Harris-Intertype Corp.

National Labor Relations Board - Board Decisions

Apr 4, 1966

157 N.L.R.B. 1419 (N.L.R.B. 1966)

INTERTYPE COMPANY 1419
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 609
Railway Exchange Building, Seventeenth and Champa Streets, Denver, Colorado,
Telephone No. 297-3551.
Intertype Company, a Division of Harris -Intertype Corporation
and International Union , United Automobile, Aerospace ,&
Agricultural Implement Workers of America, AFL-CIO. Case
No. 5-CA.-3169. April 4,1966
DECISION AND ORDER
On December 9, 1965, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
cision. Thereafter, the Respondent filed exceptions and supplemental
exceptions, to the Trial Examiner's Decision and a brief in support
of the exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommend-
ations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications:
[1. Add the following as paragraph 2(b), the present paragraph
2 (b) and those subsequent thereto being consecutively relettered :
[" (b) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their'right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces."
[2. Add the following immediately below the signature line at the
bottom of the notice attached to the Trial Examiner's Decision :
NoTE.-We will notify the above-named employees if presently
serving in the Armed Forces of the United States of their right
157 NLRB No. 118.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
[3. The telephone number for Region 5 appearing at the bottom of
the notice is amended to read : Telephone No. 752-8460, Extension
2159.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Winchester,
Virginia, on October 13 and 14, 1965, on the complaint of General Counsel, as
amended, and the answer, as amended, of Intertype Company, herein referred to
as Respondent.) The issues litigated were whether the Respondent violated Section
8(a) (3) and (1) and Section 2(6) and (7) of the Labor Management Relations Act,
1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argu-
ment and briefs filed by the General Counsel, Charging Party, and Respondent have
been carefully considered.
Upon the entire record 2 and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation having a principal place of business in Win-
chester, Virginia, where it is engaged in the business of manufacturing printing
matrices. During the 12 months immediately preceding the issuance of the com-
plaint, a representative period, Respondent sold and shipped matrices valued in
excess of $50,000 from its plant in Winchester, Virginia, directly to points located
outside the Commonwealth of Virginia. The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings, as amended, and litigated at the hear-
ing are whether the Respondent: (a) interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1), by surveillance of a union meeting on May 11, 1965, or by threats
and interrogation of an employee by Foreman Gargiulo on May 12, 1965, or by
interrogation and promise of benefits to an employee, on August 18 and 19, 1965,
by Foreman Turano, or by interrogation of an employee on August 20 and Septem-
ber 28, 1965, by Foreman Boucher; or (b) whether the discharges of Armilda McNeil
and Lewis Dinkle, on May 20, 1965, and the failure and refusal to reinstate said
employees thereafter, was discriminatorily motivated and an unfair labor practice
in violation of Section 8(a)(3) and (1) of the Act. Respondent generally denied
the commission of any unfair labor practices, but does not deny the presence of three
supervisors in the area of the union meeting on May 11, and asserts that the dis-
charges were for cause.
Supervisory Personnel
It is undisputed that Plant Manager Donald Neale, Personnel Director Richard
Gay, Plant Superintendent James Scully, Foreman Louis Gargiulo, Foreman Anthony
3 A charge was filed on Tune 1, 1965, a complaint was issued on August 10, 1965, and
amended , during the hearing , on October 13, 1965.
2 ,General Counsel and Charging Party have each moved to correct the record. No
opposition to said motions has been filed . The record is accordingly corrected.
INTERTYPE COMPANY 1421
Turano, and Foreman Louis Boucher are supervisors within the meaning of Section
2(11) of the Act.
Background
In late April and early May 1965, C. E. Strickland, International representative
of the Union, contacted an unspecified number of Respondent's employees including
McNeil and Dinkle, to solicit their assistance in the organizing effort.3 Both McNeil
and Dinkle agreed to aid the organizing effort. The first meeting of the employees,
in connection with this effort, was held on May 11, 1965, at the George Washington
Hotel in Winchester. The employees who attended were Armilda McNeil, Lewis
Dinkle, Zelda Vorhees Miller, Louise Clark, Florence Clark, Julian Marple, Norman
Hoffman, and Vivian Shade. Two other organizational meetings were held, inferen-
tially at an unidentified union hall, between May 11 and 18.
It is undisputed that Plant Superintendent James Scully, Foreman Louis Gargiulo,
and Foreman Anthony Turano had prior knowledge of the meeting of May 11, and
were in the vicinity of the hotel in which it was held at the time of the meeting, as
further considered infra. It is undisputed that on Friday, May 14, 1965, Plant Man-
ager Donald Neale addressed a meeting of Respondent's employees, during which
he acknowledged that it had been brought to the attention of Respondent that some
outside union people were starting a campaign to organize the employees of Respond-
ent's plant. It is not contended that any of the content of the speech was violative
of the provisions of Section 8 (a) (1) of the Act.
On May 20, 1965, McNeil and Dinkle were discharged, under circumstances con-
sidered infra.
Interference, Restraint, and Coercion
Surveillance
It is alleged that Plant Superintendent James Scully, Foreman Louis Gargiulo,
and Foreman Anthony Turano engaged in surveillance of a meeting held by the
Union, for Respondent's employees, on May 11, 1965.
Respondent does not deny the presence of the three foremen in the area of the
union meeting, but asserts that it was an isolated incident not part of an antiunion
campaign, and was not done at the direction of company management. It appears
that the plant superintendent and the two foremen met for dinner, drove around town,
and, having heard that the meeting was to be held at the hotel, returned to the hotel
parking lot to determine which employees may have attended the meeting. In the
words of Turano, "We were curious." I find it reasonable to infer that they were
curious as to who attended the meeting. Turano identified McNeil, Shade, Vorhees
(Miller), and Florence Clark as employees he recognized at that time. Gargiulo
named the same four, and, in addition, Dinkle and Marple as the employees he
recognized at that time .4
It appears undisputed that Personnel Director Gay was advised by Scully of the
events of May 11, and Gay advised Scully that there should be no more surveillance.
Scully in turn so advised Turano and Gargiulo.5
Interrogation and Threats by Foreman Gargiulo
It is alleged that, on May 12, 1965, Gargiulo interrogated an employee and threat-
ened economic reprisals.
Zelda Vorhees Miller credibly related that she attended the meeting of May 11.
