Dinion Coil Co., Inc.

National Labor Relations Board - Board Decisions

Nov 19, 1951

96 N.L.R.B. 1435 (N.L.R.B. 1951)

DINION COIL COMPANY, INC. 1435
markings thereon clearly indicated the voter's intent to cast a negative
ballot, the Board should declare this ballot valid. The Union excepted
to the Regional Director's recommendation, not on the ground that
the ballot was ambiguous, but on the ground that the markings
thereon were deliberately made and may have served to identify the
voter.
We find merit in the Union's exceptions. As the Board recently
held in Laconia Malleable Iron Company, Inc.,11 any additional mark-
ings on a ballot which may have been deliberately made and may
serve to reveal the identity of the voter invalidate the ballot. We
find that the word "No" adjacent to the "No" box is that type of
additional marking.12 The ballot is therefore void and shall not
be counted.
Direction
IT IS HEREBY DIRECTED that the Regional Director for the Sixteenth
Region shall, pursuant to the Rules and Regulations of the Board,
within ten (10) days from the date of this Direction, open and count
the ballots of Eli Carter, Arthur C. Havens, John H. Jenkins, and
W. G. Wilkerson, and thereafter shall prepare and serve upon the
parties to this proceeding a supplemental tally of ballots, including
therein the count of said challenged ballots.
95 NLRB 161.
12 Laconia Malleable Iron Company, Inc., footnote it, supra ; Ebco Manufacturing Com-
pany, 88 NLRB 983.
DINION COIL COMPANY, INC. and INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL. Case No. 3-CA-331. November 19,
1951
Decision and Order
On June 14, 1951, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent 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. Thereafter, the Respondent filed
exceptions to the Intermediate Report, together with a brief in sup-
port of such exceptions, and the General Counsel filed a brief in
support of the Trial Examiner's findings. The Respondent also. re-
quested oral argument. That request is hereby denied as the briefs.
and record in this case adequately reflect the positions of the parties.
96 NLRB No. 215.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 1 has reviewed the rulings of the Trial Examiner made at
the hearing, including.that by which, upon Board direction, the Trial
Examiner permitted the General Counsel to enlarge the 8 (a) (3)
and (1) allegations of the complaint by the addition of two names
of discharged employees,2 and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the exceptions, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modi fications.
1. The Trial Examiner's findings that the Respondent engaged in
independent violations of Section 8 (a) (1) of the Act are predicated
upon the interrogation of employees by Supervisors Ayers and Clem-
ens, statements contained in a series of preelection letters issued by the
Respondent to the employees, and certain statements made by Joseph
Curran to employees Cappetelli and Clemens.
We agree with the trial Examiner that the interrogation by Super-
visors Ayers and Clemens of employees constitutes a per se violation
of 8 (a) (1) of the Act. In view of the Trial Examiner's finding,
which we adopt, that such questioning was part of a "deliberate and
considered scheme sponsored by the Respondent for the purpose of
discovering the identity of union members," it cannot be regarded, as
the Respondent urges, as an "isolated act" prompted by "idle curi--
osity." 3 We need not consider what disposition would have been
proper had the Respondent's contention been factually correct.
Likewise, we agree that Joseph Curran's statements to employees
Cappetelli and Clemens in August 1950 additionally support the inde-
pendent 8 (a) (1) allegations of the complaint to the extent that such
statements contain representations, direct or implied, that the Re-
spondent's selection of employees for discharge or layoff had been
governed, in whole or in part, by antiunion motivations. In making
this finding, we need not rely upon the evidence which, as we find here-
after, discloses that the mass discharge or layoff referred to by Curran
in these statements was in fact motivated by a desire to dissipate the
Union's strength. For even if it be assumed that such discharge or
'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 [ Chairman Herzog and Mem-
bers Reynolds and Murdock].
Y The Trial Examiner had originally ruled that such enlargement was barred by the,
6-month limitation provisions of Section 10 (b)"of the Act. As the ruling was inconsistent
with the Board 's interpretation of Section 10 (b), as-expressed in Cathey Lumber Co., 86
NLRB 157, the Board directed the Trial Examiner to permit the amendment of the com-
plaint the General 'Counsel had requested . The Respondent ' did not plead surprise. Re-
spondent 's, renewed objections to sucli amendment , expressed in its exceptions , raise'-no
issue we had not heretofore considered in reversing the ruling of the -Trial Examiner, and
are accordingly found without merit. '
r
a Cf. W. C. Nabors Co., 89 NLRB 538, 541 ; Lane Drug Stores, Inc., 88 NLRB 584, 585 ;
International Shoe, Inc., 87 NLRB 479, 481.
DINION COIL COMPANY, INC. 1437
layoff was undertaken for purely economic reasons, its representation
to employees by a managerial agent as an antiunion measure imports
a threat that the Respondent in the future may take reprisal measures
against union proponents 4 Indeed, the Respondent does not seriously
claim that such statements may not be deemed coercive. It contends,
rather, that the evidence as a whole does not support a finding that
Curran made the remarks attributed to him by employees Cappetelli
and Clemens, and that, in any event, Curran's activities are not charge-
able to it. We find no merit in this contention.
The testimony of Cappetelli and Clemens was credited by the Trial
Examiner and stands uncontradicted on the record. The evidence as
to Currants indicia of managerial authority plainly sustains the impu-
tation of liability to the Respondent for the conduct in question. Thus,,
on the question of Curran's relationship to the Respondent, and to
the employees, the record shows that in his capacity as a "production
expert," Curran was authorized to probe into the status of union ac-
tivities,5 to request supervisory personnel to obtain such information,
and to interview employees being recalled to work following the mass
discharge or layoff, which employees were thereupon promptly as-
signed to jobs. In addition,. Curran's statements to Clemens and
Cappetelli reflect the possession of knowledge in the managerial do-
main as, for example, the relationship between the union activity of
the employees and the mass discharge or layoff, the fact that the
"recall" program reflected managerial efforts to correct a "mistake,"'
and knowledge of the employees' prior work performances. The im-
port of all of these facts, which give rise to a reasonable inference
Curran was acting as a responsible managerial agent and was so
represented to the employees, is strengthened by the failure of the-
-Respondent to produce Curran to testify as to the precise nature andi
scope of his authority, the vague and ambiguous terms in which Re--
spondent's vice president, Holland, sought to describe Curran's posi--
Cf. Marquette Metal Products Col, 59 NLRB 859, 871.
The Respondent 's brief indicates that Curran's request of Supervisor Ayers to probe-
into the status of union activity and Ayers' subsequent unlawful interrogation of employees=
is compatible with the Respondent 's view of such inquiry as an appropriate part of the
duties of both Curran and Ayers . Thus, the brief states, in part :
While Respondent may be responsible for the acts of Curran within the scope of his-
employment , the same as it is responsible for any expert called in, this fact is not in
any way material to the inquiry before this Board . Even if we admit for the sake of'
argument that Curran was authorized to speak for the management of Respondent
when he inquired of Ayers about Union activities , that fact alone is no basis for a
charge of misconduct.
Any expert called into any plant to help on production problems would naturally-
inquire as to any personnel problems including Union affiliations and Union activities.
Such information is sought as a basis for determining why the company is not making-
money, not to pry into Union affairs. It is well to remember that during periods of
Union organization , it is notorious, if regrettable , that production frequently suffers
and one of the things any production expert would ask of the plant manager would,
be the status of Union activities, and any plant manager who did not have general
Information as to what was going on would be both stupid and inefficient.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion with the Respondent, and the statement in the Respondent's
brief on this matter, quoted supra, footnote 5. We find, as did the Trial
Examiner, that Curran's unlawful activities are attributable to the
Respondent.
We find, further, as did the Trial Examiner, that by the activities
of Ayers, Clemens, and Curran, as described above, the Respondent
engaged in independent violations of Section 8 (a) (1) of the Act.
