been found above that Johler was not a supervisory employee,
e The record shows that Glass had been employed for only about a month prior to
March 16, 1959.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anzalone's testimony, to the effect that the Respondent maintained no recall list
and has no policy in recalling employees who are laid off, has been set forth above.
This testimony stands uncontradicted. A termination slip for Tumminello dated
March 16, 1959, and signed by Tealey recommends Tumminello's reemployment.
Also, the Respondent's letter to the Board, dated March 31, 1959, states, "It is an-
ticipated, at this time, that the workload in this section will pick up toward the end
of May. At that time we shall be happy to offer reemployment to Mr. Tumminello."
The evidence does not show that the Respondent offered reemployment to Tummi-
nello or that Tumminello at any time made application to the Respondent for
reemployment.
In this connection, Tealey testified that DeVeau was hired as Tumminello's "re-
placement"; that Forbes was hired as a "trainee . . . a different level, because we
had a level of work that did not require the high skills of a college background or
two or three years laboratory experience"; and that although Tumminello was con-
sidered at the time, DeVeau was chosen because of his "college background."
I do not find that the Respondent's failure to recall Tumminello was violative of
the Act. The evidence conclusively shows that the Respondent does not have any
policy with respect to recalling employees who are laid off. Since it has been found
that the discharge was not discriminatory, it follows that the Respondent was not
obligated to recall Tumminello to work. In my opinion, an inference of illegal
motivation in the failure to recall is not justified on the basis of the record as found
above.
B. Interference, restraint, and coercion
On about March 9, 1959, Dayton T. Brown, president of Respondent, made a
speech to all employees. He told them in substance, that deductions for State
income taxes were going to be made; 7 and that all employees would receive wage
increases to cover the deductions.
At some time during March 1959, and after the above meeting, Brown called
Daley and about eight other employees to his office. In this connection, Daley testi-
fied credibly and without contradiction that Brown asked the employees if they
had any complaints, and that ". . [Brown] said when he was an official of
Brewster the union organized it and that was during war time, and after that there
was cancellation of contracts, and consequently the company went broke, and that
he wouldn't like to see it happen here. . . . He talked, if I rightly remember about
a pension plan, that they were waiting for word from the State or Federal Govern-
ment, and of course guys questioned on how it would work, and he explained it to
them. . He said that he would look into our complaints and see what he could
do about them, though he couldn't promise us anything."
About the same time brown held a meeting in his office with another group of
about nine employees, including Garcia. As to this meeting, Garcia was questioned
and testified without contradiction as follows:
Q. What did Mr. Brown say when you came into the office?
A. He said "Sit down. I understand you fellows have some gripes." He said
"I want to try to iron them out or see what I could do about them," so we all
sat down after awhile.
Q. What did he say about the union?
A. He said that he didn't think a union would be wise, because the only
thing the union could do would be that he would have to jack up his prices
and that would kill the company.
Q. What do you mean kill the company? Is that the phrase he used?
A. More or less. I think that is what he said. I am not sure of killing the
company, but would ruin it on account of he would have to jack up his prices,
he would not be able to compete with other companies.
Q. Did he say what would happen to the company as a result of that?
A. He gave you to understand that it would hurt it and we would be out of
jobs.
* * * * *
Q. Did he mention anything about a pension?
*
A. Oh yes, about the pension he said that they were working on it. That
they had to wait to hear from Washington to know whether the pension would
be in effect or not.
* * * * * * *
7It was stipulated that the New York State withholding tax became effective April 1,
1959.
DAYTON T. BROWN, INC. 449
Q. Did he mention the union at the beginning of the meeting when you came
in and he asked you about the gripes?
A. I think he did say something about he didn't like a union, on account he
said the people right across the street from us, he said look at them, they had a
union and look what happened to them, they had to close down on account of
the union.
Q. (By Mr. ROSENTHAL.) Did he say anything about whether or not he was
aware of the union activities going on at the time?
A. Oh yes, he did say that he knew that the union was trying to get into the
place and that is when he said that he didn't think it was a good thing.