Her immediate supervisor is Foreman Boucher. Among her duties was the delivery
of punches to Gargiulo's department. She asserted that, while Gargiulo had always
been friendly, on May 12 she sensed that he was upset and asked for an opportunity
to talk to him. Just before lunch, Gargiulo came to her work station in the darkroom
and the following conversation ensued. She inquired what he was mad about, and
he responded that she knew. She denied knowledge, and he asserted, "Don't beat
around the bush with me." He then advised her that he had seen her the prior
9 Strickland credibly related that McNeil was the second employee so contacted and
that Dinkle was contacted immediately thereafter.
Scully's testimony included:
Q. Had there been a discussion about seeing who was at the meeting?
A. Yes. Of course , we were all curious on who and how many attended the
meeting.
6I do not credit Scully 's assertions that Gay "told us not to do it in the first place,"
and "I think it is one of our rules and stipulations as far as labor relations go," as
establishing either prior advice or the existence of a company rule.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening, that she was in the hotel, and he asked, "What did you go in there for."
She responded that she met a man. He then inquired, "A union man." She then
advised him that he might have to prove that. He then asserted, "If you get the
union here we will have to move." She responded that the Company could not
afford to build a new building. He then asserted, "You mean to tell me that a
company that maks a million dollars a month can't afford to move."
Gargiulo acknowledged having a conversation at the time and place related by
.Miller. He acknowledged that she wanted to know if he was mad at her, and
asserted that he responded that he was not. When she insisted that he was, he
advised her that he had no reason to be mad. He denied that anything else was
said, or that any reference was made to the meeting the prior evening. Gargiulo
acknowledged seeing Miller driving around the block a couple of times, after the
meeting, and passing the car in which he was parked. To the extent the testimony-of
Gargiulo is at variance with that of Miller, I credit Miller.
Interrogation and Promise of Benefits by Turano
It is alleged that on August 18, 1965, Turano promised an employee economic
benefits, and that on August 19 he interrogated an employee.
Vivian Shade credibly related that she attended the union meeting of May 11.
On August 18, 1965, she was among a group of approximately 20 employees to
whom Turano, and an individual named Joe Lower, spoke relative to the Union.
After the conclusion of the meeting, Shade had an individual conversation with
Turano. Shade asserted that both Turano and Gargiulo had been "mad" at her
ever since the first meeting in May. She advised Turano, on August 18, that she
knew that he was mad at her for signing charges-against them, which she explained
as getting the Union in. Shade then advised Turano that she did not have anything
to do with the charges, that when she was hired she had "come to try to make some-
thing for myself and get ahead and for all they know the first meeting I went to was
probably more help than harm-more harm than good for the union." Shade
explained to Turano that she liked her job and that when "O'Sullivan" went on strike
she had lost her job. Turano responded, "Well, the best way that you could get
ahead fast" would be if she would tell the people what the O'Sullivan strike cost her.
Turano then advised her that she could get more money and might even be promoted
to floorlady. Shade related that the O'Sullivan strike had occurred on May 13, 1956,
and as a result she lost her job. Turano then advised Shade that if she double-crossed
him he would stay there a year to get even.
The following day, August 19, Turano asked Shade how many employees had
attended a union meeting, which was held after working hours on August 18. She
responded that she did not know, that she was not there. When Turano persisted,
she advised him that if he really wanted to know how many were in attendance he
should ask another employee, whom she named.
Turano acknowledged having a conversation with Shade on August 18. Turano
asserted that he told Shade that if the Union were successful her classification would
be among those included in union representation "and she wouldn't be able to get
merit raises." Turano then asserted that Shade had inquired, initially, how the
Union would benefit her. Turano denied Shade's assertion that she had advised
him that he was mad at her because she had signed charges. He denied promising
Shade benefits if she was to tell employees of her experience at O'Sullivan. Turano
also denied advising Shade that if she double-crossed him he would stay there a year
to get even. Turano then asserted that Shade had volunteered the fact that she had
been laid off at "O'Sullivan, because of the union, that she had a good job at Respond-
ent's plant and was not interested in the union." Turano then asserted that Shade
had mentioned the O'Sullivan matter several weeks previous to the conversation of
August 18, and advised him that she lost a lot of money because she was out of a
job, and had no liking for a union.
Turano was asked if he had any conversation with Shade relative to the union
meeting which was held on August 18. He acknowledged having "a little conversa-
tion with her." He asserted, "In the morning I make my rounds to all of the girls
and I stopped by her like I do every morning. She told me that she didn't go to the
meeting the night before, that I should ask Frances Hines." Turano then denied that
Shade had suggested Frances Hines, but asserted she had suggested another girl, and
Turano asserted that he advised Shade that he was not interested. To the extent
the testimony of Turano is at variance with that of Shade, I credit Shade.
Interrogation, by Foreman Boucher in August and September 1965
It is alleged that on two occasions , in August and September 1965, Boucher
interrogated an employee.
INTERTYPE COMPANY 1423
Irene Costello, initially hired by Respondent on May 30, 1965, was employed in
the punch-cutting department, under the supervision of Foreman Boucher. Costello
credibly related that the Union passed out handbills and authorization cards at
Respondent's plant on August 19. The following morning she went to Boucher's
desk to obtain some material. Boucher inquired, "Did you get your card?" She
inquired, "What card?" He responded, "Your union card." Without responding she
returned to her work station. He thereafter advised her, "You know, when you sign
the card you can't get them back." She asserted she did not respond. Costello
asserted that about 2 weeks later, Boucher asked her if she had heard anything about
the Union and she responded in the negative. Costello had a further conversation
with Boucher, on approximately September 28, 1965. At the latter time, Boucher
inquired if the Union had called on her and advised her, she responded that she had
not heard' any more about the Union, that she thought it had died out.6
Contentions of the Parties-and Concluding Findings
Surveillance
Respondent urges that the Board has not adopted a per se doctrine, to the effect
that the mere presence of supervisors at the locale of a union meeting, particularly
when it is held in a public place, constitutes surveillance.7 Similarly, Respondent
cites Board and court decisions holding that an isolated act of surveillance is • not
unlawful, and that where surveillance occurred, without employer sanction and was
not repeated there was no violations
Charging Party asserts that, contrary to Respondent's contention that the act of
surveillance was an isolated incident, the other unlawful conduct, on the part of the
Respondent [particularly the same supervisory personnel] demonstrates that this act
of surveillance was not an isolated indiscretion, but rather, just an episode in the
Respondent's campaign designated to frustrate the employees in their efforts to
organize the Respondent's plant. I concur.
Unlike the cases cited by Respondent, the sole purpose which motivated these three
supervisors to park next to the hotel, where admittedly they knew the employees
were having a union meeting, was "curiosity" as to which employees were attending.