We do not, however, adopt the Trial Examiner's finding that the
statements contained in the Respondent's preelection letters addition-
ally support the 8 (a) (1) allegations of the complaint. The am-
biguous admonitions to the employees to "protect" their "jobs" and
their "families" by voting "no," require careful scrutiny for coercive
implications in the background of the layoff which, as we find below,
the Respondent had undertaken as a means of defeating the employees'
organizational aims. However, the letters themselves, read as a whole,
show clearly that in urging the employees to "protect" their jobs and
their families, the Respondent dispelled any possibility that such
language might be understood as an implication that the Respondent
might take further measures of reprisal involving the employees' job
security. Thus, in each letter, these statements (1) were geared to
representations that union strike activity often followed bargaining
demands employers could not meet, and that such strike activity neces-
sarily entailed sacrifice of working time and pay; and (2) were uni-
formly followed by assurances that there would be no discrimination
by Respondent against employees no matter how they voted. The
letters thus fell within the area of expressions protected by Section
8 (c) of the Act .6
2. We also agree with the Trial Examiner that the Respondent's
discharge of the 32 employees listed in Appendix A was effected for
antiunion reasons, rather than for business purposes. We base this
conclusion upon the combination of circumstances, no one of which is
alone conclusive, establishing in our view that the mass discharge
action was part of a deliberate effort 4to undermine the Union's
strength and its ability to prove majority status, and to discourage
further union activity among the employees.
The substantially undisputed facts show that in terms of timing,
the mass discharge action followed by a few days the Union's notifi-
cation to the Respondent of its claim of majority representation, and
the local union's formalized organization and election of officers. The
selection of those discharged was made in almost all cases by Re-
spondent's vice president, S. J. Holland, a man who testified at the
hearing that he was "against unions" and who, as part of the effort
e We do not adopt, nor pass upon, the Trial Examiner's implication that statements to
employees "would seem to be" protected by 8 (c) if they contain no express threats of
reprisal or promises of economic benefit.
DINION COIL COMPANY, INC. 1439
to discourage selection of the Union in the Board-conducted election,
authorized and signed, in the Respondent's behalf, a series of pre-
election letters urging a no-union vote.7 Approximately 35 employees
as a whole were terminated in the period covered by the complaint .8
In terms of the identity of those discharged, the 32 named employees
in Appendix A were all union members,9 7 of the 32 had been elected
to local union oflices,10 and at least 3 had been unlawfully interrogated
by Respondent's supervisory agents with respect to union activities.
Moreover, as the Trial Examiner notes, management agents had
made deliberate efforts to discover the identity of union adherents
and officials shortly before the discharges were effected and, although
there is no direct proof that the Respondent acquired specific knowl-
edge in all cases, it is reasonable to infer in the circumstances here
presented, that it knew or suspected the union membership of the
32 persons here involved.
In addition to the facts noted by the Trial Examiner with respect
to Curran's request of Ayers for information on union activity of the
employees, and Ayers' interrogation following this request, we note
that 7 of the 32 employees discharged were under Ayers' supervision,
and that Clemens' interrogation of employees Lashway and Hanna,
2 of the elected union officers, indicated his possession of foreknowledge
of the fact that a union meeting had been held the prior night at
which union officers had been elected."" Furthermore, there had been
open solicitation in the plant premises, and open wearing of union
buttons during the 2-week period preceding the mass discharges. In
a plant relatively small in size, and situated in a small community, it is
fairly inferable that an interested antiunion management would be
able to "catalogue" those showing evidence of union interest 12 In any
event, a clear implication of managerial knowledge of specific union
4 Although neither Holland's testimony as to his opposition to unions, nor the letters he
participated in issuing, form part of the conduct found violative of the Act herein, they
have been considered here, together with other circumstances, for purposes of interpreting
the motives underlying the mass discharges.
8 The termination date of July 26 appears next to the names of Tucci, Van Gorden, and
Lodico. Their names are not included in the complaint and, other than the fact that these
three were employed between May 24 and June 26, 1950, the record contains no evidence
with respect to their situations.
° The membership application cards of 30 were adduced in evidence. In the case of the
other two, Samuel Vattimo and Josephine Cappetelli, their union membership is established
by testimony elicited by the Respondent's counsel.
10 The record shows that nine persons were elected to union offices at the July 18 meeting.
All those elected to the more important executive offices, viz, the president, vice president,
secretary and treasurer, and three of the five elected stewards, were in the discharged
group.
11 We are not unmindful of the fact that Clemens' two sisters and his brother-in-law were
union members and may have conveyed the information to him. Nor have we disregarded
the fact that all three of these relatives of Clemens were among the discharged group. We
cannot, however, in the fact of this record, accept the Respondent's suggestion that be-
cause his relatives were involved in the discharge action, Foreman Clemens' interrogation
of employees was "casual" and disconnected with the discharges.
12 Quest-Shon Mark Brassiere Co., 80 NLRB 1149, 1150.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership and activity, and of a more than coincidental connection
between the selection of the employees terminated and their union
activity, arises from the fact that substantially all the officers in the
union were selected for discharge, and substantially all of the entire
discharged group were union members. This inference is, moreover,
corroborated by Curran's admissions to Clemens and Cappetelli in
August of a connection between the "layoffs" and the Union.
The nature of the partial explanations offered by the Respondent
at the hearing both for deciding upon a mass payroll "cut" and for
selecting the employees named in the complaint, served but to
strengthen the inference of unlawful motivation arising from the
facts set forth above. As is noted more fully in the Intermediate
Report, Respondent's vice president, S. J. Holland, testified that the
decision to effect a "cut" in the payroll was reached by the Respondent's
managerial officers on July 20, because of fears engendered by a
July 19 , address by President Truman that production of certain
civilian goods manufactured by the Respondent would have to be dras-
tically curtailed in favor of defense production. This explanation
for the sudden reduction of the employee complement is, however,
r"sndered wholly incredible by the objective facts relating to the
Respondent's operations in'this period. Thus, as the Trial Examiner
notes , the Respondent had received no order cancellations from its
customers 18 and, following the ` sudden 15 percent reduction of the
employee complement, and its choice for such reduction of some of its
most experienced workers,14 the Respondent was obliged to operate
on a somewhat increased overtime schedule.
Moreover, 3 or 4 weeks later, on or about August 15, and shortly
after the Board representation election had been held, it proceeded
to restaff with the very type of workers it had discharged. Signifi-
cantly the Respondent took no steps to preserve its working force by
placing it on "layoff" status, but instead it effected permanent separa-
tion of the employees involved, and utilized that action, shortly there-
after, as a basis for disenfranchising such employees at the Board
election . In light of these facts, and the record as a whole, we must
regard the Respondent's reliance of "fears" of curtailed business not
only as a thinly veiled attempt to disguise its unlawful motivations,
but as an additional circumstance tending to corroborate the evidence
directly supporting the complaint.
- 73 Ayers , a division manager , testified that he received no "stop" orders during the period
here in question , and none of the witnesses produced by the Respondent offered any proof
to the contrary .
14 The "cut" was spread throughout all departments in the plant. As appears from the
payroll lists , there was no instance in any department where the employee groups retained,
did not include workers less senior to any one of those discharged . There were several
instances in which the discharged group included the most senior employees in the depart-
ment. Absent contrary evidence , it may be presumed that those workers having the great-
est seniority are the more efficient . As noted, below , no credible contrary evidence was
offered.
DINION COIL COMPANY, INC. 1441
In the face of the record showing that all 32 of the discharged em-
ployees were union members, the Respondent ,failed to adduce, in
support of its general contention that selection was based upon effi-
ciency, any evidence with respect to 25 of the employees. In fact,
Holland, who claimed he made the selections personally in almost all
cases, did not know who some of the employees were. As to the ex-
planations advanced for the selection of the remaining employees,15
we, like the Trial Examiner, find such explanations unconvincing
when viewed in the light of the record as a whole."'
We conclude, as did the Trial Examiner, that by discharging the
32 employees listed in Appendix A, the Respondent engaged and is
.engaging in violations of Section 8 (a) (3) and (1) of the Act.
Order
Upon the basis of the entire record in the case, including the Trial
`Examiner's findings and conclusions, the National Labor Relations
Board hereby orders that Dinion Coil Co., Inc., its officers, agents,
'successors , and assigns, shall :
1. Cease and desist from :
(a) • Discouraging' membership in International Brotherhood of
Electrical Workers, AFL, or in any other organization of its em-
ployees, by discriminatorily discharging them, or by discriminating in
any other manner in regard to their hire, tenure of employment, or any
term or condition of employment.
(b) Interrogating employees with respect to their union member-
ship, sympathies, or activities, threatening them with economic re-
prisals because of union activity, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of the right
to self-organization, to join or assist International Brotherhood of
Electrical Workers, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that suchi
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative, action which the Board finds will
effectuate the policies of the Act :
(a) Reinstate those employees whose names are listed in Appendix
A attached hereto, IT to their former or substantially equivalent posi-
15 James Tennent , Julia Clemens, Mary Christopher, John Docking, William Miller , Elbert
Crane, Margaret Carroll.