From the above, it is clear that Brown implied that the demands of the Union, if
it succeeded in organizing the plant, might force the Respondent out of business.
His statements concerning the pension were not conditioned upon renunciation of
the Union by the employees. Under the circumstances, I find that Brown's remarks
did not contain threats of reprisal or promises of benefit and were, therefore, not
violative of the Act.
Employee Siele and about seven other employees were called to McLean's office
on April 7, 1959. Concerning the meeting, Siele was questioned and testified with-
out contradiction as follows:
Q. What did Mr McLean say when you first came into his office?
A. He gave us greetings and he said, well, he explained what it was all about.
He asked us what our grievances were, and he wanted to find out what we had,
what was wrong, why we were seeking a union and he wanted to know all the
things about the things that were bothering us to make us want to seek a union.
Q. Do you remember what Mr. McLean said in answer to those gripes?
A. Well, he said that we are going to have a pension plan, that he is thinking
of better insurance policy and about a communication problem, he will take
care of that, and put out a monthly pamphlet to keep the employees informed as
to what is going on, and about the rest he will see as time went on. He
couldn't make any promises.
Q. Did he say anything else about the union?
A. Yes, he told us the story about Mr. Brown's hardship in being employed
in another company that had union trouble, and he was afraid the same thing
was going to happen to this company.
Q. Do you remember exactly what he said with respect to that incident?
A. The exact words I don't remember.
Q. To the best of your recollection?
A. The things he brought out were the fact that the company across the
street folded up because of union activity, and that this Brewster folded up,
because unions were so bad and so demanding. That was about the crux of it.
* * * * * *
Q Do you recall whether or not Mr. McLean mentioned anything about what
would happen if the union successfully organized the plant?
A. Yes, he used Brewster as a reference and said the plant would-we would
have difficulties in securing our Navy contracts, because the Navy does not like
to have union troubles, and this might cause us to lose contracts and work.
* * * * * * *
Q. What do you remember about that meeting now9
A. One statement he was very strong on was if anybody was dissatisfied with
Dayton T. Brown and they felt these grievances were really making them dis-
satisfied and that they wanted more money and such, there are many places on
Long Island that do the same type of work we do, that they could go elsewhere
and find employment. He mentioned a few places. He mentioned Republic and
11 believe it was Armour.
For the same reasons stated in connection with the meetings held by Brown, I find
that the above remarks of McLean were not violative of the Act.
At some time after the meeting discussed above, Siele was called to McLean's
office. As to this conversation, Siele testified credibly and without contradiction that
McLean interrogated him with respect to his own "feelings" and "the general feelings
throughout the shop toward the union"; and that McLean told him that he had been.
597254-61-vol. 130-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speaking "to a lot of people about it." 8 I find that McLean's interrogation of em-
ployees concerning their union sympathies was violative of Section 8(a)(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its business operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
McLean 's interrogation of Siele does not appear to be an isolated incident , in view
of Siele's uncontradicted testimony that McLean told him that he had been talking
"to a lot of people ." Accordingly, it will be recommended that the Respondent
cease and desist from interrogating its employees concerning their union membership
and activities , and take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the meaning of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discharging Frank Tumminello and thereafter by failing to recall and re-
employ him the Respondent did not engage in any unfair labor practices within the
meaning of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
8 Siele testified further concerning speeches made by both Brown and McLean about the
time of a representation hearing held by the Board (May 11, 1959) and before the election
conducted by the Board It is clear from this testimony as a whole that the Respondent
was campaigning against the Union within permissible bounds and that its conduct was
not violative of the Act For example, during a speech to employees about June 15, 1959,
Brown stated, "He was going to fight the union with the truth and for every pamphlet
that the union put out he was going to put one out "
Essex Wire Corporation and United Steel Workers of America,
AFL-CIO. Case No. 10-CA-4076. Febrtcamy 17, 1961
DECISION AND ORDER
On April 18,1960, Trial Examiner Eugene F. Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 Interme-
diate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
130 NLRB No. 38.