It is difficult to conceive a more blatant effort of surveillance. These cannot be char-
acterized as minor supervisors; one is' the plant superintendent. It is patent from
the record that employees were aware of the presence of these supervisors, on the
evening in question, and were made aware of the displeasure of the foremen,
emanating therefrom, by the conduct of the foremen thereafter. I find it unnecessary
to cite the numerous Board and court decisions which hold that surveillance, in the
context reflected by the evidence herein, constitutes interference, restraint, and coer-
cion, and a violation of Section 8(a)(1) of the Act. I find accordingly.
Interrogations, Threats, and Promises of Benefits
I have found, supra, that on the day following the surveillance, May 12, Gargiulo
interrogated Miller as to her purpose in being at the hotel the prior evening, and
advised her if the employees' efforts were successful that the Company would move.
I have found, supra, that on August 18 and 19, 1965, Turano sought the assistance
of Shade in the Respondent's effort to nullify the Union's effort to organize the
employees. Specifically, Turano sought to have Shade relate what was, for her, an
unfortunate experience, when the O'Sullivan plant went on strike, and as a result
Shade suffered a financial loss. Turano, at the same time, inferred that economic
benefits and possible promotion might result. The following day Turano inquired
of Shade as to the number in attendance at the union meeting the prior evening.
E Boucher did not appear as a witness.
° Citing: General Industries Electronics Company, 138 NLRB 1371 ( meeting held at
motel, where visitors to Respondent's plant stayed and were frequently visited by super-
visory personnel ) ; Opelika Textile Mills, Inc., 81 NLRB 594 (mere presence of super-
visors on a public street) ; Remington Rand, Inc., 103 NLRB 152 (presence of supervisors,
who were living in hotel, with little to do in the evening, in main area of town near
union meeting) ; and Rural Electric Company, 130 NLRB 799 ( supervisors who attended
a union meeting at a time when the employees believed them to be properly part of the
unit ). I find each of these cases is inapposite.
8 N.L.R.B . v. Brookside Industries, Inc., 308 F. 2d 224 (C.A. 4) (predicated on a
reprimand issued by the employer to the supervisors).
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
Respondent would frame Turano's conduct in the context of a supervisor listening
to comments about union meetings or activities volunteered by employees. It may
well be, as Turano related, that he was first apprised of Shade's 1956 experience,
some 3 weeks prior to the events related, by a volunteering of the information by
Shade. Even so, we are not here concerned with the method by which Turano
obtained the information, rather the determination must be predicated on the use
he sought to make of it, with the cooperation of Shade, by holding out the promise
of economic benefits.
I have found, supra, that Foreman Boucher interrogated Costello as to whether
she obtained her "union card," and advised her that when she signed the card she
could not get it back. Two weeks later Boucher inquired as to whether Costello had
heard anything further, and later whether the union representative had called on
her. Boucher did not appear as a witness, and his failure to appear was not explained.
Respondent asserts that from Costello's recitation the interrogation did not contain
a threat, promise, or interference of any type. Respondent would characterize these
inquiries as "innocuous." I do not agree.
In the Blue Flash case 9 the Board held that interrogation is not per se unlawful,
and is not coercive when an employer has a legitimate cause to inquire and establishes
appropriate safeguards. The Board stated the test to be whether, under all the
circumstances, the interrogation reasonably tends to restrain or interfere with the
employees in their exercise of rights guaranteed by the Act.
In Johnnie's Poultry 'case,10 after setting forth the two types of situations which
the Board and courts have held permit legitimate inquiry, i.e., verification of the
Union's claim of majority status or investigation of facts, essential in preparing an
employer's defense for the trial of a case, the Board said:
... the Board and courts have established specific safeguards designed to mini-
mize the coercive impact of such employer interrogation. Thus, the employer
must communicate to the employee the purpose of the questioning, assure him
that no reprisal will take place, and obtain his participation on a voluntary basis;
the questioning must occur in a context free from employer hostility to union
organization and must not be itself coercive in nature; and the questions must
not exceed the necessities of the legitimate purpose by prying into other union
matters, eliciting information concerning an employee's subjective state of mind,
or otherwise interfering with the statutory rights of employees. When an
employer transgresses the boundaries of these safeguards, he loses the benefits
of the privilege.
It is patent that the safeguards which must surround lawful interrogation were
not present when the interrogation I have found occurred. In addition, Gargiulo's
interrogation was coupled with a threat of plant removal, and Turano's interrogation
was coupled with a promise of benefit.
There are numerous Board and court decisions holding such interrogation, threats,
and promises of benefit, in each instance, constitute interference, restraint, and
coercion, within the proscriptions of Section 8(a) (1) of the Act. I so find.
In arriving at my findings of credibility herein, I have considered all of the testi-
mony, the demeanor of the witnesses, the interest of each witness in the outcome of
the litigation, or lack of such interest, candor or lack thereof, and the failure to
refute testimony.
The Discharge of McNeil and Dinkle
Dinkle was initially hired in March 1964, and McNeil was initially hired in April
1964. Both were discharged on May 20, 1965, under circumstances next considered.
Edwin E. Batch, presently general plant engineer, was general foreman of Respond-
ent's Winchester plant from the latter part of 1963, when the original pilot plant was
placed into operation, in Winchester, until approximately February 1965.
The initial pilot operation was in a building identified as the Virginia Woolen
Building. In approximately February 1965 the operation was moved to its present
location. Until the operation was moved into the new plant, McNeil was under the
supervision of Batch, thereafter her supervisor was Carston Schwartz. It is undis-
puted that McNeil was taught and performed a variety of different job assignments
during her period of employment. McNeil credibly related that these assignments
included: the reference machine, which put the letter on the opposite side of the
matrix from the character; the tool punch, which placed a notch on the matrix; the
grooving machine, which placed lines on the matrix; she opened the "saw-slot";
she operated the lug inill, which cut the lugs; she worked the clearance cutter, which
0 Blue Flash Empress, Inc., 109 NLRB 591, 593.
10 Johnnie's Poultry Co., 146 NLRB 770, 775.
INTERTYPE COMPANY 1425
cut off the end edge; on inspection she used a depth gauge for proofing depth; she
also counted and filled order trays, an operation which precedes the manufacturing
process. McNeil related that these job assignments were not a sequence of opera-
tions, rather she moved back and forth among the various jobs, as needed. At the
time of her discharge she was working in proofing, operating the proof press and
was a proofreader. McNeil explained that her duties at that time were to take
lead slugs that had been cast by Dinkle, to make a proof or proofs and to check
the proofs for bad or faulty matrices, or alignment. This checking included depth,
checked by gauge, magnification to determine faults in the formation of a letter, etc.