16 In reaching our conclusions -,vith respect to the issue of discrimination , we do not adopt
the findings of the Trial Examiner which assume that in prior layoffs the Respondent had
followed seniority as a basis c,f selection.
17 The spelling of names on Appendices A and B has been corrected to conform to the
spelling appearing on the Respondent 's payroll lists.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions without prejudice to their seniority and other rights and privi-
leges and make them whole in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due and their
right of reinstatement under the terms ordered herein.
(c) Post at its plant in Caledonia, New York, copies of the notice
attached hereto marked "Appendix B." 18 Copies of said notice, to be
furnished by the Regional Director for the Third Region, shall, after
being duly signed by the Respondent's representative be posted for
sixty (60) consecutive days thereafter in conspicuous places including
all places where notices to employees customarily are posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of the receipt of this Decision and
Order what steps the Respondent has taken to comply herewith.
Appendix A
Josephine Yasso
Lorraine Clemens
Dorothy Powell
Edward Powell
Josephine Saeva
Julia Clements
Paul Bonaquisti
John Ferazoli
Louise Ferazoli
Camille DeMose
Josephine Cappetelli
John Docking
Elbert Crane
Merton Hanna
Agnes Hanna
Mary Christopher
Margaret Carroll
George Mancuso
Josephine Prinzi
Samuel Vattimo
Thelma Lashway
Mary Louise Carney
Dominic Ranalette
Louis Ranalette
John Marshall
Helen Merola
Robert McKay
William Miller
Rose Temperato
Angelo Vattimo
Mary Clemens
James Tennent
38 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words "Decision and Order " the words "Decree of the United
States Court of Appeals Enforcing."
DINION COIL COMPANY, INC.
Appendix B
NOTICE TO ALL EMPLOYEES
1443
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, we hereby notify our employees that :
WE WILL NOT discourage membership in INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or discourage ac-
tivity in support of that organization or any other labor organiza-
tion, or discourage any employee from exercising the rights se-
cured to him under the National Labor Relations Act by means
of discriminatory discharge or discriminating in any other man-
ner in regard to hire, or tenure of employment, or any term or
condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL offer the following named individuals reinstatement
to their former positions, or substantially equivalent positions at
their former rates of pay, and make them whole for any loss of
pay or other employment suffered;
Josephine Yasso
Lorraine Clemens
Dorothy Powell
Edward Powell
Josephine Saeva
Julia Clements
Paul Bonaquisti
John Ferazoli
Louise Ferazoli
Camille DeMose
Josephine Cappetelli
John Docking
Elbert Crane
Merton Hanna
Agnes Hanna
Mary Christopher
Margaret Carroll
George Mancuso
Josephine Prinzi
Samuel Vattimo
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thelma Lashway
Mary Louise Carney
Dominic Ranalette
Louis Ranalette
John Marshall
Helen Merola
Dated --------------------
Robert McKay
William Miller
Rose Temperato
Angelo Vattimo
Mary Clemens
James Tennent
DINION COIL CO., INC.,
Respondent.
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
On August 16, 1950, the International Brotherhood of Electrical Workers,
AFL, herein called the Union, filed a charge with the National Labor Relations
Board herein called the Board, alleging that Dinion Coil Co., Inc., Caledonia,
New York, herein called the Respondent, had engaged in and was engaging in
certain unfair labor practices, violative of the National Labor Relations Act, 61
Stat. 136, herein called the Act: Thereafter on January 15, 1951, an amended
charge on the same matter was duly filed by the Union. On August 16, 1950,
the Board's Regional Office for its Third Region, Buffalo, New York, duly notified
the Respondent that the charge above mentioned bad been filed in its office, and
served a copy thereof on the Respondent. The Respondent received and acknowl-
edged the service on August 21, 1950. On January 15, 1951, the Regional Office
notified the Respondent of the filing of the amended charge and served a,copy
thereof on the Respondent which acknowledged service ,thereof on January 16,
1951.
On January 17; 1951, the General Counsel of the Board, by its Regional Direc-
tor for the Third Region (Buffalo, New York), as agent for the Board, issued
a complaint against the Respondent, alleging that the Respondent was engaging
in unfair labor practices within the meaning of the Act, more particularly See-
tions 8 (a) (1) and (3) and 2 (6) and (7) thereof. Copies of the complaint,
the-amended charge, and a notice of hearing were duly served upon the Respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged'in substance
that on or about July 21, 1950, the'Respondent discharged 32 employees because
they joined or assisted the Union and further engaged in other conduct violative
of the Act.' That the conduct of the Respondent complained of was violative
of Section 8 (a) (1) and (3) of the Act.
On January 29, the Respondent filed an answer in which it admitted the
jurisdiction of the Board, admitted that it discharged certain employees, but
averred such discharges were for cause, and denied that it had engaged in any
of the alleged unfair labor practices.
Pursuant to notice a hearing was had on February 20, 21, 22, and on April 5,
1951, at Caledonia, New York, before Louis Plost, the undersigned Trial Ex-
aminer. The General Counsel, the Respondent, and the Union were represented
at the hearing, their representatives, hereinafter referred to in the name of their
1 As amended and named in Appendix A hereto.
DINION COIL COMPANY, INC'. , - - -- 1445
-principals, all participated in the hearing, were afforded full opportunity to be
,heard, to examine and cross-examine witnesses; to introduce evidence bearing
on the issues, to argue orally on the record, and to file briefs and/or proposed
findings of fact and conclusions of law with the undersigned.
At the opening of the hearing the Respondent moved to amend its answer-to,
admit that all the employees" alleged in the complaint 2 as having been discharged.
on July 21, were in fact discharged by the Respondent.
The motion was granted without objection.
Likewise at the opening of the hearing the General Counsel moved to amend
the complaint by adding the names of two "individuals among those allegedly
illegally discharged.' The Respondent objected to the motion. The undersigned
denied the General Counsel's motion.'
On February 22, the undersigned was served by the General Counsel with a
copy of a telegram sent by the General Counsel to the Board wherein permission
was requested to appeal to the Board from the ruling of the undersigned as above
set out. The Respondent stated on the record that it had also been served with
a similar document.
Likewise, on February 22, the parties having rested, the undersigned closed
the hearing, stating however, that being mindful of the General Counsel's pend-
ing request to the Board, in the event the Board set his ruling aside the hearing
would be reopened "to complete the record in accordance with its [the Board's]
ruling."
On February 23, the Board set aside the Trial Examiner' s ruling and granted
the General Counsel's motion to amend the complaint by including two addi-
tional named individuals among the employees alleged to* have' been illegally
discharged.'
On March 9, the undersigned ordered that the hearing be reopened on April 5,
1951, for the limited purpose of taking testimony on the issues raised by the
amended complaint and the Respondent's answer. The hearing was reopened
at Caledonia, New York. The Respondent objected to proceeding further. The
undersigned overruled the objection. All parties participated in taking of
further testimony.
The undersigned granted an unopposed motion by the General Counsel to
conform the pleadings to the proof with respect to spellings, dates, and like
matters.
The parties waived oral argument. Permission was granted to file briefs,
findings of fact, and/or conclusions of law with the undersigned, Briefs have
been received from the General Counsel and the Respondent.
Upon the entire record in the case, the evidence considered as a whole, and
from 'his observation of the witnesses, the undersigned makes the- following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Dinion Coil Co.; Inc., is a New York corporation having its
principal office and plant at Caledonia, New York, where it is engaged in the
2Before amended.
8 The General Counsel stated on the record that the Regional Office had on February
19 given notice of its intention to move that the complaint be amended . The Respondent
had at the time objected:to such procedure:
* The Respondent based Its objection on Section 10 (b) of the Act, together with the
Board 's Rules and Regulations vesting a Trial Examiner with certain discretion in the
conduct of a hearing. The General Counsel relied on Cathey Lumber Co., 86 NLRB 157.
8 The Respondent moved the Board for a review and reconsideration of its ruling afore-
said . The Board denied the motion.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacture, sale, and distribution of electrical coils, transformers, and other
electrical equipment. During the course of its business operations at Caledonia,
New York, during the calendar year 1950, the Respondent purchased in excess
of $100,000 of raw materials, of which value approximately 95 percent was
purchased in and shipped from points outside New York State to the Respondent's
Caledonia plant. During the same period the Respondent manufactured and
sold finished products valued in excess of $100,000, approximately 25 percent of
which in value was shipped from Caledonia, New York, to points outside New
York State.°
H. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act, and admits employees of the
Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion, and the discriminatory discharges
The record discloses that late in June or early in July 1950, some of the
Respondent's employees evinced their interest in self-organization by signing
their names to blank sheets of paper,- "passed through" hand-to-hand. Signa-
tures were affixed by employees while in the plant hallways and in the yard
during their lunch and rest periods for the expressed purpose of showing the
signers desire "to get the Union in."