McNeil asserted that during her entire employment no supervisor ever complained
about the quality of her work, and in fact she was complimented by Batch while she
was working on the reference machine, and by a foreman while she was working
on inspection.
It is undisputed that McNeil was taken ill, and hospitalized, with virus pneumonia
on the evening of January 11, 1965, and did not return to work until February 17,
an absence of 26 workdays.- She promptly had her husband advise Batch of her
illness, and subsequently, after returning home from the hospital, she called Batch
and advised that she would be back to work as soon as possible. Batch advised her
that while he would not tell everyone, because of the nature and seriousness of her
illness she should not report until she was all right. On April 7, 1965, while at work,
McNeil was taken ill and entered a hospital. She was absent until April 20, an
absence of 8 workdays, after the day of onset. While in the hospital she called her
supervisor, Carston Schwartz, and advised him of her doctor's prognosis, that she
was concerned about her job, and realized that she had been absent a substantial
amount of time. McNeil related that Schwartz advised her, "Don't you worry about
it. You take care of yourself and get well." McNeil was not absent between the
dates of April 20, when she reported back from the last illness, and May 20, the date
of her discharge.
I have found, supra, that McNeil was the second employee approached by Strick-
land when he sought employees to aid in the organizing effort. I have also found
that McNeil was present at the union meeting on May 11, 1965, and was observed
leaving that meeting by the supervisors who were engaged in surveillance.
On May 20 McNeil was advised of her discharge by Carston Schwartz. McNeil's
version of that interview, which I credit, was that Schwartz advised her that he had
a very unpleasant task to perform on a job that he did not like. He advised her that
they were discontinuing her job in the proofing department and he was sorry to
advise her that she would have no job. She responded that he was not being honest
with her, that they both knew that if it was anywhere else than Respondent's plant,
he would not tell her that that was the reason for the discharge. Schwartz made no
response to the inference, but asserted, "This is simply telling you what I have to
say." McNeil asserted, "You are telling me what you were told to say. I know
better and you know better. You mean to tell me all the jobs that I have had here
and all the machines that I have worked on and operated there is nothing in this
plant I can do?" Schwartz then stated, "Well, you did work on the cutter machine
didn't you? Why don't you talk to Dick Gay, [personnel director] when you leave
here?" McNeil responded, "I don't think I have anything to say to Dick Gay. He
gave you his message and I have received it and I guess that's all. He said there
wasn't anything for me to do didn't he?" Schwartz responded, "Well, mostly because
of your absenteeism. Believe me, nobody knows better than I do it was not a fault
of your own." McNeil then stated, "I want you to know one thing before I leave.
I am a Christian woman and I have done nothing to be ashamed of, I have done
nothing and I would have told them anything they wanted to know but nobody
asked." Schwartz did not respond to that statement but again suggested that McNeil
talk to Dick Gay." I find McNeil a credible witness.
"Respondent introduced a written report, purportedly made by Carston Schwartz on
May 20, concerning this termination interview. The report recites:
I advised Mrs. McNeil that she was being discharged as of the end of the day because
the work she was doing in the inspection operation of casting and proofing all
matrices manufactured was being eliminated . She suggested that this was not the
only reason for dismissal as she had performed satisfactorily in several other areas
in the manufacturing operation and felt therefore a transfer to some other job could
be made. I informed her that this had been considered , but that her absentee record
was a factor that could not be overlooked. She was advised to speak with Mr. Gay
on any questions she may have concerning job transfer since he could give more
information on such matters . I again repeated the reason for her discharge and
explained reasons why such ' an operation should not be continued.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carston Schwartz inferentially acknowledged that McNeil had never been warned
about absenteeism 12
The following week, at the request of Gay, McNeil went to the plant for a ter-
minal interview. McNeil advised Gay that she could not understand being advised
that the department was being terminated, and that they were not going to use it
anymore, when on the day following her discharge Bob Swartz ran the Intertype
machine, which had been operated by Dinkle. Gay first denied the machine had
been operated, then asserted Swartz had run the machine for only a short period of
time. McNeil then inquired why the Respondent would have sent a mechanic from
Brooklyn to work on repair of the machine in April if there was no intention of
continuing its use. McNeil then inquired about all the other operations she had per-
formed in the plant, and was advised by Gay that it was her absentee record which
resulted in her discharge. McNeil then inquired why she was allowed to work a
full month, after her return from her illness, with no complaints about her illness
record, to which inquiry Gay made no response.13
Gay asserted that on May 20, 1965, there was no employee who had been absent
on more days than McNeil.14
General Counsel, to establish lack of uniformity in discharges for absenteeism by
Respondent, introduced the absentee record of Pearl Hepler, who was absent for 42
consecutive full days ending May 21, 1965, a total of 335 hours, 2 partial days
previously, and 5 full days subsequently, yet was still employed in October 1965, when
the hearing herein was held.
Dinkle first entered the printing business as a hand compositor and makeup man,
about 1937, and became a Linotype operator in 1942. It appears that the use of
Linotype or matrices, in the printing industry, constitutes competitive methods of
obtaining the end product, printing.
When Dinkle was first employed by Foreman Boucher, he was not told that the
proofing operation was temporary or of limited duration.15 Dinkle credibly related
that his experience in the printing industry and his knowledge of Linotype were
factors in his employment, but he was uncertain as to the precise reason for his being
hired. Initially Dinkle observed testing, or inspection, which was being conducted,
in order to become acquainted with the detail of the manufacture of matrices.
It is undisputed that Dinkle was not placed on the proofing operation until several
weeks after his employment, and there was not enough work at that time to keep him
fully employed at that assignment. Dinkle was assigned to inspection work, also
was in training to do setup work on several machines. During approximately the
last year of his employment Dinkle's principal duty was the operation of the Intertype
machine, which produced lead slugs from the matrices from which a proof could be
made, and from which McNeil was able to detect defective matrices. Dinkle related
that during the early period of his employment, while he was working in inspection,
Robert Swartz, who was employed on approximately the same day as Dinkle, would
get behind with "casting" and they would put Dinkle on the Intertype machine to
12 Carston Schwartz testified:
Q. Did you have occasion to warn her about her absenteeism?
A. During the period she was out sick. Of, course, she kept in touch and spoke to
me a couple of occasions on each time. She stated that she was concerned about
her job and asked if her job was still there. I told her it was still there but we
would not hold such a job indefinitely.
Q. How many occasions did you talk to her?
A. This occurred on at least two occasions.
s a e w s r n
Q. Had Mrs. McNeil ever been' advised that her discharge was being considered
because of her absentee record?
A. Not to my knowledge, except what I told her on the telephone, that we couldn't
keep her job open indefinitely.
Q. Did you tell her that she might be terminated or transferred to a different job?
A. I didn't tell her either.
Q. You might not be able to keep that particular job open for her?
A. Yes, sir.
13 Gay, who appeared as a witness, did not dispute this testimony of McNeil.
14 Respondent's records reflect the following absences of McNeil : In 1964, 5 full days,
5 partial days ; in 1965, 34 full days, 2 partial days, total 46 full and partial days, 331
hours.
15 I do not credit the assertions of Batch to the contrary.
INTERTYPE COMPANY 1427
catch up.16 After the plant was moved, approximately in February 1965 if not
earlier, Dinkle's exclusive assignment was running the Intertype machine.
I have found ,'supra, that Dinkle was among those initially approached by Strick-
land for assistance in the Union's organizing effort. Dinkle was among those who
attended the meeting of May 11, and was observed leaving that meeting by the
supervisors who were engaged in surveillance that evening. Dinkle asserted that he
attended another meeting at the union hall, 2 or 3 days prior to his discharge.
On May 20, 1965, Dinkle was advised of his discharge by Carston Schwartz.
Schwartz commenced the interview by advising Dinkle that all nasty jobs seemed to
come to him that day and that Schwartz was going to close down the proofing depart-
ment. Dinkle responded, "Don't insult my intelligence. I am getting fired because
of the union activity." Schwartz responded, "No, nothing like that, it can't be
done." Dinkle asserted, "It's being done." Schwartz then advised Dinkle that Dick
Gay wanted to see him and had his paycheck. Dinkle went to the personnel office and
Gay advised him that he was sorry that Dinkle would have to leave, that there was
no place else for him, and gave him his check. Dinkle repeated his previous assertion
that he was being fired for union activity. Gay responded, "No, nothing like that. It
isn't legal." 17
Respondent asserted economic motivation and justification for the discharges.
Carston Schwartz had been employed by Respondent for 30 years, and assumed
responsibility for quality control, punch cutting, and matrix engineering in May
1964. At that time Robert Swartz was working in the proofing operation, but his
duties are obscure, except that he also operated the Intertype machine on occasion.
Schwartz related that Dinkle was operating the Intertype machine and that McNeil
and Miller subsequently became proofing operators. Schwartz, Batch, and Vice
President John A. Gehling, of the Brooklyn plant, sought to establish that the proof-
ing operation was intended only as a temporary procedure. Dinkle denied that he
was ever advised that proofing was a temporary operation. Schwartz, to the con-
trary, asserted that the question of the duration of the proofing process was initiated
by Dinkle on several occasions.18 To the extent that the testimony of Dinkle is in
variance with that of Schwartz, I credit Dinkle.
Plant Engineer Batch has been employed by Respondent for 38 years. Batch
explained the use of the proofing operation, which he acknowledged was not in use
at the Brooklyn plant because they had experienced people. Batch asserted that at
16 Batch asserted it was 2 or 3 weeks after Dinkle started before Dinkle was placed
on proofing , also that Dinkle worked 2 or 3 months in inspection and getting instruction
on setup, after which he worked entirely on the composing (Intertype) machine.
11 Respondent introduced a written report, purportedly made by Carston Schwartz on
May 20, concerning this termination interview . The report recites:
I informed this employee that the operation being performed by him was being
eliminated and he was therefore being terminated as of the end of the working day.
He stated that he believed "this union business " was the underlying reason for his
discharge, but that it didn't matter very much since he was certain he could find other
employment within a few days. I repeated that the reason for his discharge was
the discontinuance of the job. I reminded him that the work he was doing was some-
thing that was not previously a part of the operation in N.Y. I further stated
that it always was intended a temporary additional inspection during the training
period in the pilot plant. It was suggested that if Mr. Dinkle had any questions he
speak to Mr. Gay in an exit interview.
In view of Dinkle's assertion that he was willing to take a job as an unskilled employee,
rather than move out of town, I do not credit Schwartz' statement implying that Dinkle
was not concerned about the discharge.
1B I do not credit Schwartz to the extent that' his testimony relative to the temporary
nature of the proofing operation and his exit interview report imply that Dinkle was advised
of the temporary nature of his job. The testimony of Schwartz and Batch was to the
contrary. Schwartz stated:
Q. In your conversation with Mr. Dinkle, when you told him that the proofing
operation wasn't going to be permanent, you. didn't tell him that he wasn't going
to be permanent, did you?
A. No, I didn't. •
Batch stated: ,
A. No, sir. I don't believe that I 'ever told him: he was not permanent as an
nent, did you ever tell him he wasn't permanent?
"
. . W
A. No, sir., I don't, believe, that I ever told him he was not permanent . as ^ an -
individual. . _ , .
2211-374-66-vol. 157-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winchester they had people who were just learning. They needed, to qualify good
printable matrices. Batch asserted that when the proofing operation was commenced
in Winchester it was not considered a permanent part of the production process. Batch
explained that it could not be done permanently because it is an impossibility to proof
every matrix because of volume of production.19 Batch asserted that when Dinkle
was hired he and Staffend, whom he identified as the industrial engineer who set up
the Winchester operation, explained to Dinkle that the operation of the proofing
would be discontinued when the production got to the point that it was no longer
necessary. Batch asserted there were other occasions when Dinkle broached the
subject of the discontinuance of proofing, when Batch advised that it would be dis-
continued "at a later date when production was high enough in quality." Dinkle
denied that Batch ever advised him that the proofing process was temporary. I
credit Dinkle.
Batch described the Intertype machine as approximately 41/z feet square, 51/2 feet
tall, weighing approximately 3,000 pounds, and varying in cost from $11,000 to
$22,000. The first Intertype machine'was brought into the Winchester plant about
the time Dinkle was hired. Later, on a date unspecified, a second machine was
brought from Brooklyn, where it had been used to process proofs for a period of 8
or 10 years. It is undisputed that a mechanic from Brooklyn made adjustments or
repairs on the two machines in April 1965, spending several days in Winchester for
that purpose.' It is undisputed that the machines are still used for verifying cus-
tomers' complaints on returned work. It is Bob Swartz, described as a work-leader
of the gauging and inspecting facilities, who operates the proof press, as necessary.