On July 12, 1950, and for several days thereafter, various employees signed
formal designation-application cards for membership in the Union. These
cards were openly signed in the plant, the signatures of employees being openly
solicited during lunch and rest periods by union adherents, one of those actively
doing so being employee John Docking.
Likewise on July 12, J. R. Miller, an organizer for the AFL, sent a telegram
to the Respondent advising it that "a majority of the maintenance and produc-
tion employees in your Caledonia, New York, plant have signed Union authori-
zation cards."
The Respondent admitted receiving this telegram on July 13.
On July 13, employee Catherine Goodburlet distributed union buttons which
were thereafter worn in the plant by various employees.
On the night of July 18, the Union held a meeting at Mumford, New York, a
village about 1 mile from Caledonia. At this meeting officers were elected.
The above findings are based on the mutually corroborative and uncontro-
verted testimony of Edward Powell, Dorothy Powell, Thelma Lashway, Jose-
phine Cappetelli, Julia L. Clements, Mary Louise Carney, Agnes Hanna, Dominic
Ranaletti, Mary Christopher, and James Tennent, all of whose testimony with
respect to the above-related incidents is credited by the undersigned.
Likewise on July 18, 1950, the Union filed a petition with the Third Regional
Office of the Board claiming to represent a majority of the Respondent's em-
ployees, and asking that an election to select a collective bargaining agent be
held among such employees.
Thelma Lashway testified that "around 9: 00 o'clock in the morning" of
July 19, Edward Clemens, the supervisor of the department in which she worked,
interrogated her with respect to the Union. She testified :
Mr. Clemens asked me if I attended a union meeting on July the 18th
and I told him, yes.
5 These findings are based on the pleadings. No other evidence was offered.
DINION COIL COMPANY, INC. 1447
Q. (By Mr . KENNEDY :) Did he ask anything else?
A. He asked me if I was elected an officer and I said yes. And he also
wanted to know if I was going to attend any more meetings?
Agnes Hanna testified to interrogation by Foreman Clemens , as follows :
Q. When did that conversation take place?
A. Oh, maybe within a week or so before we were discharged.
Q. And where were you when you had that conversation?
A. At his desk.
Q. And what was that conversation?
A. He wanted to know if I had attended a union meeting the night before
and I told him, yes.
Clemens' supervisory status as binding upon the Respondent in matters affect-
ing labor relations is clear in the record.
Clemens was a witness but was not asked to deny the testimony of Lashway
and Hanna as above set out. The undersigned credits Lashway and Hanna.
Elmer Clarence Ayers, who was the manager of the Respondent's coil depart-
ments in July 1950 , and admittedly had complete supervisory authority , testified
that at the request of one Joseph Curran he interrogated employees of the
Respondent with respect to their union affiliations and activities. Ayers
testified :
A. It was shortly after he [Curran] had landed in town , one of our first
conversations and he had asked me what I knew about the union organiza-
tion in the plant.
Q. (By Mr. KENNEDY:) What did you tell him?
A. At that time I knew very little and he asked me to find out what I
could find as to what activity had been done.
Q. Well , did you take any steps to find out what had happened insofar as
the union was concerned?
A. He asked me-in behalf of my responsibility to the Company I did
question-
Q. Who did you question?
A. John Docking for one.
Q. When was that?
A. As to date?
Q. Yes, in relation to the time of the discharge of July 21st?
A: Well, it was before the discharge.
Trial Examiner PLOST. How long before?
The WITNESS. Probably within a week. I can't give the exact dates.
Edwin S. J. Holland, the Respondent's vice president in charge of its Cale-
donia operations, clearly made an attempt to becloud the record as to Curran's
status and connection with the Respondent.
Holland testified that Curran "was not connected with the company except
insofar as to roving assignment ," that he was not on the Respondent's payroll,
and that he (Holland) did not know by whom he was employed at the time
material to the instant matter ; however Holland admitted that Curran "was
working in one of the McBride activities," of which Dinion Coil Co., Inc., is
one.
With respect to Curran's connection with the Respondent, Carl Weaver, the
Respondent 's treasurer , testified :
Mr. Curran is a-I would term him a trouble shooter whose main head-
quarters are in Providence, Rhode Island, on the payroll of the General Prod-
ucts Company, and at various times Coil Engineering and Dinion Coil Com-
1448 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD
pany have had particular assignments that-we felt-that we could use Mr.
Curran on and consequently we have asked indy we have his'services for this
particular job that we want done that we don't seem to' leave or we *ant
done separately from the work our regular. employees are doing., . -
Trial Examiner PLOST. All right. Now, when he is working for Dinion,
is Dinio i charged with his salary?
The WITNESS. Eventually Dinion Coil Company is charged at the end of
the year. No later than the end of the fiscal year for what services he has
performed depending upon the number of weeks, his regular salary.
Trial Examiner PLOST. Then as a matter of bookkeeping he would be paid
by Dinion for work that he is doing for Dinion whether you give him the
actual money or not?
The WITNESS. Yes, sir, Dinion Coil Company would pay for his services,
yes, sir.
Ayers testified as to Curran 's duties :
Q. (By Mr . KENNEDY : ) Now, what was Mr. Curran 's job with the com-
pany? ,
A. Well, as far as I am concerned and from what I could gather at differ-
ent times when we were in trouble at the plant he came in and helped us
out. Other than that I can give you no specific job that he had . He had helped
us out previous in the conveyor setups and so on. He came in at that time.
Ayers further testified that "some time previous" to certain discharges of em-
ployees, hereinafter discussed, he was asked by Curran if he had any preference
between two employees.
On all the circumstances the undersigned is convinced that Curran 's position
with the Respondent was such that Ayers who was admittedly Holland's "right
hand man" at least felt himself required to take orders from Curran with re-
spect to matters affecting labor relations. It cannot therefore be presumed that
Ayers admitted questioning of Docking regarding the Union was either the result
of idle curiosity on the part of either Curran or Ayers or was an isolated in-
stance of no particular significance.
The undersigned is convinced that Ayers' conduct was a considered act, charge-
able to the Respondent, which already knew of the union organization through
the Union's telegram and was now seeking the identity of its employee union ad-
herents.. The undersigned so finds.
The undersigned also believes it to be a fair inference that Foreman Clemens'
interrogation of employees Lashway and Hanna was not prompted by mere idle
curiosity but was part of the Respondent 's method of discovering union members.
The undersigned so finds..
On July 21, 1950, the Respondent without previous notice summarily discharged
31 employees.
Among those so discharged were all of those elected to office in the Union on
July 18.
Thirty of the thirty -one discharged had previously signed cards applying for
membership in the Union.
Thelma Lashway testified that she worked at her job in the plant ' through
July 21 , but was not discharged at the close of the day . At 7 p. in. that night,
Foreman Harrington called at her home and gave her a discharge slip together
with her pay through July 21. •
Josephine Cappetelli testified that she received no notice she would be dis-
charged on July 21 , but that after work at about 6 p. in. Foreman Bartalo called
at her home and notified her that she was discharged . The testimony of Cap-
petelli and Lashway , above recited , was not denied and is credited by the under-
signed.
' DINION COIL COMPANY; INC. ' 1449
Foreman Edward C. Clemens testified' that he was not consulted as to which
employees in'his department were to be discharged on July 21; and first learned,
that the discharges had been made that night "after work." The undersigned
credits Foreman Clemens.
The General Counsel contends that the discharges were because of the Re-
spondent's antiunion attitude and the dischargees' membership in and activities
on behalf of the Union?
B. The Respondent 's contentions
Thomas F. McNicholas testified that he is "assistant to the president" of the
Respondent, one Clifford A. McBride ; that on July 19, 1950, he heard, over the
radio, and later read, an address by President Harry S. Truman, wherein Presi-
dent Truman discussed the probable impact of the Korean war situation 8 on
the economy of the United States ; that on the night of July 20, he discussed
President Truman's speech with McBride and a decision was made to cut the
Respondent's payroll at the Dinion plant by $1,200 weekly ; McNicholas testified :
Q. . . . I would ask you now whether or not as a result of the President's
speech on July 19, 1950 you decided then on July 19, 1950 by July 21, 1950
the payroll' of the company's plant in Caledonia, New York must be cut
$1,200.00? Is that what you are trying to say?