Respondent introduced a compilation, which is undisputed, which indicates that
in July and August 1964 there'were no shipments and all production was subjected to
proofing. In September and October all -production and shipments were subjected
to proofing; and thereafter further proofing of shipments was discontinued; however,
100 percent of production continued to be subjected to proofing through February
1965. The- percentage of,proofing, by reason of the increase -in production, was -
reduced to 60 percent, in- March and April,- and 30 percent in May 1965,, with -no
proofing of either production or shipments thereafter. However, it is undisputed
that returned merchandise was subjected to proofing after May 1965. -
Personnel Director Gay related that he is a member of a plant operations commit-
tee whose function is to meet on- a weekly basis to discuss production planning, and to
make decisions with regard to transferring of equipment from Brooklyn. In April -
and May 1965'Gay was secretary of the'cdmmittee. Gay identified purported minutes
of meetings held on April 27 (Tuesday) and May 10 (Monday).20 Carstori Schwartz,
who is a member of the committee, first asserted that the decision to "terminate the
inspection operation in the end' of May-[was] some weeks previous-it 'must .have
been a month or a little better than a month that we were able to come to a decision
about how long we would have to continue this operation, and came upon a plan to
discontinue it by the end of May, for reasons we said before.", - After asserting the
decision was stated by the operations committee, Schwartz related, "The decision
would obviously rest mostly with myself, as I am responsible for quality, and any
opinion I may have would be considered." Schwartz then acknowledged it was on
May 10, at the committee meeting, that the decision to discontinue proofing was
reached 21
It is undisputed that McNeil and Dinkle were discharged on Thursday, May 20,
while the pay period ended on Friday, May 21. Vice President John A: Gehling,
who is located in Brooklyn, has the Winchester plant under his direction. . Gehling
asserted that when the proofing operation was commenced at Winchester it was not
considered a permanent part of the production process. Asked if there was a target
date for discontinuance, he-responded that this was to be determined by the amount
or number of mats they would be able, to manufacture and the efficiency of final
19 However, unquestionably, there was a complete inspection. and the inspection de-
partment was regularly increased in number by hiring of unskilled personnel.
21 Respondent asserts item 10, of April 27, relates to inspection and proofing . It pro-
vides: "Personnel Manning. J. C. Scully, C. Schwartz , and R . Gay to review staffing
and to develop revised Plan figures for Text Manufacturing and Inspection Direct and
Indirect."
Item 4, May 10, provides : "Proofing Operation : On the basis of irpproved quality,
assignment and training of full staff of inspection personnel , costs, and a. steady sharp
decline in scrap since December , it was agreeded [sic] that the proffing [sic] operation
would be closed down toward the end of the production closing date in May 1965 "
'' Schwartz , as Gehling , infra, - could not Identify or explain the "production closing
date" referred to.
INTERTYPE COMPANY 1429
inspection.22 Gehling described the end of the May production period as Friday,
May 21 23
Gehling acknowledged the Intertype machine was repaired in April or May 1965,
and that they continued to use it thereafter, to proof customer complaints and to
proof new type faces, i.e., new designs.
It is undisputed that in March, April, and May, 1965, and thereafter, Respondent
continued to hire untrained and unskilled personnel for assignment to a variety of
jobs, inferentially, including those previously performed by both McNeil and Dinkle.24
The total number of employees performing production and maintenance work on
February 21, 1965, was 114, on May 23, 1965, the number was 138, and on June 27,
1965, the number was 146. It is undisputed that the latter number was increased
substantially thereafter.
Respondent sought to establish that Dinkle's performance at duties other than the
proofing operation was unsatisfactory. Batch acknowledged that Dinkle was not put
on proofing immediately when he was first employed. Batch asserted that Dinkle
was getting instruction on inspection and later on setup. Batch asserted that Dinkle
was not very satisfactory as an inspector, and that as setup man they had to remove
him because he could not cope with some of the machines, particularly those
described as the lug milling, the 8-corner milling, and the side-shaving machines.
Batch described Dinkle's work as an inspector as "indecisive," and failing to process
the work in the normal time it would take. Asked why Dinkle was continued in
employment if he was unable to perform these jobs, Batch responded that they were
having a gradual buildup at the composing machine, where Dinkle spent more and
more time as the production grew. I do not credit the assertion of Batch that he
advised Dinkle that he was unsatisfactory on inspection, at the time Batch placed
him on setup work.25 Batch acknowledged that Dinkle spent 2 or 3 months on
setup work. Batch acknowledged that new employees are trained to do inspection
work, that it takes 2 or 3 weeks to train an individual "at any of these inspection
Olt is undisputed that' not all shipments from Winchester were Winchester produc-
tion. Transfers from Brooklyn, and shipments of Brooklyn production from Winchester,
commenced in October 1964. -
23 Gehling was a confused and unconvincing witness in attempting to explain monthly
production periods and closing dates . He first asserted: "Our accounting system works
on a basis of not calendar months but on a basis of-I can't explain why but the end of
the month comes at least one week before-let me try and see if I can do it another way.
We close our production period generally on the last full week of a month but not always."
Having the benefit of a calendar, Gehling was asked the March 1965 production closing
date, and responded : "I can 't say for sure. Out of my knowledge, sir, I would assume
it closed on the 26th."
Gehling's attention was called to the fact that March 26 was the last Friday in that
month ; he then asserted : "I. really should say that I don't know."
Gehling was unable to state the production closing date in April 1965, his attention
being directed to Friday, April 30, then "guessed" it would be the 23d because there was
no Saturday in April after the 30th. His attention was directed to the fact that there
was a full week, including a Saturday, in May, after May 21 ; he then asserted: "I do
not know, sir , except it becomes a full week [sic] from the 23d of April to the 21st of
May. These production periods are generally of a 4-week length."
Gehling then asserted the last production period goes to June 30, "the end of the last
full year."
I am constrained to find that Gehllng had no accurate knowledge of production - closing
dates.
u The evidence is that 20 were hired in March : 8 in machine operations ; 10 in inven-
tory ; 1 In maintenance ; 1 In miscellaneous ; and none in punch cutting and inspection.
In April 38 were hired : 9 In machine operations ; 22 in maintenance; 2 In inspection;
2 in punch cutting; 1 miscellaneous ; and 2 in inventory. In May 13 were hired: 5 in
machine operations ; 3 in punch cutting ; 3 in miscellaneous ; 2 in inventory; and none
in inspection . In June 13 were hired: 6 in machine operations; 1 in inspection'; 2 in
punch cutting; 2 in maintenance ; 2 in miscellaneous ; and none in inventory.
25 Batch acknowledged that the inspection Dinkle was doing required the use of a gauge,
and testified:
Q. Are you saying that Mr . Dinkle didn't know'how to•use a gauge?
A. I am , sir. But may I qualify that last answer?
Q. Please.
A. For production purposes we cannot spend as much time as he was taking.
Q. Was he capable of picking out a bad matrix?
A. Yes. In extreme cases, the borderline ones, he could not decide.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs," that Dinkle spent 5 or 6 weeks at bench inspection. Batch related that the
training included teaching an individual how to read a gauge and a micrometer.
Batch acknowledged that learning to read a micrometer is quite easy to teach. Batch
was asked what educational experience Respondent required. He responded that
generally Respondent has to be sure they can read and have good eyesight. Batch
asserted "our requirements are rather low at present and we haven't been able to do
well but if we can get a high school graduate you can consider yourself real lucky."
I credit Dinkle's denial that he had any trouble with depth inspection as related
by Batch. Dinkle related that in February or March 1965 he was offered an oppor-
tunity to go into business. He advised Batch of the opportunity. Dinkle related that
Batch advised him that sometimes such enterprises do not work out too well, and that
Batch hoped that he would stay at Respondent's plant. Batch did not dispute these
assertions, which I credit.
Concluding findings
The single question to be resolved is whether the discharges of McNeil and Dinkle
were discriminatorily motivated.
Respondent asserts that none of the others who attended the union meeting on
May 11, 1965, were discharged. I find this fact of no consequence.
Respondent urges that General Counsel's case rests solely on "timing" of the
discharges in relation to the union meeting and, in practical effect, would establish
an immunity from discharge for an indeterminate period on the part of employees
who attend union organizing meetings. Respondent urges that General Counsel thus
would have me adopt a per se rule, which the Board continually disavows, and which
has been specifically. declared improper by the United States Supreme Court. The
facts revealed by this record, and the proper and appropriate conclusions to be drawn
therefrom, cannot be so simply stated.
The record reveals that Respondent was, in fact, aware of the first organizing meet-
ing of the employees, held on the evening of May 11, prior to the time of the meet-
ing.26 On the evening of May 11, the plant superintendent and two foremen observed
McNeil and Dinkle, and other employees, leaving the place of the meeting. The
following day, May 12, Foreman Gargiulo interro ated one of the employees who
had attended the meeting and threatened a plant removal, in the event the employees'
efforts to organize were successful. It is undisputed that on May 14 Plant Manager
Neale made an.antiunion speech to the assembled employees,27 albeit itis•not„asserted
that the speech was violative of the Act. Subsequently, Respondent further demon-
strated its union animus by other conduct which I have found to constitute inter-
ference, restraint, and coercion, in the nature of interrogations and promises of
economic benefits.
I find it unnecessary to determine the validity of Respondent's assertions that it
was decided on May 10, 1965, 1 day before the first union meeting, to suspend the
proofing operation"towards the end of the production closing date in May, 1965."
While Respondent was unable to satisfactorily explain with any accuracy the method
of determining or arriving at the actual production closing date in May, I find it
unimportant. Respondent, it may be concluded, recognized that the shutting down
of a proofing operation did not, in and of itself,,require the termination of,the services
of McNeil. No claim is made that the variety of duties performed by McNeil, prior
to her transfer to the proofing operation, were not satisfactorily performed. Such a
result must obtain, in view of her undisputed assertion that she was never reprimanded,
and in fact, to the contrary, was commended for some of her performance.
Inconsistently, Respondent would imply that McNeil was laid off only because the
proofing operation was being shut down, since it could reasonably be implied that
absenteeism was not a factor during the preceding 30 days. Absenteeism can be
characterized as an alternative justification, in Respondents view, for failure to
In the words of Turano :
Q. Now, you said you heard there was going to be a meeting that night?
A. That's right.
Q. Where did you hear that'
A. On the floor at the'plant.
Q. Whom did you hear it from?
A. A couple of people on the floor: . , , .
Q. They came up and told you that? -
A. That's right.
27 Among other assertions , Neale said: "I am also sure everything will come out 0 K. If
we do not allow some disinterested professional union organizers , who are outsiders, to
interfere with what we are trying to build together." -
INTERTYPE COMPANY 1431
transfer an otherwise obviously competent employee. There is, no evidence of any
plant rule relative to absenteeism . There is no evidence that McNeil was ever
warned that her absenteeism might result in her discharge. McNeil performed, -pre-.
sumably, satisfactorily for 30 days after her return from her last illness. While it:
may be correctly urged that McNeil's absences encompassed more individual work--
days than those of Hepler, on May 20, 1965, the fact is that Hepler, on that date, had'
been absent for a greater number of total hours, and for a substantially longer con-
tinuous period of time. Hepler is still employed. Respondent made no effort to,
explain this disparity of treatment.
It is undisputed that at the time of the release of McNeil, and subsequently thereto,
Respondent was encountering difficulty acquiring new employees with sufficient native
ability to be able to undertake the essential training. Batch acknowledged it only
required 2 or 3 weeks to train an individual at any of the inspection jobs. Accord-
ingly, I find that the reasons assigned for the discharge of McNeil, i.e., the termination
of the proofing operation and her absenteeism, were pretextuous, and that the real
motivation for her discharge was her known union sympathies and activities.28
What has been said relative to McNeil has equal application to the circumstances
surrounding the discharge of Dinkle. Respondent, acknowledging Dinkle's years of
experience in the printing industry, particularly as a Linotype operator, seems to assert
that he did not have the competence essential to do inspection work, which admittedly
could be taught to an individual without high school education in the period of 2 or
3 weeks. It is undisputed that the discharge, in theory for lack of work Dinkle could
do, came at-a time when Respondent was employing untrained and unskilled individ-
uals to do work previously performed by both Dinkle and McNeil. I find the conten-
tion implausible in the light of the facts disclosed by this record.
The Board has found a discharge discriminatorily motivated by reason of the
unconvincing character of the reasons adduced to support the discharge including the
timing of the discharge. Pacemaker Corporation, 120 NLRB 987, 991.
Speaking for the court, Medina, C.J., has said "the unexplained coincidence of
time with respect to the principal events was really no coincidence at all, but rather
part of a deliberate effort by the management to scotch the lawful measures of the
employees before they had progressed too far toward fruition.... If employees are
discharged partly because of their participation in a campaign to establish a union and
partly because of some neglect or delinquency, there is nonetheless a violation of the
... Act." N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725 (C.A. 2).