THE WITNESS. That is exactly what I said.
Apparently, McNicholas' conversation with McBride took place in McBride's
Rhode Island headquarters. McNicholas testified that he travelled from Rhode
Island to Caledonia to deliver the message arriving on July 21. Upon his arrival
he instructed Holland "that he must reduce his payroll by at least $1,200.00 a
week" ; and further told Holland that the further action to implement the order
was entirely his but that "I wanted it that day. I wanted it when I went back
to Rhode Island."
On cross-examination McNicholas testified :
Q. Why did you come all the way from Rhode Island to deliver that brief
message to cut the payroll department that day, couldn't you have done
that by telephone?
A. Uh-huh. This had been going on for at least a year and a half and
closer to two years without any definite steps being taken.
Trial Examiner PLosT. I don't understand what you mean by this had
been going on two and a half years or so. Just what do you mean by that?
The WITNEss. The company had been losing money since they had taken
over'
Edwin S. J. Holland, the Respondent's vice president, who had "complete
jurisdiction" of the Caledonia plant, testified that prior to July 21, 1950, he had
no notice that a reduction in force would be made at the plant ; that the order
4 The fact that an employee was in fact not a member of a union and did not engage in
any concerted or union activities does not preclude a finding that such employee was
illegally discharged if the employer in fact thought the employee engaged in concerted or
union activity and the discharge was made for this reason. See Capital City Candy Co.,
71 NLRB 447.
8 The North Koreans attacked South Korea on June 25, 1950.
The Respondent adduced testimony to the effect that the Caledonia plant was a "war
baby" ; had been acquired by the Respondent Company in 1948; converted from the
manufacture of undisclosed war material to the manufacture of coils and generators for
the television and automotive industries ; had shown "operating losses" in 1948 and 1949 ,
but no evidence other than the bare statements of witnesses was offered to support his.
conclusion.
974176-52-vol. 96-93
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the reduction was brought to him by McNicholas, the order being to make a
$1,200 cut in the weekly payroll (how the Respondent determined the amount
was not shown) ; that Holland personally selected the individuals to be dis-
charged without consulting any of his supervisors because "there was not enough"
time" except that in one case he did instruct Supervisor Thelma Hendry to
select five employees from her department for discharge10
Holland testified that he did not consult the payroll in making his selections
for discharge but used "the best judgment I could exercise," and that his criterion
was "certain cataloging I done in my own mind in the past from observation."
He testified :
Q. What do you mean "certain cataloging"?
A. I see people, I can tell whether they are working or not through the
plant, can draw conclusions and catalogue it in my own mind, and when the
occasion arises do something about it or an opportunity presents itself to do
something I act.
Apparently, Holland's mental filing cabinet did contain a dossier on all those
he selected for discharge, for, as to the discharge of Agnes Hanna he testified :
"I don't even know who she is."
Holland also picked eight other names from the list of those he selected for
discharge as persons unknown to him. Holland admitted that as to these
individuals he could give no explanation as to why they were selected for
discharge.
With respect to employees whom he knew, Holland's testimony was that
most of them were "surplus," as to others the testimony is more specific. Holland
testified that he selected George Mancuso for discharge but admitted that "if
they are all as good as him I don't think I have too many complaints."
Holland testified that employee Mary Christopher was selected for "poor
work" ; that he "talked to her about it once" ; that this occurred "months before
this discharge, when she was on another job."
Questioned by the Respondent, Holland testified :
Q. (By Mr. BRUCOEMAN :) Mr. Holland, before we get into the questions
generally, there is something that is fresh in our minds that I am a little
confused about, and that is this Mary Christopher ; I believe you said there
was some particular way you could identify that she was responsible for
some defective work on or of some kind, and I wish you would explain
that. I didn't understand what you meant.
A. Well, we have what we call a special soldering machine, and she was
assigned to do the work on that machine, had been on it for quite a while,
and the job which-the solder comes in cans and part of the job is to set
the machine, flux them, put the heat on it, automatic heat cycle, and then
observe them, and if she sees a certain phenomenon occur there they are
all right. That is the point that I meant, she checks them. But, that
wasn't done, and it ran into several thousand units.
Mary Christopher testified that about 6 months before her discharge she
operated a soldering machine ; that the machine got out of repair and the work
done on it was defective ; that various officials, among them Holland, inspected
the machine ; that a man "from out of town" came to repair the machine and
"spent a few days doing so"; that this was the only incident involving defective
work in which she had been involved and that she was never criticized for her
workmanship.
10 Thelma Hendry was not called to testify.
DINION COIL COMPANY, INC. 1451
With respect to dischargee Julia Clements, Holland testified :
Q. (By Mr . KENNEDY:) Why did you discharge Julia Clements?
A. She is in the inspection department. I have seen the work piled up
at her work location. Just-her job is to keep the work moving. I had
data-information repeatedly on observation that the work was not moving.
The girl was holding the work up deliberately.
Q. How did you find out she did it deliberately?
A. I went out and looked at the work and I also had reports on it.
Q. Who did you get the reports from?
A. Some of my people.
Q. From what people?
A. People who were in a position to give me the reports.
Q. Give me the names of the people from whom you got such reports.
A. That is difficult.
Clements had been employed by the Respondent and its predecessors since
1945. At the time of her discharge, July 21, 1950, she was earning $1.10 per
hour, whereas the average rate in the plant was $.91 per hour. She signed
one of the blank sheets of paper hereinbefore referred to as indicating her
desire to participate in forming a union among the Respondent's employees;
she joined the Union and wore a union button in the plant. After her dis-
charge, she was recalled to work at which time she was called to the office
of a company official who engaged her in conversation with respect to the
Union, this incident being more fully discussed at a later point herein.
Clements was the final inspector on transformers. She testified as follows :
Q. You heard Mr. Holland's testimony this morning with respect to
certain transformers piling up?
A. Yes.
Q. Do you recall a time when transformers did pile up there?
A. Yes.
Q. When was that?
A. They do frequently.
Q. Tell us under what circumstances they pile up?
A. Well, I am the final inspector and after they go through me and a
few other tests after me they are shipped out.
Q. What do you do when you find a defective-in your inspection what
do you do when you find a defective-
A. Well, I take them off the belt and inspect them and check leads and
if there is something wrong with them I throw them out.
Q. Where do you throw them?
A. Well, there isn't much room and if there happens to be a lot of re-
jects I put off what I can on the other side of the belt. Then there isn't any
room to put any more so we were forced to put them along the wall.
Q. Anybody ever criticize you for those transformers being piled up there
around where you were?
A. Yes. The foreman came out and said not to put any more there.
Q. Did he tell you what to do with those that were rejects that didn't
pass the tests?
A. They knew that they were rejects and they put them on a skid and took
them away.
With respect to the selection for discharge of Mary Clemens," Lorraine
Clemens, and Dorothy Powell, sisters, and Edward Powell, husband of Dorothy,
Vice-President Holland offered truly amazing testimony.
"Clements and Clemens should not be confused.
1452 DECISIONS OF" NATIONAL 'LABOR RELATIONS BOARD
Upon being asked why these employees weredischarged, Holland testified:
A. Oh. They were assembling transformers and working on that phase
of it. The job went sour. We warned them there was trouble. Had to do
something about it and, finally. shut it down.
washout.
Q. (By Mr. KENNEDY: )
A. Last January.
Q. January of 1950?
A. That is right.
It hasn't gone since. Complete
How long had you had that job?
Q. And when was it terminated?
A. It isn't. [Emphasis supplied.]
[Emphasis supplied.}
Q. It has continued on through, is that right?
A. Yes.
That this testimony is not the result of a slip of the tongue is evidenced by the
fact that Holland answered eight questions immediately preceding the above-
cited testimony in which he testified that the four employees worked on a,
"government job" and that "the job was discontinued."
Throughout his entire testimony Holland was evasive; patently sought to
becloud the record ; attempted to quarrel with the General Counsel and made
flippant replies such as the following:
Q. Well, I want to go back to my question, how can you look at the ship-
ments and determine that Julia Clements is performing her work all right
and somebody else in the inspection department?
A. It is a secret. That is what I am paid for. That is my business.
Q. Could you give me an inkling as to what that secret is?
A. No. You might take my job.
Holland's entire attitude on the stand was contemptuous of the Board and its
processes. The undersigned in the main ignored Holland's attitude, inasmuch
as the General Counsel interposed no objections.
On the entire record the undersigned does not credit Holland's testimony to the
effect that he selected certain employees for discharge on July 21, 1950, for the
reasons advanced by him in his foregoing testimony.
In making this finding the undersigned credits the testimony of Mary
Christopher to the effect that the only time she was involved in defective work-
manship in the plant was at a time some 6 months prior to her discharge at the
time the machine she operated was out of repair, and does not credit Holland's
testimony to the contrary. The undersigned also credits the testimony of Julia
L. Clements to the effect that she only threw out defective transformers on in-
spection and does not credit Holland's testimony that she willfully held up pro-
duction by stacking transformers against the wall.
Upon the entire record and all the evidence considered as a whole the under-
-signed does not credit the testimony of Thomas P. McNicholas to the effect
that the discharges of July 21 were made as a result of a decision made by
himself and McBride following a speech by President Truman on July 19.
It may be that the economy of this country is so finely geared that a speech
by President Truman, no matter how persuasive or alarming , would panic the
.responsible officers of a going concern , in full production, to arbitrarily decide
on the amount of money which represented excess, probable loss, and necessary
,retrenchment and make a special trip to order its vice president , to cut here
and now. _
The undersigned cannot believe that business decisions are handled in this
manner, more particularly the decisions of a "war baby" geared to war pro-
DINION COIL COMPANY, INC . 1453
duction, and now engaged in manufacturing for a booming automobile and
television market. In the opinion of the undersigned the decisions of such a
concern would be for expansion instead of contraction when a war situation
exists and becomes of major importance.
On July 28, the Respondent discharged James Tennent.
Tennent testified without contradiction that since 1942 he had been employed
in the plant by the Respondent 'and its predecessor as a maintenance setup man.
He described his work as follows:
Well they give me a winding sheet and I read that over. And, they have
to change gears in the machine and change plates, get your winding length
to wind the first winds on the coil.
Q. Would it be a fair statement to say that you are the man that fixes
the machines so the operators can run the machine and turn out the coils
according to specifications?
A. That is right.
The "winding sheet" is the setup diagram prepared by the engineering depart-
ment. It was admitted that Tennent had nothing to do with its preparation.
It was also admitted that Tennent did not inspect the product of the machines,
his sole responsibility being to set up the machine.
Tennent further testified that on July 28, 1950, "just a couple of minutes before
quitting time" he was called to the office by Ayers who handed him a slip of
paper which read :
- I ' ' • JULY 28, 1950.
Due to changes in our production requirements, it is necessary that we
reduce our work force. Therefore, you are hereby notified' that your em-
ployment with the Company is terminated.'
DINICN COIL Co., INC.,
Caledonia, New York.
Tennent testified :
A. Well, Mr. Ayres called me into his office just before quitting time and
handed me a pay-envelope. I says, "Well, what is this, Elmer?", Mr. Ayres,
says, "I don't know what it is all about, Jim." He held it out and I looked
at it and turned around and walked out, took my tools and come home.
Holland testified that on July 27 he called on one of the Respondent's customers
at Baltimore and was told that this customer had received 7,000 defective trans-
formers from the Respondent.
The parties stipulated that R. L. Gibson, purchasing agent of this customer,
would testify that it had received 6,354 defective transformers from, the Re-
spondent.
The undersigned therefore credits Holland's testimony to the effect that some
7,000 defective transformers were shipped by the Respondent to one of its
customers.
Holland further testified that "before I left I went to Baltimore and called
up from Baltimore and said, `Discharge him [Tennent].' "
Holland testified that the defect in the transformers in question was due to
loose wiring, that Tennent's job was to set up the machines on which the wind-
ing was done according to a blue print prepared by others and that after the
machine was set up, the pilot piece was checked and inspected. He testified :
Q. Now, after a winding machine was set up didn't the supervisor come
over and make an inspection?
A. There was always a check made.
12 An identically worded document was also handed all the July 21 dischargees.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And what did that check consist of?
A. Why, I believe they cut the coils up and checked them for just the
thing we were looking for that failed in this job.
Holland testified that the product was checked and inspected four or five
times before it was passed for shipment and that Tennent did not do the
inspecting nor was he in any way responsible for it.
Holland further admitted that on December 5, 1950, Tennent was rehired
for his former job and has held it since that time.
Tennent testified that following his discharge he did not apply for reinstate-
ment ; that on or about December 9, the Respondent 's foreman , Kenneth Harring-
ton, came to his home at Mumford and asked him to return to work ; that on
December 5, he returned and was put on his former job; that on February 6,
1951 , his pay was increased by 10 cents per hour.
On the entire record , including his observation of the witnesses , the under-
signed is not persuaded that Tennent was discharged by the Respondent for
the reasons advanced by it. The undersigned does not credit Holland 's testi-
mony, to the effect that he ordered Tennent's discharge because defective material
had been made in and shipped from the Respondent 's plant. To accept this ex-
planation for Tennent 's discharge , in view of the admitted facts that Tennent
merely set up the machines from diagrams furnished him, did not operate
the machine , did not inspect the product , which was in fact inspected immediately
after the pilot sample was made and from four to six times thereafter would
require the undersigned not only to accept the wholly incredible but to put the
stamp of approval on the obviously ridiculous.
On July 31 , the Respondent and the Union entered into an "Agreement for
Consent Election" for the - purpose of permitting the selection of a collective
bargaining agent by certain of the Respondent 's employees , wherein it was
agreed that only employees on the payroll for the week ending July 29, 1950,
were eligible to vote. i
This agreement of course barred the July dischargees from the polls.
Holland admitted that the fixing of this payroll date as the eligibility date
was a condition precedent to the Respondent 's entering into the agreement.
The agreement was approved by the Board 's Regional Director for the Third
Region.
The Respondent argues in its brief :
The original charge was filed after the election . In the agreement pro-
viding for the election , the payroll was specified as covering the period
ending July 22hd ,'1050, and the names of the employees .listed in the charge
were eliminated from the voting list.
It was agreed that they were ineligible to vote since they were no longer
employees . This agreement necessarily rested upon the validity of the dis-
charges. The record , therefore, shows on its face, that before the charges
were filed , the complaining Union admitted that these discharges were
proper . To take any other position , the Union would have to admit that
it procured Respondent 's consent to an election by fraudulently concealing
a claim of misconduct.
Counsel for Respondent feels quite sure that to preserve its good name
and reputation for fair dealing, the complaining Union would readily admit
that these discharges were proper rather than place itself in the obviously
embarrassing position of admitting it practiced fraud to procure Respondent's
consent to the election.
The undersigned finds no merit in the Respondent's contention.
While the Act does not create private rights and as the charge upon which
DINION COIL COMPANY, INC. 1455
the complaint herein is based was not filed at the time the agreement for con-
sent election was entered into, the parties could at the time set any mutually
agreeable eligibility cutoff date which the Board's Regional Director could
approve, however, at the time the charge was filed the Regional Director and
the Board were thereafter bound by Section 10 (a) of the Act3 Moreover, at
the same time the rights of the dischargees, to be thereafter determined through
the Board's processes, became attached to the public interest and could not be
destroyed by the agreement of parties stranger to those rights. In the opinion
of the undersigned the "Agreement for Consent Election" merely set an eligi-
bility date and did not affect the Board's duty to proceed in the instant matter.
The election was held on August 15. The employees chose the Union as their
bargaining agent."
On August 16, 1950, the Union filed the charge in the instant matter.
The record discloses that the Board's notice of the filing of the charge together
with a copy thereof was mailed to the Respondent on Wednesday, August 16, but
was not received by the Respondent until August 21.
On August 21, the Respondent began recalling the employees it had discharged
in July. These employees were recalled on various dates and at the time of the
hearing only three, to wit, John Docking, Elbert Crane, and Margaret Carroll,
had not been recalled.
The record discloses that on July 26, the Respondent hired one L. Pimm as
a new employee and that as early as August 30 and for some time thereafter,
the Respondent advertised in varibus area newspapers for employees.
The advertisements offered jobs for "Coil Winders" and stated, " We will con-
sider beginners."
Holland testified that he did not know who selected the employees to be
rehired and that he did not participate in the decision to rehire them.
Docking, Crane, and Carroll were discharged with the July 21 group. The
Respondent offered no reason for its failure to recall them, the intimation being
that the reason for the discharges would explain the failure to rehire. These
reasons will be considered by the undersigned.