The existence of some justifiable grounds for discharge and layoff is no defense if
it is not the "moving cause." Wells, Incorporated v. N.L.R B., 162 F. 2d 457, 460
(C.A. 9).
In view of the above facts, and upon the entire record as a whole, I believe and
hold that Respondent's purported reason for discharging McNeil and Dinkle was
pretextuous, and the real reason and "moving cause" was the known union and con-
certed activities of said employees, and said discharges constituted discrimination
with respect to their hire and tenure of employment, to discourage membership in
the Union, in violation of the provisions of Section 8 (a) (3) and (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 connec-
tion with the operations of the Respondent 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 obstructing commerce and the free flow of
commerce. -
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discharged Armilda McNeil and Lewis Dinkle because of their
union activities, I shall recommend that Respondent offer to each of them immediate
and full reinstatement to the former or substantially equivalent position of each, with-
out prejudice to their seniority and other rights and privileges, and make each whole
for any loss of pay he may have suffered by reason of Respondent's discrimination
against him, by a payment to each of a sum of money equal to that which he normally
would have earned as wages from the date of the discharges, May 20, 1965, to the date
when, pursuant to the recommendations herein contained, Respondent shall offer each
"sSee Customer Control , Inc., 133 NLRB 1649, 1653 ; ef. Tennessee Pokers, Inc.,
Frosty Morn Division, 143 NLRB 494.
V,
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement , less the net earnings during said period . Said backpay shall be com-
puted on a quarterly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set
forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716.
I shall also recommend that Respondent be ordered to make available to the Board
or its agents , upon request, payroll and other records to facilitate the checking of the
amount of earnings due.
In view of the nature of the unfair labor practices committed , the commission of
similar and other unfair labor practices reasonably may be anticipated. I shall there-
fore recommend that the Respondent be ordered to cease and desist from in any
manner infringing on rights guaranteed its employees by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in this case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. By engaging in the conduct set forth in the section entitled "Interference,
Restraint, and Coercion," to the extent therein found, the Respondent has engaged in,
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. By discriminating with respect to the hire and tenure of employment of Armilda
McNeil and Lewis Dmkle, thereby discouraging the free exercise of the rights guaran-
teed by Section 7 of the Act, and discouraging membership in or activities for the
above-named labor organization , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that Intertype Company, a Division of Harris-
Intertype Corporation, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America, AFL-CIO, or any other labor
organization of its employees , by discharging or otherwise discriminating against
-employees in regard to their hire or tenure of employment, or any term or condition
of employment.
(b) Threatening economic retaliation if any employee engages in organizational
or other protected concerted activities.
(c) Promising employees a promotion or increase in pay if they will desist from
union activities , or aid in Respondent 's effort to defeat the organizational activities of
employees.
(d) Interrogating employees in a manner violative of the provisions of Section
8(a)(I) of the Act.
(e) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing , and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer to Armilda McNeil and Lewis Dinkle immediate and full reinstatement
to the former or substantially equivalent position of each , without prejudice to their
seniority or other rights and privileges previously enjoyed, and make each whole for
any loss of pay each may have suffered by reason of Respondent 's discrimination
against each in accordance with the recommendations set forth in the section entitled
"The Remedy."
INTERTYPE COMPANY 1433
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due.
(c) Post at its place of business in Winchester, Virginia, copies of the attached
notice marked "Appendix." 29 Copies of said notice, to be furnished by the Regional
Director for Region 5, shall, after being duly signed by the Respondent, be posted by it
immediately upon receipt thereof and maintained for 60 consecutive days thereafter
in conspicuous places, including all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply with the fore-
going recommendations.
It is further recommended that unless within 20 days from the date of the receipt of
this Trial Examiner 's Decision , the Respondent shall notify the said Regional Director,
in writing, that it will comply with the foregoing recommendations,30 the National
Labor Relations Board issue an Order requiring Respondent to take the aforesaid
action.
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" will be substituted for the words "a Decision
and Order."
"In the event this Recommended Order be adopted by the Board, this provision shall
he modified to read: "Notify said Regional Director, In writing, within 10, days from
the date of the Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO,
or any other labor organization of our employees, by discriminating in regard
to their hire or tenure of employment , or any term or condition of employment.
WE WILL NOT threaten economic retaliation if any employee engages in orga-
nizational or protected concerted activities.
WE WILL NOT promise employees a promotion or increase in pay if they will
desist from union activities , or aid in the Company's efforts to defeat the
employees ' organizational efforts.
WE WILL NOT interrogate employees in a manner violative of the provisions of
Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their rights to self-organization, to form labor orga-
nizations , to join or assist the above -named or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage
in any other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any and all such activities.
WE WILL offer to Armilda McNeil and Lewis Dinkle immediate and full rein-
statement to the former or substantially equivalent position of each , without
prejudice to their seniority or other rights and privileges, and make each whole
for any loss of pay that he may have suffered as a result of our discrimination
against him.
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of the above-named Union or any other labor organization.
INTERTYPE COMPANY, A DIVISION OF
HARRIS-INTERTYPE CORPORATION,
Employer.
Dated -------------------- By-------------------------------------------
(Representative ) ( Title)
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office, Sixth Floor,
707 North Calvert Street , Baltimore , Maryland , Telephone No. 752-2159.
F. W. Means & Company and Local 319, Amalgamated Clothing
Workers of America, AFL-CIO. Case No. 25-CA-20168. April 5,
1966
DECISION AND ORDER
On November 23,1965, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent and the Charging Party filed exceptions
to the Trial Examiner's Decision and briefs in support thereof. The
General Counsel filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that they are
consistent herewith.
As described more fully in the Trial Examiner's Decision, Local 319,
Amalgamated Clothing Workers of America, AFL-CIO, (herein
called Local 319) and Respondent have, since 1960, been parties to
1 During the course of the hearing in this case , the Board granted an interlocutory
appeal by the General Counsel from rulings of the Trial Examiner refusing to allow the
General Counsel to make offers of proof. The Board directed the Trial Examiner to
permit the General Counsel to make the offers of proof . The Trial Examiner neverthe-
less thought it necessary in his Decision to criticize this ruling by the Board at some
length. Such comment was , in our opinion , completely inappropriate . We particularly
note with concern the Trial Examiner's misstatement as to the scope of the ruling, and
the complete absence of justification for his statement "that a Trial Examiner is powerless
to prevent a cluttering of the record to prevent interminable delay by patently frivolous
offers of proof."
157 NLRB No. 27.