Holland testified that his "basic reason" for discharging Docking on July 21
was that he became drunk at a party the preceding Christmas . Holland ad-
mitted that Docking was not criticized for his conduct at the Christmas party
and returned to work after Christmas as usual . Holland also testified that
he saw Docking doing bad work.
With respect to the dicharge of Crane, Holland testified :
Q.... What factors did you rely upon in discharging Elbert Crane?
A. I think the man had sleeping sickness . I,am not sure , but, he acted
- like it.
Q. When did that first come to your attention?
A. The first day he was in the plant, very close to it.
Q. When was that, would you say?
A. I don't know. I have had people working before that had it and he
had all the symptoms of it.
Q. Is that the only reason you discharged Elbert Crane?
A. That is right, he couldn't perform. The man just could not perform.
It was obvious.
Is "Sec. 10. (a) The Board is empowered, as hereinafter provided, to prevent any person
from engaging in any unfair labor practice ( listed in section 8 ) affecting commerce. This
power- shall not be affected by any other means of adjustment or prevention that has
been or may be established by agreement, law, or otherwiseo t h e r w i s e :
14 The parties stipulated that the results of the elections were : 145 eligible , 104 for the
union , 28 against the union , 4 challenged ballots.
1456 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD
Docking and Crane were both employed in the maintenance department, which
excluding the foreman consisted of three, employees, Docking, Crane, and one
Miller.
With respect to Docking's discharge Holland advanced another supporting
reason, he testified :
I already had instructions or data to the effect that the workers in that
department were not particularly satisfactory. They were not able.
s * s s s s s
I believe I had the data from Mr. McCully.
Donald McCully testified that he was superintendent of the Respondent's Cale-
donia plant.
The record reads as follows :
Q. When did you [McCully] come to work for Dinion?
A. June 17, 1950.
Following this answer, the Respondent's attorney, Mr. Bruggeman , asked a
question beginning:
Now, during the time between July 17 and July 21st, ... .
[Emphasis supplied.]
Holland, referring to the Respondent's records, testified at two separate
points that McCully began work for the Respondent on July 17, as an "unassigned
trouble-shooter," reporting directly to him.
The undersigned, on the state of the record, believes that the date June 17
appearing in the record is an inadvertent error by the reporter and finds that
McCully first began work, at the Respondent's plant on July 17, 1950.
McCully testified :that on July 20, 1950, he delivered the following Inemoran-
:dum.written by himself to Holland.
To: E. J. Holland
DINION COIL CO., INC. Date 7/20/50 .
Confidential
Subject: Maintenance Dept.
Tom Ezard in charge seems competent but in poor health. Has two men
who can never do work I require to re-set-up and maintain factory bldgs.
and equipment. Due to poor health of Foreman, I request immediate
replacement of both maintenance men with one carpenter and one machinist
in order to carry out my program.
Please advise. ,
Very truly yours,'
McCully testified that the memo referred to Docking and also to, either Crane
or Miller.
McCully testified that he had seen a table top which had been repaired by
Docking in a defective manner, but admitted that he did not speak to Docking
about it; that general maintenance "was not what it should be'.'; that certain
sockets were not properly closed, but admitted that he "couldn't for sure say
it was Mr. Docking" who was responsible for this ; that the foreman told him
that he was dissatisfied with Docking, but admitted that the foreman did not
express dissatisfaction with Docking's work.
Tom Ezard, the foreman of the department, was not called.
The undersigned does not credit McCully's testimony to the effect that he
reported either Docking or Crane as inefficient and requested their discharge.
If the memorandum above referred to was actually delivered to Holland by
McCully, which the undersigned seriously doubts, it could refer to any two of
DINION COIL COMPANY, INC. 1457
the three men,in the department. The undersigned is not persuaded that after
3 days in the plant McCully reported on the capacity of certain individuals to'
perform general maintenance work, and at the same time did not trouble to name
the two men of a possible three he referred to, and whose discharge he
requested.
There was no reason advanced by the Respondent for its failure to recall
Margaret Carroll who was discharged on July 21, 1950. The reason for the
discharge must therefore also be the reason for the failure to recall.
Holland testified that Carroll was one of the employees selected for dis-
charge by Forelady Thelma Hendry, and further testified : "It was a general
comment that she was not satisfactory to the supervisor."
Neither Docking, Crane, nor Carroll testified.
The undersigned has found that the employees selected for discharge on
July 21, 1950, were not selected for such discharge for the reasons advanced
by the Respondent.
The undersigned further finds on the entire record, considered as a whole,
that the employees named in Appendix A, attached hereto, were not discharged
by the Respondent for the reasons advanced but for other and different reasons
not disclosed to them by, the Respondent.
Having found that the discharges were not for the reasons advanced by the
Respondent there remains for consideration of the undersigned only the reason
for the discharges as alleged in the complaint.
Ayers testified that the Respondent followed seniority of tenure in making
layoffs and recalling employees, and that a list of employees in order of seniority
was furnished to foreman and posted. - I .
Holland testified that seniority was not considered in selecting the July
dischargees. He testified : -
Q. It had-is it -your testimony-that length of service never effected
layoffs before?
A. It doesn't make any difference to me. I didn't say that.
Q. What about the Company's practice?
A. I don't know.'8
Seniority is not a matter of right but of contract. The Respondent was not
required to follow seniority in making discharges but by not doing so the record
is clear that many employees of long standing and many who had superior
earning power, based on the piecework rates prevailing in the plant, were included
in the mass discharge.
Ayers testified that during the period of July 21, 1950, to August 1950:
There were no changes in production schedules on shop orders to my
knowledge or to my recollection . If they were they were minor. None
of them to any detail.
With one exception all of those discharged, as herein found, were members
of the Union.
It has been found that the employees were actively and openly engaged in
organizing the Union immediately preceding the discharges, there was open
solicitation of membership, buttons were worn at work, on July 12 the union
representative wrote the Respondent claiming majority status, on July 18 the
Union filed a petition for an election with the Board's Regional Office, also on
36 Foreman Clemens testified that between 1948 and July 1950 no seniority practice pre-
vailed in the plant. However, the record shows that Clemens gave a sworn statement to a
Board agent stating the exact opposite. The undersigned does not credit Clemens' testi-
nony under these circumstances,
1458 DECISIONS OF NATIONAL LABOR RELATIONS --BOARD
July 18 the employees held a meeting at which officers for the Union were
elected.
All the officers and committee members elected at the July 18 meeting were
included in the mass discharge.
John Docking was the elected president of the Union. He was one of the
most active union proponents.
Thelma Lashway who was notified of her discharge at 7 p. in. by the personal
call of a foreman to her home had been elected steward of the Union.
James Tennent, discharged July 28, had been active on behalf of the Union, he
arranged for the meeting places, and had been nominated for an office which he
declined.
Prior to the discharges employees had been interrogated with respect to the
Union and their activities on its behalf.
Josephine Cappetelli testified that she was discharged on July 21, being notified
of her termination by Foreman John Bartals who called at her home at 6 p. M.
for that purpose. She further testified that she was notified on August 21 to re-
port for work ; she reported to the Respondent's plant on the morning of August
22, and was told to first report to Joseph Curran in the office ; that she reported to
the office where Curran made the following statement to her :
He says they lay me off on account of that union. I was one of the girls
picked out of the bunch, and he says that the company find out always good
work, she always had good satisfaction so they call me back.
Julia L. Clements testified that she was recalled to work and reported at noon,
August 23. She testified that she was interviewed by Curran and that :
A. He said "Well," he said, "there is a union in here now." He said, "We
have made a lot of mistakes. We are going to try to right those mistakes,
so you are going back on the same job where you left off and everything just
the same as when you left." I asked him how about seniority rights. He
said, "Oh, forget about it. It don't mean anything."
Upon all the evidence considered as a whole the undersigned is persuaded that
the General Counsel's contention that the employees listed in Appendix A were
discharged because of their membership in and activities on behalf of the Union
is well supported by the record.
The undersigned finds that the reasons given by the Respondent for the dis-
charge of its employees listed in Appendix A and as herein found were not
the real reasons for such discharges but were a mere pretext therefore, and that
the said employees were discharged by the Respondent because of their supposed
or actual membership in and activities on behalf of the Union, and thereby
the Respondent has discriminated in regard to their hire and tenure of employ-
ment , discouraged membership in a labor organization, and has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
0. Additional interference, restraint, and coercion
As has been found herein the Respondent and the Union entered into an
"Agreement for Consent Election" on July 31, the election being held August 15.
The record is clear that between the time of the signing of the agreement
and the election, the Respondent, by means of a series of letters addressed to
its employees, vigorously campaigned against the selection of the Union as the
bargaining representative.
The General Counsel urges in his brief that this conduct of the Respondent
constitutes an unfair labor practice because "the coercive character of such
DINION COIL COMPANY, INC . 1459
statement was clear in view of Respondent's mass discharge of employees on
July 21, 1950, immediately following Respondent's interrogation about the
Union."
The letters themselves contain no express threat of reprisal or promise of
benefit as an "argument" against self-organization and would therefore seen!
to be within the protection of Section 8 (c) of the Act."
However, the most cursory reading of the series of letters, which the Respond-
ent admittedly mailed and otherwise delivered to its employees during its cam-
paigning against their selection of the Union, shows that the letters were in-
tended to do more than merely urge the employees to "vote no," or convey the
idea that their employer felt that the rejection of the Union was the more de-
sirable choice for all concerned. Considering the fact that the letters were
clearly but part of a course of conduct designed to defeat the Union, and con-
sidering also that part of such course of conduct consisted of the mass discharge
of a substantial number of employees in violation of the Act, the Respondent's
admonition to vote against the Union and thus "protect your job and Family"
permits no conclusion but that the letters, irrespective of their actual freedom
from threats or promises, were coercive and part of a coercive course of conduct
which is violative of the Act. The undersigned so finds 17
The record also discloses and the undersigned finds that some of those re-
called to work were not given the same jobs as they formerly held ; were not
given the same rate of pay they formerly received ; and were not given the usual
Thanksgiving Day pay or bonus paid to other employees in the plant in 1950.
D. TJLe Respondent's brief
In its brief to the undersigned the Respondent presents argument contra to
the Board's setting aside the ruling by the undersigned wherein he denied the
General Counsel's motion to amend the complaint. The Board having ruled, the
undersigned is bound thereby.
The Respondent argues that there is no evidence to show that Holland had
personal knowledge of the union activity of the Respondent's employees and as
Holland alone selected the employees to be discharged, the discharges were made
"without knowledge" chargeable to the Respondent. However, the Respondent
ae Sec. 8 (c) :
The expressing of any views, argument, or opinion , or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.
i7 See N. L. if. B. v. LaSalle Steel Company, 178 F. 2d 829 (certiorari denied , 339 U. S.
963), wherein the court says:
It also seems clear to us that in considering whether such statements or expressions
are protected by Section 8 (c) of the Act, they cannot be considered as isolated words
cut o8 from the relevant circumstances and background in which they are spoken.
A statement considered only as to the words it contains might seem a perfectly inno-
cent statement, including neither a threat nor a promise. But, when the same state-
ment is made by an employer to his employee, and we consider the relation of the
parties, the surrounding circumstances,' related statements and events and the back-
ground of the employer' s actions , we may find that the statement is a part of a gen-
eral pattern which discloses action by the employer so coercive as to entirely destroy
his employees' freedom of choice and action. To permit statements or expressions to
be so used on the theory that they are protected either by the First Amendment or by
Section 8 (c) of the Act, would be in violation of Section 7 and contrary to the ex-
pressed purpose of the Act. Therefore, in determining whether such statements and
expressions constitute, or are evidence of unfair labor, practice, they must be consid-
ered in connection with the positions of the parties with the background and circum-
stances under which they are made, and with the general conduct of the parties. If
when so considered, such statements must still be considered as a basis for a finding of
unfair labor practice.
1460 DECISIONS OF, NATIONAL.LABOR RELATIONS BOARD
admits that the Union was active among the employees from "about July 12" ;
that union buttons were worn in the plant; that on July 13, the Union demanded
recognition.
The undersigned points out that Holland was the vice president of Respondent
and was in full charge of the plant.
The Respondent argues that those discharged were inefficient and that its
operations were much more effective after they were removed from the plant.
.Yet all but 3 of the 32 employees discharged in July were recalled to work, in
many cases to their old jobs, some of them to key jobs.
The Respondent concedes that "the discharges were suddenly decided upon"
and contends that the decision was made "upon the highest authority-that of the
President of the United States," that:
The situation had reached the point where a telephone message or wire
was not sufficient, and the assistant of the president himself went personally
to see that the orders were carried out on the spot by Mr. HOLLAND with,
the obvious inference that Mr. HOLLAND would then act or someone would
take his place to do the necessary. In order to carry out these instruc-
tions Mr. HOLLAND selected the employees named in the original com-
plaint.
The Respondent argues further:
After all, Respondent's management was not alone in its error of timing
and its predictions about the future. It is a matter of common knowledge
that at that time industry generally was pulling in its belt and the stock
market plunged to its lowest level in years. The Korean sell-off lost fortunes
for others besides Respondent..
The undersigned can find nothing in the record to sustain the above-quoted
.contentions.
The Respondent argues further :
We trust that this country has not yet reached the position where a
private business enterprise which has no seniority rules fixed by contract
cannot lay=off or cut back on the basis of the relative efficiency of the workers
involved. Unless we have reached that point, there is no substantial basis
for claiming that the discharges of July 21st did not accomplish the sound
operation result that management intended to accomplish.
The undersigned agrees that the premise is correct under all Board and court
decisions ; however, the conclusion that "the discharges of July 21 did not accom-
plish the sound operating result that management intended to accomplish" does
not, in the opinion of the undersigned, rest on that premise.
Concluding Findings
Upon the basis of all the evidence considered as a whole, including his
observation of the witnesses, the undersigned finds that by the interrogation of
Thelma Lashway and Agnes Hanna regarding the Union and their membership
therein by Foreman Edward Clemens, by Supervisor Ayers' admitted interroga-
tion of employee John Docking, by the Respondent's letter to its employees with
respect to their choice of a bargaining agent, by Joseph Curran's statements to
Josephine Cappetelli and Julia L. Clements at the time they were recalled after
the mass discharges, all as herein found, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, more particularly Section 8 (a) (1) thereof.
The undersigned further finds on the entire record in the case that by the
DINION COIL COMPANY, INC.' 1461
discharge of the employees listed in Appendix,A hereto, and further by Its
-failure to reinstate John Docking, Elbert Crane, and Margaret Carroll, all as
herein found, the Respondent has discriminated and is discriminating with re-
spect to their hire and tenure of employment, thereby discouraging membership
in a labor organization, thereby interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act, more par-
ticularly Section 8 (a) (3) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V1 THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action which will effectuate the policies of the Act.
Having found that the Respondent discriminated in regard to the hire and
tenure of employment of those of its employees listed on Appendix A hereto,
the undersigned will recommend that the Respondent offer them immediate and
full reinstatement to their former or substantially equivalent positions " and
make them whole for any loss of pay they may have suffered as a result of the
discrimination against them by the payment to each of a sum of money equal
to that which said discriminatee would have earned in wages from the date of
the illegal discharge to the date of the offer of reinstatement, less their net
earnings.19
Inasmuch as all the employees except John Docking, Elbert Crane, and Mar-
garet Carroll have been reinstated, it will be recommended that any of those al-
ready reinstated who were not reinstated to their former jobs or were reinstated
at a lower rate of pay be offered the jobs they held at the time of their unlawful
discharge or to a substantially equivalent job and that those reinstated at a
lower rate of pay be given their former rate of pay and made whole for the loss.
It is further recommended that those employees named in Appendix A who
were not paid the Thanksgiving Day pay or bonus in 1950 by the Respondent
be paid the same.
The unfair labor practices found to have been engaged in by the Respondent
are of such character and scope that in order to insure to employees and pros-
pective employees their full rights guaranteed them by the Act, it will be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees or prospective employees in their
right to self-organization 20 as guaranteed in Section 7 of the Act.
11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
19 Crossett Lumber Company, 8 NLRB 440.
Consistent with the policy of the Board the loss of pay shall be computed on the basis
of each separate calendar quarter or portion thereof during the period from Respondent's
discriminatory action to the date of a proper offer of reinstatement. The quarterly periods
hereafter called "quarters" shall begin with the first day of January, April , July, and
October . It will be further recommended that Respondent make available to the Board
upon request payroll and other records to facilitate the checking of the amount of back pay
due. F. W. Woolworth Company, 90 NLRB 289.
20 May Department Stores, 326 U. S. 376.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONcLusIONs OF LAW
1. International Brotherhood of Electrical Workers, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of those
employees whose names are listed in Appendix A hereto the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (3) of the Act.
3. By such discrimination and by interfering with, restraining , and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
O